INCLUSION DAILY EXPRESS

Inclusion Daily Express

International Disability Rights News Service
Click here for today's headlines

Keeping advocates informed, inspired and connected since 1999.
Click here for daily or weekly delivery . . . OR
Try Inclusion Daily Express for two weeks FREE . . .

ERNEST P. MCCARVER

"How does that relate to what his IQ is?"
--Bill Kenerly, a North Carolina District Attorney, claiming that death row inmate Ernest McCarver should face execution because he was capable of planning and implementing the murder for which he was convicted (February 23, 2001)

2001
February 23: Death Row Inmate's Supporters Want Execution Delayed
February 27: One Legal Hurdle Jumped, Two to Go For McCarver To Avoid Death Penalty
March 1: Governor is McCarver's Last Hope
March 2: U.S. Supreme Court Halts McCarver's Execution
April 3: Fates of Inmates Linked
July 23: State House Approves Execution Ban
July 25: State Moves Closer To Death Penalty Ban
August 4: Gov Easley Signs Bill Banning Executions for Convicts with Mental Retardation
August 20: New Law Doesn't Protect McCarver, Attorney Tells High Court
September 27: Supreme Court Replaces McCarver Case To Test Death Penalty
October 23: McCarver Gets New Reprieve From Death Penalty

Background:
Mental Retardation And the Death Penalty In the USA
By Dave Reynolds (published in the July 2001 Ragged Edge Magazine)

Death Row Inmate's Supporters Want Execution Delayed
By Dave Reynolds, Inclusion Daily Express
February 23, 2001

RALEIGH, NORTH CAROLINA--Right now, several states are struggling with the question of whether or not a person who has been convicted of murder should face the death penalty if they have mental retardation. Some are still trying to define what mental retardation really is -- most experts say an IQ score of 70 or below indicates mental retardation -- and if a person with that diagnosis or label should be held legally responsible.

Attorneys and supporters of Ernest McCarver are hoping Governor Mike Easley will delay the death row inmate's execution, which is scheduled for next Friday, until after the North Carolina General Assembly makes up its collective mind on the issue.

McCarver was convicted in 1988 of stabbing to death coworker Woodrow Hartley. The conviction was thrown out over a technicality, but McCarver was convicted a second time in 1992 and sentenced to the death penalty.

McCarver's supporters say he should not be executed because he has mental retardation, and point to an IQ score of 67 from a test that was administered last week.

Prosecutors say McCarver scored between 70 and 80 on an IQ test before his second trial. They add that McCarver talked about killing Hartley, planned out how to do it, and even recruited an accomplice.

"How does that relate to what his IQ is?" asked Bill Kenerly, the Rowan County District Attorney who prosecuted McCarver in his second trial. "The real issue is, 'How do you define mental retardation and how does it relate to a person's legal and moral culpability for a crime?"'

The North Carolina legislature is considering a ban on executions of people considered to have mental retardation. It is also trying to define the procedures for defining mental retardation.

McCarver's attorney's will be asking a Superior Court judge on Monday, and the governor on Wednesday, to halt the scheduled education, at least until after the legislature has made its determinations.

"If you postpone and (the statute) doesn't apply to him, the state can always get a new execution date," said defense attorney Seth Cohen.

"There's no rush."

One Legal Hurdle Jumped, Two to Go For McCarver To Avoid Death Penalty
By Dave Reynolds, Inclusion Daily Express
February 27, 2001

RALEIGH, NORTH CAROLINA--Yesterday, Superior Court Judge A. Leon Stanback decided Ernest Paul McCarver, 40, should not die Friday, but that his execution should be held off until after the state legislature decides whether or not to ban the death penalty for people with mental retardation.

A state prosecutor is going before the state Supreme Court today to have Judge Stanback's ruling overturned. If that higher court agrees with special attorney general Ed Welch, McCarver's execution could be put back on the schedule for 2 a.m. Friday.

McCarver would have one more chance, even if the state Supreme Court rules against him. Tomorrow, Governor Mike Easley is scheduled to hold a special hearing for McCarver. Easley could decide to change McCarver's death sentence to life in prison.

McCarver was convicted of stabbing a coworker to death in 1987. While his supporters say he has mental retardation and that he has an IQ of 67, prosecutors point out that he was capable not only of planning and committing the murder, but also of recruiting an accomplice.

The General Assembly is currently reviewing a proposal that would end executions of anyone who has an IQ score of 70 or less. If it passes, the bill would likely not take effect until December 1. McCarver's attorney says he may push to have it be retroactive so it would allow McCarver to take advantage of it.

