devoting no less than seven pages to what it calls "The Texas Massacre".
On these pages the paper prints 147 mugshots of men and women Mr Bush has sent to the death chamber in Texas since he became state governor five years ago.
| Return to John Paul Penry's Homepage |
Texas Death Sentence Overturned
By Larry Margasak, AP Press Writer
WASHINGTON (AP) -- Texas jurors who sentenced
a retarded killer to death
did not get clear instructions about how
to weigh the defendant's mental
abilities against the severity of his crime,
the Supreme Court ruled
Monday.
The ruling overturned the death sentence
of Johnny Paul Penry, whose
lawyers claim their client has the mind
of a 7-year-old and likes to
play with coloring books.
The case, sent back to a federal appeals
court, does not answer a larger
question about whether the execution of
the mentally retarded is
constitutional. The court has
agreed to use a different case to review
that question next fall.
The vote was 6-3 on the crucial question
of the instructions, although
the court was unanimous in ruling that a
Texas court properly admitted
evidence of Penry's future dangerousness.
Penry was convicted of murdering Pamela
Moseley Carpenter in Texas in
1979. She was the sister of former
Washington Redskins place-kicker
Mark Moseley.
Justice Sandra Day O'Connor writing for
the majority, said the
instructions to the jury were "constitutionally
inadequate" to protect
Penry's rights.
The Texas trial court did not follow previous
Supreme Court guidance
issued when Penry's case reached the court
before on the jury
instruction issue. The earlier
ruling by the high court overturned
Penry's death sentence and he was resentenced
to die a second time.
The second sentencing - as did the first
- left no vehicle for jurors to
express their view that Penry should get
life, not death, based on
mitigating evidence, O'Connor said.
O'Connor wrote that jurors were asked
to vote "no" to specific questions
if they thought the death penalty was inappropriate
- even if their
answers to those questions would have been
"yes."
"The jury was essentially instructed to
return a false answer ... in
order to avoid a death sentence," O'Connor
wrote.
The Texas Legislature recently passed
a bill banning the execution of
mentally retarded persons. Gov. Rick
Perry hasn't said whether he will
sign it. Texas leads the nation in
executions.
State Sen. Rodney Ellis, who sponsored
the bill, has said six mentally
retarded people have been put to death in
Texas since the state resumed
executions. State Rep. Juan Hinojosa
says seven retarded inmtes are on
death row.
Justice Clarence Thomas dissented in the
court's decision, joined by two
fellow conservatives: Chief Justice William
Rehnquist and Justice
Antonin Scalia.
"Without performing legal acrobatics,
I cannot make the instruction
confusing," Thomas wrote.
The Supreme Court made headlines last
fall when it accepted Penry's
latest appeal, in part because death penalty
opponents say juries too
often get inadequate instructions and in
part because of Penry's own
notoriety.
Penry has been in the forefront of the
debate over capital punishment
almost from the moment he confessed to killing
Carpenter.
After a complicated and highly publicized
passage through the Texas
courts, the Supreme Court accepted his first
appeal and in 1989 used his
case to establish two related tenets of
capital punishment practice.
The court ruled then that execution the
mentally retarded is
constitutional, but juries considering the
death penalty must understand
how to weigh retardation as a mitigating
factor.
Penry's case returned to the Texas' courts,
where his lawyers claim the
second jury that sentenced him to death
got no better instructions than
the first.
That is the question the Supreme Court
agreed to review in his case, but
it soon became a sidelight.
One day before the justices heard arguments
in Penry's case in March,
they raised the stakes much higher by agreeing
to hear a separate North
Carolina case that asks the same question
Penry did 12 years ago: Does
executing the mentally retarded violate
the Eighth Amendment prohibition
of cruel and unusual punishment?
If the court reverses itself with that
case and declares that the
retarded must be spared, the issue of proper
death penalty jury
instructions would be irrelevant.
At issue for the court this time was whether
the Texas jury that imposed
Penry's second death sentence understood
its optins. Texas authorities
claimed the instructions were clear, and
that the jury knew it could
impose a life sentence instead of death.
Penry's lawyers claimed the instructions
failed the test the Supreme
Court set out with its 1989 ruling in what
has become known as Penry I.
Texas resentenced Penry in 1990, using
the same verdict form as in the
first trial. The form asked
whether Penry deliberately killed the
woman, whether he was provoked and whether
he was a continuing threat to
society.
The case is Penry v. Johnson, 00-6677.
New York Law Journal - TEXAS:
Last Thursday, Johnny Paul
Penry, an inmate on death row in Texas who
has the comprehension of
a 6-year-old, according to his lawyers, came
within 3 hours of being
executed.
Last minute stays from
the courts in death penalty cases are hardly
unusual. But what
was unusual about Mr. Penry's reprieve from the U.S.
Supreme Court even if only
temporary was that the lawyer in charge of
his legal effort is a self-described
"conservative Republican who
supported George W. Bush
for president."
With a note of irony,
Mr. Penry's lawyer, Robert S. Smith, a litigation
partner at Paul, Weiss,
Rifkind, Wharton & Garrison, remarked that he
was a day late for the start
of the annual Federalist Society meeting in
Washington, D.C., last week
because the looming execution date required
his presence in Texas.
Mr. Smith, 56, is a member
of the predominantly conservative Federalist
Society for Law and Public
Policy Studies, whose 25,000 members are
committed to a limited role
for the federal judiciary. "A lot of
conservatives support the
death penalty a lot more enthusiastically than
I do," he said, describing
his own position as " a little schizophrenic."
Nonetheless, Mr. Smith
said he had little problem reconciling his views
which he categorized as
"not an absolute, hard-core opponent" with a
conservative belief in limited
government.
"There's a problem," he
said, "with the state or community claiming the
right to take someone's
life."
It has been 10 years since
Mr. Smith first signed on to help Mr. Penry's
efforts to avoid execution.
His client claims he should be spared
because of his mental retardation
and extreme abuse suffered in his
childhood.
Mr. Penry was sentenced
to die in 1979 for the rape and murder of a
young women from a prominent
family in Livingston, Texas. The victim,
Pamela Moseley Carpenter,
was the sister of former Washington Redskins
place kicker Mark Moseley.
In a landmark opinion
involving Mr. Penry's case, the U.S. Supreme Court
in 1989 ruled that the Eighth
Amendment's prohibition against cruel and
unusual punishment did not
bar the execution of the mentally retarded.
