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The legislators who passed our current death penalty laws balance. But when the stakes are life and death, the struc- did not intend to force grotesque issues to the center stage tural distortions caused by mental illness become magni- of constitutional adjudication. The death penalty was sup- fied, and the contradictions can rise to constitutional posed to be about getting even with Charles Manson and Ted Bundy, not executing teenagers and the retarded, or Death is different, according to the Supreme Court’s wrestling condemned schizophrenics to the gurney for capital jurisprudence. Three doctrinal differences are par- forced doses of Haldol. But here we are. ticularly important here. First, the relevancy standard at —David Bruck, “Does the Death Penalty Matter?” penalty trials is capacious: Any significant limitations on Speech Delivered at Harvard Law School, 1990 the defense’s ability to present, or the sentencer’s ability toconsider and give independent mitigating weight to, men- Mentalillnessisaphenomenonthatknifesacross talhealthevidencewillvoidtheresultingdeathsentence.
the entire corpus of our criminal justice system.
Second, the standards for waiving appeals are more strin- From interrogations and waivers of Miranda gent in capital cases, and the attorney’s ethical obligations rights, to consent to searches and seizures, to plea negotia- triggered by such waivers are more vague and complicat- tions and the capacity to stand trial, to calculating sen- ed. Third, the Constitution forbids executing the presently tences and participating in appellate and postconviction insane. Although these three doctrines are related, I will proceedings, mental illness warps the machinery of our criminal law and challenges its most cherished assump- I want to begin with a bit of transparency. I oppose tions about free will, decisional competence, and culpabil- capital punishment. I was cocounsel for convicted cop ity. This is so regardless of whether or not life hangs in the killer Alvin Ford in 1983 and 1984 when his case was on Published in Criminal Justice, Volume 22, Number 3, Fall 2007. 2007 by the American Bar Association. Reproduced with permission. All rights reserved.
This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval systemwithout the express written consent of the American Bar Association.
the way to the Supreme Court to establish the constitu- tional prohibition against executing the insane. So assume Death row prisoners are Rorschach blots. In 1983 I the accuracy of an empirical proposition confirmed by my looked at Alvin Ford and saw a profoundly ill, self-tor- own experience representing those on death row: Mental tured soul for whom execution might well have been a illness is pervasive among the congregation of the con- blessed release from the inferno inside his head. The pros- demned. Prisoners who are crazy to begin with become ecutor looked at the selfsame Alvin Ford and saw a cold- worse on death row. Prisoners who appear comparatively as-ice cop killer who conveniently went insane just as he healthy upon arrival on the row succumb to the despair was running out of appeals. The judges saw Alvin Ford as and the dull hell of waiting—boredom punctuated by fre- either an annoyance or as a man forcing them to make netic terror when an execution date is set and then stayed excruciatingly difficult constitutional choices.
He wasn’t always crazy. When Alvin Ford murdered Most of my death row clients suffered from some form Police Officer Dimitri Walter Ilyankoff, who was attempt- of mental illness, which ran the bandwidth from gentle ing to prevent Ford from robbing a Red Lobster neuroses to full-blown talking-to-spaceships delusional Restaurant in Fort Lauderdale, Florida, he was sane as can psychoses, crippling mental retardation, and severe be. He was still sane when he was tried and sentenced to depression, and, in more than one instance, organic brain death. It was living on death row that drove him mad.
damage so severe that we exhorted the courts to “just look The Florida Supreme Court denied Ford’s direct appeal at the MRI. Part of his brain is missing.” in 1980. The U.S. Supreme Court declined to hear the Acknowledging the factual pervasiveness of death row case, after which no lawyer represented Ford for about a mental illness only begs the real questions. What should year. Then Larry Wollin agreed to prepare Ford’s executive we do about it? If the mentally ill shouldn’t be put to clemency proceeding and to represent him in collateral death, what is the correct standard for measuring execu- proceedings. Wollin, a criminologist and faculty member tion competency; what kinds of mental illness “count”? at Florida State University in Tallahassee, had not actively Who should set that standard? Who—employing what practiced law for a number of years. When Ford’s death procedural vehicles—should decide whether a particular warrant was signed in November 1981, no postconviction proceeding litigation had been developed. A handful of On one level, these are narrow doctrinal questions. On issues had been identified, but that was all. Consulting another level, these questions go to the core of our legal with other lawyers, Wollin developed and filed a postcon- system of death: Who, and why, do we execute? The prob- viction pleading. Less than one week before Ford’s sched- lem of the intersection between mental illness and capital uled execution, when state remedies had been exhausted punishment isn’t rocket science. It’s much harder than and the federal district court proceedings had begun, that. (See generally Symposium, The Death Penalty and Wollin’s was the sole representative for Ford.
the Mentally Ill, 54 CATHOLIC U. L. REV. 1113 (2005).) The issues raised in Ford’s case were complicated, and Twenty-one years ago, in Ford v. Wainwright, 477 U.S.
it took the courts years to sort it all out. Meanwhile, Alvin 399 (1986), the U.S. Supreme Court provided some Ford was going unquietly insane. Ford had been on death answers. The experience of the two decades after Ford row for nearly seven years by the end of 1981. Up to that suggested that more clarity was needed. In 2007 in Panetti point, there had been no indication of serious mental ill- v. Quarterman, the Court tried again.
ness, and no question concerning his competency hadbeen raised before, during, or after his trial. But gradually, Alvin Ford’s delusions—and our own
from December 1981 on, Ford began to lose touch with The best resource on the story of Alvin Bernard Ford—his what the rest of us know as reality. This process began in case as well as the legal and ethical issues it raised—is the an almost imperceptible fashion. First he indicated a belief 1993 book Executing the Mentally Ill by Kent Miller and that personalities talked to him over the radio. He believed Michael Radelet in which they wrote, “Alvin Ford made that he had the power to see things outside the prison that history as the man who forced the criminal justice authori- no one else could see. He also claimed that the Ku Klux ties, lawyers, judges, politicians, and a host of others to Klan had placed several of its members as prison guards seriously debate the question of what types of mental ill- whose task it was to drive Ford to suicide. Ford believed ness should exempt condemned prisoners from execution these guards held women hostage in the “pipe alley” and how (and by whom) these life-and-death determina- behind his cell, raped them, put dead bodies in the con-crete enclosure under his bunk, and put semen on his Michael Mello is a professor at the Vermont Law School. Contact
him at mmello@vermontlaw.edu. The author is deeply grateful to Long-time friends and people providing Ford support Deanna Mello and Judy Hilts for word processing this article. over the years suddenly became enemies in Ford’s disor- Published in Criminal Justice, Volume 22, Number 3, Fall 2007. 2007 by the American Bar Association. Reproduced with permission. All rights reserved.
