Penry v. Lynaugh:
"Idiocy" and the Framers' Intent Doctrine
Judges... do not look at the past as historians are supposed to.
Judges do not try to understand the past on its own terms, for its
own sake, and as if they did not know how things turned out.
Judges always use history.... In short, judges exploit history by
making it serve the present and by making it yield results that are
not historically founded. 1
I.
INTRODUCTION
Ever since the United States Supreme Court validated Georgia's
death penalty statute in 1976,2 a number of challenges have been made
in order to reduce the sentences of capital criminal defendants.' The
latest, and perhaps one of the final general challenges based on the
characteristics of the defendant, occurred in Penry v. Lynaugh,4 in
which the Court considered whether the death penalty could be
1. L. LEvy, ORIGINAL INTENT AND THE FRAMERS' CONSTITUTION 313 (1988)
[hereinafter LEvY]. See also Baer, The FruitlessSearch for Original Intent, reprinted in
JUDGING THE CONSTITUTION:
CRITICAL ESSAYS IN JUDICIAL LAwMAKING 49 (M.
McCann & G. Houseman ed 1989) [hereinafter Baer]. "The Supreme Court has based
many controversial rulings on interpretations of the Constitution that have no obvious
support in history, text, or authority." Id..
2. Gregg v. Georgia, 428 U.S. 153 (1976). The Supreme Court validated the amended
Georgia capital punishment statute in establishing bifurcated guilt and penalty proceedings.
Id. at 163. The Georgia statute also required the trier of fact to hear both mitigating and
aggravating evidence. Id. See also Furman v. Georgia, 408 U.S. 238 (1972) (per curiam).
The Court held that the previous death penalty statute enacted by the Georgia legislature
was unconstitutional. Id. at 239-40. The Court invalidated mandatory death penalty
statutes in 1976. Woodson v. North Carolina, 428 U.S. 280, 301 (1976); Roberts v.
Louisiana, 428 U.S. 325, 331-33 (1976).
3. Challenges to the death penalty can be divided into four categories. First, the
defendant may challenge the sentence on the basis of his mental state at the time of the
crime or before the imposition of the death penalty. See, eg., Ford v. Wainwright, 477 U.S.
399 (1986) (Eighth amendment prohibits the imposition of the death penalty upon an
insane prisoner.). Second, the defendant may challenge the punishment on the basis of
race. See, eg., McCleskey v. Kemp, 481 U.S. 279 (1987) (Racially disproportionate impact
of capital punishment does not violate the Constitution.). Third, the defendant can
challenge on the basis of age. See, eg., Stanford v. Kentucky, 109 S. Ct. 2969 (1989)
(Imposition of capital punishment on a defendant who committed a capital crime at 16 or
17 years old did not the eighth amendment.). Fourth, the defendant can enter a procedural
challenge. See, eg., Jurek v. Texas, 428 U.S. 262 (1976). Procedural challenges constitute
a solid majority of capital punishment appeals.
4. 109 S. Ct. 2934 (1989).
CRIMINAL AND CIVIL CONFINEMENT
[Vol. 16:2
imposed on a mentally retarded criminal defendant.'
This Comment will examine the Supreme Court's opinion in Penry
v. Lynaugh,6 with a special focus on the Court's determination that the
eighth amendment 7 allows the execution of a mentally retarded
defendant. It will also present historical evidence that at common law,
the mentally retarded would not receive the ultimate sentence of
death. Furthermore, this Comment concludes that because of the very
nature of being mentally retarded, imposition of the death penalty
does not serve any valid penological goal.
II.
FAcTS
Sometime during the morning of October 25, 1979, Pamela Carpenter was raped and stabbed in her home in Livingston, Texas.' Prior to
her death at the hospital, she was able to describe her assailant to a
police officer and to a doctor.9 The description of her assailant led two
local sheriffs to suspect that John Paul Penry was responsible for
Pamela Carpenter's rape and murder.10 When the deputies arrived at
Penry's home, he denied having any involvement with the crime,
although he did agree to accompany the officers to the police station.1 1
After the officers informed Penry of his Miranda12 rights, he signed a
consent form which allowed the deputies to search his home.13 Penry
accompanied the deputies to the house, and while there, he confessed
to the raping and stabbing of Pamela Carpenter. 4 He was immedi5. Id.
6. Id.
7. "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and
unusual punishment inflicted." U.S. CONsT. amend. VIII.
8. Penry v. Lynaugh, 832 F.2d 915, 917 (5th Cir. 1987). Livingston is in Polk County,
Texas. Id.
9. Id.
10. Id. Penry had been recently paroled on a rape conviction from the Texas
Department of Corrections and was known as such to local law enforcement officials.
Penry v. State, 691 S.W.2d 636, 644 (Tex. Crim. App. 1985).
11. Penry, 832 F.2d at 917.
12. Miranda v. Arizona, 384 U.S. 436 (1966).
13. Penry v. Lynaugh, 832 F.2d 915, 917 (5th Cir. 1987). Penry had a noticeable wound
on his back and the local sheriff's deputies wanted to examine a shirt which he had worn
earlier that day. Id.
14. Penry v. State, 691 S.W.2d 636, 641 (Tex. Crim. App. 1985).
"It was while I was f-ing her that I decided to kill her with the scissors since
she stabbed me with them."
In his first confession appellant related the following: "I went on and f--ed
her on the bedroom floor and then after I got through I got up and walked
over to the kitchen door where the scissors had landed and picked them up. I
walked back to her and got down on her. Isat down on her stomach and I told
1990]
PENRY v. L YNA UGH
ately placed under arrest."i Soon thereafter, he was formally charged
with capital murder.16
M.
A.
PROCEDURAL HISTORY
The Initial Court Decision
Prior to trial, a competency hearing was conducted to determine
whether Penry had sufficient capacity to understand the nature of the
proceedings and assist in his own defense.17 Although Penry was
her thatI loved her andhated to kill herbut I hadto so she wouldn't squealon
me."
In his second confession appellant related the following: "During the last 3
weeks I thought about the Chick [deceased] a lot. Then on the morning of
October 25, 1979, which was yesterday, I got up and went to town somewhere
around 8 or 9 a.m. I saw a girl in City Hall who reminded me of the Chick. I
decided I would go over to the Chick's house and get me a piece. I also
wanted to get the money that she had in her purse. I knew that ifI went over
to the Chick's house and raped her that I would have to kill her because she
would tell who I was to the police and I didn't want to go to the pen."
Further on in the confession appellant stated: "I came back and sat on her
stomach. I told her that I was going to kill her and that I hated to but I
thought she would squeal on me."
Id.
15. Id.
16. TEx. PENAL CODE ANN. § 19.03 (Vernon 1979) which was in effect at the time of
Penry's offense, provided that:
(a) A person commits an offense [of capital murder] if he commits murder as
defined under section 19.02(a)(1) of this code and:
(1) the person murders a peace officer or fireman who is acting in the
lawful discharge of an official duty and one who the person knows is a peace
officer or fireman;
(2) the person intentionally commits the murder in the course of
committing or attempting to commit kidnapping, burglary, robbery,
aggravated sexual assault, or arson;
(3) the person commits the murder for remuneration or the promise of
remuneration or employs another to commit the murder for remuneration or
the promise of remuneration;
(4) the person commits the murder while escaping or attempting to escape
from a penal institution; or
(5) the person, while incarcerated in a penal institution, murders another
who is employed in the operation of the penal institution.
Id. Penry was charged with violation of subsection (a)(2). Penry v. State, 691 S.W.2d 636,
641 (Tex. Crim. App. 1985).
