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Is death row any place for the mentally retarded?

By Charles Bierbauer
CNN Washington Bureau

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Death row inmate Johnny Penry talks to CNN

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A review of Johnny Paul Penry's case as it related to the overall issue, from CNN's Charles Bierbauer

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LIVINGSTON, Texas (CNN) -- Walking out of Texas' death row here -- the Terrell Unit -- is a daunting passage. I had to pass through four separate steel gates, opened one at a time by gatehouse guards, and a cordon of chain-link fencing topped with skin-slashing concertina wire.

For me, all it took was a simple glance at my pass and a wave through. For Johnny Penry, it will take an act of the U.S. Supreme Court.

"I'll be glad when they give me a life sentence and let me go on with my life," Penry said in an hour-long interview.

We spoke over a telephone, sizing up each other through a thick glass separating the visitors' room from the narrow, barred cubicle to which inmates are brought. Penry had never seen me before. I had seen only his picture.

Penry is short and stocky. His closely cropped, almost black hair nearly matches the thick, black frames of his glasses. You would not notice him on the street.

You might pause when you hear him speak. There is something of a Texas accent, but it is not that. It is the cadence of a voice that is at once uneducated, yet self-taught to convey expressively why he is here on death row. It is especially the moments when his voice, searching for a word or concept he barely understands, slips an octave higher into a childish stammer.

One of Johnny Penry's lawyers described him as "a 7-year-old trapped in a 44-year-old's body."

I asked Penry what he would tell the Supreme Court justices if he could plead his own case directly to them.

"I beg them on that mercy that they would put me in a mental institution for the rest of my life," he said. "I don't think that executing me is going to solve anything."

Penry's IQ test scores are between 51 and 63 -- mild to moderate retardation. It is not easy to know what he knows, or to separate it from what he pretends to know.

"I don't read or write," he said at one point. At another, "I can write a letter just barely enough to get through."

I was prepared for Penry to be hesitant, but he was almost garrulous.

"I try so hard sometimes, like I try and I can't get anything accomplished," Penry said of his mental frustration. Then he added, "I pick up that word 'accomplish.' I pick up long words and I don't even know what they mean."

Murder conviction undisputed

Bob Smith, the attorney who will argue his case before the Supreme Court later this month, said Penry "understands enough to be frightened. He's clearly frightened of what will happen if he loses the case."

If he loses, Penry will face a new execution date. He came within three hours of dying by lethal injection in November 2000 when the justices granted a stay pending their decision in the case.

Penry once already has been transported the 47 miles to Huntsville where Texas conducts its executions. He remembers every detail of the experience without necessarily comprehending the finality of the act it was leading to.

"They're going to stick a needle in my arm and that's all I know," Penry said. Another of his lawyers, Kathy Puzone, said he seems not to grasp that he will not wake up. But perhaps he does.

"I have seen the one ... who pulls the switch on you," Penry said. "I had a chat with him. I told him, 'You are the person that pulls the switch.' And he said, 'Yeah, that's me,' like he really enjoys killing people."

Penry is here because in 1979 he raped 22-year-old Pamela Moseley Carpenter and stabbed her to death with the scissors she tried to use in a futile defense. Those facts are undisputed. Just three months earlier Penry had been released from prison after serving a rape sentence.

Penry was sentenced to die for Carpenter's murder. He has been on death row ever since.

The Supreme Court heard his first appeal in 1989 and ruled it was not a violation of the Eighth Amendment ban on "cruel and unusual punishment" to execute someone who is mentally retarded. "Mental retardation is a factor that may well lessen a defendant's culpability for a capital offense," Justice Sandra Day O'Connor wrote in the court's opinion. But she said the court "cannot conclude today that the Eighth Amendment precludes the execution of any mentally retarded person of Penry's ability."

Penry did win a new trial, but he was again sentenced to die. Texas law at the time permitted the jury to consider only three questions to determine if there were mitigating circumstances to lessen the penalty:

• Was the murder committed deliberately?

• Was it an unreasonable response to a provocation?

• Was Penry a continuing threat to society?

The jury was not specifically instructed to consider Penry's mental limitation or his history of being abused.

'Frightened of my momma'

There is no dispute over his horrid living conditions as a child, hated by his mother and singled out for mistreatment none of his siblings experienced.

Penry spends 22 hours a day alone in his cell. It has a high, slit of a window. He listens to the radio and makes crayon drawings to send to his pen pals, supporters and lawyers. They resemble a 7-year-old's drawings.

In his childhood, Penry said, his mother "used to hang me upside down in the closet with a belt around my ankles."

Penry recited a litany of abuse, his voice sometimes faltering into the childlike falsetto.

"My momma tried to drown me in the bathtub. Pushed me against the hot water heater, burned me real bad. Beat me with a belt buckle. She made me drink my own urine, eat my own mess."

Penry's mother died of cancer in 1980.

"I was really frightened of my momma. I still am," he said, but added, "I loved my momma. She was my only mom. No other woman can take her place, even though she was sick."

All of Penry's known crimes were violent and sexual acts against women.

'Evolving standards of decency'

The Supreme Court this time is considering whether Texas ignored the court's earlier instructions to evaluate mental retardation as a mitigating factor. The justices are also weighing whether Penry's statements to a court-appointed psychiatrist meant to determine his fitness for trial may also be used against him in his sentencing.

The justices earlier this month put on hold the executions of two other mentally retarded inmates. Ernest McCarver faces death in North Carolina; Antonio Richardson in Missouri.

The court could be rethinking its first Penry ruling, although it has not said so. That ruling said "evolving standards of decency" could affect the court's view. At the time only two states with death penalties prohibited executing the mentally retarded. Now 13 do.

"No one's saying you should forget about the crime because he had a bad childhood," said attorney Bob Smith. "We're just saying that it makes the difference between a life sentence and a death sentence."

At his lawyers' request, I did not ask Penry about the murder. Until he said: "I ain't never hurt anybody in my whole life."

"But you did," I said.

"I don't actually know if I did, if I did ... did ... did ... do this here that they say I did," Penry stammered in the child's voice. "Only one man knows and that's God. He can be a witness to my judgment day."

I have done prison interviews before, but never with a death row inmate. I got up, walked out into the fresh but humid Texas air and caught a plane back to Washington.

Johnny Penry took the short walk back to his cell. His best hope is that he will get to stay there, or in some other cell, and will not take the 47-mile drive to Huntsville again.

His life or death is in the hands of the Supreme Court. That much I think Johnny Penry understands.

Charles Bierbauer, CNN's senior Washington correspondent, covers the U.S. Supreme Court and public policy issues. Send comments to Charles Bierbauer by writing to charles.lawcenter@cnn.com.