This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval systemwithout the express written consent of the American Bar Association.
dered mind. All were joined with the Klan in a giant con- In December 1983, communication with Ford became vir- spiracy to drive him crazy. Ford had interludes of clarity, tually impossible. In an interview with paralegal Gail but, as time passed, these interludes became fewer and Rowland, he spoke in a fragmented, code-like fashion: much shorter. By the summer of 1982, Ford seemedunable to regain contact with reality. For several months, Rowland: Have you seen any newspapers or anything
he desperately wrote everyone he could think of who had the power to assist him and begged for help in ending “the Ford: Yes one.
hostage crisis” that in his mind now involved his mother, Rowland: Did you read about the pope?
other family members, his lawyers, politicians, world lead- Ford: Looking one.
ers, and television and radio personalities. Ford repeatedly Rowland: And Bob Sullivan and the pope. . .
wrote for help to President Reagan, the director of the Ford: Looking one.
FBI, the state attorney in Jacksonville, and numerous Rowland: He made a nice statement. You saw it. I was
assistant attorneys general in the State of Florida, and numerous judges. As his decent into madness progressed, Ford: Hello one, need you one. (pause) Gail one,
his pleas became ever more bizarre, less logical, and more threaten one, kill one. (pause) Remember one, nonsensical. A fellow death row prisoner reported that letter one? Say one, God one, blind one, Klan Ford often argued with himself, answering in different one, destiny one? (pause) Mine one. Stab one, voices. The arguments would escalate to physical violence say one crazy one. (pause) Need one, love one.
in which Ford would punch himself, struggle, and roll on (pause) But one, starve one, damn one.
the floor and end with him exhausted and panting. Despite his written pleas for help, he threw his mail around his Rowland: I see.
cell and refused to read it. He made odd marks on the Ford: Excuse one, need you one. (pause) Tell him one.
walls of his cell and touched them with different parts of his body. He threatened to kill the guards and then asked Rowland: I see what you’re saying . . .
them for cigarettes. He walked around his cell as if he Ford: Review one, law one. Dead one.
were a robot, banged his head on the cell walls, and hadfits. According to the fellow inmate, these were not isolat- Four psychiatrists evaluated Ford’s competency during ed incidents. Ford repeated this behavior daily, incessant- November and December 1983. Three of the four psychi- atrists determined that Ford was psychotic. One of these By 1983, though, Ford’s position in his delusional three determined that Ford’s psychosis was of such sever- world shifted from victim to master. He believed he was ity “that he cannot sufficiently appreciate or understand resolving the hostage situation with the aid of the gover- either the reasons ‘why the death penalty was imposed nor and the president. Referring to himself as Pope John upon him’ or ‘the purpose’ of this punishment.” Two oth- Paul III, he wrote that he had appointed nine new justices ers, who were appointed by Florida’s governor, deter- to the state supreme court. And most significantly, he mined that Ford was competent despite their finding now believed his case had been won and he could not be that he was psychotic. One psychiatrist appointed by the governor found Ford to be suffering from no genuine In a November examination by psychiatrist Harold Kaufman, the doctor and Ford carried on the following None of these facts could save Ford’s life, however, unless the Constitution forbade execution of the presentlyinsane. So, in October 1983, while Dick Burr, Ford’s lead Kaufman: Are you on death row?
attorney, put together the factual bases of Ford’s descent Ford: Yes.
into mental illness, I was given the job of fashioning a Kaufman: Does that mean that the state intends to exe-
constitutional argument that would make these facts mat- ter in court. I had a lot of materials to work with. The Ford: No.
Legal Defense Fund, Inc., of the NAACP had researched Kaufman: Why not?
the issue, as had lawyers in Atlanta. The Florida lawyers Ford: Because Ford v. State prevents it. They tried to
for Gary Alvord had raised a similar claim. Students at get me with the FCC tape, but when the KKK Yale Law School and Stanford Law School had published came in it was up to CBS and the governor.
outstanding law review articles on the issue of executing These prisoners are rooming back there raping everybody. I told the governor to sign the death The 1984 death warrant. On October 3, 1983—three
weeks before I learned I had passed the bar—I was Published in Criminal Justice, Volume 22, Number 3, Fall 2007. 2007 by the American Bar Association. Reproduced with permission. All rights reserved.
This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval systemwithout the express written consent of the American Bar Association.
assigned to research and write a memo on why execution coaster ride which has led him into a world that none of the insane might offend the Constitution. One obstacle of us can know. He now lives in a world in which, as to such an argument was a U.S. Supreme Court decision best we can tell, he thinks that he is on death row at from 1950 that held that the Due Process Clause of the Florida State Prison only because he chooses to be Fourteenth Amendment did not prohibit execution of the there. He lives in a world in which he thinks that the insane. Because it predated the Court’s modern capital case of Ford v. State has ended capital punishment in punishment jurisprudence, however, there was a way Florida and, in particular, has deprived the State of around it. The modern jurisprudence was grounded in the Florida of the right to execute him. He is unable to Eighth Amendments ban on “cruel and unusual” punish- tell us, in words that we can understand, anything ments, rather than the Fourteenth Amendment’s guarantee more about the world that he now inhabits. He now mutters softly to himself, making gestures in which More hopefully, every capital punishment state in there seems to be a message, but a message that none America exempted the presently insane from the ultimate penalty. This legislative consensus allowed us to argue that [W]e believe that Mr. Ford’s condition is the the nation as a whole had reached a consensus that execut- product of illness and is genuine. We have seen Mr.
ing the insane offended a constitutional provision ground- Ford gradually lose touch with reality over the past ed, as the Court had said, in “the evolving standards of two-and-one-half years. We have seen his delusions decency that mark the progress of a maturing society.” grow until they took over every aspect of his life.
