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Ernest McCarver
North Carolina
**AMICUS CURIAE BRIEF: click here. (PDF Format)
McCarver, 40, was convicted of the January 1987 death of a 71-year-old worker at the cafeteria where McCarver had worked. McCarver's lawyers say he has the mind of a 10-year-old child. McCarver's most recent IQ test measured his IQ at 67, but prior to 1988 his IQ was measured at between 70 and 80. North Carolina disputes McCarver's retardation, but claims that ultimately his retardation is irrelevant and cannot prevent his execution. The Supreme Court halted the execution of McCarver's on March 1, 2001 after his last meal had been served. Hours earlier, North Carolina Governor Mike Easley had denied McCarver's clemency petition.
The Supreme Court will consider whether executing a person with mental retardation offends society's "evolving standards of decency" and in so doing violates the Eighth Amendment's prohibition on cruel and unusual punishment. In March 2001, the Supreme Court announced that it would consider "whether significant objective evidence demonstrates that national standards have evolved such that executing a mentally retarded man would violate the Eighth Amendment prohibition against cruel and unusual punishment." McCarver's appeal cites "society's newly evolved consensus against executing the mentally retarded" as the basis for prohibiting such executions. (Associated Press, 3/26/01)
The Court is expected to hear McCarver in the late fall. A decision is anticipated in 2002. The European Union (EU) filed an amicus curiae brief on behalf of McCarver. This document can be found, along with further information on EU policy, at:
http://www.eurunion.org/legislat/DeathPenalty/deathpenhome.htm.
The U.S. Supreme Court also halted the execution of Antonio Richardson, a juvenile offender with mental retardation who was scheduled to be executed in Missouri on March 7, 2001, Further information at:
http://www.abanet.org/crimjust/juvjus/richardson.html.
Background
In 1989, the U.S. Supreme Court decided Penry v. Lynaugh (492 U.S. 584). In a 5-4 decision, the Court held that executing persons with mental retardation was not a violation of the Eighth Amendment. Mental retardation should instead be a mitigating factor to be considered by the jury during sentencing. Writing for the majority, Justice Sandra Day O'Connor said that a "national consensus" had not developed against executing those with mental retardation. At the time of Penry, only one state, Georgia, prohibited the execution of mentally retarded persons found guilty of a capital offense.(Ga. Code. Ann. §17-7 131 (j) (Supp 1988). Maryland had enacted a similar statute in that year which only took effect on July 1, 1989 (Md. Ann. Code, Art 27, §412 (f) (1)(1989).
Since then it appears that the tide has turned. Today, in addition to the 13 jurisdictions that do not have capital punishment, 17 states have statutes that specifically prohibit the execution of the mentally retarded: AZ, AR, CO, CT, FL, GA, IN, KS, KY, MD, MO, NE, NM, NY*, SD, TN, WA, and U.S. (*except for murder by a prisoner). Within the last four months four more states: Arizona, Missouri, Connecticut and Florida have signed statutes that prohibit the execution of the mentally retarded, bringing the total number of states with statutory prohibitions to 17.
Legislation as regards mental retardation is pending in other states - on July 16, 2001, the North Carolina House approved a bill to ban the execution of the mentally retarded by a vote of 66-44. The bill, which differs significantly from the version passed by the Senate in April, now returns to the Senate for concurrence. If the bill is agreed upon, North Carolina will become the 18th state to ban such executions.
Further information on mental retardation and the death penalty can be found
on the web site of the Arc of the United States at: http://www.thearc.org/criminaljustice.html
http://www.thearc.org/faqs/crimqa.html
Latest update on North Carolina's Mental Retardation Bill and the Possible Effects on McCarver
It seems that the governor of North Carolina (NC) intends to sign legislation that prohibits the execution of persons with mental retardation, making NC the fifth state to enact such legislation this year. Under the new legislation, a person is considered mentally retarded if the I.Q. is below 70 and there is a significant difficulty in performing basic functions of life, including communicating, taking care of oneself, living at home or working. Contrary to the laws in most other states that prohibit the execution of persons with the mental retardation, the North Carolina bill is retroactive.
The far-reaching effect of the new law will be seen in the case of Ernest P. McCarver. North Carolina officials plan to advise the court of the new legislation and argue that the McCarver case is therefore moot. If the Supreme Court agrees, the justices could use two other cases to address the broader constitutional question. In June, the court granted a stay of execution to an Alabama death row inmate, Glenn William Holladay, whose I.Q. is 69. Alabama does not bar the execution of the mentally retarded. Earlier this year, the court stayed the execution of Antonio Richardson in Missouri. Mr. Richardson, who was 16 at the time of the crime, has an I.Q. of 70.
Last month, Missouri enacted a law prohibiting the execution of persons with mental retardation, but it was not retroactive. Connecticut, Arizona and Florida have also enacted laws this year prohibiting the execution of a persons with mental retardation. Thus, of the 38 states with the death penalty, 18 now ban the death penalty for a person with mental retardation at the time of the crime, as does the District of Columbia and the federal government. (Information taken from NY Times, August 4, 2001, North Carolina to Prohibit Execution of the Retarded, By RAYMOND BONNER)
Supreme Court Latest-September 25, 2001
WASHINGTON
Associated Press
-- The Supreme Court made clear Tuesday that it will soon
decide if it is constitutional to execute mentally retarded killers,
substituting a moot North Carolina inmate's case with one from Virginia.
The court's first choice had been the case of Ernest McCarver, but before
arguments could be heard North Carolina passed a law banning such
executions.
In another case Tuesday, the court agreed to review the national
one-strike-and-you're-out rule that was intended to purge drugs from
public housing projects.
The court accepted an appeal from a 63-year-old great-grandmother that
arose from the policy, which allows entire families to be evicted if one
member is caught once with narcotics, regardless of where an arrest was
made or whether anyone else in the family was aware of the crime.
In the death penalty case, justices swapped the McCarver case with one
involving a Virginia man who robbed and killed an airman.
The North Carolina law was passed in July, four months after the high
court stopped McCarver's execution after he had eaten what was supposed to
be his last meal. The Supreme Court dismissed McCarver's appeal.
Justices had two other cases to choose from -- an Alabama triple killer and
a Missouri man who as a teenager raped and helped kill two young women.
Instead, the court decided to consider the appeal of Daryl ``James''
Atkins, who was convicted of murdering an airman in 1996 because he needed
money for beer. He was 18 at the time. The airman, 21-year-old Eric
Nesbitt, was kidnapped outside a convenience store and forced to withdraw
money from an automatic teller machine. Atkins and an accomplice took
Nesbitt to a deserted field and shot him eight times. Nesbitt was
stationed at Langley Air Force Base in Hampton, Va.
In March, the Supreme Court decided to use McCarver's case to revisit
the question of whether it is unconstitutionally cruel and unusual
punishment to execute a person with mental retardation. McCarver was
sentenced to death for the 1987 murder of cafeteria worker Woodrow
Hartley. Defense experts testified McCarver's IQ is 67, though prosecutors
said it was higher.
North Carolina enacted a ban on executing those with IQs of 70 or less.
The law gives current death row inmates a chance to prove their
retardation.
Eighteen states and the federal government have some kind of ban on
those executions.
Copyright © 2001 Associated Press Information Services, all rights
reserved.
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