Hang 'Em High

Johnny Paul Penry is the longest serving inmate on death row. Fifty-year-old Penry has spent more that half his years on death row for the rape and murder of 22-year-old Pamela Moseley Carpenter. Penry confessed and was given the death penalty, even though his lawyers maintain he is mentally retarded.

In 2000, Penry came within three hours of execution before justices halted it. This week, the U.S. Supreme Court handed down a decision on Penry's case, declining to reinstate the death sentence.

An editorial from 2000 gave compelling reasons why the death penalty should never apply to those under such circumstances:

The mentally retarded can never meet the criteria of extraordinary blameworthiness. People with retardation are incapable of calculated, mature evil. A retarded person is simply not the same as other adults. They are childlike in many of their limitations: their ability to reason and develop skills needed to navigate in the world are permanently stunted.

They have grave difficulties with language, communication, learning, logic, foresight, strategic thinking, planning and understanding consequences. They have problems with attention, memory and comprehension. They are limited in their ability to learn from experience, to control their impulses, to think in long-range terms or to understand causality. Children outgrow most of these limitations. Those who are retarded cannot.

Penry was physically abused as a child, has organic brain damage and is mentally retarded. Twenty-two years old in 1979 at the time he raped and murdered Pamela Mosely Carpenter in Livingston, Texas, he had then -- and has now-- the mental capacity of a 7-year-old.

Mental retardation is classified as mild, moderate or severe. Penry's IQ is considered to be between 50-60, which would rate him as moderate. How might this disability affect Penry's ability to understand his crime and assist in this defense?

Morris Mason, whose I.Q. was 62-66, was executed in 1985 in Virginia after being convicted of rape and murder. Before his execution, Mason asked one of his legal advisors for advice on what to wear to his funeral.

Penry's trial has been at the heart of the debate on capital punishment. In 1989, Justice Sandra Day O'Connor refused to grant a stay for Penry, citing that a consensus had not yet formed as to whether executing the mentally retarded constituted cruel and unusual punishment. So much for the theory of activitist judges. Instead, the American Bar Association took up the cause.

In 1989, the American Bar Association established a policy opposing the execution of those with mental retardation. The ABA held that execution of such individuals is unacceptable in a civilized society, irrespective of their guilt or innocence. In 1997, the continued imposition of the death penalty on the mentally retarded and juveniles contributed to the ABA's call for a nationwide moratorium on the death penalty.

In 2002, the U.S. Supreme Court finally ruled to forbid the execution of persons classified as mentally retarded. That case should have resolved this issue, but this is Texas, after all.

William Lee Hon, a Polk County assistant prosecutor who has been handling the case for more than two decades, said: “There have been so many disappointments in regard to this case, you kind of become conditioned to adversity. So you take these blows as they come, and you do the best you can.”

The parole eligibility is huge, and he might very well be parole eligible,” Hon said. “Is there any guarantee to keep him in prison if we choose to seek a life sentence? I don’t know. That’s one of the big questions to resolve in the process.”.....

Why don’t they just lock me up and throw away the key?” Penry told The Associated Press in 2001. “That’s all I want.”

The Polk County prosecutor is still weighing the option of another sentencing trial. At least five previous juries have found Penry legally competent to stand trial or have rejected defenses based on mental retardation.

Twenty-five years on death row, a family history of abuse, significant mental impairment, and an unfavorable Supreme Court ruling, but Polk County believes that justice can only be served by executing a man who, according to his lawyers, still believes in Santa Claus.