But this legislative agreement was a double-edged We have seen him gradually losing interest in his sword for our argument. The same national consensus case, then becoming angry with us because of our against executing the insane also vested the governor—not failure to listen to and present information in the the courts—with the power to decide whether a particular “FCC tapes,” then becoming convinced that he had death row prisoner was too crazy to execute. Florida law won his case and could not be executed. Finally, we was typical; the law prohibited execution of the insane, have seen him become utterly unable to communi- but it allowed the governor total discretion in deciding cate with us about any subject—concerning his case who was or wasn’t insane. We needed to argue that, while or anything else. Our experience has convinced us— the national consensus recognized a constitutional right beyond any doubt—that Mr. Ford is not only gen- not to be executed while insane, the courts had a duty to uinely ill but is grossly incompetent. We believe he ensure that the process of determining execution compe- understands nothing about his current circum- stances. We know that he can do nothing to assist us The argument that the Constitution forbids executing the in representing him. Having said this, we do not presently insane appeared straightforward, but land mines abounded. The Eighth Amendment prohibits “cruel andunusual” punishments. Yet, was it not less cruel to execute At 4 p.m. the same day our stay application was denied.
those who had descended into a world of delusions? Those I did not expect to win Ford’s case. Dick Burr decided with no idea where they were or that they were about to that honor and duty required him to witness Ford’s execu- be killed would be free of the terror of waiting for it. Was tion and to ask for clemency literally until the bitter end.
it not crueler to execute the lucid, because they would Meanwhile, Alvin Ford himself refused to see anyone and appreciate the full horror of what was going to happen to was “banging his head against the wall of his prison cell all day.” On Wednesday, May 23, while Burr spent the day Then there was the problem of what to do with people with Ford, supervising psychiatric evaluations, the stay who had been found too insane to be executed. Couldn’t papers were filed in the Florida Supreme Court, which set the state psychiatrists simply “treat” such people until they were sane enough to be executed? This might pervert On Thursday we got more bad news. When Ford’s case medical ethics, but such perversion probably would not reached the federal trial court—and we had scant hope that we’d win in the Florida Supreme Court—it would Florida Governor Robert Graham signed Alvin Ford’s come before the same judge who had blasted it through death warrant in May 1984. We filed the stay papers by the last time around. Judge Norman Roettger was unsym- phone in the state trial court at noon on May 21. In our pathetic to Ford’s first habeas appeal; we were on notice description of Ford’s mental state, we wrote: that the judge was less than happy about seeing the caseagain. The judge’s law clerk told Burr, “I think [the In the two-and-one-half years which have passed judge’s] done all he’s going to do for Alvin Ford.” since December, 1981, Alvin Ford has been a roller First, though, we had to go through the Florida Published in Criminal Justice, Volume 22, Number 3, Fall 2007. 2007 by the American Bar Association. Reproduced with permission. All rights reserved.
This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval systemwithout the express written consent of the American Bar Association.
Supreme Court. Five of the seven justices heard oral argu- We thought it unlikely that the Eleventh Circuit would ment on Friday, May 25. Burr called to say the argument stop Ford’s execution, so while Dick Burr flew to Atlanta, went badly and that all five justices were hostile. Oral I and another lawyer rewrote the papers for the U.S.
argument lasted an hour and less than two hours after it Supreme Court. I left the office at midnight, but was ended the court issued its opinion. We lost. On to the fed- unable to sleep and returned to the office at 2 a.m. While eral trial court. We filed that afternoon.
the other lawyer typed, I made copies and punched holes.
Saturday and Sunday were days of waiting and prepar- By 6 a.m. the papers were ready and we sent them on a 7 ing. Waiting for the federal trial judge and preparing to go a.m. flight to Washington, D.C., Alvin Ford was scheduled to the Eleventh Circuit Court of Appeals and then the U.S.
Supreme Court. We strategized and drafted legal papers.
At 1 p.m. that afternoon, Burr called from Atlanta. The On Monday we put papers on a plane to Atlanta to be argument had been hard to gauge. The judges had asked “lodged” in the Eleventh Circuit. I left my office at 4:30 about procedural bars, along with the merits of the execu- p.m. At 9 p.m. Burr called me at home. The federal dis- tion competency claim. At 4:20 p.m. Burr called again.
trict judge had set a hearing for 1:30 p.m. the following The Eleventh Circuit had stayed the execution—14 hours day and Burr wanted me to argue the merits of the execu- before Ford’s date with death—but it was a split decision.
tion competency issue. I was fresh out of law school and Two judges voted to grant the stay, but the third had voted in my diary I wrote: “This will be the first time I will be arguing any issue, in any case, capital or non-capital, in Now it was the prosecutors’ turn to activate their papers federal court, and [Dick] wants me to argue one of the with the U.S. Supreme Court. We scrambled to throw most important constitutional issues—and one of the together a reply to the state’s motion to dissolve the longest shots, legally and factually complex constitutional Eleventh Circuit’s stay. We had to write and file the reply claims—in a successive habeas corpus case filed by a Ft.
blind, since we had not yet seen the Eleventh Circuit’s Lauderdale cop killer, in front of judge whose nickname is opinion explaining the stay. We finally got the Eleventh ‘Stormin’ Norman; I think I will be learning to swim by Circuit’s opinions at 7:30 p.m. The majority opinion didn’t being thrown into the deep end of the pool. . . .” I got no need us to defend it; it seemed bulletproof. But Supreme sleep that night. I read cases, wrote notes for my argu- Court justices can be an unpredictable lot. Maybe it was fatigue and fear, but the longer we looked at the Eleventh Through his impressive handlebar mustache, Judge Circuit’s stay opinion, the shakier it seemed. During our Roettger barraged me with questions about why he should third all-nighter, we wrote papers like automatons. They rule that the Constitution forbids executing the insane. He were on a plane to D.C. by 6:30 a.m.
clearly thought our claim was procedurally barred: We By 7 a.m. on Friday, June 1, 1984—when Ford was to should have raised it in Ford’s first habeas petition. I have been electrocuted—there were no more papers to argued that the claim simply didn’t exist then—Ford was write, nothing left to do. At 5:12 p.m. we got a call. The perfectly sane at the time of his first habeas petition. As rumor among reporters was that the Supreme Court would soon as we finished the argument, the judge ruled from lift the stay any minute. At 7 p.m. I called the office: still the bench as we expected—procedural bar, abuse of the no word. My diary: “8:10 p.m.: The Supreme Court habeas writ. Using a courthouse hallway pay phone, we upheld the stay, by a vote of 6-3; so the competency-to-be- called the Eleventh Circuit Court of Appeals in Atlanta to executed issue is a real, live issue, and Alvin Ford will live activate the papers we had lodged the previous day.
