Next Step on Death Penalty

The federal government's second execution in two weeks, after a 38-year gap, could indicate a surge of capital punishment in the United States. But many Americans have strong reservations about the death penalty, and one factor driving those doubts is whether convicts who are mentally retarded should be executed.

Experts estimate that there have been at least 35 executions of persons with mental retardation since capital punishment was reinstated in 1976. But over the past 12 years, the number of states banning this inhumane practice has grown from 2 to 15. The federal government also rules out capital punishment for the retarded.

Texas won't be joining this trend - not this year anyway. Gov. Rick Perry just vetoed a bill that would have put his state, a leader in executions, on somewhat firmer humanitarian ground by mandating life imprisonment, instead of execution, for retarded persons convicted of a capital crime.

The death penalty is usually reserved for cases in which premeditation and culpability are clear. When murderers have limited mental capabilities, however, the question arises whether those individuals can grasp either the gravity of their crime or their own legal predicament.

Juries typically are instructed to consider this factor in determining guilt and passing sentence. But Governor Perry opposed the Texas bill because it would have given judges and court-appointed experts, not juries drawn from the citizenry, final say on whether an offender is retarded and entitled to special consideration.

Indeed, a jury's competence in this area has been at the heart of a long-running case out of Texas concerning convicted murderer Johnny Paul Penry. That case has been before the US Supreme Court twice. On June 4, the high court reversed Penry's death sentence on grounds that the jury didn't adequately take into account evidence of his retardation.

Because of the Penry case, Texas law now requires juries to weigh mental impairment in assessing culpability. That provides some protection against executing the retarded. But the surest step would be an outright ban.

A final end to such executions could come with a US Supreme Court ruling that they violate the Constitution's bar against "cruel and unusual punishments." The high court will take up that question next fall when it hears arguments in a case involving a North Carolina death-row inmate with an IQ indicating some degree of retardation.

In the past, the court refused to find the execution of such inmates "cruel and unusual" because there was no national consensus or standard on the subject. That's changing.

Regardless of how the court rules, the public and many elected officials are on a commendable path away from a practice that offends basic concepts of justice and erodes America's moral standing in the world.

(c) Copyright 2001. The Christian Science Monitor

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