Spared by Their Low IQ

By Richard Lacayo

From the moment the Supreme Court ruled last week that states are forbidden to execute the mentally retarded, it was plain that the decision would affect people in the most dramatic way possible. It was certainly plain in Conroe, Texas, where Johnny Paul Penry, 46, was facing a sentencing trial for the 1979 stabbing death of Pamela Moseley Carpenter, then 22, the sister of former Washington Redskins kicker Mark Moseley. Penry was first convicted in 1980, but his attorneys have long claimed that he has the reasoning ability of a 6- or 7-year-old. In 1989 the Supreme Court threw out his conviction, ruling that juries must be allowed to consider the mental capacity of convicted killers when deciding whether to put them to death. Texas rewrote its sentencing rules. There were two more trials, two more convictions.

Texas state district judge Elizabeth Coker was presiding over Penry's latest sentencing trial when the Supreme Court ruling came down. "The judge dismissed the jury for a couple of hours while she interpreted the decision," says Dianne Clements, president of Justice for All, a victims' rights group. "It was really emotional seeing the family of Carpenter, who were all expecting this man to receive the death sentence that he so deserves."

For now, Judge Coker has ordered that the trial proceed, but has decided to schedule a hearing at which both sides can present arguments on whether Penry is mentally retarded. There will be lots more such arguments to come, in many more cases, in many more states. The high court's 6-3 ruling in Atkins v. Virginia means that all 20 states that allowed the execution of retarded killers will have to develop rules to determine just who is mentally deficient. An IQ of 70 or below, the absence of adaptive skills such as dressing oneself or making change, and the manifestation of impairment before the age of 18 are common measurements. Daryl Atkins, 24, the killer in the Supreme Court case, was convicted of taking part in the 1996 robbery and murder of Eric Nesbitt, a U.S. airman. A forensic psychologist who treated Atkins concluded he has an IQ of 59, but prosecutors dispute that finding.

The high court's decision is a sign that after years of allowing states ever freer rein to carry out executions, the Justices are now having second thoughts, mostly based on their reading of public sentiment. As a rule, the court is supposed to stand above shifts in the national mood. But its long struggle to decide what constitutes cruel and unusual punishment has hinged upon its reading of what American society defines as acceptable. Popular support for the death penalty these days remains high, at 65%, but that is down from 80% in 1989. Some of the change probably stems from the repeated spectacle of death-row inmates being exonerated by newly available DNA tests and other evidence. In April the number of the recently freed reached 100. Seth Waxman, a solicitor general under President Bill Clinton, says, "On this aspect of the Constitution, the Supreme Court is a follower, not a leader."

The last time the court considered the question of executing the retarded was in Penry's case in 1989. At that time just two states, Georgia and Maryland, forbade it. Now 18 do--almost half the number, 38, that permit capital punishment. In the majority opinion he wrote last week, John Paul Stevens called that a "dramatic shift in the state legislative landscape." Antonin Scalia, who wrote for the dissenters--Chief Justice William Rehnquist and Clarence Thomas were the other two--declared that the majority's decision rested upon nothing but "the personal views of its members."

About 3,700 inmates now sit on death row. How many may be retarded? No one is sure, but states that formerly allowed them to be executed are bracing for a flood of petitions claiming mental incapacity. In Texas the Dallas Morning News' review of the state's 455 death-row inmates identified at least 20 who raised mental deficiency as an issue at trial or on appeal. North Carolina adopted a ban on executing the retarded last August. Ken Rose, the executive director of the North Carolina Center for Death Penalty Litigation, says that of the 213 condemned killers in his state, "about 50" have petitioned for retrial on that basis.

Brian Corbett, a spokesman for the Alabama Board of Corrections, says that prior to the high court's ruling, only one of that state's 187 condemned killers had raised the issue. But now he expects many more. "I heard someone say that if a death-row inmate does not raise the issue now, he should have his IQ checked."

--With reporting by Michael Duffy/Washington, Nadia Mustafa/New York and Adam Pitluk/Dallas

With reporting by Michael Duffy/Washington, Nadia Mustafa/New York and Adam Pitluk/Dallas