The Court, however, remanded
the case, finding that the Texas courts had
not allowed the jury to
consider mitigating evidence concerning Mr.
Penry's mental retardation
and childhood abuse.
In a prepared statement,
Texas Attorney General John Cornyn has heatedly
disputed claims that Mr.
Penry is mentally retarded. He is "a schemer, a
planner and can be purposefully
deceptive," Mr. Cornyn charged earlier
this month.
Mr. Smith entered the
case in 1990 agreeing to work on the retrial.
Since then, he and a team
of lawyers and paralegals from Paul Weiss have
logged more than 5,000 hours
on the case. Mr. Smith estimated that
"conservatively" the firm
has donated $1.25 million worth of time to the
case. The 2 lawyers who
have handled most of the brief writing are
Julia Tarver, a 5th-year
associate, and Katherine Puzone, a 3rd-year
associate.
In 1990, the new jury
again sentenced Mr. Penry to die. Another 10 years
would pass in appeals through
the Texas system and the federal district
court before the U.S. Court
of Appeals for the Fifth Circuit ruled in
June that it would not intervene,
thus setting the stage for Mr. Penry's
certiorari petition.
In asking the U.S. Supreme
Court to intervene, Mr. Smith argued that
because Texas law remained
unchanged at the time of the 2nd trial,
the jury never considered
the issues of abuse and retardation, as the
Supreme Court had instructed.
The Texas law required
that at the sentencing stage of the trial, 3
questions be posed for the
jury: Was the killing deliberate? Will the
defendant be dangerous in
the future? And was the conduct of the
defendant excessive when
compared with the provocation by the victim?
Even though the required
mitigating evidence was presented at trial, Mr.
Smith argued, the jury could
not have considered it in attempting to
answer those questions.
The argument was promising enough that the
Supreme Court on Nov. 16
agreed to consider it and to stay Mr. Penry's
execution.
Mr. Smith, who with the
exception of a year as a professor at Columbia
Law School has spent his
legal career at Paul Weiss, described how he
got some inspiration for
the case from an unexpected source: his
daughter, Rosie, who was
14 at the time.
Mr. Smith recalled telling
Rosie that the limited nature of the three
questions did not permit
the jurors to consider mitigating evidence of
abuse and retardation.
They would have "to lie," he explained to his
daughter, if they had in
fact considered the mitigating evidence in
deciding to spare Mr. Penry.
"But are not jurors required to take an oath?" Rosie asked.
The question prompted
Mr. Smith to look up the oath that jurors in Texas
are required to take. The
effort bore fruit, and his brief quotes
language from the oath in
which the jurors swear "to render a true
verdict." With Rosie's question
in mind, Mr. Smith underlined the words
"true verdict" in the brief.
Nothing in law school
could have prepared one of the two associates
working on the case, Ms.
Puzone, for some of her work with Mr. Penry.
Mr. Smith has not spoken
to Mr. Penry since the conclusion of the
retrial in 1990, leaving
a local lawyer, John Wright, as the contact
person.
But one day last June,
Ms. Puzone recalled, she picked up her phone,
and on the other end of
the line was Mr. Penry with a question. In the
following months, the calls
became more frequent and the conversations
ranged far afield from legal
issues to matters such as Mr. Penry's fears
of facing execution, and
chit chat about life in his "house" on death row.
When the execution date
arrived, Mr. Penry included Ms. Puzone among the
10 close friends and family
members allowed to visit with him for 4
hours on the morning he
was scheduled to die. She was also designated as
the lawyer who would have
been the last person to visit with him before
he was taken into the death
chamber.
Ms. Puzone was with Mr.
Smith in the parking lot outside the death
chamber in Huntsville, Texas,
getting ready to start that visit at 3
p.m. last Thursday when
the call came in that the Supreme Court had
granted a stay.
Given Mr. Penry's limited
mental capacities, Ms. Puzone said, he has
posed some very challenging
questions.
At one point, she recalled,
he asked "what happens when I get put on the
gurney?"
Ms. Puzone answered, "It
will not hurt. You will just go to sleep and
wake up someplace where
your grandparents are."
Mr. Penry had asked to be buried with his grandparents, she explained.
The Supreme Court is expected
to issue a decision on the petition for
certiorari soon, almost
certainly before the end of the year.
(source: New York Law Journal)
TEXAS/USA:
Should
John Penry Die?
The court stays the execution
of a mentally retarded man and reopens a death-row debate
BY MICHELE ORECKLIN
In 1979 Johnny Paul Penry
forced himself into the the house of East Texas
homemaker Pamela Moseley
Carpenter, 22, raped her, beat her and fatally
stabbed her. Before she
died, she managed to describe her killer to police.
Penry later confessed to
the murder. Last Thursday he was scheduled to
die by lethal injection.
That would hardly be a rare occurrence in the
state of Texas: Penry, 44,
would have been the 38th man executed in
Texas this year, a record
for a single state since authorities began
keeping track in 1930. But
less than 4 hours before he was scheduled
to die, the U.S. Supreme
Court issued a stay of execution. The reason
the Justices took that rare
step concerns issues surrounding Penry's
mental retardation.
With an IQ that has been
tested between 53 and 60 (an IQ of 70 is
considered the threshold
of mental retardation), Penry reportedly spends
his days drawing with crayons
and looking at comic books, since he
cannot read. He was removed
from school before finishing the 1st grade
by his mother, who, according
to relatives and a former neighbor,
habitually beat Penry on
the head with a belt buckle, locked him indoors
for prolonged periods and
made him drink his own urine. At 12, he was
sent to a state school for
the mentally retarded. In a recent interview
with the New York Times,
Penry spoke of his belief in Santa Claus.
Penry stands at the center
of a debate that bedevils even some supporters
of the death penalty: Should
the state execute people who have committed
brutal acts but have the
mentality of children? "While no one minimizes
the severity of the crime,"
Penry's attorney, Robert Smith, wrote in his
appeal to the Texas Board
of Pardons and Paroles, "because of his mental
retardation and family background,
it is not possible that Johnny Paul
Penry is among the most
culpable offenders for whom the ultimate
punishment is reserved."
