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  Fates of Inmates Linked
by Dave Reynolds, Inclusion Daily Express
April 3, 2001

This article is reproduced here under special arrangement with Inclusion Daily Express Email News Service.

John Paul Penry and Ernest P. McCarver.

Even though they have been physically separated by over a thousand miles for the past two decades, the paths of these two men crossed last week in the same room, within hours of each other.

Last Monday, the U.S. Supreme Court agreed to hear arguments in the case of Ernest McCarver, 40, a death row inmate in North Carolina, who came within hours of being executed last month for murdering a coworker in 1987. The high court will be deciding whether it is unconstitutional to execute people considered to have mental retardation. The case will be heard this fall and a decision is likely next year.

McCarver's most recent IQ test, arranged by his defense team, put his score at 67. But his IQ was measured at between 70 and 80 before his trial. Scores of 70 or below are considered by many experts to indicate mental retardation.

In 1989, the same court ruled in a close 5-4 vote, that the death penalty for people with mental retardation was not "cruel and unusual punishment" as defined in the U.S. Constitution. In the court's decision, Justice Sandra Day O'Connor said, "There is insufficient evidence of a national consensus against executing mentally retarded people convicted of capital offenses for us to conclude that it is categorically prohibited by the Eighth Amendment". The court did decide, however, that a jury should consider a person's "mental capacity" before deciding the appropriate sentence.

That case involved John Penry, a Texas death row inmate who had been convicted in 1980 of stabbing a woman to death with a pair of scissors. The Supreme Court decisions in 1989 said that Penry's IQ scores of between 50 and 64 could not keep him from being legally executed, but that the jury should have been told about his IQ before sentencing him to death. His death sentence was thrown out and a new trial was ordered.

Like the first jury, the jury in the second trial found Penry guilty and gave him the death penalty. He was to die last November, but was spared just three hours before his scheduled execution. The U.S. Supreme Court had ordered a halt to the execution so it could hear new arguments regarding Penry's second trial.

It is very unusual for the U.S. Supreme Court to agree to hear cases for the same person more than once. But last Tuesday -- just one day after the court agreed to use McCarver's case to re-test their 1989 Penry decision -- the court heard arguments again regarding John Penry, who is now 44. This time, however, the court is not looking at whether the death penalty for people with mental retardation is constitutional. Instead, the question has to do with whether or not the jury that convicted Penry the second time was given information about his mental retardation before sentencing him to death.

In McCarver's case, the court will be looking at whether or not attitudes have changed over the past 12 years to the point where executing people with mental retardation violates society's ideas of what is decent. When Penry's first case was presented to the court in 1989, only two states banned executions of people with mental retardation. Since then, eleven more states have passed similar laws, and several other states are considering bills during the current legislative sessions that would ban the practice.

Groups from around the world have condemned the U.S. for allowing people with mental illness or mental retardation to be executed. Some groups say that people with such disabilities are often not sophisticated in defending themselves and do not thoroughly understand their rights. Since many are taught how to please others instead of how to understand and advocate for their own rights, they are more easily manipulated by accomplices and by police who want a confession. Another factor is that most people with disabilities do not have the money to hire qualified, competent attorneys skilled in defending death penalty cases.

The Death Penalty Information Center (at http://www.deathpenaltyinfo.org/dpicmr.html) estimates that 35 Americans considered to have mental retardation have been executed over the last 24 years and that over 300 people now on death row fall into that category.

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