"Idiots and lunatics are not chargeable for their own acts, if committed when under these incapacities," wrote famed legal commentator Lord Blackstone. But Lord Blackstone lived in England, not Texas, and he never heard of Johnny Paul Penry. Last year, Penry, a Texas death-row inmate with an IQ in the neighborhood of 54, came within four hours of execution when the US Supreme Court issued a stay. On June 4, for the second time in twelve years, the Court overturned Penry's death sentence.
As Supreme Court rulings go, this was a narrow decision that left the fundamental law unchanged. Executions of the retarded proceed apace. Justice Sandra Day O'Connor, writing for a six-Justice majority, found only that Penry's trial judge had given the jury confusing instructions about how to consider Penry's retardation, making it "logically and ethically impossible" for jurors to conceive a "reasoned moral response" to his mental capacity. It was the second time O'Connor and the Court had considered Penry's case. The last time, in 1989, she wrote the majority opinion ordering a new trial--the subject of this week's ruling--because Penry's first jury had not been permitted to consider his mental retardation at all.
Left for another day was the question of whether execution of someone like Johnny Paul Penry, with an intellectual age of 6, is morally reasonable at all. But that day may not be far off. On the desk of Texas's new governor, Rick Perry, awaiting his signature sits a bill passed by the legislature to ban execution of the mentally retarded outright.
In Austin this week, prosecutors are pushing Perry to veto the ban before June 17, when it automatically becomes law. Perry is caught on the longhorns of a singularly Texan dilemma: Call it the Penry Problem. On the one hand, like other Texas politicians he has built his career on support of the state's unrivaled capital punishment record. On the other hand, Governor Perry has the ability to count, and what he is counting is recent polling data showing Texans overwhelmingly revolted by execution of retarded inmates like Penry, who at 45 still believes in Santa Claus.
Until recently, the standard Texas way of dealing with a capital punishment problem has been to pretend it doesn't exist. George W. Bush, you'll recall, repeatedly denied the possibility that any of the 246 inmates (as of May 2001) put to death in Texas might have been innocent--despite the fact that eight innocent inmates have been exonerated and freed from Texas's death row since 1987, the most recent this year. Governor Perry and state Attorney General John Cornyn are playing the same game with retardation: They claim that neither Penry nor any of the other five Texas death-row inmates with IQs below 70 are actually retarded, even though 70 is a universally recognized cutoff for measuring normal adult mental capacity.
Governor Perry's endorsement of this mind game is especially notable since he personally signed off on one of the more disturbing executions of a retarded defendant in recent years. Oliver Cruz was convicted in 1988 of participating with an accomplice in the rape and murder of a young woman named Kelly Donovan. Cruz received his death sentence thanks to the plea-bargain testimony of his decidedly unimpaired accomplice. On the other hand Cruz, with an IQ of 64 and a family history of schizophrenia, was in no position to bargain. Instead, he waived his Miranda rights and confessed--a confession accepted by the courts even though the police officer who took it admitted on the stand that Cruz had no capacity to understand the words in his Miranda warning or what waiving rights might mean.
Cruz's sentencing was especially notable because the prosecutor turned his mental impairment into the reason for his execution: "It makes him, in fact, more dangerous," said the prosecutor at Cruz's sentencing hearing. "It's part of the outlook of Oliver Cruz that makes him what he is." After twelve years of appeals, Cruz was executed last year, not in spite of his retardation but because of it. It was an execution approved by then-Lieutenant Governor Perry sitting in for the campaigning George W. Bush.
Time is running out on the Orwellian thinking of Perry and the Texas prosecutors. Justice O'Connor's 1989 Penry ruling earned an entry in legal reference books because the Court refused to ban execution of the retarded outright. O'Connor wrote that with just two states prohibiting execution of the retarded, there was "insufficient evidence of a national consensus" to rule it out of bounds as unconstitutionally cruel and unusual punishment. Twelve years later, the landscape has changed, with the Texas legislature's bill--which O'Connor pointedly mentioned in a footnote--only the most recent indication. Connecticut's General Assembly banned execution of the retarded in early June, the third state to act in the past twelve months; altogether, fourteen other states and the federal government now forbid execution of the severely mentally impaired.
This is a political, not a judicial, development. It is driven by recognition even among the ranks of some death-penalty supporters--like many of those Texas legislators--that execution of the retarded is more than just an abstract moral outrage: It exposes the inequity and cruelty that is the essential scaffolding of capital justice. Mental retardation and the special suggestibility of the impaired are responsible for a large number of false death sentences, most recently that of Ronnie Burrell, exonerated and released after fourteen years and one near-execution from Louisiana's death row in January. The stories are hair-raising--take that of Earl Washington of Virginia, with an IQ between 57 and 69. After a long police interrogation in 1983 Washington confessed to a whole series of crimes he hadn't committed: a burglary, a rape and a fatal stabbing, the last of which landed him on death row. It took until 2000 before DNA tests fully exonerated him.
The Supreme Court itself may be preparing to reconsider execution of the retarded in a North Carolina case scheduled for a hearing next fall. O'Connor's ruling in the Penry case gives little indication of where she and Anthony Kennedy--the Court's current swing votes in death cases--may fall: On the one hand, O'Connor used some remarkably astringent language to describe the "capriciousness" of Penry's second death sentence and the failure to follow the guidelines laid out in her first Penry decision. And the presence of O'Connor's footnote mentioning the pending Texas bill--of little relevance to the Penry arguments--suggests she may be ready to give the "consensus" argument a new day in court. On the other hand, this remains a Supreme Court majority in which limitations on execution are the exception rather than the rule.
Whatever Governor Perry decides in the coming days, and wherever the Supreme Court heads in the coming months, momentum has clearly shifted against execution of the retarded. Yet for death-penalty abolitionists, this welcome development also poses some strategic perils. As death-penalty scholar Hugo Adam Bedeau of Tufts University has written, throughout American history proponents of capital punishment have often dulled calls for abolition with a few token legal reforms, such as the creation of degrees of murder in Pennsylvania in the early nineteenth century. Bedeau writes that "the dominant (if often tacit) concern of the defenders of capital punishment" has been "to shape the law and the administration of the death penalty so as to winnow the worst offenders...and so, by this compromise, to prevent the complete abolition of capital punishment." Some significant pro-execution politicians are already thinking along these lines: Florida Governor Jeb Bush, for instance, says he supports that state's pending version of the mental-retardation ban, and the governor has reportedly been advising Perry about how to proceed. Mental retardation, like innocence, is a focal point for public outrage--but it could also be the end of that outrage, as Jeb Bush understands. It is up to abolitionists to insure that inmates like Johnny Paul Penry mark the beginning, rather than the end, of the argument about "reasoned moral" executions.