17. Penry v. Lynaugh, 832 F.2d 915, 917 (5th Cir. 1987). See also TEx. CODE CRIM.
PRoc. ANN. art. 46.02 § 1 (Vernon 1990) which states that:
(a) A person is incompetent to stand trial if he does not have:
(1) sufficient present ability to consult with his lawyer with a reasonable
degree of rational understanding; or
(2) a rational as well as factual understanding of the proceedings against him.
CRIMINAL AND CIVIL CONFINEMENT
[Vol. 16:2
shown to have limited18mental ability, a jury found the defendant competent to stand trial.
At the first phase of the trial, a new jury was asked to determine the
guilt or innocence of the defendant.19 The major issue at trial was the
contention of the defense that Penry was insane because, "as a result
of severe mental disease or defect, [he] did not know that his conduct
was wrong." 20 Three psychiatrists testified for the defendant as to his
mental ability,2 ' and it was unanimously agreed that Penry had
"mental limitation[s]." 2 2 The two state psychiatrists believed Penry
was sane under the Texas insanity test.23 The defendant's psychiatrist
believed that Penry was insane, which would have barred him from
standing trial.24 All of the medical records indicated that Penry was
mentally retarded since early childhood, 2 although the degree of his
retardation was one of the issues at the trial.26 Furthermore, one of
Penry's relatives who testified, told of physical abuse by his mother.2 7
The degree of Penry's mental disease, which is separate and distinct
from his mental retardation, was also discussed at the trial.28
(b) A defendant is presumed competent to stand trial and shall be found
competent to stand trial unless proved incompetent by a preponderance of the
evidence.
Id.
18. Penry, 832 F.2d at 917.
19. Id.
20. TEx. PENAL CODE ANN.§ 8.01 (Vernon 1974) stated that:
(a) It is an affirmative defense to prosecution that at the time of the conduct
charged, the actor as a result of mental disease or defect, either did not know
that his conduct was wrong or was incapable of conforming to the
requirements of the law he allegedly violated.
(b) The term "mental disease or defect" does not include an abnormality
manifested by repeated criminal or otherwise antisocial conduct.
Id. Today, the Texas insanity defense has been amended to state that: "(a) It is an affirmative defense to prosecution that at the time of the conduct charged, the actor, as a result of
severe mental disease or defect, did not know that his conduct was wrong." Id. (Vernon
1990).
For an early Texas ruling on the insanity plea, see Hague v. State, 65 Tex. Crim. 539, 146
S.W. 905 (Tex. Crim. App. 1912).
21. Penry, 832 F.2d at 917.
22. Id.
23. Id.
24. Id.
25. See Record at 18, Penry v. Lynaugh, 109 S. Ct. 2934 (1989) (No. 87-6177).
26. Id. at 124.
27. Id. at 126.
28. See id. at 87. See also AMERICAN PSYCHIATRIC ASSOCIATION, DIAGNOSTIC AND
STATISTICAL MANUAL OF MENTAL DISORDERS (3d ed. rev. 1987) [hereinafter DSM-IIIR]. The DSM-III-R defines mental retardation as "significantly subaverage general
functioning, accompanied by... significant deficits or impairments in adaptive functioning,
with . . . onset before the age of 18." Id. at 28. General intellectual functioning is
1990]
PENRY v. L YNA UGH
"The jury rejected Penry's insanity defense and found him guilty of
capital murder."2' 9 The jurors apparently focused on the confession to
police that he killed Pamela Carpenter because he thought she would
later identify him.
In the second phase of the trial, the jury was asked to determine
Penry's sentence.30 The jury accomplished this by deciding three
"special issues;" 3 1
(1) whether the conduct of the defendant that caused the death of
the deceased was committed deliberately and with the reasonable
expectation that the death of the deceased or another would
result;
(2) whether there is a probability that the defendant would corndetermined by administering an intelligence quotient (IQ) test. Id. The DSM-lII-R splits
mental retardation into four degrees of severity:
DEGREE OF SEVERrrY
IQ
Mild
50-55 to approx. 70
Moderate
35-40 to 50-55
Severe
20-25 to 35-40
Profound
Below 20 or 25
Id. at 32.
Persons with mild mental retardation constitute 85% of the mentally retarded population and are considered "educable." Id. Persons with moderate mental retardation constitute 10% of the entire population of people with mental retardation. Id. Severe mental
retardation exists in 3-4% of people with mental retardation. Id. at 33. Those with
profound mental retardation have limited motor development. The condition exists in 12% of people with mental retardation. Id. See also THE NEw HARVARD GUIDE TO PSYcrnATRY (A. Nicholi Jr. ed. 1988). "Most demographers claim that approximately 3 children in every 100 are retarded." Id. at 681.
In contrast with the 3 percent found and diagnosed among children, only
about 1 percent of the adult population is found to be retarded; this means
that a large percentage of intellectually handicapped individuals are able to
develop adaptive functioning so that they are not in need of any special medical or educational facilities.
Id. The ABA defines a severely mentally ill offender as a person with "a substantial disorder of thought, mood, perception, orientation, or memory, which grossly impairs judgment,
behavior, or the capacity to recognize reality or the ability to meet the demands of life
." ABA STANDARDS FOR CRIMINAL JUSTICE, Standard 7-9.1(b) (1986 Supp.).
Generally, the distinction between mental retardation and mental illness is that the former is organic and static while the latter is dynamic and thus fluctuates from moment to
moment. See F. MENOLASCINO, CHALLENGES IN MENTAL RETARDATION: PROGRESSIVE
IDEOLOGY AND SERVICES (1977). Mental illness and mental retardation are not mutually
exclusive; therefore, some people who are mentally retarded may have mental illness. Dr.
Menolascino estimated that approximately 30% of retarded people have mental illness. Id.
at 26-27. This relatively high rate of mental illness is probably due to stigmatization and
other environmental pressures.
29. Penry v. Lynaugh, 832 F.2d 915, 917 (5th Cir. 1987).
30. Id.
31. TEx. CODE CRIM. PRoc. ANN. art. 37.071 (b) (Vernon Supp. 1990).
CRIMINAL AND CIVIL CONFINEMENT
[Vol. 16:2
mit criminal acts of violence that would constitute a continuing
threat to society; and
(3) if raised by the evidence, whether the conduct of the defendant in killing the deceased was unreasonable in response to the
provocation, if any, by the deceased.3 2
The jury was also instructed to consider all the evidence submitted
in both the guilt or innocence and penalty phases of the trial.33 After
the jury considered all of the evidence, it answered "yes" to all three
special issues and the judge sentenced Penry to death.'
B.
The Appeal
On appeal to the Texas Court of Criminal Appeals, one of Penry's
major contentions was that the mitigating evidence of his past history
was not considered at the penalty phase of the trial. 35 The court held
that criminal "[d]efendants are allowed to present all possible relevant
mitigating information at the punishment hearing, as part of the effort
to aid the jury in answering the special issues.", 36 The federal district
court denied relief to Penry's habeas corpus 37 petition challenging his
death sentence. He then appealed to the Court of Appeals for the
Fifth Circuit.3" The court of appeals found some merit in Penry's
argument that the mitigating evidence of his limited mental capacity
and past history were not taken into consideration during the penalty
phase of the trial. 39 The court analyzed the three "special issues" and
wrote:
If, however, that consideration [of the mitigating evidence] should
lead the jury to decide against the death sentence, how is the decision given effect and incorporated into the verdict? No interrogatory asks about that most crucial decision. Having said that it
was a deliberate murder and that Penry will be a continuing
threat, the jury can say no more. The court, following Texas law,
ends the matter and orders death. It is difficult to see how this
procedure accords with some of the Supreme Court's writings on
32. Id. See also OR.REv. STAT. § 163.150 (1989). The Oregon death penalty statute is
virtually identical except for the following issue: "(D) If constitutionally required,
considering the extent to which the defendant's character and background, and the
circumstances of the offense may reduce the defendant's moral culpability or
blameworthiness for the crime, whether a sentence of death be imposed." Id.