Of the 38 states that
allow the death penalty, 13 bar the execution of the
mentally retarded, as does
the U.S. government for federal inmates. In
1989 the Supreme Court ruled
that while executing those with diminished
mental capabilities does
not violate the ban on cruel and unusual
punishment, a defendant's
IQ and background are mitigating factors that
should be considered by
a jury when deciding punishment. It was, in
fact, Penry's 1st scheduled
execution that precipitated the landmark
decision. The high court
concluded that the jury in Penry's original
1980 conviction had not
been asked to consider his mental capabilities
when deciding on punishment.
The court sent the case back to Texas,
where Penry was once again
convicted and sentenced to death. His lawyers
contend that in the second
trial, jury members did not get clear
instructions to evaluate
his mental maturity.
By intervening, the Supreme
Court deflected the case from the desk of
Texas Governor George W.
Bush--who, if Penry's appeal had failed, would
have been asked by Penry's
lawyers to issue a 30-day reprieve, the
strongest step the Governor
can take under Texas law. Bush refused such
a request in August when
another mentally retarded man, Oliver David
Cruz, was put to death.
Prosecutors do not deny
that Penry has a low IQ, but they claim he is not
nearly so limited as he
is portrayed. Texas attorney general John Cornyn
has alleged that Penry "can
be purposefully deceptive." Prosecutors
point out that Penry, who
had been on parole less than 3 months for
a rape conviction when he
killed Carpenter, confessed to the crime and
said, "I told her that I...hated
to kill her, but I had to so she
wouldn't squeal on me."
A clear indication, they contend, that he
discerned the gravity of
his act. The stay left Carpenter's family
despondent. "This is not
the way the justice system should be set up,"
said the victim's brother
Mark Moseley, a former placekicker for the
Washington Redskins.
The Supreme Court will
decide in the next few weeks whether to consider
Penry's appeal or send it
back to the Texas courts, which would then most
likely set a new execution
date. The intricacacies of the controversy,
however, reportedly elude
Penry.
(source: Time Magazine, Nov. 27)
The recent dramatic stay
of Johnny Paul Penry's execution has breathed
new life into the old debate
about whether the mentally retarded should
be subjected to execution.
Though the U.S. Supreme
Court did not say what its intentions were
regarding Penry's appeal,
or whether it would even conduct a full-fledged
hearing, advocates for the
retarded are hoping the court will use his
appeal as an opportunity
to revisit the issue.
The court 1st took note
of Penry in 1989 when it reversed his conviction
because of an apparent flaw
in the Texas capital punishment statute.
According to the 5-4 decision,
the law did not give jurors any way to
give a "reasoned moral response"
to the mitigating evidence presented by
the defense at Penry's trial
-- his mental impairment and history of
childhood abuse. At the
time, capital juries were asked only whether the
act was deliberate and whether
the defendant represented a future danger
to society.
Legislators changed the
law in 1991 and added another question that
allowed jurors specifically
to weigh mitigating evidence. But Penry was
retried in 1990, a few months
before the new law was passed. He was again
given a death sentence for
the 1979 rape and murder of Pamela Moseley
Carpenter in the East Texas
town of Livingston.
Penry, 44, was educated
in a home for the mentally retarded. He has
scored between 50 and 63
on IQ tests, well below the mark of 70 that is
one of the measurements
for retardation. He is said to function at the
intellectual equivalent
of a 6- or 7-year-old.
The Supreme Court may
consider only the narrow issue of whether the more
elaborate jury instructions
at Penry's second trial compensated
adequately for the statute's
limitations. Or it may choose to reassess
the whole notion of killing
the retarded.
The court stopped short
of barring the practice in its 1989 decision.
Writing for the majority,
Justice Sandra Day O'Connor stated there was
"insufficient evidence of
a national consensus" against executing
retarded people.
"Public opinion has developed
since then, and the time is ripe for
reconsideration," said Robert
McGlasson, a death-row attorney in Atlanta
who helped develop the Penry
appeal when he headed the Texas Resource
Center. "There certainly
are grounds to look at the broader question."
In 1989, only one of the
38 states allowing capital punishment barred the
execution of the retarded.
Another had passed such a law, but it had not
taken effect.
Today, 13 states and the
federal government have spared retarded
defendants from the ultimate
punishment.
"People with mental retardation
should not be exempt from prosecution and
punishment, but their cognitive
limitations necessarily reduce their
culpability," said Stanley
Herr, who helped write a friend-of-the-court
brief in Penry's appeal
on behalf of the American Association on Mental
Retardation and several
other organizations.
A Supreme Court decision
making the retarded off-limits would have
ripples through Texas' death
row, though the precise number of retarded
inmates is not known. Tony
Tyrone Dixon, with an IQ estimated at 65, was
sent to death row by a Houston
jury in 1995 for the carjacking murder of
Elizabeth Peavy. Perhaps
the best known of the retarded killers Texas has
executed was Mario Marquez,
whose mental status was never presented to a
jury.
Bills to ban execution
of the retarded appear regularly during Texas
legislative sessions. The
1999 version, sponsored by Sen. Rodney Ellis,
D-Houston, passed the Senate
but failed in the House of Representatives.
He has pre-filed a similar
bill for the session that begins in January.
District attorneys consistently lobby against the measure.
"It sounds so good --
the public says we should not execute the retarded
-- but there are a lot of
implications," said Rob Kepple, general counsel
for the Texas Association
of District and County Attorneys. "You're going
to have to decide how you
want to handle all those people with similar
things in their background."
Kepple said there is no
logical reason why the retarded should be
exempted while defendants
suffering from a mental illness or brain damage
caused by trauma are still
subjected to capital punishment.
He added that the change
in the law following the Penry decision was made
specifically to address
matters of mental impairment and abuse, and that
the weight that should be
given properly rests with the jury.
The Supreme Court is expected
to announce within the next few days
whether it will conduct
a hearing on Penry's appeal or issue a decision
on the basis of the briefs
submitted.
(source: Houston
Chronicle)
The U.S. Supreme Court
granted a stay of execution Thursday to a Texas man said to be so mentally
retarded that he believes in Santa Claus. Texas officials were scheduled
to execute John Paul Penry, 44, at 6 p.m. CST Thursday for the 1979 rape
and murder of Pamela Mosely Carpenter in Livingston, the East Texas town
where Penry is now imprisoned.