Governor is McCarver's Last Hope
By Dave Reynolds, Inclusion Daily Express
March 1, 2001
RALEIGH, NORTH CAROLINA--Ernest Paul McCarver's life is entirely in the hands of Governor Mike Easley.

The governor will decide today whether or not to change the convicted murderer's death sentence to life in prison, or to postpone his execution until after the legislature decides on a proposed bill that would ban the death penalty for people with mental retardation.

If Easley does not choose either of these, McCarver will be executed at 2 a.m. tomorrow.

This Monday, Superior Court Judge Leon Stanback placed a stay on the execution, noting that the General Assembly was working on the proposal that would end capital punishment for people with IQ scores below 70, considered by many experts as the cut-off for mental retardation.

McCarver reportedly scored 74 on an IQ test given before his trial, but scored 67 on one administered two weeks ago.

The state Supreme Court threw out Stanbeck's ruling on Tuesday, noting that his decision was not consistent with current state law, and that the judge should not have based his ruling on a proposed bill.

McCarver was convicted in the 1987 stabbing death of coworker Woodrow Hartley, 71. His supporters, including disability advocates, and state prosecutors presented their arguments to the governor during a hearing on Wednesday. His defenders said he should not be executed, at least until the legislature deals with the bill, and that he has the "functioning level of a 10-year-old". Prosecutors argued that he was capable of planning and committing the murder and even recruited an accomplice.

McCarver's attorneys also planned to ask the U.S. Supreme Court to stop the execution. It is unlikely, however, that the high court will grant that request.

The Death Penalty Information Center has dedicated the following web page to people with mental retardation who have faced the death penalty in the United States:
http://www.deathpenaltyinfo.org/dpicmr.html

U.S. Supreme Court Halts McCarver's Execution
By Dave Reynolds, Inclusion Daily Express
March 2, 2001

RALEIGH, NORTH CAROLINA--Just a few minutes after Governor Mike Easley announced he would not stop the execution of convicted murderer Ernest Paul McCarver, word came that the U.S. Supreme Court was ordering a temporary stay of execution.

McCarver had eaten his "last meal", had visited with his brother and daughter, and was 6 hours away from his scheduled 2 a.m. execution.

Details as to why the high court handed down the order were not available in early reports.

"We know he's going to be alive for breakfast tomorrow," said McCarver's attorney Seth Cohen.

McCarver was sentenced to face the death penalty for murdering a coworker in 1987. His defense team had filed a petition with the federal Supreme Court earlier this week, after the North Carolina Supreme Court reversed a stay ordered by a lower court on Monday.

At issue is McCarver's IQ. A recent IQ test gave him a score of 67, which is below the cut-off of 70 that many experts use for designating mental retardation. He had scored between 70 and 80 on an earlier test.

The state legislature is considering a bill that would prohibit the death penalty for people determined to have mental retardation. If passed, it likely would not go into effect until December. McCarver's supporters would like that law to be retroactive, so it would include McCarver.

Fates of Inmates Linked
By Dave Reynolds, Inclusion Daily Express
April 3, 2001

UNITED STATES--John Paul Penry and Ernest P. McCarver.

Even though they have been physically separated by over a thousand miles for the past two decades, the paths of these two men crossed last week in the same room, within hours of each other.

Last Monday, the U.S. Supreme Court agreed to hear arguments in the case of Ernest McCarver, 40, a death row inmate in North Carolina, who came within hours of being executed last month for murdering a coworker in 1987. The high court will be deciding whether it is unconstitutional to execute people considered to have mental retardation. The case will be heard this fall and a decision is likely next year.

McCarver's most recent IQ test, arranged by his defense team, put his score at 67. But his IQ was measured at between 70 and 80 before his trial. Scores of 70 or below are considered by many experts to indicate mental retardation.

In 1989, the same court ruled in a close 5-4 vote, that the death penalty for people with mental retardation was not "cruel and unusual punishment" as defined in the U.S. Constitution. In the court's decision, Justice Sandra Day O'Connor said, "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". The court did decide, however, that a jury should consider a person's "mental capacity" before deciding the appropriate sentence.

That case involved John Penry, a Texas death row inmate who had been convicted in 1980 of stabbing a woman to death with a pair of scissors. The Supreme Court decisions in 1989 said that Penry's IQ scores of between 50 and 64 could not keep him from being legally executed, but that the jury should have been told about his IQ before sentencing him to death. His death sentence was thrown out and a new trial was ordered.