33. Penry v. Lynaugh, 109 S. Ct. 2934, 2943 (1989).
34. Id.
35. Penry v. State, 691 S.W.2d 636, 654 (Tex. Crim. App. 1985).
36. Id.
37. Habeas corpus is a challenge to an alleged unconstitutional detention. BLACK's LAW
DICTIONARY 638 (5th ed. 1979).
38. See Penry v. Lynaugh, 109 S.Ct. 2934, 2943 (1989).
39. Penry v. Lynaugh, 832 F.2d 915, 925 (5th Cir. 1987).
PENRY v. L YNA UGH
1990]
the Eighth Amendment's mandate of individualized application of
4
all mitigation along with aggravation in the sentencing decision.
0
Although the court agreed with Penry, it concluded that it was
unable to overturn the death sentence.4 1 In upholding its own decision, the court of appeals relied upon Jurek v. Texas,42 in which the
Supreme Court upheld the Texas death penalty and its three "special
issues."'4 3 In addition, the court based its decision not to intervene on
the fact that it had rejected claims similar to Penry's in past
decisions.'
IV.
THE DECISION OF THE UNITED STATES SUPREME COURT
The Supreme Court considered two issues in the Penry case.4 5 One
issue was the petitioner's contention that his mitigating circumstances
were not allowed to be considered by the jury during the penalty phase
of the trial, and therefore was a violation of the eighth amendment. 4
The Court held that the trial court's denial of Penry's request for a
limiting instruction to the jury to consider all relevant mitigating evidence did deny Penry his eighth amendment rights.4 7
In his second claim, Penry contended that execution of the mentally
retarded was prohibited by the eighth amendment since it would be
cruel and unusual punishment to execute a person "with the reasoning
capacity of a 7 year old."148 The Court held that the imposition of
capital punishment on mentally retarded defendants did not violate
the eighth amendment.49
V.
A.
DISCUSSION
MitigatingEvidence and Texas' Three "SpecialIssues"
Justice O'Connor, writing for the majority,50 began the Court's discussion of the first issue51 by tracing the evolution of the Supreme
40.
41.
42.
43.
Id. at 920.
Id. at 926.
428 U.S. 262 (1976). See also infra notes 53-54 and accompanying text.
Jurek v. Texas, 428 U.S. 262 (1976).
44. Penry v. Lynaugh, 832 F.2d 915, 926 (5th Cir. 1985).
45. Penry v. Lynaugh, 109 S. Ct. 2934, 2943-44 (1989).
46. Id. at 2947.
47. Id. at 2948.
48. Id. at 2952.
49. Id. at 2955.
50. Justice O'Connor was joined by Justices Brennan, Marshall, Blackmun, and Stevens,
in the portion of the opinion which remanded Penry back to the trial court. Id. at 2940.
51. As a procedural barrier, Penry had to overcome the procedural requirements
enunciated in Teague v. Lane, 109 S. CL 1060 (1989). In Teague, the Court imposed a
requirement whereby it would not apply a new rule retroactively on collateral review
CRIMINAL AND CIVIL CONFINEMENT
[Vol. 16:2
Court's insistence that a jury must be able to consider and give effect
to a defendant's mitigating circumstances when determining the ultimate sentence in a capital punishment case.5 2 Justice O'Connor noted
that the Court first ruled on Texas' tripartite capital punishment
scheme in Jurek v. Texas.53 The Jurek Court, held that the Texas
scheme was constitutional because of assurances that the Texas Court
of Criminal Appeals interpreted its death penalty statute to require the
jury to consider all mitigating factors.5 4
.The latest pronouncement by the Supreme Court with regard to
Texas' special issues and the consideration of mitigating evidence in
the sentencing phase, occurred in Franklin v. Lynaugh.55 In that case,
the defendant was sentenced to death for the murder of a nurse from
San Antonio.5 6 The defendant appealed to the Supreme Court on the
grounds that his good disciplinary record during a previous period of
incarceration shed light on the second special issue regarding the
determination that he would be a continuing threat to society.5 7 A
plurality of the Supreme Court held that the jury in the Franklin case
was not precluded from giving weight to the mitigating evidence of the
(habeas corpus) unless it fell within one of two exceptions. The Court held that a new rule
occurred when new obligations were imposed on the government. Id. at 1070. According
to Teague, one exception existed when the new rule expanded the criminal rights of
individuals. Id. at 1072. Since Penry was challenging the Texas statute's effect of
preventing the jury from considering all mitigating evidence (mental retardation and his
past history), the Court determined that Penry was not seeking a new rule. The Court held
that Penry was only asking for a jury determination in light of the assurances in Jurek, and
therefore a new rule was not being sought. Penry v. Lynaugh, 109 S. Ct. 2934, 2945 (1989).
By applying the Teague requirements to the facts in Penry, the Court held that the Teague
rule was applicable in the capital punishment context. Id. at 2944. As to the Teague
segment relating to the "special issues," Justice O'Connor was joined by Chief Justice
Rehnquist, and Justices White, Scalia, and Kennedy. Id. at 2940.
52. Penry, 109 S. Ct. at 2947-52.
53. 428 U.S. 262 (1976).
54. Jurek, 428 U.S. at 271. A number of scholars have made recommendations for
updating the "special issues", based on intense criticism of the Texas death penalty statute.
See, eg., Sicola & Shreves, Jury Consideration of Mitigating Evidence: A Renewed
Challenge to the Constitutionalityof the Texas Death Penalty Statute, 15 AM. J. CRIM. L.
55-68 (1988); Note, A ConstitutionalAnalysis of the Texas Death Statute, 15 AM. J. Clum.
L. 69-82 (1988) (for criticisms and recommendations regarding TEx. CoDE CRIM. PROC.
ANN. art. 37.071(b) (Vernon 1988)).
55. 487 U.S. 164 (1988). See also Lockett v. Ohio, 438 U.S. 586 (1978). The Court
found the Ohio capital punishment statute, which listed three specific mitigating
circumstances, to be violative of the eighth amendment. Id. at 604; See also Eddings v.
Oklahoma, 455 U.S. 104 (1982). The Court reaffirmed its holding in Jurek, holding that the
sentencer cannot be precluded from considering any relevant mitigating evidence. Id. at
114.
56. Franklin, 487 U.S. at 168.
57. Id. at 177.
1990]
PENRY v. L YNA UGH
defendant's favorable prison disciplinary record, even though the
defendant was denied limiting instructions concerning the "special
issues.""8 Justice O'Connor, joined by Justice Blackmun, concurred
with the plurality in its result because the defendant's previous prison
disciplinary record was relevant to Texas' second special issue of
future dangerousness.5 9 The two Justices determined that the jury had
an opportunity to consider this mitigating evidence when answering
the second special issue.' Justice O'Connor concluded that if Franklin were a case where the jury had "no vehicle for expressing its 'reasoned moral response' to [the] evidence" 6 1 then the Court would have
to determine whether an eighth amendment violation occurred.6 2 This
determination,
according to Justice O'Connor, was not necessary in
63
Franklin.
While the Court held that the application of Texas' sentencing
scheme as utilized in Franklin was permissible, Justice O'Connor
received another opportunity to review its validity in Penry.64 Penry
did not challenge the constitutionality of the special issues. However,
he did contend that the special issues did not allow the jury to consider
his background and mental retardation.6 5 Writing for the majority in
the Penry case, Justice O'Connor agreed with the petitioner's contention that the Jurek assurances were not followed in his trial.6 6 The
Court noted that none of the three special issues allowed the jury to
consider Penry's mental retardation or abused background. 67 Furthermore, the Court rejected Texas' contention that "Penry was free to
58.