It is not clear how
long the stay will last. The high court issued a brief order saying that the
execution should be halted until the court decides whether to fully review
the case. Under Texas law, Penry will get an automatic stay of at least 30
days.
Just
two days earlier, the Texas Board of Pardons and Paroles voted, 15 to 2,
against commuting Penry's sentence to life and, 16 to 1, against granting
him a reprieve.
Penry expressed happiness when he heard about the stay, said Larry Fitzgerald,
a spokesman for the Texas Department of Criminal Justice. Fitzgerald said
Penry,
who had been brought from
Livingston to Huntsville, where Texas executions are performed, had asked
for a cheeseburger for his last meal. Penry did not eat the burger, Fitzgerald
said, because he was immediately taken back to the Livingston prison.
Penry has been on death
row since 1980. The U.S. Supreme Court overturned his conviction in a 1989
ruling, which held that Texas' death penalty law did not
give jurors an adequate opportunity to hear about Penry's mental retardation.
Penry was retried and once again sentenced to death.
The court said that,
while Penry was 22 when he murdered Carpenter, he had "the mental age of a
6 1/2-year-old." Penry's IQ has been measured at 56 and 63 at various times.
Those with IQs under 70 are considered mentally retarded.
Prosecutors said Penry is
a sociopath who was well aware of what he was doing when he killed Carpenter.
Among other things, they
cited a confession in which Penry said: "I told her that I loved her and
hated to kill her, but I had to do it so she wouldn't squeal on me."
In their
brief to the Supreme Court, Penry's attorneys argued that, since the Supreme
Court has ruled it unconstitutional to execute someone younger than 16, it
ought to be unconstitutional for Texas to execute someone whose mental age
is considerably less than that.
Penry's attorneys
also contended that the jury at his second trial was given confusing instructions
by the judge on how to assess evidence that might mitigate against giving
him the death penalty.
However, both state
and federal appeals courts upheld the conviction and death sentence. Several
leading mental health organizations, as well as Amnesty International, the
European Union and the American Bar Assn., had urged Texas officials not to
execute Penry.
Carpenter's family
and several prosecutors who have worked on the case over the last 20 years
have said that Penry should die because of the brutality and premeditated
nature of the murder. The young woman was stabbed to death with scissors.
- Los Angeles Times
Mr Penry, 44, was
scheduled for execution at 1800 on Thursday (0000GMT), and would have
been the third prisoner
to be executed in as many days in Texas and the 38th this year - a
US record.
He was sentenced to death for the rape and murder of Pamela Carpenter in 1979.
Mr Penry's supporters
have said he has the mental understanding of a seven-year-old.
Prosecutors insist
he is a sociopath pretending to be retarded.
The court said it wanted
more time to decide whether to hear arguments that Mr Penry's
mental deficiency
was not properly explained to the jury - but did not say how long a delay
it was ordering.
Texas is set to
overtake its own record of 37 executions in one year, the highest number
in
any US state since records
began in 1930.
Groups including human
rights group Amnesty International and the American Association on
Mental Retardation have
taken up his case, along with a mass-circulation British newspaper
and German parliamentary
leaders.
Lawyers for Mr Penry earlier
asked Mr Bush to grant him a 30-day reprieve on the
grounds that the presidential
candidate is too preoccupied with the national election to give the case
proper consideration.
But a spokeswoman for
Mr Bush said he was thoroughly informed of the case and would not
decide until all legal
appeals had been exhausted.
Foreign criticism
The case has provoked
international interest, with the British tabloid newspaper The Mirror
devoting no less than seven
pages to what it calls "The Texas Massacre".
On these pages the
paper prints 147 mugshots of men and women Mr Bush has sent to the death chamber
in Texas since he became state governor five years ago.
The paper says the
Texas governor usually takes less than quarter of an hour to consider
final appeals and often
opts for shorter briefings from his aides, sometimes taking just
four minutes, to decide
to go ahead with executions.
"Do we really want a man
like him making snap decisions on whether to drop bombs or go to
war. Do we really want his
finger on the big trigger?" the paper asks.
Beneath the pictures of those executed in the last five years, the paper listed their age, what they were convicted for, their date of execution and their last meal and final words.
Apparently as an assumed foregone conclusion, the Mirror's list includes John Penry as Number 150 whose 21 years on death row for the rape and murder of 22-year-old Pamela Carpenter in 1979 had been due to end in his execution on Thursday.
But while The Mirror might be the most outspoken of the voices raised in defence of Penry's life, it is not the only one.
The parliamentary
party of German Chancellor Gerhard Schroeder has written to Mr Bush,
expressing its "deepest
concerns" about the punishment.
Anti-death penalty organisation Amnesty International, also protested against the execution.
"If it goes ahead,
his execution will fly in the face of long-held international standards
of
justice and decency,"
said Anne James of Amnesty International's Program to Abolish the
Death Penalty.
Texas' record
If he is executed, Johnny
Paul Penry would not be the first allegedly mentally retarded inmate
to receive the death
penalty in Texas this year.
In August, Oliver David
Cruz, whose IQ tested as low as 63, was put to death for the
abduction, rape and
killing of a woman in San Antonio.
On Wednesday night,
Tony Chambers was executed for the sexual assault and murder of
an 11-year-old girl.
The day before, Stacey Lawton was put to death for killing a man during a burglary in 1992.
At least three other executions are scheduled in Texas for next month.
The BBC's Valerie
Jones in Texas says that US public opinion is more divided over the issue
of
the death penalty
than the increasing number of executions might suggest.
The New York Times, published November 16, 2000
Johnny Paul Penry
is scheduled to die by lethal injection in Texas today
unless the United
States Supreme Court agrees to hear his appeal and grants
him a stay of execution.
Penry, who was convicted of the rape and murder of
a young woman in 1979, would
be the third death-row inmate executed in Texas
this week if he does
not receive a reprieve. His case has generated international
outrage because he is mentally
retarded and suffers from organic brain damage
that may be the result of
the horrific abuse he suffered as a child.
This page has long
opposed capital punishment on moral, constitutional and
pragmatic grounds
in all cases. But even many death penalty states bar the
execution of the mentally
retarded because they deem it barbaric to impose
the ultimate penalty
on individuals whose understanding, and thus moral
culpability, is extremely
limited. Polls in Texas have shown that a majority
of the public there
opposes executing the mentally retarded. Gov. George W.