Burr and I arrived back at the office at 5 p.m. and 30 The Eleventh Circuit put Ford’s case on an expedited minutes later received a phone call from the Eleventh briefing and oral argument schedule. Because we were Circuit. Oral argument would be held in Atlanta the next swamped with death warrant cases, we didn’t have as much time as we’d wanted to work on the briefs. We were That was good news, and, on its face, there was more in the midst of another client’s death warrant when Dick good news: The three appellate judges assigned to the Burr headed out to the oral argument in Ford.
Ford case were the same three judges who had recently The Eleventh Circuit panel in Ford consisted of Judges stayed the execution of another of our clients. However, in Vance, Clark, and Stafford. Burr thought the argument that case, the U.S. Supreme Court, by a 5-4 vote, had dis- went well. He said Judge Vance thought the Eighth solved the stay, and the client was executed. How would Amendment to the Constitution created a right not to be those same three judges respond to Ford’s case? Would executed while insane. It was a good sign. It meant Vance they stay the execution, we wondered, or would the knew how to get around that 1950 Supreme Court prece- Supreme Court reversal of their earlier stay make them dent. Still, Judge Vance had tried to clear Alabama’s death row, and his attempt brought him a stinging rebuke from Published in Criminal Justice, Volume 22, Number 3, Fall 2007. 2007 by the American Bar Association. Reproduced with permission. All rights reserved.
This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval systemwithout the express written consent of the American Bar Association.
the High Court. I didn’t think Judge Vance would take that that such an execution simply offends humanity is gamble again, not in Alvin Ford’s case.
evidently shared across this Nation. Faced with such We lost Ford’s case, 2-1, in the Eleventh Circuit. Judge widespread evidence of a restriction upon sovereign Clark wrote a 19-page dissent; Judge Vance wrote a power, this Court is compelled to conclude that the seven-page opinion for the majority. The majority opinion Eighth Amendment prohibits a State from carrying teed up the execution competency issue perfectly for out a sentence of death upon a prisoner who is Supreme Court review. It invited the Supreme Court to insane. Whether its aim be to protect the condemned decide whether the old 1950 case remained good law, or from fear and pain without comfort of understand- whether the evolving standards of decency required a dif- ing, or to protect the dignity of society itself from the barbarity of exacting mindless vengeance, the The Court’s bait-and-switch. In fact, the Supreme
restriction finds enforcement in the Eighth Court did decide to decide Ford’s case, and then the Court held that the Constitution today forbids execution of thepresently insane. It was a close thing, however. Initially, But what was the constitutional standard for execution the justices refused the case until Justice Thurgood competency? Justice Marshall’s plurality opinion had Marshall circulated a dissenting draft opinion that per- advocated a test that included consideration of the prison- suaded them otherwise. Marshall, who wrote the majority er’s ability to assist counsel. The concurring opinion of opinion, was the only justice in history whose law practice Justice Lewis Powell, which added the crucial fifth vote to before joining the Court had involved regularly represent- the four-justice plurality, articulated a two-prong test ing condemned people. And his experiences led him to under which the Constitution “forbids the execution only vote to overturn every death sentence to reach his cham- of those who [1] are unaware of the punishment they are bers. For that reason, Marshall wrote only one capital about to suffer, and [2] why they are to suffer it.” A person opinion for the Court—Ford v. Wainwright.
can be profoundly mentally ill and delusional and still not Justice Marshall’s plurality opinion began by burying satisfy Powell’s Ford test. One must be delusional in just the old 1950 precedent based on the Due Process Clause.
the right way to count under Ford: The delusions must Ford’s claim was based on the Eighth Amendment’s ban render the prisoner unaware of the death penalty.
on cruel and unusual punishments. The Court’s jurispru- Marshall then turned to the specifics of Florida’s statu- dence of death had evolved substantially since 1950.
tory procedure for determining execution competency.
Marshall then reached back much further than 1950.
Marshall found Florida’s procedure constitutionally inade- The Eighth Amendment “embraces, at a minimum, those quate. Because Florida’s procedure failed, Alvin Ford was modes or acts of punishment that had been considered entitled to an evidentiary hearing in the federal trial cruel and unusual at the time the Bill of Rights was adopt- court—unless Florida adopted a procedure for determining ed.” Even in 1789, when the Framers of the Bill of Rights execution competency that did pass constitutional muster.
wrote the Eighth Amendment, it was well-settled law that That was where things got more dicey. For Marshall, only the government was forbidden to execute the insane.
a full-blown minitrial would suffice. But on this point “This ancestral legacy has not outlived its time,” Marshall was not speaking for a majority of the Court.
Marshall continued. “Today, no state in the Union permits The key Powell concurrence would give the states a the execution of the insane.” Marshall explained: great deal of latitude in designing a state procedure fordetermining competency. Although Powell found Florida’s It is clear that the ancient and humane limitation procedure inadequate, he would require far less than upon the state’s ability to execute its sentences has as firm a hold upon the jurisprudence of today as it Neither Powell’s nor Marshall’s opinions adequately had centuries ago in England. The various reasons identified precisely why executing the insane violates put forth in support of the common-law restriction evolving standards of decency. As quoted above, Marshall have no less logical, moral, and practical force than explained that executing this class of individuals would they did when first voiced. For today, no less than not serve the values of deterrence or retribution. (But see before, we may seriously question the retributive Brief Amicus Curiae of the Criminal Justice Legal value of executing a person who has no comprehen- Foundation, in Support of Petitioner, Panetti v. sion of why he has been singled out and stripped of Quarterman, No. 06-6407.) Marshall’s plurality opinion his fundamental right to life. Similarly, the natural also recognized that the focus of the inquiry shouldn’t be abhorrence civilized societies feel at killing one who on the prisoner. In some ways, the execution of someone has no capacity to come to grips with his own con- like Alvin Ford—whose delusional system would have science or deity is still vivid today. And the intuition immunized him from the terror that so paralyzed “saner” Published in Criminal Justice, Volume 22, Number 3, Fall 2007. 2007 by the American Bar Association. Reproduced with permission. All rights reserved.
This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval systemwithout the express written consent of the American Bar Association.