59.
60.
61.
62.
63.
64.
Id. at 177-80.
Id. at 183-88.
Id. at 185.
Franklin, 487 U.S. at 185.
Id.
Id.
Penry v. Lynaugh, 109 S.Ct. 2934, 2947-48 (1989).
Like the petitioner in Franklin v. Lynaugh, Penry contends that in the
absence of his requested jury instructions, the Texas death penalty statute was
applied in an unconstitutional manner by precluding the jury from acting
upon the particular mitigating evidence he introduced. Franklin was the first
case considered by this Court since Jurek to address a claim concerning the
treatment of mitigating evidence under the Texas special issues. Like Jurek
itself, Franklin did not produce a majority opinion for the Court. The
Franklin plurality, and the two concurring Justices, concluded Franklin was
not sentenced to death in violation of the Eighth Amendment because the
jury was free to give effect to his mitigating evidence of good behavior in
prison by answering "no" to the question on future dangerousness.
Id.
65. Id. at 2948.
66. Id. at 2952.
67. Id. at 2948-50.
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introduce and argue the significance of his mitigating circumstances to
the jury. "68 The prosecution, in its closing argument, had stressed to
the jury that their job was to follow the law as it pertained to the
special issues and not their emotions. 69 The Supreme Court held that
"[i]n light of the prosecutor's argument, and in the absence of appropriate jury instructions, a reasonable juror could well have believed
that there was no vehicle for expressing the view that Penry did not
deserve to be sentenced to death"7 ° even though he had introduced
relevant mitigating evidence.7" In conclusion, the Court remanded the
Penry case so that a new jury could consider all relevant mitigating
evidence.
Presently, the effect of the Penry decision is to mandate limiting jury
instructions when a reasonable juror cannot utilize relevant mitigating
evidence when answering Texas' special issues.72 The latter is consistent with Jurek and its progeny in addition to stare decisis because the
Penry decision retains Texas' tripartite scheme while modifying it in
certain specific circumstances. Apparently this situation will persist
until the Texas courts construe the three "special issues" to incorporate consideration of all relevant mitigating evidence the defense can
introduce.
B. Execution of the Mentally Retarded Under the Eighth
Amendment
Penry's second, and most notable claim, 7 3 was that it was "cruel
and unusual punishment" under the eighth amendment7 4 to execute a
mentally retarded person because he lacked the requisite "moral culpability to justify imposing the death sentence."7 5 The Court, in
68. Id. at 2950.
69. Penry, 109 S. Ct. at 2950.
70. Id.
71. Id.
72. See Callins v. State, 780 S.W.2d 176, 192 (Tex. Crim. App. 1989). In construing the
Penry decision, the Texas Court of Criminal Appeals wrote that "[tihe United States
Supreme Court held the Texas capital murder statute unconstitutional 'as applied' in the
face of a challenge based on lack of additional instructions concerning mitigating
circumstances." Id. (footnote omitted).
73. See supra note 51. Under the Teague rule, the Court held that although a new rule
could be announced by finding that execution of the mentally retarded was
unconstitutional, the Court concluded that such a holding fell into the first exception to
Teague. Thus, one of the Teague exceptions allows the courts to announce new rules when
such a rule will prohibit certain categories of "punishment for a class of defendants because
of their status or offense." Penry v. Lynaugh, 109 S. Ct. at 2934, 2952-53 (1989).
74. U.S. CONST. amend. VIII. ("Excessive bail shall not be required, nor excessive fines
imposed, nor cruel and unusual punishment inflicted.").
75. Penry, 109 S. Ct. at 2952.
1990]
PENRY v. L YNA UGH
response to this claim,76 reasoned that the eighth amendment, at a
minimum, prohibited all punishment which was cruel and unusual
when the Bill of Rights was adopted.77
Under this analysis, the Court discussed the notion that at common
law anyone who was a lunatic or an idiot was exempt from punishment for criminal acts which were committed while under those incapacities.78 The Court noted that the common law notion of idiocy was
similar to the present-day classification of the mentally retarded, in
79
that both encompass the concept of a permanent mental deficiency.
Yet, the Court pointed out that the idiot at common law was a person
who today would be classified as having severe or profound
retardation. 0
In addition, the Court noted that anyone who would have been classified as an idiot at common law would be considered insane since the
modem day insanity plea includes the "mental defect" as part of its
definition." As such, the Court concluded that any person who today
was severely or profoundly retarded would "not likely ... be convicted or face the prospect of punishment." 82
Since the eighth amendment prohibits cruel and unusual punishments in violation of "evolving standards of decency that mark the
76. On this issue, Justice O'Connor was joined by Chief Justice Rehnquist and Justices
White, Scalia, and Kennedy.
77. Penry, 109 S. Ct. at 2953.
The Eighth Amendment categorically prohibits the infliction of cruel and
unusual punishments. At a minimum, the Eighth Amendment prohibits
punishment considered cruel and unusual at the time the Bill of Rights was
adopted. The prohibitions of the Eighth Amendment are not limited,
however, to those practices condemned by the common law in 1789.
Id. (citation omitted).
78. Id. at 2953. "It was well settled at common law that 'idiots,' together with 'lunatics,'
were not subject to punishment for criminal acts committed under those incapacities." Id.
79. Id. at 2954. "In its emphasis on a permanent, congenital mental deficiency, the old
common law notion of 'idiocy' bears some similarity to the modem definition of mental
retardation." Id.
80. Id. "The common law prohibition against punishing 'idiots' generally applied,
however, to persons of such severe disability that they lacked the reasoning capacity to
form criminal intent or to understand the difference between good and evil." Id.
81. Id. "The common law prohibition against punishing 'idiots' for their crimes
suggests that it may indeed be 'cruel and unusual' punishment to execute persons who are
profoundly or severely retarded and wholly lacking the capacity to appreciate the
wrongfulness of their actions." Id. Lacking the capacity to appreciate the wrongfulness of
one's actions would classify the defendant as being insane. Imposition of the death penalty
upon insane defendants violates the eighth amendment. Ford v. Wainwright, 477 U.S. 399
(1986). In Ford, the Court stated that "[w]e know of virtually no authority condoning the
execution of the insane at English common law." Id. at 408 (citing 33 Hen. 8, ch. 20. The
Court noted that the law was "unanimously criticized by English scholars.").
82. Id.
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[Vol. 16:2
progress of a maturing society," 3 Penry argued that there was a
national consensus against execution of the mentally retarded." The
Court, in response to this argument, held that there was no such
national consensus since only one state explicitly banned the execution
of mentally retarded persons.8 5 In concluding that there was no
national consensus against the execution of the mentally retarded, the
Court found that the absence of such legislation
was an objective indi6
cator of contemporary standards of decency.
Penry also asserted that the execution of a mentally retarded person
did not serve the dual goals of the death penalty: retribution and deterrence.8 7 Penry contended that the intended punishment would be
cruel and unusual since it was "disproportionate to his degree of per-
sonal culpability."88 Justice O'Connor, writing separately, concluded
83. Id. at 2955 (quoting Trop v. Dulles, 356 U.S. 86, 101 (1958) (plurality opinion)).
84. Id. See Blume & Bruck, Sentencing the Mentally Retarded to Death: An Eighth
Amendment Analysis, 41 ARK. L. REv. 725, 759-60 (1988). A 1986 survey of Floridians
revealed that 71% were opposed to the practice of imposing the death penalty on mentally
retarded persons. In contrast, 84% of the Floridians polled favored the death penalty. Id.
at 759. "A Georgia poll found 66% of those polled opposed to the death penalty for the
retarded, 17% in favor, with 16% responding that it depends how retarded the person is."
