Executing the Retarded
Published: June 6, 2001
Although this week's 6-to-3 Supreme Court decision overturning the death sentence of a retarded Texan named Johnny Paul Penry was decided on narrow legal grounds, it was nonetheless a significant victory for common sense and decency. The ruling is bound to add momentum to the growing national movement to end the nation's uncivilized practice of executing mentally retarded people convicted of capital crimes.
Currently, the United States is one of only three countries -- Kyrgyzstan and Japan are the others -- that impose the death penalty on killers whose low I.Q.'s put them in the retarded category. Regrettably, the Supreme Court has not used Mr. Penry's long legal battle to end the practice in this country. When the court first dealt with his case in 1989, it concluded that executing retarded people convicted of capital offenses did not violate the Eighth Amendment's ban on ''cruel and unusual'' punishment. Nevertheless, it overturned his original death sentence because of flawed jury instructions. This week the court concluded that even the revised jury instructions in his case were flawed and again overturned his death sentence. But the court put off the broader constitutional question until next term, when it will revisit the issue in a different case.
There is good reason to hope that the court will find the Eighth Amendment argument more persuasive this time. In 1989 it found no ''national consensus'' against executing retarded people, but such a consensus is clearly emerging. While only two death-penalty states had laws rejecting the penalty for retarded killers then, 14 states have such statutes now. That number could soon grow, as the legislatures in both Florida and Texas have passed bills barring such executions. The bills are awaiting approval or veto by the two states' governors, Jeb Bush and Rick Perry respectively.
Mirroring the pattern in the rest of the country, most Texans support capital punishment but draw the line at executing the retarded. Last August Mr. Perry, then lieutenant governor, presided over the execution of Oliver Cruz, a confessed rapist and murderer said to have been incapable of learning beyond a sixth-grade level, while Gov. George W. Bush was out of state campaigning for president. By signing the bill, Mr. Perry cannot escape his share of responsibility for that deplorable action. But he can at least help move his state and the rest of the nation to higher moral ground.