News Release

NACDL amicus brief emphasizes unclear instruction Return of Penry case to Supreme Court may clarify rules for execution of mentally retarded

Washington, DC (March 26, 2001) -- The last time the U.S. Supreme Court heard John Paul Penry's death penalty case, in 1989, it sent the case back to Texas and directed the courts there to see that jury instructions allowed for meaningful consideration of Penry's mental retardation and history of childhood abuse as factors mitigating against the death penalty.

Texas eventually passed a statute in compliance with the Court's decision, but not before Penry was retried. Now Penry, and NACDL as amicus curiae, claim that the instruction in the second trial was confusing and required the jury to contradict other instructions in the case in order to conclude that Penry's retardation and other mitigating factors allowed them to not impose the death penalty.

Penry's case will be argued in the Supreme Court for the second time on Tuesday.

"This case shows how important it is to explain to a jury weighing life and death the significant impact of mental retardation on the coping skills of people involved in the criminal justice system," said Edward Chikofsky an adjunct professor at Fordham Law School in New York and co-author of NACDL's amicus brief with Russell Hanser of Wilmer, Cutler & Pickering.

The Supreme Court's recent stays of cases involving the execution of mentally retarded inmates in Missouri and North Carolina have led to speculation that the Court might address the constitutionality of such executions, even though the issue has not been directly raised in this appeal. In the original Penry case, the Court declined, by a 5-4 ruling, to declare execution of mentally retarded persons unconstitutional, citing a lack of "national consensus" in that only two states had outlawed such executions at the time. Currently 13 states, the federal government, and the District of Columbia have laws banning execution of the mentally retarded, while 12 states have no death penalty at all.

Chikofsky can be reached at (212) 289-1062.

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The National Association of Criminal Defense Lawyers is the preeminent organization advancing the mission of the criminal defense bar to ensure justice and due process for persons accused of crime or wrongdoing. A professional bar association founded in 1958, NACDL's many thousands of direct members in 28 countries – and 90 state, provincial and local affiliate organizations totaling up to 40,000 attorneys – include private criminal defense lawyers, public defenders, military defense counsel, law professors and judges committed to preserving fairness and promoting a rational and humane criminal legal system.