by Brandon L. Garrett, Professor of Law, University of Virginia School of Law. Since the 2011 publication of Convicting the Innocent: Where Criminal Prosecutions Go Wrong, Professor Garrett has written widely on issues of criminal procedure, scientific evidence, corporate crime, and the law. This fall, Harvard University Press will publish his new book, Too Big to Jail: How Prosecutors Compromise with Corporations.
Can the State execute a person who is insane to the point of delusional? In 1986, the U.S. Supreme Court held in Ford v. Wainwright that the Eighth Amendment forbids the execution of the mentally ill, questioning “the retributive value of executing a person who has no comprehension of why he has been singled out and stripped of his fundamental right to life.” However, the Court left the standards for defining the required “comprehension” unclear in some respects. And despite strong insistence from the Court that medical expert opinion be heeded, the State of Texas and the Fifth Circuit Court of Appeals have been nothing if not determined to push the outer bounds of the Eighth Amendment to permit execution of the insane. When the Court reviews petitions for certiorari next week, it will consider the case of Scott Panetti, a case that will hopefully put this important question to the test for the second time in a decade.
The insanity defense was the only one Panetti raised at his trial in 1992. It seemed like a textbook case. Panetti, a schizophrenic had been institutionalized repeatedly before the murder of his in-laws in Fredericksburg, Texas. He had brutally shot his in-laws with a hunting rifle, right in front of his estranged wife and his daughter. He told police that a character named “Sarge,” one of his four or five personalities, who he would regularly hallucinate about, made him do it. At a separate initial trial on the issue whether he was competent, he was medicated with massive doses of antipsychotic drugs. The first jury hung; after a surprise change of venue a second jury found him competent to be criminally tried. At his death penalty trial, he represented himself, without taking his antipsychotic medication, wearing a purple cowboy suit, and requesting the opportunity to examine witnesses such as John F. Kennedy, Pope John Paul II, and Jesus Christ. His standby lawyer called his trial performance “bizarre,” “scary,” and “trance-like.”