A Civilized Decision

The execution of any human is a somber matter and cause for reflection by all. The idea of the state killing a child in an adult body should make civilized people recoil in disgust.

The U.S. Supreme Court this week overturned for a second time the death verdict of a Texas man with the mental capacity of a 7-year-old. It is a good sign that six justices are troubled by Texas jury instructions that leave no room for jurors to spare the life of such a man. The bad news is that the three remaining justices--the court’s hard-right core--appear unconcerned by the prospect of executing a retarded person who likes to play with crayons and coloring books.

Johnny Paul Penry was twice convicted of a 1979 brutal rape and murder. Each time, the jury sentenced him to death, and each time Penry’s lawyers argued that his execution would violate the 8th Amendment’s bar on cruel and unusual punishment. Next term, the court will have a chance to decide directly on the constitutionality of executing someone incapable of understanding the consequences of his actions. That issue is already before Texas Gov. Rick Perry, who must decide soon whether to sign a bill passed recently by Texas lawmakers banning the execution of mentally retarded people.

Monday’s decision was much narrower, centering on the question of whether Texas jurors got clear instructions about how to weigh the defendant’s mental abilities as a possible reason to spare his life. Writing for the majority, Justice Sandra Day O’Connor ruled that they did not. Texas law allows jurors to find that “special issues”--such as whether the defendant intended to kill the victim or if he constitutes a continuing threat to society--can mitigate a death sentence. Justice O’Connor found that “a reasonable juror could well have believed that there was no way to express the view that Penry did not deserve to be sentenced to death based on the mitigating evidence” in his case.

Chief Justice William H. Rehnquist and justices Clarence Thomas and Antonin Scalia disagreed. These dissenters notwithstanding, we see Monday’s ruling as a welcome signal that a majority may be poised to declare that a civilized society has no business executing individuals who are incapable of understanding their actions.