Fact Check from State Senator Rodney Ellis

For Immediate Release
June 4, 2001
Contact: Jeremy Warren, (512) 463-0113

Supreme Court says Texas Jury Instructions Unconstitutional

Opponents of legislation to ban the execution of the mentally retarded claim that we should wait for the U.S. Supreme Court before we take action. Today, in one of two cases before the Supreme Court on the issue of executing the mentally retarded, the United States Supreme Court held that the jury instructions in Penry v. Lynaugh II were unconstitutional and did not adequately take mental retardation into account as a mitigating factor. Now Texas -- the nation's execution leader -- has the opportunity to show leadership and and ban the execution of the mentally retarded.

The Supreme Court's decision today makes it clear that the laws and procedures in Texas do not adequately take into account mitigating factors such as mental retardation. The Penry II case has no bearing on state legislation banning execution of persons with mental retardation.

In fact in 1989, the Supreme Court specifically directed in Penry I that the states should act. In writing for the Court, Justice O'Connor made it clear that the Justices wanted the states to take the lead on this issue: "In our view, the two state statutes prohibiting execution of the mentally retarded...do not provide sufficient evidence at present of a national consensus."

In Penry I, the Supreme Court granted a new trial so that the jury could consider Mr. Penry's mental retardation as a mitigating factor in sentencing. The Court later accepted review of Mr. Penry's retrial, based on the question of whether the jury instructions were still unconstitutional.

Today, 15 of the 38 states with the death penalty have outlawed execution of the mentally retarded. Five more, including Texas, are moving toward a ban. None of the states that have banned this practice have faced any significant legal challenges. It seems that a national consensus is building.

Now that the Supreme Court has acted, Texas should follow suit and ban the execution of the mentally retarded.