Bush has the moral
duty to stop this grotesque killing of a person with the
mind of a child. He
should grant a 30-day reprieve and encourage the Texas
Board of Pardons and
Paroles to reconsider its denial of clemency.
Mr. Penry's case
was the subject of a 1989 Supreme Court decision that
reversed his first
death sentence because the jury had not been allowed to
fully consider mitigating
evidence about his history and mental impairment.
His case eventually
caused the Texas Legislature to rewrite the death
penalty statute to
allow jurors to weigh mitigating circumstances and impose
a life sentence instead
of death. But Mr. Penry did not get the benefit of that
change because it
was enacted after a retrial in which he was sentenced to
death a second time.
The procedural complexities
of the case have meant little to Mr. Penry, who
has been found by
state authorities to have an I.Q. of between 50 and 63. He
is judged by experts
to have the mental age of a 6 1/2-year-old child. He
never finished the
first grade.
Mr. Penry has been
on death row for 20 years. Killing him would be a savage
act that shows the
injustice of Texas' death penalty system.
____________________________________________________________
Editorial: Executing
the `childlike' should be reconsidered.
Published Thursday, November 16, 2000,
in the Miami Herald
Their crimes may
be horrible but our society should look skeptically at any
policy allowing criminals
with the mental capacity of young children to be
put to death for their
crimes.
That is one of many
troubling issues with the death penalty that should
cause states and the federal
government to halt executions until they establish
guidelines that eliminate
the arbitrary application of such serious
punishment. In the
news this month are two such issues -- the pending
execution of a mentally
disabled defendant and the execution of a foreigner
whose embassy wasn't
told of his arrest.
Today Texas may
execute a man with the mental age of 7 or less for a rape
and murder. On Florida's
Death Row is Roger Lee Cherry, mental age of 8, who
beat to death an elderly
woman in DeLand. Both men were subjected to unusually
cruel abuse by their
parents; even so, neither should ever be free to threaten others.
But should not the ultimate
penalty be used only for the evil?
Both the Florida
and Texas legislatures have failed to ban the execution of
the retarded as have
12 other states, in part because of objections by their
governors, Jeb and
George W. Bush. Jeb Bush's office says that he will not
sign death warrants
for the ``severely'' retarded; no one was available
Wednesday to define
that adjective. Of greater concern is an opinion by the
state Supreme Court
finding no ``physical'' evidence of Cherry's
retardation.
As a motion for a new hearing notes, there is no such test.
Texas also was the
scene of the execution of a Mexican last week over the
objections of his
nation and the European Union. States often fail to notify
embassies when their
citizens are arrested despite a 1963 convention and
possible repercussions
for Americans abroad. When the arrest leads to
execution, a practice
reviled in most advanced nations, the United States is
subjected to intense
criticism.
That's deserved
criticism. Even defenders of the death penalty cannot point
to evidence that it
is applied fairly and uniformly and only to the most
vile of human beings.
__________________________________________________________
Editorial: A life
rests on Bush
St. Petersburg Times, published November
16, 2000
As the world waits
in fascination to learn whether George W. Bush will be
the next American president,
it watches in horror to see whether he will execute
yet another mentally
retarded Texan. As the American Bar Association
protested, this is
"unacceptable in a civilized world," a truth underscored
by an urgent appeal
from the European Union. But once again the Texas pardon
board has denied mercy
and Johnny Paul Penry is scheduled to die today for
killing in the act
of rape.
His IQ is 56. At
age 44, he cannot read and he still believes in Santa
Claus.
Other inmates don't
waste their time trying to converse with him. It is
undisputed, except
by a remorseless prosecutor, that as a child Penry was
brutally, persistently
abused by his mother. At 22, he committed rape and
was unwisely paroled after
only two years. To execute such a person cannot
possibly deter another.
The Supreme Court
ruled on his first appeal 12 years ago that it is not
cruel and unusual by national
standards to execute someone who is retarded. But at
the time only four
states had forbidden that. Now, 13 states have, and Texas
would have made 14
if Bush hadn't objected to the bill. The shame will be
his if Penry dies today.
************
Lawyers for a mentally
retarded man who has been on Texas' death row for
more than 20 years made
a special plea Wednesday to Gov. George W. Bush
to give their client a 30-day
reprieve from execution, citing Bush's
preoccupation with the still-unresolved
presidential election.
John Paul Penry, who has
an IQ of 56, is scheduled to be executed by
injection at 6 p.m. today.
He was convicted in the 1979 rape and murder
of Pamela Mosely Carpenter
of Livingston, Texas, the small city where
Penry now is incarcerated.
On Tuesday, the Texas
Board of Pardons and Paroles voted, 15 to 2,
against commuting Penry's
sentence to life and, 16 to 1, against giving
him a 30-day reprieve. Under
Texas law, Bush can either allow the
execution to go forward
or grant a onetime 30-day reprieve to permit
further appeals. Bush has
made no comment on the case, and a spokesman
said he would not comment
until Penry's last appeal to the U.S. Supreme
Court is resolved.
Bush Has Granted 1 Reprieve in 6 Years
If Penry is executed,
he would be the 149th person killed by the state of
Texas while Bush has been
in office--more than under any governor in U.S.
history. During his 6 years
in office, Bush has granted only 1 reprieve.
Penry also would be the
2nd mentally retarded person to be executed in
Texas this year.
The Death Penalty Information
Center in Washington, D.C.--a nonprofit
organization that opposes
capital punishment--said that since 1984, 35
convicted murders who showed
evidence of mental retardation have been
executed in this country.
Currently, 13 of the 38 states with death
penalty laws prohibit executions
of such people.
A bill introduced by Democratic
state Sen. Rodney Ellis to bar executions
of the mentally retarded
in Texas was defeated during the last session of
the legislature. Ellis has
said he will reintroduce the measure next
year.
"The irony is, it is possible
that in 6 months, the Texas legislature
will have prohibited the
execution of people like John Paul Penry," said
Robert S. Smith, a New York
attorney who wrote Penry's clemency petition.
"In light of that possibility,
we beg the governor not to let Johnny's
execution proceed."
But Texas prosecutors
maintain that Penry knew what he was doing, has an
incurable antisocial personality
disorder and should not be spared. Penry
should be executed "for
the sake of Pamela Carpenter," 3 district
attorneys urged in a brief
to the pardon board.
