© St. Petersburg Times,
In finding procedural flaw, again, in the death sentence imposed on Texas inmate Johnny Paul Penry, the U.S. Supreme Court may have spared his life. But it has only delayed making what appears to be an inevitable judgment -- that executing any mentally retarded person is indecent.
Penry, 45, was convicted in 1979 of the vicious rape and murder of a 22-year-old Livingston, Texas, woman, and no one questions his guilt. The question is his fitness for execution. He was raised by a mother who was institutionalized for mental illness, who burned him in scalding bath water and forced him to drink his urine and eat his feces. He has an I.Q. of between 50 and 62, likes to play with coloring books and still believes in Santa Claus.
Twelve years ago, when the high court first overturned Penry's death sentence, it stopped short of ruling that executions of the retarded are inherently cruel and unusual. Justice Sandra Day O'Connor wrote then that: "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."
Since that time, the national landscape has changed. The number of death penalty states that bar execution of the retarded has grown from two to 14, and both Florida and Texas have passed bills awaiting their governors' signatures. Counting the states that ban all executions, the total is now 26. Internationally, the United States stands alone in regularly executing mentally retarded offenders, and 108 nations ban executions altogether.
The court has agreed to take a North Carolina case in its next term that will give it a chance to rule on the constitutionality of executing mentally retarded people, but there is no reason for state legislatures, or governors, to wait to act. Polls show that even people who strongly support the death penalty oppose its use on the mentally retarded. Such executions serve no meaningful criminal justice objective.
The question here is not whether to turn dangerous murderers loose. In Texas, Penry's own defense attorneys are not arguing that he should be released back into society. They argue, simply, that he is a child in a man's body, and executing him would be indecent. Most Americans agree. So should the people who write our laws and defend our constitution.
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