Private: Delusion and Execution

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.” 

When his habeas petition reached federal court, the judge initially rejected his claims out of hand.  Facing an execution date, he filed again. This time the state court stepped in appointing a psychiatrist and psychologist, but ultimately conducting no hearing and finding him competent.  The federal judge now let Panetti actually hire and present his own experts. The experts concluded that Panetti believed that the death penalty was a Satanic plot, with the State “in league with the forces of evil,” and trying to “prevent him from preaching the Gospel.” The judge found he lacked a “rational understanding” of the reason for his execution, but noted that the forgiving (and not at all medically informed) standard that the Fifth Circuit was using at the time required only some “factual awareness” of the reason he was to be executed.  Unsurprisingly, the Fifth Circuit agreed. 

In 2007, in Panetti v. Quarterman the Supreme Court reversed, stating that Fifth Circuit was applying an inadequate standard and following inadequate fact-finding. A person’s delusions are relevant to whether the person can “reach a rational understanding of the reason for the execution,” and although this was a question with real “complexity,” more expert evidence was needed to carefully assess Panetti.  The Court was clear that an actual “psychotic disorder” and suffering “gross delusions” should bar execution – and the Court was clear that there was “much in the record to support the conclusion that petitioner suffers from severe delusions.” The Court cited to a brief by the American Psychological Association describing the routine and reliable competency determinations made by mental health professionals.

This time, after a second hearing and new expert evaluations (despite the Supreme Court’s emphasis on the need to develop the record, the court repeatedly rejected requests for additional expert funding), the federal judge concluded that Panetti had “thought about the death penalty and its moral and political implications.” 

If only the federal courts would do the same. In 2013, the Fifth Circuit again concluded that Panetti was competent to be executed since he had a “rational understanding” of the reason why he was to be executed. After all, the State’s expert thought that Panetti had no mental illness at all and was just trying to “imitate” Schizophrenia. And recordings of Panetti’s conversations with his parents seemed “generally responsive.” No matter that the entire team of defense experts disagreed, and the federal judge concluded that he was “seriously mentally ill.”  After all, Panetti could rationally believe his execution would be unjust because he was insane when he committed the murders.

None of that had anything to do with what an informed medical opinion would look like. The analysis by the Fifth Circuit neglected the direction from the Supreme Court in Panetti v. Quarterman that assessing delusional beliefs be the center of the inquiry.  On a related question, the Supreme Court emphasized in its 2014 ruling in Hall v. Florida that courts cannot arbitrarily define intellectual disability using an IQ score cut-off, because such a legal rule runs contrary to medical practice.  Courts like the Fifth Circuit are not even applying an arbitrary cut-off; they are entirely failing to apply a medically informed standard. 

Now the Supreme Court has an opportunity to make clearer than it did already in Panetti’s case years ago that the Eighth Amendment forbids the state to execute individuals who are medically diagnosed as psychotic.  If the Court does not accept Panetti’s petition, the issue will continue to be litigated with urgency and frequency.  Unless medically informed evaluation of psychosis is relied upon, the death penalty will continue to be irrationally applied to execute utterly deluded individuals who cannot understand what is happening to them.  Such executions turn capital punishment itself into a grand delusion.

Criminal Justice, Death Penalty