The widespread US practice of executing convicts with learning disabilities comes under scrutiny today when the supreme court hears an appeal by Johnny Penry, a Texas death row inmate with the mental age of six.
The case comes amid signs that the court may be ready to reconsider its decision 12 years ago that such executions were constitutional. This month alone, it has stayed two executions of criminals suffering from learning disabilities.
The Penry case is expected to revolve around procedural issues, in particular whether the juries which heard the case were fully informed about his disability.
Clearly the grant of these stays and hearings show [the members of the supreme court] are concerned about the whole issue... It seems strange they would take these cases if they don't plan to do something about it
Richard Dieter, the head of the Washington-based Death Penalty Information Center
However, the supreme court agreed yesterday to hear the case of Ernest McCarver, a death row inmate in North Carolina with a mental age of 10, whose lawyers are objecting to execution on the constitutional grounds that it would represent "cruel and unusual punishment". No date was set for the McCarver hearing.
Penry's lawyers will argue today that the Texas juries which sentenced him to death for a 1979 rape and murder, were not properly informed of the mitigating evidence of his learning difficulties. He has been assessed as having an IQ of about 60.
Twenty-five states allow the imposition of the death penalty on defendants with learning disabilities, despite arguments by the American Bar Association and human rights groups that the practice violates the US constitution's eighth amendment banning cruel and unusual punishment.
It will be argued that Penry was not morally culpable for his acts, citing a long history of abuse by his mother, who beat him, scalded him and forced him to eat his own faeces.
Penry forced his way into the house of Pamela Carpenter, 22, in the Texan town of Livingston, beat her, raped her and stabbed her to death with a pair of scissors she had used to try to defend herself.
Ms Carpenter's relatives and victims' rights organisations say his crimes showed signs of premeditation. They argue that a ban on executions of convicts with learning difficulties would open a loophole for murderers to escape the death penalty.
This is the second time the supreme court has examined the Penry case. In 1989, by a 5-4 majority, it upheld the constitutionality of executing criminals with learning disabilities, but issued a separate ruling - also by a one vote majority - that Penry should be retried because the original jury was not told that his learning capacity could be a mitigating factor in sentencing.
At the second trial, in 1990, the jury disregarded the advice of the judge to impose a life sentence and took just over two hours to sentence Penry to death once more. His lawyers argue that the instruction given to the jurors on the importance of mitigating factors was not specific enough about his learning disability and his history of childhood abuse.
Last November, Penry was within four hours of execution when the supreme court granted him a stay, saying it wanted to re-examine the case. Since the 1989 hearing, popular support for capital punishment has softened: 67% back it now, compared with 78% in 1989. Some 64% oppose executing people with learning disabilities.
Richard Dieter, the head of the Washington-based Death Penalty Information Center, said: "Clearly the grant of these stays and hearings show [the members of the supreme court] are concerned about the whole issue... It seems strange they would take these cases if they don't plan to do something about it."
© Guardian Newspapers Limited 2001