Death penalty returns to court

Justices to review ruling on execution of mentally disabled

`National consensus' issue

Capital punishment violates N.C. killer's rights, defense says

March 27, 2001|By Thomas Healy | Thomas Healy,SUN NATIONAL STAFF

WASHINGTON - The Supreme Court agreed yesterday to reconsider its 1989 ruling that the Constitution permits the execution of mentally retarded murderers, setting up what is likely to be the court's most important ruling on the death penalty in more than a decade.

The court said it would hear the appeal of Ernest Paul McCarver, a North Carolina inmate who was sentenced to death for murdering a cafeteria worker in 1987. McCarver has an intelligence quotient of 67, and his attorneys argue that executing him would amount to cruel and unusual punishment under the Eighth Amendment.

Twelve years ago, the court rejected precisely that argument, ruling that the execution of a mentally retarded person does not violate the Eighth Amendment. But noting that the amendment is based on an "evolving standard of decency," the justices left open the possibility that they would overrule the opinion if a "national consensus" against such executions emerged in the future.

McCarver's attorneys say that consensus has emerged. In 1989, they note, only two of the 38 states that authorized the death penalty - Maryland and Georgia - barred the execution of mentally retarded murderers.

Since then, 11 more states have outlawed the practice. In addition, 12 other states bar the death penalty in any case, meaning that about half the states do not execute mentally retarded killers.

McCarver's attorneys seized on this point in their appeal to the court.

"The time is ripe for this court to consider again whether the execution of the mentally retarded constitutes cruel and unusual punishment under the federal Constitution," said one of his attorneys, Seth R. Cohen of Greensboro, N.C.

McCarver's appeal is the latest of several death penalty cases to catch the court's attention. Last week, the court ruled that capital defendants are entitled to inform jurors considering the death penalty that a sentence of life in prison would mean no chance for parole. Earlier this month, the court halted the execution of a Missouri man who is also mentally retarded.

And today, the court will hear arguments in the case of Johnny Penry, another mentally disabled death row inmate. The issue in that case from Texas is whether the jury had been informed that it could consider his disability in deciding whether to sentence him to death. It was Penry's original appeal that led to the Supreme Court's 1989 ruling that the justices are reconsidering.

The court's renewed interest in capital cases parallels a growing public debate about the administration of the death penalty. A study at Columbia Law School last year found that two of every three death penalty sentences are overturned on appeal, mostly because of errors by incompetent defense attorneys or overzealous police and prosecutors.

In response to such studies, many state legislatures have ordered reviews of the way death sentences are handed down. Gov. George Ryan of Illinois halted executions in his state.

Last weekend, the Maryland House of Delegates voted to impose a two-year moratorium on executions, though the measure's prospects in the state Senate are uncertain.

Recent polls also suggest that public support for the death penalty has declined.

Though polls show that around two-thirds of Americans still say they favor capital punishment, that level is the lowest in 20 years and is down from 75 percent in 1994.

Such developments, legal scholars say, are prompting the courts to reconsider some of their earlier decisions on capital punishment.

"I am convinced that this is causing the Supreme Court and all courts to take a more serious look at the death penalty," said James Coleman, a law professor at Duke University who has studied the history of the death penalty in the South.

McCarver was convicted of murdering Woodrow F. Hartley, a 71-year-old employee at the K&W Cafeteria in Concord, N.C. According to prosecutors, McCarver and another man waited outside the restaurant in the early morning of Jan. 2, 1987, and began talking to Hartley when he arrived for work.

After the other man grabbed Hartley around the head and pushed him to the ground, McCarver stabbed him several times in the chest with a knife before robbing him.

At McCarver's trial, a psychologist testified that he had an IQ of 74 and the emotional level of a child between the ages of 10 and 12. Though the judge told the jurors that they could take into account such evidence, they sentenced McCarver to death.

After the trial, McCarver took another IQ test, on which he scored a 67. Most states consider a person who scores under 70 to be mentally retarded.

Since 1976, when the Supreme Court allowed states to resume capital punishment, 35 mentally retarded murderers have been put to death. Nearly 10 percent of the roughly 3,600 U.S. inmates on death row are thought to be mentally retarded.

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