“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.