CURING TO KILL:
other death penalty states. Not a single Arizona psychia- MEDICINE’S DILEMMA
trist, psychologist, or nurse practitioner was willing to take By Michael Mello
on the case. But a psychiatrist in Georgia was. That psy- The discussion of the Nollie Martin case suggests that chiatrist found Matunana sane enough to die. In 2002 mentally ill clients can pose excruciating ethical dilem- mas for their lawyers. Mental illness also confronts mem- Martin Long. Even by Texas standards, the 1999 execu-
bers of the healing professions with intractable ethical tion, by lethal injection, of a man requiring oxygen and continuous medical care (following a drug overdose) was Claude Matunana. Claude Matunana was sentenced to
notable in its weirdness. As reported in a December 9, death for murder. As described in Nina Rivkind and Steven 1999, article by Jim Yardley in the New York Times, two Shatz’s 2001 capital punishment casebook, Matunana was days prior to his scheduled execution, Martin Long, 46 subsequently found to be a paranoid schizophrenic and years old, was found unconscious in his cell by death row mentally incompetent to be executed. He was “convinced guards. Long had hoarded and then “ingested an overdose he was an agent of the ‘world police’ and spoke frequently of anti-psychotic drugs.” Doctors “placed him on life sup- in numbers and initials whose meaning was known only to port . . . in intensive care and [on] a ventilator.” him. Matunana was placed under the care of Dr. Jerry On the day before his scheduled execution by lethal Dennis, the Arizona State Hospital’s chief medical officer.” injection, Long was taken off the respirator and upgraded Dennis visited Matunana “periodically to monitor his from critical to serious condition. Long remained in inten- condition and treated him with a regimen of tranquilizers sive care, where he would have stayed for another two or which maintained his equilibrium but did not improve his three days were it not for his scheduled execution.
mental state.” Such an improvement would have rendered Long’s doctor in Galveston was asked by the state “to the doctor’s patient mentally competent to be executed, sign an affidavit saying Mr. Long could be safely transport- and the doctor believed that the Hippocratic Oath preclud- ed to Huntsville [for execution], a request he said he ed him from treating a patient in such a way that would refused.” However, the doctor “did sign an affidavit stating make him eligible for execution. Dennis “could have treat- that Long’s health had improved, that he suffered no ed Matunana more aggressively and restored him to the seizures, and was responding to questions—but that point where he understood that he was going to be exe- transporting him could be risky without appropriate med- cuted for committing a crime, but Dr. Dennis refused citing his ethical obligations” to his patient.
So Long was transported—on oxygen and with continu- The Arizona prosecutors ordered Dennis to treat his ous medical care—by airplane from Galveston to Houston, patient until he was competent to be executed. The doctor a 25-minute trip. He was then executed.
refused. The prosecutors threatened the doctor with con-tempt of court. He still refused. Hospital administrators Healers’ Participation in Executions
then attempted to find a replacement for Dennis, sending a The collisions between medical ethics and the machinery mailing to all Arizona psychiatrists and nurse practitioners, of death discussed above are indirect. Physicians and placing classified ads, and making calls to professionals in other mental health professionals who “cure to kill” can clients—seems more humane than executing the lucid.
were in the process of appealing Judge Roettger’s decision The Ford rule isn’t about those we execute. It’s about us when Alvin Ford died of “natural causes.” and about our law. We ought not to be the sort of culture I would have liked for Ford to have held that the Constitution forbids executing the mentally ill. That was The Supreme Court did not hold that Alvin Ford was never in the cards, because such a holding would have exempt from execution because he was insane. Rather, the cleared much of death row. If all of the diagnoses listed in Court held that if Ford was, in fact, mentally ill in such a the Diagnostic and Statistical Manual would render an way that he was mentally incompetent to be executed, then inmate incompetent for execution, there would be few and only then would Ford be out from under the immedi- souls left on death row. That is why commentators like the ate threat of execution. Before Ford could leave death row, American Psychiatric Association and the American Bar we must prove, at a minitrial, that he was actually as ill as Association suggest banning the execution only of the The evidentiary hearing in Judge Roettger’s court did Ford v. Wainwright has always seemed to me a bait- not go well. The judge found that Ford was malingering and-switch. The Court recognized a constitutional right in and that he was competent to be executed. Ford’s lawyers the abstract, but left it to the states to define and protect Published in Criminal Justice, Volume 22, Number 3, Fall 2007. 2007 by the American Bar Association. Reproduced with permission. All rights reserved.
This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval systemwithout the express written consent of the American Bar Association.
rationalize that their involvement in the capital assembly doctors joining executioners. Even bigger surprises line is separated by time and place from the actual execu- from Morales were yet to come. It took just one day for prison officials to find two anesthesiologists will- Healers who participate in executions themselves have ing to take part in Morales’ execution, assured they no such distance. In a May 2007 working paper, The Lethal would remain anonymous. It soon became clear, Injection Quandary, Professor Deborah Denno has demon- however, that these doctors had not been fully strated that such participation occurs more frequently informed of their roles. In a stunning blow to the Morales court’s directive, both anesthesiologistsresigned mere hours before the scheduled execution On February 14, 2006, a federal district court ren- time. Because of their ethical responsibilities, they dered a ruling that would transform this country’s could not accept the Ninth Circuit Court of Appeals’ views of capital punishment. For California to con- interpretation that they personally would intervene duct the lethal injection execution of Michael and provide medication or medical assistance if the Morales, the state had to choose one of two court- inmate appeared conscious or in pain. The doctors’ mandated options: provide qualified medical person- reasons for refusing to participate spotlight a crucial nel who would ensure Morales was unconscious predicament states face in the administration of during the procedure, or alter the Department of Corrections’ execution protocol so that only one kindof drug would be given, rather than the standard The Morales case unearthed a nagging paradox. The sequence of three different drugs. Evidence suggest- people most knowledgeable about the process of ed that, of the eleven inmates lethally injected in lethal injection—doctors, particularly anesthesiolo- California, six may have been conscious and torment- gists—are often reluctant to impart their insights ed by the three-drug regimen, potentially creating an and skills. This very dilemma moved Judge Jeremy “unnecessary risk of unconstitutional pain or suffer- Fogel, who presided over Morales’ hearings, to ing” in violation of the Eighth Amendment’s Cruel and assume unprecedented involvement in an area that Unusual Punishments Clause. In a captivating legal had been controlled primarily by legislatures and moment, the state chose to have medical experts department of corrections personnel. In response to present at Morales’ execution, setting the stage for a the doctor pullout and questions about lethal injec- tion’s viability, Judge Fogel organized the longestand most thorough evidentiary hearing ever con- Immediately, medical societies protested the ducted on any execution method. The homework Morales court’s recommendation and the ethical paid off: Examinations and testifying experts opened quandaries it posed. Three stalwart groups—the a window into the hidden world of executions.