On Wednesday, Texas Atty.
Gen. John Cornyn issued a formal statement
supporting the execution:
"According to overwhelming expert psychological
testimony at trial, Johnny
Paul Penry knows the difference between right
and wrong, is a schemer,
a planner and can be purposefully deceptive."
Cornyn said that Carpenter's
family "has had to live with their loss for
more than 20 years. It is
time for them to have the closure they
deserve."
In addition to his mental
retardation, Penry was subjected to terrible
abuse from his mother as
a child, according to the clemency petition and
court papers. Shirley Penry,
now deceased, beat her son with a belt,
scalded him with boiling
water and forced him to ingest his own urine
and feces, according to
testimony from his siblings.
Amnesty International, EU Among Protesters
The prospect of Penry's
execution has drawn protests from the American
Bar Assn., Amnesty International,
the European Union and several advocacy
groups for the mentally
retarded.
"Federal law, approved
by former President Ronald Reagan, bars the
execution of people with
mental retardation convicted in federal courts,"
the National Assn. of Retarded
Citizens said in a letter to Bush. The
letter called on the governor
to demonstrate "compassionate conservatism"
by sparing Penry's life.
"People with mental retardation
should not be exempt from prosecution,
nor should their disability
be considered as a reason or excuse for
criminal behavior. But the
cognitive limitations which necessarily
reduced their culpability
require that the penalties imposed be
proportionate in order that
justice be served," said University of
Maryland Law School professor
Stanley S. Herr, co-author of a
friend-of-the-court brief
asking the U.S. Supreme Court to stay the
execution and grant further
review of the case.
Carpenter, 22, was decorating
her new home when Penry--who earlier had
delivered appliances to
the house--forced his way in, raped her and then
stabbed her with scissors.
Before she died, Carpenter, who sang in her
church choir, described
her attacker. A boot print found on her body
matched Penry's boot, according
to trial testimony.
Penry confessed to police,
saying: "I told her that I loved her and hated
to kill her, but I had to
do it so she wouldn't squeal on me." Just 2
months earlier, Penry had
been paroled from prison for an earlier rape
conviction.
Penry was 1st convicted
and sentenced to death in 1980. 9 years later,
in the landmark case of
Penry vs. Lynaugh, the Supreme Court rejected the
contention of Penry's lawyers
that executing a mentally retarded person
would constitute cruel and
unusual punishment under the 8th Amendment to
the U.S. Constitution.
However, the justices
also ruled that Texas' death penalty law did not
give the jury an opportunity
to hear mitigating evidence about his mental
condition, and they ordered
a retrial.
Penry again was convicted
and sentenced to death before the state had
amended its death penalty
statute. To this day, Penry's lawyers maintain
that he was not provided
the benefit of the changed law that his case
generated. The Texas attorney
general countered in a brief to the Supreme
Court that the jury in the
second trial had sufficient information about
Penry's condition when it
sentenced him to death.
State records show that
Penry's IQ was 56 when he was 9 years old,
according to court documents.
3 years later, Penry was sent to the Mexia
State School for the Mentally
Retarded. Papers filed by Penry's lawyers
also state that when he
was given a test directing him to match words and
pictures at the age of 15,
Penry responded that a chicken was a drum and
a door was a dress.
In the 1989 Supreme Court
ruling granting him a new trial, the decision
stated that, while Penry
was 22 at the time he murdered Carpenter, he had
"the mental age of a 6 1/2
year old."
Smith stressed that point
in his clemency petition. "Killing a 'man'
like Johnny, who still draws
with crayons and probably believes in Santa
Claus, will not bring the
victim back or serve either of the stated goals
of capital punishment: deterrence
or retribution. There is no societal
retribution in killing a
person with the mind of a 6-year-old who cannot
understand why what he did
was wrong and who does not even understand the
meaning of the word 'execution.'"
(source: Los Angeles Times)
TEXAS:
3 area attorneys have written
a letter to members of the state's parole
board asking that clemency
not be granted to a man said to be mentally
retarded and unfit for execution.
Walker County District
Attorney David Weeks, along with Trinity County
District Attorney Joe Price
and Polk County District Attorney John
Holleman, sent a letter
to members of the Texas Board of Pardons and
Paroles asking that no leniency
be shown to death row inmate Johnny Paul
Penry. Penry is scheduled
to be executed Thursday for the 1979 rape and
murder of 22-year-old Pamela
Moseley Carpenter in her Livingston home.
Penry, who signed 2 statements
confessing to Carpenter's rape and
murder, reportedly has an
IQ between 50 and 60 and has been said to have
the reasoning capacity of
a 7-year-old. At the time of Carpenter's
murder, Penry had been out
of prison for less than 3 months on parole for
another rape he committed
in 1977.
A decision from the parole
board is expected some time Tuesday morning,
said Heather Browne, a spokeswoman
for Texas Attorney General John
Cornyn's office.
Penry last faced a Jan.
13 execution date but was granted a reprieve by a
3-member panel of 5th U.S.
Circuit Court of Appeals judges to allow for
oral arguments to be heard
in the case. There were 6 points Penry's
attorneys wanted to see
addressed, including whether Penry should be
executed based upon his
low IQ.
While Penry's attorneys
have asserted that the 44-year-old is mentally
retarded, Weeks and other
attorneys who have worked prosecuting Penry in
each of his 2 trials dispute
the point.
"There are a whole bunch
of safeguards built into (the law) to ensure
that a mentally retarded
person is not executed," Weeks said. "The fact
of the matter is when you
deal with Johnny Paul Penry and you look at the
evidence that was presented
at this trial ... we proved with every expert
we put on the stand that
Johnny Paul Penry was not mentally retarded. He
had low IQ scores ... but
that's the least important part of the
equation. His adapting skills
were such that he was not mentally
retarded."
A jury found Penry legally
competent to stand trial in March 1980 and in
April 1980, he was convicted
of Carpenter's murder and sentenced to
death. The U.S. Supreme
Court ordered a new trial for Penry in June 1989.
Penry again was found
legally competent to stand trial, this time in May
1990. He was retried in
Walker County where he again was convicted of
Carpenter's murder and sentenced
to death.
Weeks said while a person
might have a low IQ, that is not enough to
define that person as "mentally
retarded." Other factors that are
considered, he said, include
how that person is able to adapt to his
surroundings and operate
in society and within his environment.
