- The Washington Times - Sunday, November 19, 2000

It's impossible to forgive Johnny Paul Penry. On Oct. 25, 1979, recently paroled for rape, he forced his way into the home of a 22-year-old woman who sang in her church choir. He beat her, raped her, and stabbed her to death with a pair of scissors. The savagery of his crime is not in doubt. The only question is what should be done with the killer — a mentally retarded illiterate who thinks there are six hours in a day.

The state of Texas has a simple answer: Kill him, as soon as possible. Penry, 44, was sentenced to die in 1980, but his appeal went all the way to the Supreme Court, which said that the death penalty, with majestic fairness, applies to the retarded and non-retarded alike. But it also said Penry was entitled to a new trial, because the jury was not allowed to take account of his mental disability. In his second trial, he was again convicted and ordered to be executed by lethal injection.

That sentence was supposed to be carried out Thursday, but the Supreme Court stopped it with just four hours to spare, this time so it can determine whether the jury in Penry's second trial really had adequate chance to consider his retardation and the abuse he suffered as a child.

All this, of course, escapes Penry, who can't even grasp what it means to die. Before his latest reprieve, he had been taken from the Ellis death row unit to the execution chamber, where a prison chaplain explained to him how he would be put to death. After the chaplain was finished, Penry had a question: “When do I get to go back to Ellis?”

George W. Bush's abundant compassion didn't extend so far as to intervene on behalf of Penry. Perhaps Bush doesn't want to look softer on crime than Bill Clinton, who showed he was not afraid to order the termination of the mentally handicapped. During the 1992 campaign, Gov. Clinton approved the execution of a brain-damaged inmate who, at his last meal, asked a guard to put aside his dessert so he could eat it later. And Al Gore, who can speak for 30 hours straight on the vast difference between himself and Bush, has had no criticism of the governor's record on capital punishment.

The death penalty is supposed to serve several important purposes — preventing the killer from killing again, expressing society's outrage at his crime, and deterring others from committing similar crimes. But even if you accept those justifications, they don't have much relevance for inmates like Penry.

A guy who can't count above 40 is not much of a threat to escape from a maximum security prison, which means that a life sentence without parole would suffice to protect society from him. Expressing our collective outrage at a crime carried out by someone who is incapable of understanding what he has done makes about as much sense as expressing outrage at a tornado after it destroys a neighborhood.

As for deterrence, who exactly is likely to be discouraged from lawbreaking if we use the death penalty on retarded murderers? Potential killers who are not retarded can tote up the number of inmates executed in recent years and gauge the penal hazards they would encounter by committing homicide. But retarded criminals may not be up to the task of doing a careful cost-benefit analysis before deciding whether to kill.

You don't have to favor abolition of the death penalty to see the irrationality of imposing it on Penry. Of the 38 states that allow capital punishment, 13 forbid it for the mentally retarded. Even Gov. Jeb Bush of Florida, which has carried out 49 executions since resuming the use of capital punishment in 1979, says that “people with clear mental retardation should not be executed.”

Jeb, unlike his older brother, understands that while we don't excuse 7-year-olds who do terrible things, neither do we send them to death row. Why not? Because they lack the mental capacity and moral maturity to conform their actions to the law as adults are expected to do. So how on earth do we justify executing an adult whose brain operates at the level of a 7-year-old?

The death penalty makes sense only as part of a system of punishments intended to hold people morally accountable for their actions. But a seriously retarded person can't be regarded as fully responsible for what he does. In such instances, putting someone to death may satisfy a blind rage for vengeance, but blood lust shouldn't be a factor in our criminal justice system.

The Supreme Court has said that capital punishment is allowed unless it amounts to “the purposeless and needless imposition of pain and suffering.” If you want to know what Texas would achieve by executing Johnny Paul Penry, that's a pretty good description.

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