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MARGARET WARNER: The nation’s ongoing debate over the death penalty has moved front and center at the U.S. Supreme Court this week. Before the court, the question of how and whether capital punishment should be invoked against mentally retarded defendants. This morning, the Justices heard arguments in a case from Texas involving convicted murderer Johnny Paul Penry. At issue: Whether jurors were adequately instructed to consider Penry’s mental retardation before they sentenced him to die.
Yesterday the high court agreed to take a North Carolina case with even broader ramifications, on an appeal from convicted killer Ernest McCarver. On his case the court will decide whether any execution of the mentally retarded amounts to “cruel and unusual punishment,” forbidden by the Constitution. For more on both these cases we’re joined by NewsHour regular Jan Crawford Greenburg, legal affairs correspondent for the “Chicago Tribune.” Welcome back, Jan. First, bring us up to date, what’s been the standard in applying the death penalty to a mentally retarded defendant?
JAN CRAWFORD GREENBURG: Well, in 1989, the court on fronted the issue head on in a case involving Johnny Paul Penry and it said essentially that juries must be able to consider and give full effect to any mitigating evidence, such as a defendant’s mental deficiencies when they’re evaluating whether or not to impose the death penalty. And it was in that case that the court also ruled on the much broader issue, and at that time the court said executing the mentally retarded did not violate the Eighth Amendment’s ban on cruel and unusual punishment.
MARGARET WARNER: So Penry’s case then was overturned and sent back. Here it is 12 years later, he’s back in the court. Tell us briefly about his case and why is he back there?
JAN CRAWFORD GREENBURG: Well, when the court sent the case back to the Texas court, another jury took up the sentencing phase. But his lawyers maintained that essentially the judge, when instructing the jury on how to evaluate whether or not to impose the death penalty, essentially made the same mistakes all over again.
The judge told the jury, just as he had to the first jury to consider the same questions in evaluating whether he should be sentenced to death, and then the judge said and also, you can consider mitigating evidence, but he didn’t specifically guide them, Penry’s lawyers say, on how to consider it, and as a result the second jury made the same mistake all over again, and Mr. Penry was improperly sentenced to death once again.
MARGARET WARNER: Now, is there any doubt– does anyone dispute whether or not he is mentally retarded?
JAN CRAWFORD GREENBURG: No, his lawyers contend that he has the mind of a seven-year-old, and, you know, they tell these stories that he still believes in Santa Claus and is unable to even order a pizza from a telephone book. So that’s really not at dispute here.
MARGARET WARNER: All right. So tell us about the arguments in court today and how the Justices responded.
JAN CRAWFORD GREENBURG: Well, Penry’s lawyer went first, and he made the point that, you know, once again, here we are again with deficient jury instructions, and as I said, Penry didn’t really have his mental deficiencies and his abusive childhood properly weighed by the jury. A lawyer for the state of Texas said, no, this is totally different.
Unlike the first go-round when there were no instructions about mitigating evidence, no mention of mitigating evidence, the judge the second time around did tell the jury to consider this mitigating evidence. And the Justices seemed split on the issue. Justice Scalia seemed quite sympathetic to the state’s arguments. He said that the instructions the second time around were pretty clear to him, and he said– and I’ll quote him here, he said we assume even if the defendant is mentally deficient, the jury is not, implying that the jury had more than enough to guide it in its decision. But other Justices suggested that they didn’t see the issue the same way.
Justice Ginsburg said, well, you know, maybe it’s not so clear, because the jury had three specific things to consider in whether to impose the death penalty in this case. In the mitigating evidence mitigating factors were just kind of tacked on at the end. Justice Souter also suggested that the judge’s instructions had basically said, look, jury, you must act irrationally, and he said this was not a reasoned moral process, referring to the deliberations the second time around, it’s an irrational process. And then Justice O’Connor, the justice I think we really must look to in this case and the one that will be argued next fall, because she–
MARGARET WARNER: Because she authored the 1989 decision.