Penry v. Lynaugh, 109 S. Ct. 2934, 2955 (1989).
85. Penry, 109 S. Ct. at 2955. See GA. CODE ANN. § 17-7-1310) (Supp. 1989).
In the trial of any case in which the death penalty is sought which commences
on or after July 1, 1988, should the judge find in accepting a plea of guilty but
mentally retarded or the jury or court find in its verdict that the defendant is
guilty of the crime charged but mentally retarded, the death penalty shall not
be imposed and the court shall sentence the defendant to imprisonment for
life.
Id. "(a) For purposes of this Code section, the term:... (3) 'Mentally retarded' means
having significantly subaverage general functioning resulting in or associated with impairments in adaptive behavior which manifested during the developmental period." GA. CODE
ANN. § 17-7-131(a).
86. Penry, 109 S. Ct. at 2955.
The public sentiment expressed in [the] . . . polls and resolutions may
ultimately find expression in legislation, which is an objective indicator of
contemporary values upon which we can rely. But at present, there is
insufficient evidence of a national consensus against executing mentally
retarded people convicted of a capital offense for us to conclude that it is
categorically prohibited by the Eighth Amendment.
Id.
87. Id. See Brief for American Association on Mental Retardation, as Amici Curiae,
Penry v. Lynaugh, 109 S. Ct. 2934 (1989) [hereinafter AAMR Amici Brief]. "This Court
has held that retribution is a valid penological purpose, and that in proper cases it can
support imposition of the death penalty. But this Court has also concluded that valid
exercise of the state's interest in retribution must be related to the degree of the defendant's
blameworthiness." Id. at 19 (citing Emnund v. Florida, 458 U.S. 782, 800 (1982)).
88. Penry, 109 S. Ct. at 2956. See Brief for Petitioner at 49-50, Penry v. Lynaugh, 109 S.
Ct. 2934 (1989) (No. 87-6177).
1990]
PENRY v. L YNA UGH
that the mentally retarded were so diverse that some were able to "act
with the level of culpability associated with the death penalty." 8 9
Finally, Justice O'Connor discussed the concept of "mental age" as
put forth by Penry in asserting that he was the equivalent of a seven
year old.' In concluding that it was problematic in several respects,
Justice O'Connor wrote that the use of the "mental age" concept was
limited since it was inaccurate when one compared retarded adults
with non-retarded children. 91 In addition, Justice O'Connor was hesitant to rely on the concept of "mental age" since such reliance "could
92
have a disempowering effect if applied in other areas of the law."
This Court has decided that a juvenile who was 15 years old should not be
executed because one of that age does not have the maturity, judgment, and
perspective of an adult, and they are more vulnerable, impulsive, have less
capacity to control their conduct and think in long-range terms. A mentally
retarded person has these same problems. For these same reasons, a mentally
retarded person with the reasoning capacity of a seven year old should not be
executed.
Id.
89. Penry, 109 S. Ct. at 2957. "In light of the diverse capacities and life experiences of
mentally retarded persons, it cannot be said on the record before us today that all mentally
retarded people, by definition, can never act with the level of culpability associated with the
death penalty." Id.
90. Id. See Ellis & Luckasson, Mentally RetardedCriminalDefendants, 53 Gno. WASH.
L. REv. 414 (1982) [hereinafter Ellis & Luckasson].
"Mental age" is a means of describing the severity of a mentally retarded
person's disability. The concept was invented by Alfred Binet, one of the
creators of the earliest intelligence tests. The concept of mental age
represents an attempt to compare the intellectual functioning of the
individual being tested with the performance of mentally typical
(nonretarded) people. Thus, a child with a chronological age of 12 may
receive a similar score on an IQ test to a nonretarded child who is six years
old, and therefore be said to have a mental age of 6. This is accomplished by
identifying for each question or item on an IQ test the age level at which the
most children typically can answer the question successfully.
Id. at 434 n.105.
91. Penry, 109 S. Ct. at 2958. See, eg., In Re Ramon M., 22 Cal. 3d 419, 584 P.2d 524,
149 Cal. Rptr. 387 (1978); People v. Marquis, 344 Ill. 261, 176 N.E. 314 (1931);
Commonwealth v. Belenski, 276 Mass. 35, 176 N.E. 501 (1931); State v. Schilling 95 N.J.L.
145, 112 A. 400 (1920) (for the discussion and dismissal of the mental age concept). Cf.
Pickett v. State, 37 Ala. App. 410, 71 So. 2d 102 (1954); State v. Richards, 39 Conn. 59
(1873).
92. Penry, 109 S. Ct. at 2958. "[O]n that premise [of accepting the 'mental age' concept]
a mildly mentally retarded person could be denied the opportunity to enter into contracts
or to marry by virtue of the fact that he had a 'mental age' of a young child." Id.
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VI.
A.
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ANALYSIS
The Common Law Notion of Idiocy and the Framers' Intent
The Court, in determining whether the mentally retarded could be
executed, stated that "[t]he Eighth Amendment categorically prohibits
the infliction of cruel and unusual punishments. At a minimum, the
Eighth Amendment prohibits punishment considered cruel and unusual at the time the Bill of Rights was adopted."93 Focusing on the
period in which the Bill of Rights was adopted, the Court was
attempting to gauge the intent of the Framers when they inserted the
"cruel and unusual punishment" prohibition clause in the Constitution.94 The idea that the Bill of Rights secures certain minimum rights
which cannot be violated by the government has been a constant
theme throughout constitutional jurisprudence.9 5 Yet, the historical
argument that the Framers' intention should be the initial and primary
focus of ascertaining minimum constitutional rights, has been hotly
debated.9 6 Critics of the historical argument maintain that it is impos-
sible to gauge the exact intent of the Framers, and thus they claim that
97
a focus on intent becomes an exercise in constitutional futility. Pro93. Id. at 2953 (citing Ford v. Wainwright, 477 U.S. 399, 405 (1986); Solem v. Helm,
463 U.S. 277, 285-86 (1983)). "When the Framers of the Eighth Amendment adopted the
language of the English Bill of Rights ....one of the consistent themes of the era was that
Americans had all the rights of English subjects." Solem, 463 U.S. at 285-86 (footnote
omitted).
"The prohibition of cruel and unusual punishments was based on the longstanding
principle of English law that the punishment should fit the crime." R. PERRY & I.
COOPER, SOURCES OF OUR LIBERTIES 236 (1972) [hereinafter PERRY & COOPER].
"That enactment [of the English Bill of Rights] ...had a narrow range of protections...
in language closely followed by the American Eighth Amendment, [such as] bans on
excessive bail, excessive fines, and cruel and unusual punishments." LEVY, supra note 1,at
140 (emphasis added).
94. See supra note 93.
95. See generally LEVY, supra note 1, at 137-73. See also Rhode Island v.
Massachusetts, 37 U.S. (12 Pet.) 657, 721 (1838). "The solution of this question must
necessarily depend on the words of the constitution; the meaning and intention of the
convention which framed and proposed it for adoption and ratification to the conventions
of the people ...." Id.; P. BOBBITT, CONSTITUTIONAL FATE 9-24 (1982) [hereinafter
BOBBITT].
96. See LEVY, supra note 1, at 3. See also BOBBfT, supra note 95, at 12.
97. See, e.g., LEVY, supra note 1.
James Madison, Father of the Constitution and of the Bill of Rights,
rejected the doctrine that the original intent of those who framed the
Constitution should be accepted as an authoritative guide to its meaning. "As
a guide in expounding and applying the provisions of the Constitution," he
wrote in a well-considered and consistent judgment, "the debates and
incidental decisions of the Convention can have no authoritative character."
