Executing the Mentally Ill

December 2, 2014
Guest Post

by Nancy Leong, Associate Professor, University of Denver Sturm College of Law. Follow her on Twitter @NancyLeong.

Scott Panetti is scheduled for execution in Texas tomorrow, Wednesday, December 3.

Mr. Panetti has suffered from schizophrenia and other mental illness for over thirty years. He first exhibited signs of a psychotic disorder as a teenager. Between 1978 and 1992, he was hospitalized for mental illness fifteen times. He developed a delusion that he was engaged in spiritual warfare with Satan. He tried to exorcize his home by burying furniture in the backyard because, he claimed, the devil was in it.

In 1992, Mr. Panetti went off his medication, shaved his head, and dressed in camouflage fatigues. He went to his in-laws house and murdered his mother and father-in-law in front of his wife and daughter. After turning himself in, Mr. Panetti blamed the crime on “Sarge,” one of his recurring hallucinations. He explained that God had ensured that his victims had not suffered.

A trial judge allowed Mr. Panetti to represent himself at the subsequent trial and sentencing, even disregarding the concerns of the prosecutor.  Predictably, the proceedings were, in the words of Mr. Panetti’s stand-by attorney, “truly a judicial farce.” Mr. Panetti wore a cowboy costume and a purple bandana to court. He attempted to subpoena John F. Kennedy, the Pope, Jesus Christ, and his own alter ego, “Sarge,” among 200 others. His statements were rambling and incoherent. He fell asleep during trial. While describing the shooting, he assumed the personality of “Sarge” and narrated the events in the third person. He pointed an imaginary rifle at jurors, visibly frightening them. And he rejected a plea bargain that could have saved his life.

Unsurprisingly, a jury convicted Mr. Panetti and sentenced him to death. Several jurors explained that they had done so because they were so afraid of Mr. Panetti that they wanted to ensure he never got out of prison, and Texas, at the time, did not offer the possibility of life without parole.

As with many individuals on death row, a long series of appeals followed, focusing on Mr. Panetti’s mental illness. The Supreme Court, in a 1968 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. Mr. Panetti’s attorneys argued 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.

Mr. Panetti’s case first reached the U.S. Supreme Court in 2007. In an opinion authored by Justice Kennedy, a 5-4 majority of the Court held in Panetti v. Quarterman that further inquiry into Mr. Panetti’s mental condition was required. The Court instructed the lower courts to ensure not only that Panetti was aware that he would be executed, but also that he had a “rational understanding” of the reason for his execution. The Court held that “[g]ross delusions stemming from a severe mental disorder may put an awareness of  a link between a crime and its punishment so far removed from reality that the punishment can serve no proper purpose.” Administered under such conditions, an execution would violate the Eighth Amendment prohibition on cruel and unusual punishment. The Court instructed the district court to reconsider Mr. Panetti’s competence on remand.

The subsequent proceedings were complex. For present purposes, suffice it to say that Mr. Panetti’s death sentence remains in place. And despite the Supreme Court’s instruction that “[t]he conclusions of physicians, psychiatrists, and other experts in the field” should be considered before carrying out a death sentence, Mr. Panetti has not received a competency evaluation in nearly seven years.

No one could dispute that Mr. Panetti’s actions were atrocious beyond words. The death of two innocent people is an unspeakable tragedy. But the execution of a man grievously afflicted by mental illness for three decades would also be an atrocity—one that would in no way compensate for the murder of his in-laws. His execution serves no retributive purpose and provides no deterrent example to others.

To most people, Mr. Panetti’s lengthy history of mental illness and his bizarre behavior strongly suggest that Ford should prevent his execution. Indeed, a recent poll found that 58% of Americans oppose executing mentally ill people, with only 28% in favor. The broad and diverse coalition opposing Mr. Panetti’s death sentence reflects this understanding. At last count, this coalition included the American Psychiatric Association, twenty-one conservative leaders from around the country, former Texas Governor Mark White, more than fifty Evangelical leaders from around Texas and the United States, the American Bar Association, ten legislators from Texas; former U.S. Representative Ron Paul, and the European Union. His ex-wife—the daughter of his victims—likewise supports clemency. As of the time of writing, more than 94,000 people had signed a Change.org petition urging clemency.

Yet thus far, our criminal justice system has failed to acknowledge this growing consensus. Last week the Texas Court of Criminal Appeals refused, 6-3, to stay Mr. Panetti’s execution. In dissent, Judge Tom Price wrote, “It is inconceivable to me how the execution of a severely mentally ill person such as [Mr. Panetti] would measurably advance the retribution and deterrence purposes purportedly served by the death penalty.” On Monday, the Texas Board of Pardons and Paroles unanimously voted, 7-0, to deny a request to commute Mr. Panetti’s sentence to life in prison.

Scott Panetti still has two chances for reprieve. On Monday, his attorneys asked the U.S. Supreme Court to grant a stay of execution. And following the denial by the Texas Board of Pardons and Paroles yesterday, Mr. Panetti’s attorneys asked Texas Governor Rick Perry for a thirty-day reprieve to evaluate Mr. Panetti’s mental condition.

As Justice Marshall explained in Ford, “the execution of an insane person simply offends humanity.” As the hours dwindle until Mr. Panetti’s scheduled execution, one can only hope that either Governor Perry or the U.S. Supreme Court will see things the same way.