Knowing Right from Wrong

Dressed in standard prison whites and sporting a burr haircut and black horn-rimmed glasses with Coke bottle-thick lenses that both magnify and blur his eyes, Johnny Paul Penry picks up the telephone in the visiting area of Texas's death row where he has spent the last 22 years.

"What's this story about?" 44-year-old Penry asks straight away. It's a good question, especially coming from a man whose attorneys and family, as well as anti-death-penalty activists, contend is as simple as he looks. The reporter explains that the story is about Penry's life and his claims of a childhood tormented by a mother who physically and emotionally abused him in ways that seem inhuman. Penry learns that the article is also about the life of Pam Moseley Carpenter, the beautiful young woman Penry raped and then stabbed and stomped to death in October 1979.

During the hour-long interview, Penry stares at the questioner through a Plexiglas partition. Last November, Penry came within three hours of spending some time in another little room where Plexiglas also would have separated him from visitors. But in the Texas Department of Criminal Justice's death chamber, inside the Huntsville Unit, he would have had only a few moments to give a final statement, instead of an hour. Thanks to an 11th-hour stay by the U.S. Supreme Court -- Penry already had ordered a last meal of two cheeseburgers, french fries and cheesecake -- it didn't come to that. But it still may.

This summer Penry's attorneys and lawyers from the Texas attorney general's office will take his landmark case before the Supreme Court for the second time. The first time around, in 1989, the high court ruled that while it is constitutional to execute someone who is mentally retarded, it is not constitutional for Texas juries not to have the option to consider mental retardation as a mitigating factor in deciding on a death sentence. In other words, jurors should be given the option of sparing a capital murderer's life if they believe that a killer's reduced mental capacity played a role in the crime -- that the killer didn't know right from wrong. The ruling produced what is known in legal circles as the Penry instruction.

Ironically, according to his attorneys, Johnny Penry was the one capital murder defendant never to benefit from the Penry instruction. Following the Supreme Court's ruling, legislatures across the country, including the one in Texas, were forced to rewrite laws governing a judge's instructions to the jury in capital cases. The problem was, the Texas legislature meets only every other year, so even though the high court issued its ruling in 1989, by the time Penry was retried in 1990, the Texas law had not been changed because the legislature had yet to convene. It was on that point that Penry's attorneys were able to convince the Supreme Court in November to take another look at the case.

The high court will hear arguments later this month. If the justices believe the jurors did give adequate weight to the retardation issue, Penry likely will be rescheduled for execution. Execution is a concept that Penry's attorneys say their client, who has an IQ between 52 and 60, doesn't comprehend. If, on the other hand, the court decides that the jury did not adequately consider Penry's mental status, he could stand trial for the murder of Pam Carpenter a third time -- a possibility the victim's family finds equally incomprehensible.

If Penry stands trial again, a jury will have to make this decision one more time: Was Johnny Paul Penry helpless to prevent his crimes, a victim of his own retardation and abuse? Or was he just another cold, calculating killer on the day of October 25, 1979?

Johnny Paul Penry has spent his entire life in prisons of one form or another. His current home is a solitary confinement cell on death row in TDCJ's Terrell Unit. The prison is located just a few miles southwest of Livingston, and just a few miles away from where he murdered Pam Carpenter. It's a sad juxtaposition that seems lost on Penry, who, unlike most death row inmates, is fairly happy to be at Terrell.

Last year, in the fallout from the 1998 Thanksgiving weekend escape of seven death row inmates from the Ellis Unit near Huntsville, Texas prison officials relocated death row to the Terrell Unit, a relatively new facility about 45 miles to the east. At the Ellis Unit, prisoners could see and talk to each other across barred cells; there was a more social atmosphere. At Terrell, with cells composed of concrete walls and steel doors, there is less opportunity for inmates to interact -- and less of a chance that they will hatch escape plans. Not surprisingly, most inmates loathed the move. But Penry is rather ambivalent about the situation. He misses the work programs -- Penry maintained things such as laundry carts -- available to him at Ellis. Nor is he fond of being confined to his cell 23 hours a day. But as for the cells themselves, Penry prefers the accommodations at Terrell.

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Steve McVicker