the second time in the case of Mr. Penry, the inmate whose earlier appeal led the court to reject the broad attack on executing the retarded. In the 1989 Penry ruling, the court vacated his death sentence on the narrower ground that the Texas death penalty law turned his retardation into a double-edged sword, possibly persuading jurors that his inability to control violent impulses made him especially dangerous and thus a candidate for execution. After a new hearing in Texas, Mr. Penry was again sentenced to death, and the issue before the justices on Tuesday will be whether the instructions to the jury in response to the first Penry ruling allowed the jury to use retardation as a reason to view him as less, not more, deserving of the death penalty. Mr. Penry's new appeal, Penry v. Johnson, No. 00-6677, does not present the broader constitutional issue. In light of the court's action today, it is not clear what the justices will do in Mr. Penry's case, because the issue of the jury instructions is irrelevant if the Eighth Amendment bars the execution of the retarded. A decision in the Penry case would ordinarily come by the end of the court's term in late June. The McCarver case will not be argued until the new term begins next fall. It might not be decided until early 2002. Executions of retarded killers are unlikely to occur while the McCarver case is awaiting a decision. Earlier this month, the justices granted a stay of execution to Antonio D. Richardson, a retarded man on Missouri's death row. The court took no further action on that case today. The stay is likely to remain until the court decides the McCarver case. Under North Carolina law, the jury in Mr. McCarver's case was permitted to weigh his retardation as mitigating against the death penalty. The jurors found that Mr. McCarver, then 26, functioned "intellectually as a 10- or 12-year-old" but that evidence of premeditation outweighed his retardation and other mitigating ev...
