Court to Review Death Penalty

March 26 -- The Supreme Court agreed today to considerwhether the Constitution bars the execution of mentally retardedpeople as "cruel and unusual" punishment.

The court said it will hear an appeal by North Carolinadeath-row inmate Ernest McCarver, whose execution the justiceshalted this month just hours before he was to be put to death.

The justices are scheduled to hear arguments Tuesday on a caseinvolving a Texas death-row inmate whose lawyers say he is mentallyretarded and has the mind of a 7-year-old. Johnny Paul Penry'slawyers contend jurors who sentenced him to death for murder didnot have the chance to properly consider his mental capacity.

The Supreme Court used Penry's case in 1988 to rule that theConstitution allows the execution of mentally retarded killers,although the court threw out his first conviction.

McCarver, 40, was convicted of the January 1987 stabbing andchoking death of Woodrow Hartley, a 71-year-old worker at theConcord cafeteria where McCarver had worked.

McCarver's lawyers say he is mentally retarded and has the mindof a 10-year-old child and reads at a third-grade level.

His appeal asks whether "national standards have evolved suchthat executing a mentally retarded man would violate" theConstitution's 8th Amendment ban on cruel and unusual punishment.

The appeal cites "society's newly evolved consensus againstexecuting the mentally retarded."

Thirteen capital-punishment states prohibit execution of thementally retarded, his lawyers said. Another 12 states do not havecapital punishment.

Lawyers for the state said considerable evidence showed thatMcCarver was not mentally retarded, but that even if he was, hisexecution would not violate the Constitution.

The Supreme Court halted McCarver's execution on March 1 afterhe had been served his last meal. Hours earlier, North CarolinaGov. Mike Easley had denied his clemency petition.

McCarver's most recent IQ test, arranged by the defense team,pegged his score at 67, but his IQ was measured at between 70 and80 before his 1988 trial.