"You might be diagnosed
as mentally retarded (based on your IQ) and
improve your level of function
to the point that you're not mentally
retarded," Weeks said. "Johnny
Paul Penry, as we proved in trial, is not
mentally retarded."
Weeks also said while
Penry's attorneys have said their client could not
read or write, he personally
observed Penry writing notes to his lawyers
during trial.
"When they (saw that we
noticed), they took his pencil away from him and
gave him a crayon," Weeks
said, adding that correctional officers who had
worked with Penry on death
row also claimed Penry could, in fact, read
and write.
"This guy has some real street smarts and is a dangerous individual," he said.
In the letter sent to
the parole board, prosecutors said Penry's
attorneys have misled the
public into believing Penry is retarded.
"The State respectfully
submits that the defense, in a classic example of
the ends justifying the
means, has attempted to mislead the courts, this
board, the press, as well
as the public-at-large regarding Penry's
intellectual ability and
violent criminal history," the letter stated.
"Contrary to counsel's claim
that Penry is 'seriously mentally retarded,'
it is submitted that the
real issue is whether Penry is retarded at all.
"While admittedly, Penry
has scored in the area of mild mental
retardation on various IQ
tests over the years, as (one psychologist)
testified early on, it is
entirely likely that Penry's intelligence level
is more a result of limited
educational opportunity as opposed to true
mental retardation or brain
impairment."
In his confession to police,
Penry said he had met Carpenter 2 weeks
before the murder while
helping to deliver a stove to her home. Penry
said he went back to the
home armed with a pocket knife, forcing his way
inside where he and Carpenter
began to struggle.
According to his own confession,
Penry said Carpenter managed to knock
the knife from his hand
and stab him in the back with a pair of scissors
she'd been using to make
Halloween decorations. He then wrestled the
scissors away from Carpenter,
dragging her into a bedroom.
"I ... told her that I
would kill her if she didn't make love to me,"
Penry told police. "This
is when I hit her 2 or 3 times in the chest with
my fist.
"It was while (having
sex with her) that I decided to kill her with the
scissors since she stabbed
me with them. I told her I was going to kill
her and that I hated to
but I thought she would squeal on me."
Penry stabbed Carpenter,
the sister of former Washington Redskins kicker
Mark Moseley, once in the
chest.
"She raised up and pulled
out the scissors," he told police. "It looked
like it was easy for her
to pull out the scissors. I thought I had killed
her until she sat up. This
scared me (and) ... I ran out the door and
boogied. I got on my bike
and went straight home."
Carpenter managed to phone
a friend for help, but died shortly after
arriving at the hospital.
Before dying however, she was able to give
police a description of
her attacker and one officer immediately
recognized the description
to be that of Penry, whom he knew from seeing
him around town.
Penry initially denied
any role in the murder but when police took the
then-23-year-old to the
murder scene, he confessed, claiming he needed to
clear his conscience.
Penry has since said he did not commit the murder.
"I didn't actually do
the crime but I told police I did," he said last
year in an interview with
the Item. "I must have been a fool in trying to
tell police I did something
like that when I didn't."
Penry's November date
with the executioner marks the 4th date the
Oklahoma native has faced
since arriving on Texas death row in 1980.
2 other executions are
scheduled this week. Stacy Lamont Lawton, 31, is
scheduled to die tonight
for the 1992 shotgun slaying of a Tyler-area
man, while Tony Chambers,
32, is set to be executed on Wednesday for the
1990 kidnapping, rape and
murder of an 11-year-old Tyler girl.
(source: Huntsville
Item)
Johnny Paul Penry's legacy
in Texas will be complete if he is executed on
Thursday in Huntsville as
scheduled. The legacy he leaves is not a pretty
one for him or for Texans.
But it is one from which lessons should be
learned.
In 1979, Mr. Penry was
released on parole after serving just 2 years of a
5-year rape sentence. 3
months later, he gained entry to the home of
Pamela Moseley Carpenter,
the sister of former NFL kicker Mark Moseley,
under the guise of rechecking
on an appliance he had helped deliver. He
then raped and stabbed her
repeatedly. Ms. Carpenter managed to provide a
description of her assailant
before dying, and Mr. Penry subsequently
confessed.
Mr. Penry's case seemed
pretty straightforward, and he was convicted and
given the death sentence.
However, his jurors did not know Mr. Penry is
mentally retarded. In 1989,
the U.S. Supreme Court issued a landmark
ruling that jurors should
be told of Mr. Penry's history before
considering a sentence,
but denied a more general claim that execution of
the mentally retarded constituted
"cruel and unusual punishment."
With an IQ between 50
and 60, Mr. Penry lived most of his teen years in a
state school for the mentally
retarded. His sisters have said their
mother subjected him to
unrelenting abuse when he was young. Nonetheless,
a 2nd jury re-imposed the
death penalty.
It is time to learn something from this story.
Prison overcrowding that
led to the early release of many offenders such
as Mr. Penry stopped in
the mid-1990s as more prisons were constructed.
However, today again we
are facing insufficient prison beds as drug
offenders receive stiff
sentences. Texans do not want violent offenders
like Mr. Penry released
on early parole. The state must redirect drug
offenders into treatment
facilities so prison beds can be freed for
violent criminals. Also,
although re-offense rates are down to about 30
percent more needs to be
done to rehabilitate offenders and to provide
them with support, and supervision,
in the community so that they don't
re-offend.
More needs to be done
in the next legislative session to support the
prevention and treatment
programs of the Texas Department of Mental
Health and Mental Retardation
and of Child Protective Services. Over half
a million Texans have some
form of mental retardation and thousands of
Texans await treatment for
mental health needs. The state has long
ignored abused and neglected
children and the additional funding provided
last session has proved
insufficient. These services have been woefully
inadequate and are reflected
in the many Texas prisoners with histories
of serious mental illness.
Finally, it is time for
the state Legislature to bar the execution of the
mentally retarded. A divided
U.S. Supreme Court left the door open in its
1989 ruling for an evolving
standard of decency which could someday
result in a consensus against
executing retarded criminals. Mr. Penry has
the mental capacity of a
7-year-old. His crime was heinous, yes, and he
should remain incarcerated
as a danger to others. Yet even Texans who
strongly support the death
penalty must see the moral offense in killing
the retarded.