American Medical Association, the American (Deborah Denno, The Lethal Injection Quandary: How Society of Anesthesiologists, and the California Medicine Has Dismantled the Death Penalty, Fordham Medical Association—united in their opposition to Legal Studies Research Paper No. 983732, (May 1, 2007).) that right. The Court took the same approach with respect destroying a three-inch section of his frontal lobe. This to mental retardation: The justices held that the self-inflicted lobotomy, and subsequent surgery, left Constitution forbids executing the mentally retarded, but Rector with the mental capacity of a 10-year-old: As he the Court allowed the states to define mental retardation left his cell for the death chamber, Rector said he was sav- for purposes of the prohibition. (For a thoughtful argu- ing a piece of pecan pie to eat after his execution. There ment against a categorical exemption for mental retarda- was Johnny Frank Garrett in Texas, a client of mine, who tion, see Barry Latzer, Misplaced Compassion: The survived a childhood of severe physical torture, physical Mentally Retarded and the Death Penalty, 38 CRIM. L.
abuse, and chronic psychosis. (He was 17 at the time of the crime, which, had he lived a few more years, wouldhave rendered him ineligible for execution.) And there was The Nollie Lee Martin case
Nollie Lee Martin, a man whose execution haunts me to Ford all but guaranteed that severely mentally ill people would continue to be executed in America. And they have Alvin Ford’s victory in the U.S. Supreme Court estab- been. There was Ricky Ray Rector in Arkansas in 1992 lished the principles that executing the presently insane who shot himself in the forehead at the time of his arrest, offends the Constitution and that Florida’s procedures for Published in Criminal Justice, Volume 22, Number 3, Fall 2007. 2007 by the American Bar Association. Reproduced with permission. All rights reserved.
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determining execution competency were constitutionally cause his mental health to deteriorate even more, insufficient. Yet the Ford case left open more questions which improves his execution competency claim, and than it answered. Chief among them was the standard of thus his chances of getting a stay. But that would competency. But also two other questions were also left come at a fearful price: Taking Lee off his meds open: If a prisoner was presently incompetent to be exe- would descend him into hell. . . . And it’s my choice cuted, could the state psychiatrists forcibly mediate him or . . . [h]e’s not mentally competent to decide whether her back to sufficient sanity so that the individual could or not to refuse medical/psychiatric treatment: Even be executed during a “lucid interval”? And, could Florida with medication, he’s very crazy. . . . Burr and I execute an allegedly insane prisoner prior to the state’s talked about the ethics of appearing not to “be mak- adoption of a constitutionally valid procedure for deter- ing him crazy,” as opposed to simply removing impediments to make his craziness apparent and Both issues were presented in the Nollie Lee Martin identifiable as such by a neutral observer. . . .
case. Martin was convicted of killing twice. In NorthCarolina, he torched a house and three people died. In I knew that Martin was at risk for another suicide West Palm Beach, Florida, he robbed a convenience store attempt. I wanted to warn the prison to keep a closer eye and raped and murdered the clerk—an honors student on him, but I didn’t warn the prison for a coldly calculat- working during her summer vacation. The Florida crime ing reason. In a week I had an oral argument in the made Martin infamous in Palm Beach County. On my sec- Florida Supreme Court on my application for a stay of ond day as a capital public defender, I was assigned to execution. I would be arguing that Martin was mentally research the legal issues in a case that brimmed with legal incompetent to be executed, and a recent suicide attempt issues. Martin twice confessed to the Florida police, but his Miranda rights had been violated. And he was mental- It gets worse. I ordered the prison to stop medicating ly ill. As a child he had suffered profound brain damage.
Martin. The prosecutors could seek a psychiatric exam of CAT scans of Martin’s brain told the tale. Part of his brain Martin at any time. When that happened, I wanted my client to be as crazy as possible. I didn’t want his mental When Governor Graham signed Martin’s first death war- rant, the case flew through the state courts and the federal My Machiavellian scheme worked, in a manner of trial court. The Eleventh Circuit Court of Appeals stayed speaking. Off his medication, Martin again tried suicide. He the execution, throwing out Martin’s first confession. It did- cut his wrists. He descended further into his private hell of n’t matter, though, because the judges held that the second madness. I would be able to tell the courts that my client confession was OK, and so the legal error in admitting the really was mentally incompetent to be executed. I would not first confession into evidence was “harmless.” Martin’s tell them about my own contributions to that illness.
murder conviction and death sentence would stand.
But simply being crazy would not be enough to win a Martin took the news hard, as I knew he would. Later I stay of Martin’s execution. I would also argue that, in light received a phone call from his brother. Martin had of the Ford decision’s invalidation of Florida’s procedure attempted suicide by slitting his wrists and taking an over- for determining execution competency, Florida had to cre- dose of pills. However, it turned out that the precipitating ate a procedure that passed constitutional muster. It would event that led to the suicide attempt wasn’t the court loss.
be the core of my oral argument before the Florida Martin was in despair over a prison disciplinary report for possession of contraband—a small plastic container of Ten minutes before I began, I received the court’s new Ford rules on execution competency; and the justices A few months later the governor signed a new death made plain they did not want to hear any procedural chal- warrant on Nollie Lee Martin. The only real issue that lenges to these rules. We were not optimistic. Dick Burr remained was Martin’s mental competency to be executed.
suggested we trigger the old clemency statute, even Dick Burr and I would serve as Martin’s lawyers. In though it was clearly unconstitutional under Ford. In a 6-1 prison he was being treated with antipsychotic drugs, and, decision, the court announced that night that it was deny- so long as he was medicated, Martin could maintain and ing the stay. At the same time we received a call from cope with life on death row. But he was also much less Governor Graham’s clemency aide, who assured us the crazy, which undermined our claim that Martin was too ill governor would grant a stay if we filed the letter to have the governor determine Martin’s competency.
We proceeded on two tracks. We appealed the Florida Terrible moral dilemma: Should I instruct the prison Supreme Court’s stay denial directly to the U.S. Supreme to stop medicating Lee’s mental illness? That would Court. We also triggered the old procedure for the gover- Published in Criminal Justice, Volume 22, Number 3, Fall 2007. 2007 by the American Bar Association. Reproduced with permission. All rights reserved.
