New York Times


LIVINGSTON, Tex. — Even on death row, Johnny Paul Penry is an outcast, shunned by other inmates because of his mental retardation. Mr. Penry, whose I.Q. has been tested by state authorities at 56, spends his days coloring with crayons and looking at comic books he cannot read, his lawyers say. He says he still believes in Santa Claus. Now, after 20 years on death row, he is scheduled to be executed on Thursday by lethal injection.

Mr. Penry, 44, seems uncertain about just what that means.

“The only thing what I know is that they will have a needle in my arm, just like an IV, that’s going to put me to sleep,” he said in a recent hourlong interview from behind a thick glass window on death row here. “I think it’s a cruel thing to do, to put me to sleep.”

Mr. Penry is to die for the 1979 rape and murder of Pamela Mosley Carpenter, 22, who was decorating her new home at the time he forced his way in and attacked her. Mr. Penry was on parole after serving 2 years for an earlier rape. Mrs. Carpenter was the daughter of prominent family in Livingston and sang in the choir at her church.

Mr. Penry, who rode to the crime scene on his bicycle, was the son of an absent father who taunted him as retarded and a mother who tormented him because she considered him illegitimate, family members said. When he was a child, family members and neighbors said, his mother burned him in a scalding bath, locked him in his room for long periods without food or
water and forced him to eat his own feces and drink his own urine.

Mr. Penry’s case has attracted national and international attention. In 1989 it was the subject of a landmark ruling by the United States Supreme Court - Penry v. Lynaugh - that said it was not cruel and unusual punishment, in violation of the Eighth Amendment, to execute the mentally retarded. But a sharply divided court said that a jury had to consider evidence of mental retardation when deciding whether to impose the death sentence, and it ordered a new trial for Mr. Penry.

At his 2nd trial, Mr. Penry was again sentenced to death.

Now, although his lawyers have appealed to the Supreme Court, arguing that the judge’s jury instructions at the second trial were defective, the real battle is for the hearts of the 18 people on the Texas Board of Pardons and Paroles, which has granted clemency in a capital case only once in the last 5 years. A wide range of individuals and organizations have asked the board to spare Mr. Penry’s life.

Describing it as an “urgent humanitarian appeal,” the European Union wrote that executions of people with mental disorders “degrade the dignity and worth of the human person.” The American Bar Association, which has no policy on the death penalty in general, wrote that executing the mentally retarded was “unacceptable in a civilized world.”

In their arguments to the board, the state and Mr. Penry’s lawyers reflect opposing attitudes toward the administration of the death penalty. Almost 1/2 of the state’s brief is devoted to graphic details of the crime, and it concludes by saying Mr. Penry should be executed “for the sake of Pamela Carpenter.”

In contrast, Mr. Penry’s lawyers barely mention the crime or the victim, and they ask for mercy for the defendant. The victim’s family “has suffered an unspeakable loss and the hearts of everyone on the defense team go out to them,” his lawyer, Robert S. Smith, of Paul, Weiss, Rifkind, Wharton & Garrison, the New York law firm that is representing Mr. Penry without a fee, wrote in his brief to the pardons board.

“The question before you now, however, is the appropriate punishment for Mr. Penry,” Mr. Smith said. “There is no societal retribution in killing a person with the mind of a 6- year-old.”

Of the 38 states that have capital punishment, 13 bar the execution of the mentally retarded, as does federal law. People are classified as mentally retarded if their I.Q.’s are below 70 and they have an inability to adapt to daily life. Those who oppose the execution of the mentally retarded say they lack the moral culpability to justify their receiving the ultimate punishment.

Last year, the Texas legislature rejected a bill that would have barred the execution of the mentally retarded. One of the prosecutors in the Penry case, William Lee Hon, an assistant district attorney in Polk County, testified against the bill.

In an interview, Mr. Hon said that he did not accept that Mr. Penry was mentally retarded, and he did not understand how the Supreme Court, in its 1989 opinion, had accepted that he was. Mr. Hon said that Mr. Penry was a “sociopath,” and that he had been sent to schools for the mentally
retarded not because he was mentally retarded, but because he was “an uncontrollable child.”