Id. at 1. (footnote omitted) (citing Letter to Thomas Ritchie (Sept. 15, 1821), reprinted in
III LETErs AND OTHER WRITINGS OF JAMES MADISON 228 (W. Rives & P. Fendall ed.
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PENR Y v. L YNA UGH
ponents, however, contend that the use of an historical analysis to
gauge the intent of the Framers is valuable as a primary source of
constitutional meaning. 9'
In applying the Framers' intent doctrine to Penry, the Court determined that the common law notion of idiocy, in its similarity to the
modem day diagnosis of mental retardation,9 9 only referred to persons
who today are severely retarded. I"o However, a close reading of the
historical record from the sixteenth through eighteenth centuries
points to a different conclusion. The importance of such a reading is
crucial since the eighth amendment has direct roots to the English Bill
of Rights of 1689.101 In the sixteenth century, Sir Anthony
Fitzherbert (1470-1538),10° an English judge famous for his writings,10 set forth the following test to determine whether a person was
an "idiot":
[An idiot is] a person who can not account or number twenty
pence, nor cannot tell who was his father or mother, nor how old
he is, etc., so as it may appear he hath no understanding of reason
what shall be for his profit, or what for his loss. But if he have
such understanding that he know and understand his letters, and
do read by teaching of another man, then it seems he is not a sot
or a natural fool.0 4
1884)). Ironically, the Framers' intent may have been for later followers of the Constitution not to ascertain the Framers' intent.
98. See Simon, The Authority of the Constitution: Can OriginalistInterpretation Be
Justified?, 73 CALIF. L. REv. 1482 (1985) (the author refers to this doctrine as
"originalism" or "original understanding"). Proponents argue that the "original
understanding provides the authoritative source of constitutional meaning, and that this
meaning can be authoritatively changed only by amending the Constitution through the
processes that are themselves set out in the document." Id.
99. See supra note 79 and accompanying text.
100. Id.
101. See supra note 93 and accompanying text. See also PERRY & COOPER, supra note
93, at 222-50. "The clause of the [English] Bill of Rights prohibiting excessive bail and
cruel and unusual punishments was copied verbatim in the constitution of many of the
states at the time of the American Revolution, and it appears as the eighth amendment to
the Constitution of the United States." Id. at 235.
102. See A.W.B. SIMPSON, BIOGRAPHICAL DICTIONARY OF THE COMMON LAW 180-81
[hereinafter SIMPsoN]. Sir Anthony Fitzherbert's works include the La Graunde
Abridgement (1514) which marked "the earliest serious effort to systemise the entire corpus
of the law." Id. at 180.
103. Id.
104. See Ellis & Luckasson, supra note 90, at 416 (citing S. GLUECK, MENTAL
DISORDER AND THE CRIMINAL LAW 128 (1925)).
On a question whether a deed was void in law, on the ground of
unsoundness of mind in the person by whom it was executed ....
The strict legal definition of an idiot, in an old book which I have brought
down with me, is, that if a man can repeat the letters of the alphabet, or read
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[Vol. 16:2
If one were to apply the Fitzherbert test to John Paul Penry, who
was mildly retarded, he would likely be considered an "idiot." Witnesses at the trial testified to the fact that he was just barely able to
write his name if one told him the letters. ' Except for that achievement he was unable to learn how to write after more than one year of
repetitive teaching."l 6 Further testimony stated that he was unable to
tell the difference
between flowers and weeds for the purpose of
10 7
gardening.
Another prominent legal scholar, Sir Edward Coke (1552-1634), '° '
widely regarded as the "greatest common lawyer in the history of English jurisprudence,"1 9 split idiocy into two types.110 One form of idiocy included severe or profound retardation, while the other form was
a less severe category which just indicated "subnormal intelligence." I 1 Regardless of the distinction, Coke believed that both types
of "idiocy" were severe enough to be considered an excuse to escape
criminal punishment."1 2 Therefore, Coke would have found that any
mentally retarded person was incapable of being punished for his
crime.
Sir Matthew Hale (1609-1676),' 13 indicated that any type of mental
"subnormality" excused the actor from punishment. 11 4 The Hale test
what is set before him, he cannot be taken to be an idiot. But you would say
that this was contrary to common sense; for as to repeating the letters of the
alphabet, or reading what is set before him, a child of three years may do
that....
Ball v. Mannin, 4 Eng. Rep. 1241, 3 Bli.N.S. 1, 1 Dow. & Cl. 380 (1829).
105. Record at 124-33, Penry (No. 87-6177).
106. Id. at 134.
107. Id.
108. See SIMPSON, supra note 102, at 117-21.
109. N. FINKEL, INSANITY ON TRIAL 9 (1988) (footnote omitted).
110. Id.
Coke distinguished [between] two types of 'idiocy' on the basis of severity:
fatuitas was analogous to 'severe' or 'profound' retardation, whereas stultia
was a less severe but still subnormal intelligence. As regarding crimes and
culpability, however, this distinction would not lead to differing verdicts,
since Coke includes within the stultia diagnosis someone who 'knows not
good from evil'; thus this less severe condition was severe enough to excuse.
Id.
11. Id.
112. Id.
113. See SIMPSON, supra note 102, at 220.
114. 2 ROBINSON, CRIMINAL LAW DEFENSES 317-18 (1984). "Some early authority
and case law suggested that subnormality itself, in satisfying the disability requirement,
would qualify an actor for the excuse" to avoid punishment. Id. at n. 10. "The disability of
the subnormality defense is a disorder characterized by an intellect so abnormally low that
it deprives the person of normal cognitive function. Precisely how deficient a person must
be is not clear ...." Id. at 317 (footnote omitted).
1990]
PENR Y v. L YNA UGH
for idiocy is almost identical to that of Fitzherbert's. 115
In the Penry decision, the majority also refers to nineteenth and
early twentieth century thinking to justify its common law conclusions
that "the term 'idiot' was used to describe the most retarded of persons.""' 6 The relevancy of this conclusion in light of a Framers' intent
analysis is questionable since such analysis does not clarify what the
Framers contemplated when they wrote the eighth amendment. In
addition, the period on which the majority focuses is considered by
many to be a sad chapter in the treatment of the mentally retarded.' 11
As the nineteenth century progressed, idiocy and pauperism were
being linked together because it was thought that both traits were
hereditary and thus inseparable."' The popular school of thought
115. Id. at 317 n.10. "Hale describes an idiot as an adult who 'knows not to tell 20
[pence] nor knows who is his father or mother, nor knows his own age * * *,'
and concludes
that such a person should not be held criminally responsible." Id. (quoting M. HALE,
HIsTORIA PLACITORUM CORONAE 29 (1736)).
See also S. HERR, RIGHTS AND ADVOCACY FOR RETARDED PEOPLE 10 (1983)
[hereinafter HERR]. "Idiots" were provided their necessities by the King, who would, in
turn, take any surplus the "idiot" produced. Id. This practice continued during the period
in which Blackstone wrote his COMMENTARIES ON THE LAWS OF ENGLAND which was
published in 1765. Id. Thus, an expansive definition of idiocy served the King by bringing
him additional revenues.
116. Penry v. Lynaugh, 109 S. Ct. 2934, 2954 (1989). "In the 19th and early 20th
centuries, the term 'idiot' was used to describe the most retarded of persons corresponding
to what is called 'profound' or 'severe' retardation today." Id. (citing AMERICAN
ASSOCIATION ON MENTAL DEFICIENCY, CLASSIFICATION IN MENTAL RETARDATION 9
(H. Grossman 1983)). See also AMERICAN ASSOCIATION ON MENTAL DEFICIENCY,
CLASSIFICATION IN MENTAL RETARDATION 9 (H. Grossman 1983).
