Texas Prepares To Execute A Mentally Ill Man

It’s scheduled for tonight:

First diagnosed with schizophrenia in 1978, [Scott] Panetti was hospitalized over a dozen times by 1992 and involuntarily committed to a mental hospital at least twice. On one such occasion in 1986, Panetti had buried his furniture in the backyard because he believed the devil was inside it.

In 1992, shortly after Panetti stopped taking his medication, he shaved his head, dressed in army fatigues, and killed his in-laws with a hunting rifle in front of his wife and three-year-old-daughter. He turned himself in shortly after, and told police officers that “Sarge” was responsible for the killings.

Sally Satel insists that it is “wrong to execute, even to punish, people who are so floridly psychotic when they commit their crimes that they are incapable of correcting the errors by logic or evidence”:

Yet Texas, like many other states, considers a defendant sane as long as he knows, factually, that murder is wrong. Indeed, Panetti’s jury, which was instructed to apply this narrow standard, may have been legally correct to reject his insanity defense because he may have known that the murders were technically wrong.

Nancy Leong and Justin Marceau review the relevant law:

The U.S. Supreme Court, in a 1986 case called Ford v. Wainwright, prohibited the execution of people who are so out of touch with reality that they do not know right from wrong and cannot understand their punishment or the purpose of it. Panetti’s attorneys argue that this holding applies to him. His severe mental illness causes him to believe that Satan, working through the state of Texas, is seeking to execute him for preaching the Gospel—and, therefore, he cannot possess a rational understanding of the link between his crime and his punishment. To most people, Panetti’s lengthy history of mental illness and his bizarre behavior strongly suggest that Ford should prevent his execution. Yet in practice, Ford’s guarantee is often compromised when courts refuse to order mental health evaluations in a timely fashion, as Panetti’s seven years without a competency evaluation illustrate all too clearly.

Ian Millhiser argues that, by “the Supreme Court’s own reasoning, he fits the criteria of a man who should be constitutionally ineligible for execution”:

And yet, the Supreme Court has not extended this rule to severely mentally ill individuals like Panetti. The justices have said that he should not be executed if he suffers from “gross delusions preventing him from comprehending the meaning and purpose of the punishment to which he has been sentenced,” but this is a much weaker protection from execution than the absolute bar the Court announced in cases involving people with intellectual disabilities. Among other things, it hinges upon Panetti’s present state of mind, giving Texas the opportunity to argue that he is currently lucid enough to be killed.

Rob Smith and Charles Ogletree weigh in:

One could point to a formalistic legal distinction to justify this inequity; some state legislatures banned capital punishment for juveniles and the mentally disabled well before the court stepped in, while no state — other than the 18 states with no death penalty — formally bars the death penalty for the seriously mentally ill. But this line of thinking is overly simplistic.

In its most recent Eighth Amendment decisions, the court has eschewed such formality and replaced it with a more holistic approach that looks at a number of different factors in order to gauge whether a punishment is excessive, and therefore cruel and unusual. For instance, it questions how often the punishment is imposed and carried out in practice; whether the punishment serves any penological purpose; and whether the administration of a punishment to a particular class of people elevates the risk of wrongful execution. This broader, and far more sensible inquiry, leaves little doubt that it would be cruel and unusual to execute someone as mentally ill as Scott Panetti.

Katie Halper points out that “a diverse group of individuals and organizations—beyond the usual prison-reform suspects—are calling for clemency”:

These in​cl​ude 55 prominent Evangelical Christians and seven retired and active bishops from the United Methodist Church; former US Representative Ron​ Paul; former Texas Governor Mark White; ten Texas state legislators; nearly 30 former prosecutors and US attorneys general; Murder Victims Families for Reconciliation, the American Bar Association, and the European Union.

Brent Bozell, Pat Nolan, and Richard Viguerie also speak out:

We are leaders in the conservative movement, and no one could accuse us of being soft on crime. There is much debate about the effectiveness and the morality of the death penalty. Some crimes are so terrible, and committed with such clear malice, that some believe execution is the only appropriate and proportional response. But Scott Panetti’s is no such case. He is one of the most seriously mentally ill prisoners on death row in the United States. Rather than serving as a measured response to murder, the execution of Panetti would only serve to undermine the public’s faith in a fair and moral justice system.

And Stephanie Mencimer looks at the bigger picture:

The Supreme Court hasn’t been especially sympathetic lately to arguments about mental illness and the death penalty. Last year, it refused to block the execution of another seriously mentally ill inmate in Florida, John Ferguson, who went to his death believing he was the prince of God. But Panetti’s pro bono lawyers, Kathryn Kase and Greg Wiercioch, argue that public opinion on the issue is changing, and that the law needs to change with it. They cite a new poll showing that nearly 60 percent of Americans oppose executing someone with a serious mental illness. They also reference new research showing that juries and judges today are far less likely to choose death for a mentally ill defendant than they were 20 or 30 years ago. In 11 former and current death penalty states that allow for a “guilty but mentally ill” verdict, there hasn’t been a death sentence imposed on a mentally ill person in at least 20 years.