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nor to determine execution competency, and we asked the Mix hat and cowboy garb, Panetti rambled incoherently governor to stay the execution until the dust settled. By and tried to subpoena Jesus Christ, John F. Kennedy, and that evening, the governor had issued a stay. Further, Anne Bancroft. He went into trances, nodded off, and ges- Graham said he didn’t intend to rush the psychiatric tured threateningly to jurors. One didn’t need a medical exams; that process would take at least two weeks, which degree to appreciate that Panetti suffered from delusions.
would take Martin beyond the time limit specified in this death warrant. It was a real stay. But it seemed too good to In his first round of habeas corpus litigation, Panetti did be true. I worried that Graham might wait until we with- not raise a Ford claim. He did on his successive petition.
drew Martin’s court papers, then reinstate the warrant, ram Panetti asserted that his delusional architecture rendered through a psychiatric exam, and execute Martin before we him incompetent to be executed. Panetti believed he was to be executed for preaching the gospel, not for murder. The I did not trust the governor. Graham was a master at Fifth Circuit held that Ford’s prohibition against executing the chess game of capital punishment politics. In my opin- prisoners who don’t have sufficient mental capacity to ion, he had built a political career on the corpses of my understand that they will be put to death and why does not clients. I would not trust him now. I called the U.S.
require that inmates have a “rational understanding” of why Supreme Court and told the clerk that I was not withdraw- they have been condemned to die. Applying the “aware- ing the stay papers in Martin’s case. I wasn’t pushing the ness” standard set out in Justice Powell’s Ford concurrence, justices to act on the papers, but I wanted to keep them in the Fifth Circuit explained that Panetti’s delusional belief place in case Governor Graham changed his mind on that his murder conviction was a mere pretense to put him to death did not render him mentally incompetent to be exe- I returned to other cases during that weekend. At 7:30 cuted. Panetti was aware that he would be executed, that he p.m. on Monday I received a call from the U.S. Supreme had committed the two murders for which he was sentenced Court. The justices had unanimously issued an indefinite to die, and that the prosecution’s stated reason for executing stay of Martin’s execution, notwithstanding the stay we him was that he committed two murders.
already had from Governor Graham. Perhaps, I thought, Thus, Panetti understood the state’s proffered reason for the U.S. Supreme Court had as little faith in the governor’s seeking his execution. He just didn’t believe those reasons were true. In Panetti’s mind, Texas wanted to kill him for That Supreme Court stay kept Nollie Lee Martin alive preaching the gospel. Scott Panetti was sane enough to be for the next six years. He was profoundly mentally ill until executed, concluded the Fifth Circuit.
the moment he died in the electric chair, but he wasn’t The Supreme Court granted certiorari in January 2007.
crazy in precisely the proper way to render him incompe- Briefs were filed, including an amicus brief by the ABA in tent to be executed under Ford. As of May 2007 the support of Panetti. Shortly before the scheduled oral argu- United States had executed 1,075 men and women since ment, the Court asked the parties to file supplemental the death penalty was resurrected in 1977. Nollie Lee briefs addressing whether Panetti’s Ford claim should be barred in his second habeas because he didn’t raise theissue in his first. (Recall that Alvin Ford himself hadn’t Beyond bedlam: Scott Panetti
raised the issue until a successive habeas petition because, Alvin Ford was sane enough to be executed. So was at the time of his first, Ford was not mentally ill.) Much of Nollie Lee Martin. When it was Scott Panetti’s turn, the the Panetti oral argument was devoted to this procedural During the 21 years since Ford was decided, the U. S.
Court of Appeals for the Fifth Circuit has never found a When is a second habeas petition not a “second
death row prisoner too mentally ill to die. The story of habeas petition”?
The Court decided Panetti v. Quarterman on June 28, Scott Panetti had a long history of mental illness before 2007, the last day of the first full term of the committing the double murder that landed him on Texas’s Roberts/Alito Court. The decision was 5-4. The majority death row. In 1992, Panetti, who had been previously hos- opinion, written by Justice Anthony Kennedy, held that a pitalized 14 times for mental illness, forced his way into Ford claim brought in an application filed when the claim the home of his estranged wife and, with Panetti’s young was first ripe cannot be “second or successive” for pur- daughter watching in horror, shot his wife’s parents to poses of gatekeeping criteria of the habeas statute. The Court reasoned that to hold that Panetti’s claim should At his 1995 trial, Panetti fired his lawyers and argued have been brought sooner would undermine the statute’s his own insanity in a cowboy outfit. Dressed in a Tom purposes of promoting comity, finality, and federalism by Published in Criminal Justice, Volume 22, Number 3, Fall 2007. 2007 by the American Bar Association. Reproduced with permission. All rights reserved.
This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval systemwithout the express written consent of the American Bar Association.
encouraging prisoners to file unripe claims lest they be applied clearly established federal law by failing to afford forfeited. It noted that all prisoners are at risk of deterio- the petitioner the procedures mandated in Ford. The Court rations in their mental state and, therefore, all “conscien- explained that, under Ford, once a prisoner seeking a stay tious defense attorneys would be obliged to file unripe of execution has made “a substantial threshold showing of (and, in many cases, meritless) Ford claims in each and insanity,” procedural due process principles require that he every [habeas] application” in order to preserve the or she be granted a “fair hearing.” “This means,” the court said, “that the prisoner must be given an opportunity to be The Court held that it had statutory authority to adjudi- cate the claims raised in Panetti’s second federal habeas One of the reasons that the plurality in Ford found the application. Because the habeas statute required that “[a] state procedures reviewed in that case to be deficient was claim presented in a second or successive . . . [habeas] that a determination of sanity appeared to have been made application . . . that was not presented in a prior applica- solely on the basis of examinations by state-appointed tion . . . be dismissed,” the state maintained that the failure psychiatrists. This means, the Court said in Panetti, that of Panetti’s first habeas application to raise a Ford-based due process requires that a prisoner who has made a incompetency claim deprived the district court of jurisdic- threshold showing of incompetency be provided an oppor- tion. The results this argument would produce show its tunity to submit evidence and argument, including expert flaws. Were the state’s interpretation of “second or succes- psychiatric evidence that may differ from that provided by sive” correct, a prisoner would have two options: forgo the opportunity to raise a Ford claim in federal court; or raise Texas officials did not contest that Panetti made a sub- the claim in a first federal habeas application even though stantial showing of incompetency. Thus, the Court said, it is premature. The dilemma would apply not only to pris- the petitioner was entitled under Ford to an adequate oners with mental conditions that, at the time of the initial means by which to submit expert psychiatric evidence to habeas filing, were indicative of incompetency, but also to the state court. He did not get that, the Court found. It all other prisoners, including those with no early sign of also concluded that, due to the inadequacy of the state’s mental illness. Because all prisoners are at risk of deterio- procedure, the state court’s holding that Panetti was com- rations in their mental state, conscientious defense lawyers petent to be executed was not entitled to the deference that would be obliged to file unripe (and, in many cases, merit- the habeas statute ordinarily requires.
less) Ford claims in each and every habeas application.