The end of the 19th century and beginning of the 20th century brought two
related movements, the development of intelligence test and concern for
genetics as a factor in mental retardation. . . . The development of
intelligence tests which began in France and America at the turn of the
century, made possible an objective and consistent procedure for
measurement of abilities. These tests became useful in differentiating retarded
persons behaviorally in addition to the medical differentiations that were in
use. The term idiot, imbecile, and moron were used to identify three levels of
retarded behavior, and approximate cut-off scores on intelligence tests were
devised: 25, 50 and 75.
Id. Focussing on a classification which took place close to 100 years after the ratification of
the eight amendment does not shed any light on the historical determination. The only
rational approach is to analyze the period prior to the adoption of the eighth amendment
and its predecessor in the English Bill of Rights of 1689.
117. See generally HERR, supra note 115, at 9-29. (The author provides a thorough
discussion of society's treatment of the mentally retarded and appropriately titled the
chapter 'The Dismal Legacy'). See also Cleburne v. Cleburne Living Center, Inc., 473 U.S.
432, 461 (1985) (Marshall, J., dissenting).
118. See HERR, supra note 115, at 22-29. "The eugenics movement produced new
rationales for permanent institutional segregation of retarded people. Popular studies of
family degeneracy.., were misinterpreted to show a close correlation between inherited
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[Vol. 16:2
known as eugenism, regarded the mentally retarded as a burden on
society." 9 The eugenics proposed that the solution to idiocy was
"total segregation in order to halt their reproduction." 12 0 The
Supreme Court put its imprimatur on the practice of involuntary sterilization of the mentally retarded in upholding Virginia's eugenic statute in the 1927 decision of Buck v. Bell.121 The eugenic mindset was
adopted in its horrific extreme by Nazi Germany during World War II
when the government exterminated approximately 300,000 "mentally
retarded and physically deficient people." 12' 2 Therefore, an examination of the historical manner in which society has treated the mentally
retarded during the nineteenth and early twentieth centuries, points to
the conclusion that they were treated more humanely prior to that
point. 123
In conclusion, it appears that the Court's reliance on the 19th and
mental impairment and crime, pauperism, and illness." Id. at 22-23 (footnote omitted).
See generally S.GOULD, MISMEASURE OF MAN (1981) (The author discusses the history of
intelligence tests and the study of craniometry during the nineteenth and twentieth
centuries.).
119. See HERR, supra note 115, at 23. Eugenics refers to the
study of human GENETICS and of methods to improve the inherited
characteristics, physical and mental, of the [human] race....
Eugenics has recently become of increased concern; many fear that the
achievements of modern medicine will allow the survival of defective
individuals who previously could not have lived to a productive age.
THE NEW COLUMBIA ENCYCLOPEDIA 900 (4th ed. 1975).
120. Id.
121. 274 U.S. 200 (1927). In Buck, Justice Holmes stated that "heredity plays an
important part in the transmission of insanity and imbecility ... ." Id. at 206.
We have seen more than once that the public welfare may call upon the
best citizens for their lives. It would be strange if it could not call upon those
who already sap the strength of the State for these lesser sacrifices ....It is
better for all the world, if instead of waiting to execute degenerate offspring
for crime ....Three generations of imbeciles are enough.
Id. at 207 (citation omitted) (emphasis added).
See also Fetzer, Execution of the Mentally Retarded:A Punishment Without Justification,
40 S.C.L. REv. 419, 422 (1989).
At the beginning of the twentieth century, society viewed the mentally
retarded as a menace to be controlled rather than as a class of persons needing
special treatment. Between 1907 and 1931, twenty-nine states adopted legislation to prevent mentally retarded people from procreating, and the Supreme
Court upheld 'eugenic sterilization' laws. During this period the treatment of
the mentally retarded was both demeaning and hostile.
Id.
122. See HERR, supra note 115, at 37.
123. See supra notes 118-21 and accompanying text. See also Ellis & Luckasson, supra
note 90, at 416-21. Since World War II, the treatment of the mentally retarded has
improved. HERR, supra note 115, at 37-48. The notion of habilitation, by which the
mentally retarded are placed in a "total environment" which allows them to gain new
1990]
PENR Y v. L YNA UGH
20th century classifications to determine the common law definition of
"idiocy" is counter-productive when utilizing an historical analysis in
attempting to determine rights under the Constitution.
B.
Execution of the Mentally Retarded and the Court's
Requirement of Deterrence
The Supreme Court has always insisted that the death penalty be
implemented only when the dual goals of punishment, deterrence and
retribution, are served." 4 Under the rubric of retribution, the Court
has insisted that society be allowed to show its "reasoned moral
response" through the use of capital punishment.
In Penry, the Court held that there was no national consensus on
the issue of executing the mentally retarded.12 5 The Court observed
that since there was no state legislation promulgated on this matter,
the omission was evidence of a societally acceptable penological
response.' 2 6 The fact that there is no legislation which prohibits the
execution of the mentally retarded is only evidence of the fact that
very few known mentally retarded persons have been executed since
1976.127 An absence of legislation tends to prove that those states
which allow the death penalty have not considered the issue.12 8
The other goal of capital punishment, deterrence, serves two functions. First, under the idea of specific deterrence, the death penalty is
justified since it serves to prevent future criminal activity by the
defendant.' 2 9 Second, under what is commonly referred to as general
deterrence, the death penalty is designed to prevent future criminal
skills, has allowed even the most profoundly retarded individual to gain from the
experience. Id. at 42.
124. See Gregg v. Georgia, 428 U.S. 153 (1976). "The death penalty is said to serve two
principal social purposes: retribution and deterrence of capital crimes by prospective
offenders." Id. at 183 (footnote omitted). See also Stanford v. Kentucky, 109 S. Ct. 2969,
2992-93 (1989); Thompson v. Oklahoma, 487 U.S. 815, 836 (1988); Tison v. Arizona, 481
U.S. 1, 37 (1986); Spaziano v. Florida, 468 U.S. 447, 477 (1984); California v. Ramos, 463
U.S. 992, 1023 (1983).
125. See supra notes 83-86 and accompanying text.
126. See supra note 86 and accompanying text.
127. See N.Y. Times, Nov. 30, 1989, at B23, col. 1. "In Virginia and Alabama, two
killers described, respectively, as borderline retarded and mildly retarded were put to death
last summer after the [Penry] ruling." Id. Cf Fetzer, Execution of the Mentally RetardedA Punishment Without Justification, 40 S.C.L. REv. 419. However, it is estimated that
thirteen percent of the death row population is mentally retarded. Id. at 419 n.47.
128. See Fetzer, supranote 127, at 440-44. (The author also claims that retribution is not
served when the state executes a mentally retarded defendant.).
129. See ZiMwNG & HAWKINS, CAPITAL PUNISHMENT AND THE AMERICAN AGENDA
169-70 (1986). The authors refer to this as "special deterrence" and state that it is "the
effect of punishment on the person punished." In the sense that the death penalty prevents
future crime from the individual being executed, specific deterrence is served. Id. at 170.
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[Vol. 16:2
because it sends "signals" about
activity by the general population
130
societal intolerance of crime.
In order to determine whether the goal of general deterrence is
served by executing the mentally retarded, it is important to consider
the general characteristics of the mentally retarded. 131 Although the
mentally retarded are a heterogeneous population with highly varied
abilities, they do share some characteristics which "occur with sufficient frequency to warrant certain limited generalizations."1 32 Such
they have ramifications
generalizations are important to consider since
133
in all areas of the criminal justice system.
