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CNN's Charles Bierbauer on executing the mentally retarded

Charles Bierbauer

Q: The U.S. Supreme Court heard the Johnny Paul Penry case once before in 1989, and ruled that the Constitution does allow the execution of mentally retarded killers. Why is the Court revisiting this case?

ALSO Death row inmate Johnny Penry talks to CNN  COURT REPORT with Charles Bierbuer • Is death row any place for the mentally retarded?  VIDEO A review of Johnny Paul Penry's case as it related to the overall issue, from CNN's Charles Bierbauer Play video (QuickTime, Real or Windows Media)  MESSAGE BOARD Death penalty

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Bierbauer: In 1989, the Court sent the case back to Texas with instructions to consider the mitigating circumstances in Penry’s case, like his mental retardation and severe abuse by his mother when he was a child. But the case returned to the US Supreme Court because Penry’s lawyers contend that a Texas jury was not adequately instructed on how it could consider those circumstances. At the time, Texas law allowed a jury to answer only three questions: Was the murder committed deliberately? Was it an unreasonable response to provocation? Was Penry a continuing threat to society?

The jury answered each of these questions with a ‘yes.’ In order to give Penry a life sentence rather than the death penalty, the jury would only have had to say "no" to one of those questions.

Penry’s lawyers argued that the jurors could not, even if they concluded there were mitigating circumstances, could not have honestly answered no.

So the case came back to the Supreme Court to determine whether a Texas jury has to consider the sentence one more time.

Q: The Court has also agreed to hear the case of Ernest McCarver, a North Carolina death-row inmate. How are the Penry and McCarver cases similar, and how are they different?

Bierbauer: In 1989, the Supreme Court found that the Eighth Amendment prohibition on cruel and unusual punishment could be applied to a defendant with mental retardation. But it ruled that it could not conclude then that someone of Penry’s ability should not be executed.

Justice O’Connor, writing the court’s opinion, said "evolving standards of decency" could at some time change the Court’s view. In 1989, only two states with death penalties, Georgia and Maryland, prohibited executing the mentally retarded. Today, 13 of the 38 states with the death penalty consider that a cruel punishment.

The Court, in agreeing to hear Ernest McCarver’s case said it would assess whether a national standard has evolved since it first heard Penry’s case.

Q: Could these cases influence each other?

Bierbauer:Yes, they could. McCarver’s case will be heard probably in November, by then, the Justices should have ruled in the Penry case. But it is unlikely they would send Penry to be executed until they have resolved the McCarver case. This doesn’t mean he won’t be, but they could certainly defer a final judgment, or send it back to the lower court for further consideration.

Robert Smith, speaking out side of the Supreme Court after Tuesday’s arguments said, "If it (the Supreme Court) is ready to decide that the execution of the mentally retarded is always unconstitutional, that should save my client’s life."

Q: Have the parents or family of Pamela Moseley Carpenter, who was raped and murdered by Penry, said anything about this appeal?

Bierbauer: Yes. Carpenter’s brother, Mark Moseley, and her niece, Ellen Moseley May, were in court for the arguments and said afterward that they believe Penry is more capable than he is perceived to be. "He knew exactly what he was doing. He stated, ‘I knew if I went over there, I would have to kill her because I didn’t want to get caught.’ Ellen May said."

Q: What is the main concern of people who support the death penalty even for the mentally retarded?

Bierbauer: Mostly, I think these people just want to be sure that the mentally retarded convicted of capital cases never get out. Their concern is what if Penry, or someone like him, gets a life sentence but receives a pardon. Their fear is that if not given the death penalty, the convicted mentally retarded will be freed; their concern is that life in prison does not always mean life in prison.

We not infrequently see cases come to the Supreme Court regarding the question of what did the jury understand its options to be when it considered the sentence. We have seen cases, particularly in capital cases, where jurors were not sufficiently informed that in lieu of the death penalty, they could assess life with no parole.

If there is any clarification that needs to be spelled out to jurors and the public, it is when a defendant can be locked up for the rest of his or her life without any hope of being set free.

There is the life sentence that can be commuted, and then there is the life sentence without parole. People want to know if there is any way this latter sentence can be reduced. If they know it is an ironclad sentence, it presents an option to the death penalty. If it is rubbery, they fear someone will slip between the bars.

U.S. Supreme Court to review death penalty for retarded
March 26, 2001
U.S. Supreme Court rejects emergency appeals in Texas double execution
August 9, 2000

Web site by Pamela Moseley Carpenter's family
MurderVictims.com
National Center for Victims of Crime
Justice For All
ACLU and Death Penalty
Death Penalty Information Center
American Association on Mental Retardation

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