s ago, the last time the Supreme Court considered the question, only two states with the death penalty, Georgia and Maryland, barred execution of the retarded. "There is insufficient evidence of a national consensus against executing mentally retarded people convicted of capital offenses for us to conclude that it is categorically prohibited by the Eighth Amendment," Justice Sandra Day O'Connor said in her 1989 opinion for the court, which voted 5 to 4 to reject a constitutional challenge to the death penalty by a retarded Texas inmate, Johnny Paul Penry. Since then, 11 more states have rejected the death penalty for retarded killers, and others are considering legislation to do so. When states without the death penalty are included in the count, half the states no longer execute mentally retarded killers. "The national consensus against the execution of the mentally retarded has now emerged," Mr. McCarver's lawyer told the justices in the appeal that the court agreed today to hear. The court had issued a stay on March 1, when Mr. McCarver was within hours of being executed. "It is time for this court to assess whether American society has changed significantly over the past decade so that the execution of the mentally retarded now violates American standards of decency," the lawyer, Seth R. Cohen of Greensboro, N.C., said in the appeal, McCarver v. North Carolina, No. 00- 8727. The Supreme Court looks at "evolving standards of decency" to determine whether a punishment is cruel and unusual. Under that test of social consensus, the court in recent years has ruled out execution of the insane, of rapists not also convicted of murder and of murderers younger than 16. The grant of review was a surprise because the court had appeared to be moving by small steps on the retardation issue. Mr. Carver was convicted in 1987 of robbing and murdering a fellow cafeteria worker in Concord, N.C. On Tuesday morning, the justices will hear arguments for...
