urors. First, was the conduct that caused the victim's death deliberate? Second, did the defendant present a continuing threat to society? Third, was the conduct that caused the death unreasonable in response to any provocation by the victim? The only difference was an instruction by the judge that if the jurors wanted to give effect to any mitigating circumstances by imposing a life sentence rather than a death sentence, they should answer "no" to any one of the three questions. The jury answered yes to all, and the judge then reimposed a death sentence on Mr. Penry, whose I.Q. has been measured at 51 to 63. Experts generally consider an I.Q. of less than 70 to be evidence of mental retardation. The next year, 1991, Texas amended its death penalty law to instruct the jury explicitly that a death sentence cannot be imposed if there are "sufficient" mitigating circumstances to warrant a life sentence instead. Only Mr. Penry and a handful of other defendants went before juries during a brief period in which the jurors were advised, in effect, that the only way to avoid a death sentence was to answer "no" to one of three specific questions even if their actual answer was "yes." Such an instruction was "awkward, to say the least," Justice Sandra Day O'Connor told Andy Taylor, a Texas assistant attorney general. Justice David H. Souter told Mr. Taylor that the instruction in effect told the jury, "You may act irrationally." Justice Antonin Scalia, on the other hand, was untroubled by the instruction and refused to concede it might have been at all problematic. "We assume that even if the defendant is mentally deficient, the jury is not," he told Mr. Penry's lawyer. "That instruction seems clear enough to me." Given the court's rapidly changing focus, it is possible that Penry v. Johnson, No. 00-6677, could have its greatest impact not on death penalty law but on the habeas corpus law, governing the jurisdiction of federal courts to hear cons...
