New York Times

By RAYMOND BONNER and SARA RIMER

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.”