Mr. Penry was1 of 4 siblings. His mother was 18 when he was born, and she was placed in a mental institution in Oklahoma for nearly a year after his birth, according to state records. Mr. Penry’s childhood has been described by his 2 sisters, an aunt, and a neighbor in court documents as one of unrelenting abuse suffered at the hands of his mother.

“We were all abused, but he was abused the worst,” said one of the sisters, Sally Belinda Potts Gonzales, who is two years younger than Mr. Penry. “She would beat him with anything in sight,” Ms. Gonzales said in an interview in her modest Houston home. “She would threaten to gouge his eyeballs out with her long fingernails. She would threaten to cut off his private parts with a butcher knife.”

She said that her mother had taken Johnny out of school in the first grade, because he had embarrassed her by getting in trouble climbing a flagpole. Because Johnny would wander around the neighborhood, his mother locked him in his room for long periods without food or water. “When the poor kid got thirsty,” his sister said, “she’d make him drink his” urine “out of the toilet.”

Ms. Gonzales added that as a child she had also seen her mother force Johnny, then a toddler, to eat his own feces.

Mr. Hon, the Polk County prosecutor, said he did not believe the accounts of the boy’s abuse because he thought family members were not telling the truth. Mr. Hon cited their testimony that Johnny had been scalded in a bath by his mother. The prosecutor said that Mrs. Penry had testified she left Johnny in the sink near a hot water heater, and that he had grabbed a hose line from the water heater and sprayed himself.

Mr. Hon said he believed Mrs. Penry, who is now dead, adding, “Self-mutilation, even at that early age, would not surprise me.”

When Mr. Penry was 9, his I.Q. was 56, according to a state psychologists’ report. “John seems so seriously impaired that he is incapable of intellectually functioning at anything like an
age-appropriate level,” the psychologists wrote.

At 12, Johnny was institutionalized at the Mexia State School for the Mentally Retarded. When staff members gave him a haircut, according to a school report, they noticed many small scars on Johnny’s head. When he was asked about them, the report stated, Johnny said, “They were from
cuts made by a large belt buckle which his mother used when whipping him.”

At 15, he was given a reading test at Mexia, which required him to match drawings with the corresponding words. He identified a door as a dress, a chicken as a drum, a hat as a flag, according to the test.

When he was 22, Mr. Penry was convicted of rape. A state psychiatrist found that he was still a bed- wetter, that his judgment was “severely impaired” and that he had little regard for others or even himself. Mr. Penry said he had meant no harm to the woman he had raped, the psychiatrist wrote in his report, but that “he had never had a woman before and he wanted to see what it would be like.”

Mr. Penry is not unaware that people say he is mentally retarded. “They say I have a mentality of a kid, but I don’t know what that means,” he said in the prison interview. “I wanted to learn so bad. I wanted to be just like you and everybody else. I can’t. I’m very slow.”

Mr. Perry said he knew that some of the other inmates avoided him. “I have noticed some of the guys don’t like talking to me because I can’t carry on no conversation like most people,” he said. “I’m not on their level. I ask them, `What, do I bore you?’”

Mr. Penry said he spent 21 hours a day locked in his cell and 1 hour out of it. When asked how many hours there were in a day, he said, “I don’t know, I think 6.” Asked how high he could count, he counted on his fingers to 10, then closed his eyes tightly, clenched his fists and
concentrated hard before he replied, “To 40, I think.”

As his execution date approaches, he said: “I’m scared. Sometimes, I take my head and pound it against the wall so bad that it hurts.”

He went on, “I walk back and forth in my house and wonder why does it have to be me.”

In another part of the interview, Mr. Penry talked about his belief in Santa Claus.

“They keep talking about Santa Claus being down in the North Pole.” he said. “Some people say it’s not true. I got to where I do believe there’s a Santa Claus.”