(source: Editorial, Dallas Morning News)
>From a visiting cubicle
on death row, Mr. Penry said he knows that,
barring a last-minute reprieve,
he's going to be strapped to a gurney and
injected with lethal chemicals.
"I don't fully understand
why I'm going to be executed," said Mr. Penry,
44, whose intelligence has
been compared to a 6-year-old's. Mr. Penry
said he would prefer to
die of "natural causes" behind bars.
Mr. Penry's lawyers say
he has an IQ between 50 and 63, indicating
"substantial retardation"
that makes him unable to fully grasp the
implications of his crime
or the legal issues involved. But others
familiar with the case say
he knew right from wrong and should not be
spared because of emotional
arguments over his mental capacity.
In the Penry case, the
Supreme Court said that executing mentally
retarded people is not cruel
or unusual punishment but that jurors must
weigh "mitigating circumstances"
such as retardation or childhood abuse
when considering the death
penalty. Mr. Penry also was the victim of
horrific childhood abuse,
according to evidence.
The 1989 Penry decision
became "hugely significant" in criminal law, said
Jordan Steiker, law professor
at the University of Texas. But Mr. Penry
said he doesn't understand
the impact of his case, adding, "My attorney
told me it's drawn a lot
of media attention."
Though he now denies committing
the crime that sent him to death row and
also says he doesn't remember,
Mr. Penry originally confessed to the 1979
stabbing death of Pamela
Moseley Carpenter in Livingston.
Mr. Penry, who was on
parole for a previous rape conviction, met Ms.
Carpenter when he delivered
appliances to her home. He returned to the
house a couple of weeks
later, threatened the young woman with a
pocketknife and forced his
way inside.
Ms. Carpenter, the sister
of one-time Washington Redskins kicker Mark
Moseley, tried to defend
herself with scissors that she was using to make
Halloween costumes. She
was stabbed to death with the scissors, raped and
beaten.
Mr. Penry was convicted the following year and sentenced to death.
In 1989, that conviction
was overturned by the Supreme Court because
jurors were not required
to consider "mitigating circumstances" such as
retardation or abuse, when
passing sentence.
Texas subsequently changed sentencing procedures to comply with the decision.
Mr. Penry was retried in 1990 and again received a death sentence.
The wait since the 1st
death sentence has been a long one for Ms.
Carpenter's family, which
held a memorial service for her last week. In a
prepared statement, Ellen
May, Ms. Carpenter's niece, said the void left
by her aunt's death can
never be filled. "It's been 20 years since her
death, and still the system
has not given her justice."
But Mr. Penry's sister,
Belinda Gonzales of Houston, says he shouldn't be
executed because of his
background.
He "never had a chance," she said.
Executing Mr. Penry is "like killing one of our kids," Ms. Gonzales said.
When he was a child, their
mother, now deceased, beat him severely and
often, she said. "He's got
scars all the way down to his ankles on the
back of his legs, where
she pushed him into the hot-water heater," Ms.
Gonzales said. "She tried
to drown him in scalding hot water in the tub.
She tried to gouge his eyes
out."
According to court documents,
Mr. Penry's mother also made him drink his
urine and eat his excrement.
"My mom she was really terrible," Mr. Penry said.
Ms. Gonzales said her
brother should spend the rest of his life in prison
or a mental institution.
In addition to the relatives
and lawyers championing his cause, Mr. Penry
has drawn support from death-penalty
opponents in Europe and groups that
work with the retarded.
Mike Bright, executive
director of the Arc of Texas, an advocacy group
for the mentally retarded,
said, "The presence of mental retardation in
an individual raises so
many possibilities for miscommunication,
misinformation and inadequate
defense that the use of the death penalty
is simply unacceptable."
Execution of the mentally
retarded is prohibited in about a dozen states
and by the federal government.
In 1999, the Texas Senate passed
legislation to outlaw the
practice in Texas, but the bill did not make it
out of the House. State
Sen. Rodney Ellis, D-Houston, has said he will
introduce the bill again
in the 2001 legislative session.
Joe Price, the district
attorney who prosecuted Mr. Penry twice, said he
opposes changing the law.
"I don't think we should
get off in the business of categorizing classes
of people and say this class
should not be executed," he said. "It's
better to have the law as
it is where ... we focus on the individual and
the crime they committed."
If anybody in Texas deserves
to be executed, Mr. Price said, Mr. Penry
does. The slaying, which
occurred in the same town that now houses Texas'
death row, was particularly
brutal, he said. "He beat her really
horribly. He beat her so
bad at one place he stomped her on the back and
actually burst one of her
kidneys."
Mr. Price said he heard
Mr. Penry confess to the crime. Comparing him to
a young child is "probably
the stupidest thing I ever heard. ... That is
absurd. Anybody [meeting
him] would know he's not a 5- or 6-year-old child."
Dianne Clements, president
of Justice for All, a victims' advocacy
organization, said the ability
to understand legal proceedings and the
difference between right
and wrong "is what counts, not IQ."
Ms. Clements said Mr.
Penry demonstrated his competence in his confession
when he said he told his
victim he didn't want to kill her but knew she
would "squeal on me."
Mr. Price pointed out
that Mr. Penry was judged competent by 4 juries -
by 2 mental competency juries
and by 2 criminal juries.
Mr. Penry's lawyers have
asked the Supreme Court for a stay of execution
on the grounds that Mr.
Penry's second jury received inadequate
instructions concerning
his retardation and abuse. If the stay is denied,
his only hope is for a 30-day
reprieve from Gov. George W. Bush. On
Tuesday, the Texas Board
of Pardons and Paroles voted to deny Mr. Penry's
clemency request.
"No one is saying he shouldn't
be punished," said attorney Bob Smith of
New York, who has handled
the Penry appeal without pay for 10 years.
"What we're saying is the
guilt is less because of the mental retardation
and abuse."
As his hopes for a reprieve
dwindled, Mr. Penry said he is scared of
dying. He said he appreciates
support from people around the world who
have visited and written
him.
"I just wish whoever is
the next government would take it into
consideration and let me
live here and die of natural causes, and not at
the state's hands," he said.
If Mr. Penry's execution
proceeds, he would be the 38th inmate to be
executed this year, a state
record. The last retarded person executed in
Texas was Oliver Cruz, who