Generally, mentally retarded people have problems with articulating and understanding personal communications. 134 Sometimes while
130. Id. at 169. "'Deterrence is the inhibiting effect of sanctions on the criminal's
activity of people other than the sanctioned offender,' and includes all 'the internal
psychological mechanisms by which sanctions discourage crime' such as 'the normative
validation and moral definition effects of punishment.'" Id. Most people refer to general
deterrence as deterrence in the context of capital punishment since the goal of specific
deterrence is always served. See supra note 129.
131. W. BOWERS, LEGAL HOMICIDE: DEATH AS PUNISHMENT IN AMERICA, 18641982, 272 (1984).
The deterrence argument assumes a rationalistic perspective in which
human behavior is seen as a functioning of individually perceived costs and
benefits of alternate choices or actions. The individually perceived costs and
benefits are further assumed to reflect directly, if imperfectly, objectively
ascertainable variations in these costs and benefits to the individual. Thus, in
the case of murder, not unlike other less violent and more instrumental
crimes, deterrence theory assumes that potential offenders exercise rational
judgment in deciding whether to kill and that they are predictably sensitive to
the actual range of variation in certainty and severity of legal punishment for
murder at the time of the decision to act....
From what we know about murder, however, there is reason to doubt these
assumptions.
Id. The latter is most evident in the context of mentally retarded individuals since the
cost/benefit calculations are difficult for them to make.
132. Ellis & Luckasson, supra note 90, at 427.
133. Id. "Several of these traits have important implications for the criminal justice
system, and therefore merit close attention to determine if they exist in an individual
criminal case." Id. See also Fetzer, supra note 127, at 425. The author discusses the
problems of the mentally retarded in the criminal justice system in noting that:
[c]ourts have noted their susceptibility to suggestions during interrogations,
to extensive questioning, and to threats and promises interferes with the
defendants' free and knowing exercise of their constitutional rights. The
mentally retarded defendants' limited abilities to exercise their rights
arguably leads to their disproportionate numbers on death row in the United
States.
Id. (footnotes omitted).
134. See Ellis & Luckasson, supra note 90, at 428-29. See also Blume & Bruck, supra
note 84, at 735-37. The authors discuss the multitude of problems that the mentally
retarded offender experiences in the criminal justice system. These include: a tendency to
1990]
PENRY v. L YNA UGH
answering questions, the mentally disabled person will lie only because
he or she believes that the response will please the questioner. 135
Another common characteristic is a tendency to act spontaneously
and to have a short attention span. 136 Many mentally disabled individuals will intentionally overestimate their abilities in order to "reject
the stigma of mental retardation." 13 7 Because their disabilities are
usually apparent during the formative years, many mentally disabled
individuals have deficits in what is considered common knowledge by
most people. 138 Moreover, the mentally disabled are generally characterized as being hard to stimulate coupled with a tendency to "give
up" rather easily. 1 39 Additionally, the mentally disabled are prone to
misunderstand the correlation between cause and effect."4 The latter
deficiency may be the most important to consider in the criminal justice system since the mentally disabled may have problems in understanding how present activity affects their future.
It is because of these deficiencies that the goal of deterrence is not
served by executing someone with mental retardation. Deterrence is
not served since its underlying purpose requires an understanding by
both the defendant and similarly situated persons. The still popular
but mistaken belief that the mentally retarded have a proclivity for
dangerous criminal activity, only proves that those who are not mentally retarded will not perceive the "signal" mandated by the idea of
general deterrence. Therefore, common characteristics of the mentally
retarded, coupled with the aforementioned misconceptions, mandate
that deterrence is not served by the execution of the mentally retarded.
confess more readily than other defendants, an overreaction to "suggestions and
intimidations," and an overall misunderstanding of the entire process. Finally, the authors
stated that the mentally retarded are less likely to appeal and therefore served longer
sentences than other defendants in the criminal justice system.
135. See Ellis & Luckasson, supra note 90, at 428.
136. Id. at 429.
137. Id. at 430. See-also Blume & Bruck, supra note 84, at 735-36. The authors note
that research indicates that many mentally retarded criminal defendants are not diagnosed
as being mentally disabled. Thus, "attorneys and judges may attribute the defendant's lack
of intelligence to the presumed effects of cultural deprivation rather than to mental
retardation." Id. (footnote omitted).
138. See Ellis & Luckasson, supra note 90, at 431. "[W]hile other students are learning
the concepts and vocabulary of civics and socl studies, students with mental retardation
may instead receive extended instruction in reading or engine assembly. Although special
curricula are necessary for most mentally retarded students, their exclusion from certain
courses is not without cost." Id.
139. Id. at 431-32. See also Blume & Bruck, supra note 84, at 733-34.
140. See Garcia & Steele, Mentally Retarded Offenders in the Criminal Justice and
Mental Retardation Services Systems in Florida:Philosophical,Placement, and Treatment
Issues 41 ARK. L. REV. 809, 822-33. (The author discusses statistical studies of the
mentally retarded in the criminal justice system through the pre-trial phase.).
CRIMINAL AND CIVIL CONFINEMENT
VII.
[Vol. 16:2
CONCLUSION
When the Framers of the Constitution borrowed the eighth amendment's "cruel and unusual punishment" clause from the English Bill
of Rights of 1689, they intended to protect individuals from certain
governmental practices. Embodied in the eighth amendment are those
practices which were prohibited at common law during the seventeenth and early eighteenth centuries. It appears that one such prohibited practice was the punishment of "idiots." Thus, the Framers
believed that the execution of "idiots" was "cruel and unusual." "Idiocy" was defined broadly since the King took any profit that the
"idiot" produced, and as such, an expansive definition better served
the Crown. 141 Because the common law notion of "idiocy" is identical
to the modem diagnosis of mental retardation, no mentally retarded
person should be subjected to the death penalty.
If the historical argument based on the Framers' intent is to be a
useful tool of constitutional analysis, then its proponents have an obligation to correctly gauge the historical record. Otherwise, critics are
justified in maintaining that the approach can become too subjective.
The Penry decision is an interesting example of problems with the
Framers' intent approach. The mentally retarded, as a class of individuals, were treated more humanely at the time the Framers adopted
the Bill of Rights in 1789 than they were for the next one hundred and
sixty years. A sincere application of a Framers' intent approach
would have resulted in the conclusion that mentally retarded individuals should not be executed for capital crimes. Although this outcome
may not be desirable from a public policy perspective, it is a necessary
conclusion. Any other outcome implies that we do not live in a society which becomes more civilized over time.
Finally, the easiest explanation for the Court's holding in Penry is
the justification put forth by Justice O'Connor in the concurring portion of her opinion. Justice O'Connor stated that it was possible that a
mentally retarded individual could possess the requisite culpability to
justify imposing the death sentence. For advocates of the mentally
retarded, such a conclusion is difficult to counter. Advocates have
worked hard to mainstream and "normalize" the day-to-day activities
of mentally retarded individuals, while at the same time steadfastly
maintaining that these individuals want to be treated like other people
in society. Therefore, these advocates are caught between arguing for
societal integration while simultaneously asking for special treatment
in the criminal justice system.
Although the Court's conclusion is in opposition to the common
141. See supra note 115.
1990]1
PENRY v. L YNA UGH
law, the pragmatic concerns of the Court outweighed a legitimate
Framers' intent approach which would have necessitated a different
outcome. Moreover, the execution of the mentally retarded does not
serve the required penological goals of the death penalty. In spite of
these conclusions, it appears that the execution of mentally retarded
defendants will continue unless the states, under their own laws, bar
such a practice.
ERIc L. SHWARTZ*
* History is a continuum composed of stereotypes and generalizations.