me and Criminals ASHINGTON, March 27 — Although the Supreme Court changed the landscape of the death penalty debate on Monday when it agreed to decide the constitutionality of executing mentally retarded murderers, that was scarcely apparent in a separate death penalty argument at the court this morning. The justices were considering, for the second time, the case of Johnny Paul Penry of Texas, perhaps the country's best-known retarded death row inmate. Twelve years ago, while refusing to declare capital punishment unconstitutional as applied to the retarded, the Supreme Court set aside Mr. Penry's sentence on the ground that Texas law did not permit the jury to give full consideration to a defendant's diminished intellectual functioning as a factor mitigating against a death sentence. In 1990, Mr. Penry was once again sentenced to death for the murder of a young woman in 1979. The question for the Supreme Court now is whether the amended instructions the jury received adequately addressed the deficiency the justices identified in their earlier decision. Mr. Penry's lawyers did not bring back to the Supreme Court this time the broader question of whether the Eighth Amendment's prohibition of cruel and unusual punishment bars execution of the retarded, and it is not until the fall that the justices will take that up in the North Carolina case they accepted on Monday. So the argument today proceeded in a kind of vacuum. Neither the justices nor the lawyers mentioned that another case was pending that could subsume the Texas jury instruction issue. Instead, Robert S. Smith, Mr. Penry's lawyer, told the court that the jury at the second sentencing trial was still unable to take full account of the defendant's retardation and "lifelong history of really gruesome child abuse." In fact, the verdict form that Mr. Penry's second jury received was the same one given to the jurors in the first trial. It contained three questions for the j...