Like the first jury, the jury in the second trial found Penry guilty and gave him the death penalty. He was to die last November, but was spared just three hours before his scheduled execution. The U.S. Supreme Court had ordered a halt to the execution so it could hear new arguments regarding Penry's second trial.

It is very unusual for the U.S. Supreme Court to agree to hear cases for the same person more than once. But last Tuesday -- just one day after the court agreed to use McCarver's case to re-test their 1989 Penry decision -- the court heard arguments again regarding John Penry, who is now 44. This time, however, the court is not looking at whether the death penalty for people with mental retardation is constitutional. Instead, the question has to do with whether or not the jury that convicted Penry the second time was given information about his mental retardation before sentencing him to death.

In McCarver's case, the court will be looking at whether or not attitudes have changed over the past 12 years to the point where executing people with mental retardation violates society's ideas of what is decent. When Penry's first case was presented to the court in 1989, only two states banned executions of people with mental retardation. Since then, eleven more states have passed similar laws, and several other states are considering bills during the current legislative sessions that would ban the practice.

Groups from around the world have condemned the U.S. for allowing people with mental illness or mental retardation to be executed. Some groups say that people with such disabilities are often not sophisticated in defending themselves and do not thoroughly understand their rights. Since many are taught how to please others instead of how to understand and advocate for their own rights, they are more easily manipulated by accomplices and by police who want a confession. Another factor is that most people with disabilities do not have the money to hire qualified, competent attorneys skilled in defending death penalty cases.

The Death Penalty Information Center estimates that 35 Americans considered to have mental retardation have been executed over the last 24 years and that over 300 people now on death row fall into that category. The center has updated their website at this address:
http://www.deathpenaltyinfo.org/dpicmr.html

State House Approves Execution Ban
By Dave Reynolds, Inclusion Daily Express
July 23, 2001

RALEIGH, NORTH CAROLINA--In a 64-44 vote, the North Carolina state House approved a bill that would prohibit the death penalty for convicted murderers determined to have mental retardation.

But the House bill is so radically different from the one passed by the state Senate in April, that it must now go back to the Senate for a vote and possible revisions.

Both versions define mental retardation as having an IQ of 70 or below and both require that there be indications that the defendant had shown difficulty in functioning before becoming an adult.

The differences between the bills have to do primarily with the powers given to the judge, the jury, and even the defendant in such situations where mental retardation is brought up.

Currently, 38 states have a death penalty. If this bill is passed by the Senate and signed by the governor, North Carolina will become the 17th state with a death penalty to specifically prohibit it for people with mental retardation.

More details on the two versions of the bill, and the emotional debate going on within North Carolina's Assembly, are available from this News & Observer article:
http://www.newsobserver.com/ncwire/news/Story/800936p-800640c.html

This Charlotte Observer editorial looks at the very personal side of the death penalty debate in North Carolina:
"Deathly Debate"
http://www.charlotte.com/observer/natwor/docs/jbnotes0718.htm

State Moves Closer To Death Penalty Ban
By Dave Reynolds, Inclusion Daily Express
July 25, 2001

RALEIGH, NORTH CAROLINA--In a 47-1 vote, the state Senate on Tuesday overwhelmingly passed a bill to ban the death penalty for people determined to have mental retardation.

The final measure was a compromise between a bill passed by the Senate in April and a similar one passed by the state House last week.

In this bill, a person convicted of murder would be considered to have mental retardation if that person scored 70 or below on an IQ test before age 18, and had "significant limitations in adaptive functioning". A jury could also make that determination.

Those convicted of murder would receive a sentence of life in prison.

If Governor Mike Easley signs the bill, as he is expected to do, North Carolina will become the 18th state with a death penalty to specifically ban it for people with mental retardation.

New Law Doesn't Protect McCarver, Attorney Tells High Court
By Dave Reynolds, Inclusion Daily Express
August 21, 2001

RALEIGH, NORTH CAROLINA--Earlier this month, Governor Mike Easley signed a bill making North Carolina the 18th state with a death penalty that specifically forbids executions of convicts determined to have mental retardation.

Under the new law, a defendant with an IQ of 70 or below documented before age 18, and with "significant limitations in adaptive functioning" could be considered to have mental retardation. This would have to be reviewed and then decided unanimously by a jury.

And even though these new procedures would apply to capital trials beginning on or after October 1, any current death row inmates could request a hearing. Those considered to have mental retardation would have their death sentences changed to life in prison.

