McCarver, Ernest v. North Carolina

By: Meggen Lindsay, Medill News Service

Questions presented

Whether significant objective evidence demonstrates that national standards have evolved such that executing a mentally retarded man would violate the 8th Amendment prohibition against cruel and unusual punishment.

Brief

Ernest McCarver had just finished eating his last meal when the call came from the U.S. Supreme Court that halted his execution on March 2, 2001, only hours before it was scheduled.

Although McCarver is 40 years old, his lawyers maintain he has the mind of a 10- to 12-year-old child and is mentally retarded.

He was convicted in 1987 of the stabbing death and robbery of Woodrow Hartley, 71, a manager at the Concord, N.C., cafeteria where McCarver used to work. Before the murder, he told co-workers that Hartley was an ""easy target"" and blamed him for the revocation of his probation.

The jury was allowed to consider McCarvers intelligence as a mitigating factor against imposing the death penalty, but found the murders premeditation outweighed any retardation.

On direct appeal, the North Carolina Supreme Court reversed and sent McCarvers case back to trial, finding that the judge in the case had improperly conferred with the prosecution.

During his second trial in 1992, McCarver again was sentenced to death.

At the sentencing hearing, a psychiatrist pegged McCarvers I.Q. at 74 — slightly above the score of 70 usually considered as evidence of mental retardation.

On numerous appeals both to the U.S. Supreme Court and to the 4th Circuit Court of Appeals, both McCarvers conviction and death sentence were upheld.

But in February, a lower state court judge halted McCarvers execution until the North Carolina General Assembly voted on a pending bill that would prohibit capital punishment for the mentally retarded.

In February, the same month that the bill was introduced, McCarver scored 67 on an intelligence test his lawyers had administered to him while in prison. This result, although only seven points lower than his 1992 test, put him within the recognized classification for mental retardation.

The state supreme court reversed the lower courts stay days later, however, and North Carolina Gov. Mike Easley denied a clemency petition hours before McCarvers execution.

In a written statement, Easley said that no previous court had found McCarver incompetent to stand trial, and that he had been competent enough to drive, gain employment and start a family.

Within 30 minutes of the governors decision, the U.S. Supreme Court stepped in to grant McCarver a stay of execution, pending a decision on whether to accept the case for full review.

Five days later, the Court also stopped the execution of Antonio Richardson, a mentally retarded Missouri inmate who had been scheduled to die on March 7.

In the appeal to the Supreme Court, McCarvers lawyers argued that his execution would be ""cruel and unusual punishment,"" and thereby unconstitutional under the 8th Amendment.

The Court had appeared to settle the question of the constitutionality of executing the mentally retarded in 1989 when it heard the case of John Paul Penry, a mentally retarded Texas death-row inmate.

The Court held 5-4 that it was constitutionally sound, saying, ""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 in the Eighth Amendment.""

The majority opinion was written by Justice Sandra Day OConnor.

At the time, only two death penalty states — Georgia and Maryland — barred execution of the mentally retarded.

That number is now up to 13. The 13 are Arkansas, Colorado, Georgia, Indiana, Kansas, Kentucky, Maryland, Nebraska, New Mexico, South Dakota, Tennessee, Washington and New York, except for murder by a prisoner. Counting the 12 states that do not have capital punishment, half of the states have now outlawed such executions. The federal government and the District of Columbia also decline to execute the mentally retarded.

These developments are evidence of strong public concern about the practice, McCarvers lawyers argued in their appeal to the Court.

""The national consensus against the execution of the mentally retarded has now emerged,"" the lawyers wrote.

Since 1976, when the Supreme Court reinstated the death penalty, 35 mentally retarded people have been executed, according to the Death Penalty Information Center, a Washington-based nonprofit group that advocates against capital punishment. Human Rights Watch, also an anti-death penalty organization, estimates 200 to 300 mentally retarded people are currently on death row.

Although the Supreme Court used Penrys case in 1989 to rule that the constitution allows the execution of mentally retarded inmates, it threw out his conviction because it said Texas law did not allow the jury to factor in his retardation when handing down his sentencing.

At Penrys new trial he again was sentenced to death and his case was appealed for the second time to the Supreme Court.

This new appeal, which was argued before the Court on March 27, did not address the broader 8th Amendment issue, but considered the narrow question of whether the jury instructions in his second trial again prevented him from fairly receiving a life sentence.

One day before the Supreme Court heard oral arguments in the Penry case, on March 26, it granted certiorari in McCarvers case.

But Edwin Welch, who will represent the state of North Carolina before the Supreme Court, contends that the Court has picked the wrong case to examine the issue of executing the mentally retarded.

Welch discredited the results of McCarvers February test because he said there were prior tests given where McCarver scored between 70 and 80. This was the first time that McCarver had scored below 70.

""This guy is not mentally retarded. Theres been all kinds of tests done on him, and he does not score below the 70 mark,"" Welch said. ""Im telling you, hes not mentally retarded.""

On Sept. 25, six days before the Court's 2001-02 term, the Court dismissed the case. In its stead, the Court granted certiorari in Atkins v. Virginia, another case in which the issue of executing mentally retarded offenders was presented.