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Johnny Paul Penry

Centre for American Legal Studies Penry Page Image 300x300 - 5th Circuit Court of Appeals sealThe story of Johnny Paul Penry

CALS first became involved in the case of Johnny Paul Penry when his appeal against his death sentence was pending before the Fifth Circuit U.S. Court of Appeals in 1999.

The Chief Counsel to the American Association on Intellectual and Developmental Disabilities (then known as the American Association on Mental Retardation) contacted a member of CALS and asked whether he could interest the Bar of England & Wales in filing an amicus curiae brief supporting his appeal.

Mr Penry’s best hope to avoid execution was that he suffered from a cognitive disability now called intellectual deficit and characterised by low IQ and impaired adaptive behaviour. His principal problem in advancing this argument was that he was blocked by a previous ruling against him by the U.S. Supreme Court in earlier proceedings - Penry v. Lynaugh, 492 U.S.  302 (1989) – when the Court found that there was not yet a national consensus against executing persons diagnosed with intellectual deficit disability. In that case his death sentence had been overturned on other grounds, but at a subsequent sentencing hearing he was again sentenced to death by a Texan jury.

CALS agreed to act as a facilitator and recruited the Bar of England & Wales Human Rights Committee and the charity Amicus to act as amici. An amicus curiae brief was filed with the Fifth Circuit, U.S. Court of Appeals on 19 November 1999 (1999 WL 33915669) but Penry’s appeal was rejected by that Court on 20 June 2000 (Penry v. Johnson, 215 F.3d 504 (5th Cir. 2000)). Penry was represented pro bono by major New York law firm Paul, Weiss, Rifkind, Wharton & Garrison which decided to attempt to persuade the U.S. Supreme Court to revisit its earlier decision in Penry v. Lynaugh. Appeals to the U.S. Supreme Court are normally by way of petition for a writ of certiorari – the Court receives approximately 7,500 such petitions each year but only grants around 75 for hearing.

CALS again acted as facilitator and recruited the head of the Appeals Bureau of the Legal Aid Society of New York to act as counsel of record and the Bar of England & Wales and The Law Society of England & Wales as well as Amicus and others to act as amici curiae in support of Penry’s petition for certiorari. Amicus briefs in support of petitions for certiorari are not preserved on Westlaw or the U.S. Supreme Court’s website. Acting on advice of counsel of record, the brief followed the common law arguments of the earlier brief before the Fifth Circuit but with less emphasis on the international law arguments and greater stress on the practice of other common law countries.

One problem Penry had to overcome in Texan Courts and the Fifth Circuit was the influence of popular sentiment on judges, whether conscious or unconscious. Penry had been convicted of the rape murder of Pamela Carpenter but, despite the inherent horror of the crime itself, there was nothing that ostensibly marked his crime out as markedly worse than many of the Texan murders that had resulted in life imprisonment sentences rather than death sentences. In fact, there was much to be said by way of mitigation – he had come from a severely abusive background and had been diagnosed as suffering from IDD even as a young child.

However, what marked out Penry’s case as different was not his actions but rather the identity of his victim. Pamela Carpenter was the sister of local hero Mark Moseley – a celebrated American football star who had been a place kicker for the Washington Redskins. Throughout the many years that Penry’s case moved around the legal system, the media never ceased to remind the public that his victim was Mark Moseley’s sister. There is a strong suspicion that much of the local District Attorney’s motivation to press repeatedly for a capital sentence was the fact that, as an elected official, he had one eye on public sentiment and not just simple issues of justice.

Penry was scheduled to be executed at midnight on 16 November 2000 but three hours before the execution was to take place, the U.S. Supreme Court granted a stay and subsequently granted his petition for certiorari (Penry v. Johnson, 531 U.S. 1010 (2000)). Initially the Court was going to decide two legal issues – firstly, a narrow question of whether Texas’s capital sentencing process allowed juries the opportunity to take account of a defendant’s intellectual disability when deciding whether to impose a life or death sentence; Secondly, a wider question of whether a person suffering from intellectual disability should be potentially eligible for the death penalty at all.

A member of CALS attended the oral hearing of Penry’s appeal in Washington, D.C. in March, 2001 and liaised with the defence team in its preparation for the oral hearing. On the eve of the hearing, the Court revoked its grant of certiorari on the second issue (which was later dealt with in Atkins v. Virginia, 536 U.S. 304 (2002)) and confined the grant to the narrower question of whether Texan law had allowed Penry’s jury at his resentencing hearing to give effect to his intellectual disability if it so wished. The Court found (Penry v. Johnson, 532 U.S. 782 (2001)) that at that hearing, the judge’s instructions on mitigating circumstances failed to provide the jury with a vehicle to give effect to mitigating circumstances of intellectual disability and childhood abuse, as required by the Eighth and Fourteenth Amendments.

Our involvement in Penry proved to be seminal. The internal workings of the U.S. Supreme Court are inscrutable but the subject of much speculation. Apart from the substantial publicity generated for the university by the stay of execution, we learned later from well-connected informants within the NAACP that our amicus brief had been instrumental in persuading the Justices to grant certiorari in Penry. The significance of this is not so much the ruling in Penry itself but that the initial decision to grant certiorari on the wider point of whether people suffering from intellectual disability should be executed subsequently led later to the landmark decision in Atkins v. Virginia. CALS played a significant role in bringing this about.

What became of Johnny Paul Penry? After the decision in Penry v. Johnson, Penry faced a further resentencing when he was again sentenced to death. That decision was appealed and the sentence quashed by the Court of Criminal Appeals of Texas because of errors made by the trial judge. Before a fourth sentencing hearing took place, his lawyers struck a bargain with the District Attorney whereby he agreed to accept three consecutive life sentences for murder, rape and aggravated assault in return for the D.A. not seeking a death sentence. He is currently serving a de facto whole life sentence in the Texas prison system.