That would include Ernest P. McCarver, whose execution was halted by the U.S. Supreme Court just 6 1/2 hours before he was scheduled to die on March 1. McCarver had been convicted of stabbing to death a coworker in 1987.

The court agreed to hear arguments on McCarver's case, to decide whether or not the death penalty for people with mental retardation violates the Eighth Amendment to the U.S. Constitution. That's the law that says that "cruel and unusual punishment" will not be inflicted on citizens.

Just a few days after the governor signed the new law, North Carolina Attorney General Roy Coopers sent a letter to the Supreme Court, asking it to drop the case because it is no longer relevant. "Mr. McCarver will now have his opportunity for a hearing on mental retardation," Cooper said.

McCarver's attorney, Seth Cohen, isn't breathing easily quite yet. On Monday, he asked the court to move ahead with reviewing the case as planned, anyway. Cohen says McCarver has an IQ of 67 and the "functioning level of a 10-year-old", but he is not convinced that the law will protect his client.

Prosecutors say McCarver has an IQ between 70 and 80 and scored 74 on one IQ test. They also argue that he not only was capable of planning and committing the murder, but also recruited an accomplice.

There has been no official response from the court.

Supreme Court Replaces McCarver Case To Test Death Penalty
By Dave Reynolds, Inclusion Daily Express
September 27, 2001

WASHINGTON, DC--The U.S. Supreme Court will soon revisit the question of whether or not executing people with mental retardation violates the Eight Amendment's ban on "cruel and unusual punishment".

In a 5-4 vote, the Supreme Court ruled in 1989 that such executions did not violate the constitution. But Justice Sandra Day O'Connor noted in the decision that the general public did not appear at the time to oppose the death penalty for convicts with mental retardation.

Public attitudes have changed. Since 1989, eighteen states that have a death penalty have enacted laws prohibiting the execution of people who have mental retardation. At the time of the ruling, only Maryland and Georgia had such laws.

McCarver Case Will Not Be Used

The court on Tuesday announced that it would replace the case of Ernest McCarver, a convicted murderer from North Carolina, with that of Daryl Atkins, a Virginia man who was convicted of kidnapping and shooting to death an airman in 1996.

Atkins was 18 years old when he and an accomplice kidnapped Eric Nesbitt, 21, outside a convenience store and forced him to give them money from an automatic teller machine (ATM). The two then took Nesbitt to a deserted field and shot him eight times.

McCarver had been on death row after his murder conviction for stabbing to death a coworker in 1987. He was within seven hours of his scheduled execution, and had eaten what was to have been his last meal, when the Supreme Court halted the execution in March of this year. The court later decided to use his case to test the constitutionality of executing people determined to have mental retardation.

But this summer, North Carolina passed a law prohibiting such executions. So, the court chose Atkins' case from several others to test, in part because Virginia does not have such a law.

This doesn't mean McCarver is in the clear, however. His case will soon go before a North Carolina state Superior Court judge who will determine whether the state's new law applies to McCarver.

The new law, which goes into effect on Monday, prohibits the execution of anyone with an IQ of 70 or less, which is commonly considered the cut-off for mental retardation. McCarver's IQ was measured at 74 just before his trial, but was measured at 67 this February.

McCarver Gets New Reprieve From Death Penalty
By Dave Reynolds, Inclusion Daily Express
October 23, 2001

CONCORD, NORTH CAROLINA--Ernest P. McCarver's life has been spared once again while the question of whether or not he has mental retardation is debated.

McCarver, 41, was scheduled to be put to death on November 9, but was granted the stay last Friday.

McCarver has been on death row since he was convicted for the 1987 murder of a coworker. On March 1 of this year he had eaten his "last meal" and was within a few hours of his scheduled execution when the U.S. Supreme Court stopped his execution. The high court wanted to use McCarver's case to test whether executing people who have mental retardation violates the "cruel and usual punishment" ban in the Eighth Amendment to the Constitution.

But this summer, the North Carolina legislature passed a law making the death penalty illegal for people with mental retardation. So, the U.S. Supreme Court decided to use a different case for its test.

If McCarver's defenders do not prove that he has mental retardation a new execution date will be set. Earlier this year he scored 67 on an IQ test arranged by defense experts. He had scored 74 on an IQ test arranged by the court.

The new North Carolina law, like several others across the country, prohibits the death penalty for convicts with an IQ of 70 or less, recorded before the age of 18, and with "significant limitations in adaptive functioning."

Subscribe to Inclusion Daily Express today!

Get your news here!