Court Debates Jury Issue in Mental Retardation Case

The Supreme Court took up the case of a retarded death row inmate from Texas on Tuesday--not to focus on his mental disability but rather to decide whether the jurors who sentenced him to die were confused and misled.

During the oral argument, the justices sounded as though they will again reverse the death sentence for the inmate, Johnny Paul Penry. But their decision will not be a landmark in the area of capital punishment and mental retardation. Instead, it is likely to be a repudiation of the Texas criminal courts.

Penry is a rapist and murderer who has the mental ability of a 7-year-old. He was tortured and beaten by his mother before he was sent away at age 15 to a state school for the retarded.

Twelve years ago, when his case first reached the high court, the justices reversed his death sentence on narrow grounds. Justice Sandra Day O’Connor said Texas’ rigid sentencing system was flawed because jurors were not allowed to consider whether Penry’s mental disability was a “mitigating factor.”

Instead, jurors were told to answer three questions: Was the murder deliberate? Was it unprovoked? And does the killer represent a continuing danger to society? Not surprisingly, Penry’s original jurors answered yes to all three, and he was sentenced to die.

After the high court’s 1989 ruling, the case was sent back to the Texas courts. And once again, jurors were asked the same three questions. The second time, however, they were also told they could use Penry’s mental impairment as a reason for answering no to any of the questions, thereby sparing his life.

“It presents an extraordinarily confusing situation,” said New York attorney Robert S. Smith, who represented Penry.

Justice O’Connor agreed. It is “such an odd” way to instruct the jury, she said. “It’s very awkward to say the least.”

The state “is inviting jurors to give a false answer,” commented Justice Ruth Bader Ginsburg.

When deciding on life or death for a murderer, jurors are supposed to engage in a reasoned moral debate, said Justice David H. Souter. “This was not a reasoned moral process. This was an irrational process.”

Only Justice Antonin Scalia came to the state’s defense. He pointed out that the jurors were told, and presumably understood, that they could consider Penry’s mental impairment as a reason for answering no, thereby sparing his life.

“We assume that, even if the defendant is mentally deficient, the jury is not,” Scalia commented.

The outcome in Penry’s case, Penry vs. Johnson, 00-6677, is likely to have little effect, even in Texas. After his second trial, the state changed its sentencing instructions in death penalty cases. Jurors are now given a fourth question that asks whether there is any mitigating evidence that would justify sparing the inmate’s life.

Meanwhile, the high court announced Monday that it will consider the broader question of whether it is unconstitutionally cruel and unusual punishment to execute a mentally retarded defendant. That case, McCarver vs. North Carolina, 00-8727, will be heard in the fall.