[Congressional Record Volume 146, Number 155 (Friday, December 15, 2000)]
[Senate]
[Pages S11810-S11811]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                           JOHNNY PAUL PENRY

  Mr. LEAHY. Mr. President, during the past year there has been an 
extraordinary amount written and spoken in this country about the death 
penalty--actually more than I can recollect having seen before. We have 
learned that the system of administering capital punishment is gravely 
flawed, and that scores of people have ended up on death row, often for 
many years, even though they were completely innocent of the crime for 
which they were sentenced to death.
  We have seen how the justice system has serious flaws at every stage, 
and especially if the accused is poor, as are most criminal defendants 
who are sentenced to death. Lawyers defending people whose lives are at 
stake are often inexperienced or incompetent, and poorly paid. Two 
thirds of death penalty trials nationwide are marred by serious 
constitutional errors, according to reviewing courts.
  We have seen public support for the death penalty decrease 
significantly. It is still over 50 percent nationally, but it falls 
below 50 percent if the alternative is life in prison with no 
opportunity for parole.
  We have seen Governor Ryan of Illinois appoint a commission of 
experts, both supporters and opponents of capital punishment, to 
determine whether the death penalty can, under any circumstances, be 
administered reliably so innocent people will never be executed. The 
findings and recommendations of that commission will be important for 
the entire country.
  In Virginia, a State with many people on death row, the legislature 
recently took note of the growing concerns surrounding capital 
punishment, and decided to review the administration of the death 
penalty in Virginia where there have been serious mistakes.
  In October, the Virginia Governor pardoned Earl Washington, a 
mentally retarded farmhand, after new DNA tests cleared him of the rape 
and murder that once brought him within 9 days of execution.
  Just this morning, the Washington Post reported that DNA tests had 
cleared another death row inmate--unfortunately, too late to be of any 
help. Before dying of cancer earlier this year, Frank Lee Smith spent 
14 years on Florida's death row for a rape and murder that it now 
appears he did not commit.
  I have introduced legislation with Senators Gordon Smith, Susan 
Collins, and 12 other Senators, to address some of these most egregious 
flaws. I have spoken many times about our bill, the Innocence 
Protection Act, which we plan to pursue in the 107th Congress.
  Our legislation addresses the horrendous problem of innocent people 
being condemned to death. But today I want to mention briefly a related 
issue which is illustrated by a case in Texas, the State which this 
year has executed more people than any other State in the post-war era.
  The Supreme Court stayed the execution of Johnny Paul Penry on 
November 16, 2000, less than four hours before he was scheduled to die 
by lethal injection in Texas. The Court has now scheduled the case for 
argument.

[[Page S11811]]

  Johnny Penry, who in 1979 raped and murdered a 22 year old woman, has 
been on death row for twenty years. He committed a terrible crime; 
there has never been any doubt about that. But besides the crime 
itself, what makes Johnny Penry's case so disturbing is that he has an 
IQ of 56. What that means is that he has the intelligence of a 6-year 
old child.
  Mr. President, 11 years ago the Supreme Court ruled that it is not 
cruel and unusual punishment to execute the mentally retarded. I 
disagree with that decision. But more importantly, despite the Supreme 
Court ruling, 13 States with capital punishment and the Federal 
Government have forbidden execution of the mentally retarded, and a 
clear majority of Americans oppose the practice.
  The State Senator who in 1998 sponsored Nebraska's bill to prohibit 
execution of the mentally retarded later said that it should not have 
been necessary because ``no civilized, mature society would ever 
entertain the possibility of executing anybody who was mentally 
retarded.''
  Executing the mentally retarded is wrong; it is immoral. People with 
mental retardation have a diminished capacity to understand right from 
wrong. As Justice Brennan wrote:

       The impairment of a mentally retarded offender's reasoning 
     ability, control over impulsive behavior, and moral 
     development . . . limits his or her culpability so that, 
     whatever other punishment might be appropriate, the ultimate 
     penalty of death is always and necessarily disproportionate 
     to his or her blameworthiness.

  Proponents of the death penalty argue that it ``saves lives,'' but 
executing the mentally retarded cannot be justified on the grounds of 
deterrence. Let me again quote Justice Brennan, writing in 1989:

       The very factors that make it disproportionate and unjust 
     to execute the mentally retarded also make the death penalty 
     of the most minimal deterrent effect so far as retarded 
     potential offenders are concerned. Intellectual 
     impairments in logical reasoning, strategic thinking, and 
     foresight, the lack of the intellectual and developmental 
     predicates of an ability to anticipate consequences, and 
     impairment in the ability to control impulsivity, mean 
     that the possibility of receiving the death penalty will 
     not in the case of a mentally retarded person figure in 
     some careful assessment of different courses of action. In 
     these circumstances, the execution of mentally retarded 
     individuals is nothing more than the purposeless and 
     needless imposition of pain and suffering.

  People with mental retardation are also more prone to make false 
confessions simply to please their interrogators, and they are often 
unable to assist their lawyer in preparing a defense.
  We saw this with Earl Washington, who had an IQ of 69. Arrested for 
breaking into a neighbor's home during a drinking spree and hitting her 
with a chair, Washington readily confessed to a series of unsolved 
murders that he could not have committed.
  Beyond all of this, executing the mentally retarded severely damages 
the standing of the United States in the international community. The 
United Nations has long condemned this practice. Just last year, the 
U.N. Commission on Human Rights called on nations ``not to impose the 
death penalty on a person suffering from any form of mental disorder.'' 
We should join the overwhelming majority of nations who do not execute 
the mentally retarded.
  Johnny Penry suffered relentless and severe physical and 
psychological abuse as a child, spends his time in prison coloring with 
crayons and looking at comic books he cannot read, and still believes 
in Santa Claus. I remember reading that when they stayed his execution 
he said, ``Does this mean I'm not allowed to have the special meal I 
was supposed to have?''--The last meal of the condemned man. He could 
not possibly have assisted meaningfully in his own defense.
  No one can excuse Johnny Penry's crime, and no one suggests that he 
should be set free. But the question is what is the appropriate 
punishment for a defendant who is mentally retarded.
  Neither our Constitution nor our national conscience permits the 
execution of a 6-year-old child for committing a heinous crime, and 
neither should we execute a person with the mental capacity of a 6-
year-old. It offends the very idea of justice.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Virginia.
  Mr. ROBB. Mr. President, first I inquire, is there any limitation on 
the length of time to speak?
  The PRESIDING OFFICER. The Chair informs the Senator from Virginia 
that we are in a period for morning business with Senators to speak not 
to exceed 5 minutes.
  Mr. ROBB. I do not believe I will exceed 5 minutes, but I ask 
unanimous consent to proceed for such time as I may use, consistent 
with the order for morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. ROBB. I thank the Chair.

                          ____________________