The US Supreme Court has docketed for argument this Fall (with a decision likely by June 2002) a case in which it will reconsider the constitutionality of executing the mentally retarded, McCarver v. North Carolina .
In 1989, in Penry v. Lynaugh (Penry I ), the US Supreme Court held 5-4 that executing persons with mental retardation is not a violation of the Eighth Amendment's "cruel and unusual punishment" proscription. The Court held that a "national consensus" had not developed against such executions, which at that time were prohibited by only two states, Georgia and Maryland. The Court reversed Penry's sentence, however, and remanded for a new penalty phase trial, declaring that a jury must be instructed to consider any evidence of mental retardation as a possible mitigating factor.
Presently, 38 states (plus the federal government, including Puerto Rico under a recent ruling, and the US military), have the death penalty; of these, only New Hampshire has no one currently under sentence of death. (The twelve states with no death penalty are: Alaska, Hawaii, Iowa, Maine, Massachusetts, Michigan, Minnesota, North Dakota, Rhode Island, Vermont, West Virginia and Wisconsin. The District of Columbia also does not have the death penalty.)
Of the 38 death penalty states, sixteen by statute bar execution of the mentally retarded: Arizona, Arkansas, Colorado, Florida, Georgia, Indiana, Kansas, Kentucky, Maryland, Missouri, Nebraska, New Mexico, New York (except for murder by a prisoner), South Dakota, Tennessee and Washington. Missouri became the fifteenth state in May 2001, and Florida the sixteenth in June 2001. Connecticut has become the seventeenth state with Governor John Rowland's signature of legislation exempting the mentally retarded from execution just prior to press time. At least seven other states have similar legislation under consideration. The statutory criteria for mental retardation vary somewhat. The federal death penalty also excludes the mentally retarded.
On the other hand, in June 2001, the governor of Texas vetoed legislation in that state that would shield the mentally retarded from capital punishment. Explaining his veto, Governor Rick Perry declared: "This [bill] tells the citizens of this state, 'We do not trust you to get it right.' This legislation is not about whether to execute mentally retarded murderers. We do not execute mentally retarded murderers. It's about who makes the determination." Death penalty opponents disagree; the Death Penalty Information Center contends that six of the 247 prisoners executed in Texas since 1982 were mentally retarded, most recently Oliver David Cruz in August 2000 (and that nationwide since 1976 there have been 35 executions of the mentally retarded).
After the reversal of his death sentence in 1989 in Penry I , Johnny Paul Penry was retried as to penalty and resentenced to death, and his appeal once again worked its way up to the US Supreme Court, Penry v. Johnson (Penry II ). On June 4, 2001, the Court again reversed and ordered a new penalty phase trial because of a potentially confusing instruction as to exactly how the jury might weigh the defendant's alleged mental retardation along with other factors. (Texas has since amended its form instructions on this issue, yielding greater clarity and winning tepid approval from the Penry II majority.) The Court did not reach the broader argument that executing Penry, who has stated he believes in Santa Claus and whose lawyers allege he has the mental capacity of a six-year-old, would be per se unconstitutional due to his mental retardation.
McCarver v. North Carolina squarely presents that issue. Ernest Paul McCarver and another man ambushed and killed an elderly acquaintance of McCarver's on January 2, 1987. The motive seems to have been primarily revenge, in that McCarver suspected the victim of having been responsible for revocation of McCarver's probation some three years earlier, though the victim was also robbed of a few dollars.
At trial, one of the defense witnesses, a forensic psychologist, testified that McCarver "suffer[ed] from borderline intellectual functioning with the intellectual and emotional capacity of a ten- or twelve-year-old . acute depression throughout his life . substance and alcohol abuse disorder stemming from his childhood experiences . a personality disorder that was a direct consequence of sexual abuse as a child and a total lack of nurturing ... a history of passive orientation and ... that [he] suffered greatly from having been emotionally neglected." There was evidence that McCarver's parents had employed him in burglaries from age four by hoisting him through windows. His IQ has tested at 67.
McCarver's brief cites "society's newly evolved consensus against executing the mentally retarded."
Amicus briefs supporting McCarver's position have been filed by, among others: (a) the American Bar Association, which has officially opposed capital punishment for the mentally retarded since Penry I ; (b) a group of former US foreign embassy chiefs who argue that subjecting the mentally retarded to the death penalty puts the US at odds with most of the world, evoking "daily and growing criticism from the international community" and thereby significantly impeding statecraft; (c) the European Union ("since 1995 only three countries in the world are reported to have carried out executions of mentally retarded defendants: Kyrgystan, Japan and the United States"); and (d) jointly, the American Psychological Association, the American Psychiatric Association and the American Academy of Psychiatry and the Law ("with respect to the potential blameworthiness that can attach to their actions, children and persons with mental retardation share the same critical characteristic: diminished intellectual and practical capacities compared to non-retarded adults").
The Court's litmus on whether a practice traduces the Eighth Amendment's ban on cruel and unusual punishment is whether it has come to offend society's "evolving standards of decency." There are several indications that the holding in McCarver will be a reversal of Penry I and a ban on capital punishment for the mentally retarded. In the first place, it would be somewhat peculiar for the Court to reenter a fray it previously decided by the narrowest of margins only to adhere to the same position. Second, there is the virtual tidal wave of state legislation since Penry I against executing the mentally retarded, together with the inexorable international crescendo. And finally, the Court has stayed the scheduled March 2001 execution in Missouri of Antonio Richardson, a mentally retarded juvenile (at the time of his crime) - it is rather more likely that the Justices expect their upcoming McCarver decision to resolve Richardson's case, on the mental retardation issue, than that they are eager to plunge into the additional, equally thorny thicket of capital punishment's constitutionality as applied to under-eighteen-year-olds.
Paul Herbert is a forensic psychiatry fellow at Columbia-Cornell; Kathryn Young practices criminal appellate and capital habeas litigation in Los Angeles .