Executing Retarded: Still Decent?

Twelve years ago, the U.S. Supreme Court concluded that “evolving standards of decency” in the United States did not bar the execution of a mentally retarded man. Now, as Americans increasingly voice doubts about the death penalty, the court is revisiting the issue in two cases. This time, we hope the justices, who have shown an unseemly zeal in upholding the death penalty in recent years, change their minds.

Tuesday the high court heard arguments in the case of a Texas killer who tests at the mental age of 7 and says he still believes in Santa Claus. This is the second time around for Johnny Paul Penry; in 1989 the court threw out his murder conviction and ordered a new trial on the grounds that juries in capital cases must be allowed to consider evidence of mental retardation as a basis for sparing a defendant’s life.

Penry has since been retried, convicted and sentenced to die. Tuesday the court heard a challenge to the adequacy of the jury instructions about Penry’s mental capacity.

More fundamental questions about the constitutionality and basic decency of executing the retarded confront the court in an appeal by Ernest Paul McCarver. The North Carolina death-row inmate was convicted in the 1987 stabbing murder of a 71-year-old cafeteria worker during a robbery. His lawyers argue that McCarver has the mind of a 10-year-old and that because of his diminished mental ability it is cruel and unusual punishment to require that he be executed.

Monday the court announced it will hear McCarver’s appeal. The justices had issued a stay March 1 when McCarver was within hours of being executed. His case won’t be argued until the court’s new term begins next fall, and a decision might not come until early 2002.

Thirteen states specifically prohibit the death penalty for convicted killers who are mentally retarded, up from two when the court last considered this issue. California has no prohibition, although the state penal code permits juries to consider a defendant’s “capacity to appreciate the criminality of his conduct” as a mitigating factor in sentencing.

In asking the justices to hear his case, McCarver’s lawyers argued that “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.” We think it surely does.

The exoneration of several death-row inmates through the use of DNA evidence in recent years, along with reports of assembly-line death trials in some states, has seeded gnawing doubts about the fairness with which the death penalty is applied. Executing mentally retarded defendants raises even more profound constitutional and moral questions that should trouble all Americans.