JAN CRAWFORD GREENBURG: Exactly. She’s not always with the court’s three most conservatives the chief justice, and Justice Scalia and Justice Thomas, she sometimes falls more in the middle and sometimes will side with the more liberal Justices. She said the instructions here kind of created what she called an odd posture and were awkward to say the least. So how she rules or how she decides sides this case could again be significant.
MARGARET WARNER: Now let’s turn to this North Carolina case that really confronts the issue, the constitutional issue head on. Tell us briefly about that.
JAN CRAWFORD GREENBURG: Well, that involves a convicted killer named Ernest McCarver, he was convicted of murdering a former co-worker and robbing and murdering the co-worker in 1987. His lawyers argue that executing him violates the Eighth Amendment’s ban on cruel and unusual punishment. McCarver they say has the mind of a 10-year-old, he never finished third grade or got beyond third grade. And they say much has changed in society since 1989 when the Supreme Court first took up whether or not the Eighth Amendment prohibited the execution of the mentally retarded. And that is essentially what the Court will take up next year, whether enough has changed in society that the Court now will rule differently than it did in ’89.
MARGARET WARNER: So you’re saying that the whole idea of cruel and unusual punishment, that’s always judged by– it’s an evolving standard.
JAN CRAWFORD GREENBURG: That’s right. The court has said when you’re assessing whether punishment is cruel and unusual you look to evolving standards of decency is the formal legal term they use in society, and to determine what those evolving standards are they look to state legislatures, for example, to see which states have passed laws on the issue of specific punishments. Now in, 1989, when they first considered this issue, only two states that allowed capital punishment, Georgia and Maryland, prohibited the mentally retarded from also being executed. McCarver’s lawyers say that’s changed. Since then, 11 more states that allow capital punish many prohibit it from being used against the mentally retarded, and taken with the other states that prohibit capital punishment completely, more, you know, jurisdictions in the United States would prohibit the execution of the mentally retarded.
MARGARET WARNER: And even the federal government in federal crimes has outlawed the excuse of the mentally retarded.
JAN CRAWFORD GREENBURG: That’s right.
MARGARET WARNER: As I recall, Justice O’Connor specifically talked about the state legislatures in her ’89 rulings, did she not, saying there was no consensus that she found?
JAN CRAWFORD GREENBURG: That’s right. That was the crux of her opinion that there was no national consensus on the issue, and she mentioned how the Court has kind of looked at that national consensus in other cases. For example, in 1986, when the Court said that the Eighth Amendment prohibited executing the insane, the Court at that time noted that no state allowed for the insane to be executed.
That was a national consensus. Two states in 1989, talking about executing the mentally retarded, she said at that time, was not a national consensus. So the issue could kind of turn on whether or not the 11 more states coupled with the states that prohibit the death penalty entirely, whether that’s enough to satisfy this court, or at least five Justices of this Court that there now is a national consensus that executing the mentally retarded does constitution cruel and unusual punish many under the Eighth Amendment.
MARGARET WARNER: A lot of the stories this morning that talked about the court deciding to take this case called it surprising, because they were taking a case on a very question that just 12 years ago they ruled the opposite way. Can you really read anything into the very fact of them taking the case?
JAN CRAWFORD GREENBURG: I think that that’s very difficult to do, particularly in light of the issue here, which is evolving standards of decency. It almost invites reexamine of the issue because standards revolve. It’s hard to read anything into this at this point. It’s interesting, because there are several Justices on the Court– four in fact — who said in 1989 that that wasn’t good enough, the two states for a national consensus. O’Connor wrote the opinion, and it was joined by the chief justice, Justice Rehnquist, Justice Scalia, and Justice Kennedy. So those four are still on the Court, and joined now by Justice Thomas who-
MARGARET WARNER: All right, we’ll have to leave it there. Thanks, Jan, very much.
JAN CRAWFORD GREENBURG: Thank you.