Retarded Killer’s Case Before Justices

The Supreme Court, in a surprise move, said Monday that it will reconsider whether executing a person who is mentally retarded violates basic standards of decency.

Lawyers for a North Carolina inmate said putting to death a person who has the mental capacity of a child represents unconstitutional “cruel and unusual punishment.”

This is not a new argument. The high court rejected it on a 5-4 vote in 1989. There is no “national consensus against the execution of the mentally retarded,” Justice Sandra Day O’Connor said then.

Picking up on that theme, lawyers for the North Carolina death row inmate, Ernest Paul McCarver, argued that society’s attitude concerning the execution of the retarded has shifted considerably in the past decade.

In 1989, only two states--Georgia and Maryland--specifically prohibited the death penalty for convicted killers who are mentally retarded. Since then, 11 additional states have adopted such bans. The lawyers also pointed to polls showing that most respondents oppose the death penalty for retarded defendants, even when they strongly support it for other killers.

“It is time for this court to assess whether American society has changed significantly over the past decade so that the execution of the mentally retarded now violates American standards of decency,” attorney Seth Cohen of Greensboro, N.C., wrote in a last-ditch appeal that was filed hours before McCarver was to die. On March 1, the high court intervened to block McCarver’s execution.

And on Monday morning, the justices announced that they had voted to hear Cohen’s broad argument against executing retarded defendants.

McCarver faced death for the 1987 stabbing murder of a 71-year-old cafeteria worker. Prosecutors said McCarver, then 26, robbed the elderly man and killed him so there would be no witnesses.

During the trial, state attorneys questioned whether McCarver was truly retarded. His IQ had been measured in the 70 to 80 range, which is below normal but not evidence of retardation.

More recently, McCarver’s lawyers had him retested and now say he has an IQ of 67, which would be considered by most experts as retarded.

The difficulty of deciding who is retarded troubled the court in the 1989 case and may do so again when the justices take up the issue in the fall (McCarver vs. North Carolina, 00-8727).

Monday’s announcement came as a particular surprise because the court is scheduled to hear arguments today in the case of Johnny Paul Penry, a retarded Texas inmate who was the focus of the 1989 ruling.

Penry has a tested IQ of 63, and he has told jailhouse interviewers that he still believes in Santa Claus.

In 1979, he was on parole for a rape when he stabbed a woman to death. “I want to get it off my conscience,” Penry told police. “I done it.”

He was found competent to stand trial and was convicted. The trial revealed that Penry had been tortured by his mother, who believed him to be illegitimate and kept him in a locked room. At age 15, he was sent to a state school for the mentally handicapped.

Nonetheless, a Texas jury said that he represented a continuing danger to the community and sentenced him to die. When his case first reached the high court, the justices were sharply split. The four liberals on the court wanted to end the death penalty for retarded defendants. The four conservative members voted to uphold it, including in Penry’s case.

Holding the middle spot, O’Connor agreed with the conservatives that the death penalty was constitutional for all retarded defendants. But she voted with the liberals to spare Penry, doing so on narrow grounds. The Texas jurors must be told to at least consider Penry’s mental retardation as a possible reason for sparing his life, she said.

But when the case went back to Texas, Penry was retried and sentenced to death again. Today, his lawyers will be back before the high court to argue that the Texas courts ignored the 1989 ruling and did not adequately consider Penry’s mental disability.