The state court failed to provide the procedures to This counterintuitive approach would add to the burden which Panetti was entitled under the Constitution. Ford imposed on courts, applicants, and the states, with no identified the measures a state must provide when a pris- oner alleges incompetency to be executed. Justice Powell’s The more reasonable interpretation of the statute was opinion concurring in part and concurring in the judgment that Congress did not intend the provisions of the habeas in Ford controls. As Justice Powell elaborated, once a pris- statutes addressing “second or successive” habeas peti- oner seeking a stay of execution has made “a substantial tions to govern a filing in the unusual posture presented threshold showing of insanity,” the Eighth and Fourteenth by Panetti: a habeas petition raising a Ford-based incom- Amendments entitle the individual to a fair hearing, petency claim filed as soon as that claim was ripe. This including an opportunity to submit “expert psychiatric conclusion was confirmed by the habeas statute’s purpos- evidence that may differ from the state’s own psychiatric es of “further[ing] comity, finality, and federalism pro- mot[ing] judicial efficiency and conservation of judicial The procedures the state court provided Panetti were so resources, . . . and lend[ing] finality to state court judg- deficient that they cannot be reconciled with any reason- ments within a reasonable time.” These purposes, and the able interpretation of the Ford rule. It was uncontested practical effects of the Court’s holdings, should be consid- that Panetti made a substantial showing of incompetency.
ered when interpreting the habeas statute, particularly It was also evident from the record, however, that the state where, as here, habeas petitioners “run the risk” under the court reached its competency determination without hold- proposed interpretation of “forever losing their opportuni- ing a hearing or providing petitioner with an adequate ty for any federal review of their unexhausted claims.” opportunity to provide his own expert evidence. Moreover, There was, finally, no argument in this case that Panetti there was a strong argument that the court violated state proceeded in a manner that could be considered an abuse law by failing to provide a competency hearing. If so, the of the writ. To the contrary, the Court has suggested that it violation undermines any reliance the state might now is generally appropriate for a prisoner to wait before seek- place on Justice Powell’s assertion that “the states should ing the resolution of unripe incompetency claims.
have substantial leeway to determine what process best The Court also held that the state court unreasonably balances the various interests at stake.” Published in Criminal Justice, Volume 22, Number 3, Fall 2007. 2007 by the American Bar Association. Reproduced with permission. All rights reserved.
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The standard for execution competency
to allow the community as a whole, including the This led the Court to the ultimate issue of whether the victim’s surviving family and friends, to affirm its own Eighth Amendment permits the execution of individuals judgment that the prisoner’s culpability is so serious who, due to mental illness, do not understand that they are that the ultimate penalty must be sought and imposed.
truly being executed as punishment for their crimes. The Both the potential for this recognition and the objective Court ruled that it does not, concluding that “[t]he princi- of community vindication are called into question, ples set forth in Ford are put at risk by a rule that deems however, if the prisoner’s only awareness of the link delusions relevant only with respect to the state’s between the crime and the punishment is so distorted announced reason for a punishment or the fact of an by mental illness that awareness of the crime and imminent execution, . . . as opposed to the real interests punishment has little or no relation to the understanding the state seeks to vindicate.” It explained: shared by the community as a whole. A prisoner’sawareness of the state’s rationale for an execution is Gross delusions stemming from a severe mental dis- not the same as a rational understanding of it. Ford order may put an awareness of a link between a does not foreclose inquiry into the latter. To refuse to crime and its punishment in a context so far consider evidence of this nature is to mistake Ford’s removed from reality that the punishment can serve no proper purpose. It is therefore error to derive The state had identified the link between the crime and from Ford, and the substantive standard for incom- the punishment to be inflicted. In the end, the Court petency its opinions broadly identify, a strict test for declined to set down a rule governing all competency competency that treats delusional beliefs as irrele- determinations. It said it simply did not have enough vant once the prisoner is aware the state has identi- information to make the determination in this case to fied the link between his crime and the punishment enable the lower courts to make the determination in the Although the Court rejected the Fifth Circuit’s standard, The Fifth Circuit employed an improperly restrictive it did not attempt to set down a rule governing all compe- test when it considered petitioner’s claim of incompetency tency determinations. The record was not as informative on the merits. The Fifth Circuit’s incompetency standard as it might be because it was developed by the district was too restrictive to afford a prisoner Eighth Amendment court under the rejected standard, and, thus, the Court protections. Panetti’s experts in the district court conclud- finds it difficult to amplify its conclusions or to make ed that, although he claimed to understand that the state them more precise. It is proper to allow the court charged said it wants to execute him for murder, his mental prob- with overseeing the development of the evidentiary record lems had resulted in the delusion that the stated reason is the initial opportunity to resolve Panetti’s constitutional a sham, and that the state actually wants to execute him to stop him from preaching. The Fifth Circuit had held, Justice Clarence Thomas filed a dissent, and he was based on its earlier decisions, that such delusions were joined by Chief Justice John G. Roberts, Jr., and Justices simply not relevant to whether a prisoner can be executed Antonin Scalia and Samuel A. Alito, Jr. The dissenters so long as the prisoner is aware that the state has identi- complained that the majority had imposed “a new stan- fied the link between the crime and the punishment to be dard for determining incompetency” without conducting inflicted. This test ignored the possibility that even if such “even a cursory” Eighth Amendment analysis. They also awareness exists, gross delusions stemming from a severe accused the majority of bending over backward to allow mental disorder may put that awareness in a context so far Panetti to make his claim “despite no evidence that his removed from reality that the punishment can serve no condition has worsened—or even changed—since [he was found competent to stand trial in] 1995.” Additionally, It was also inconsistent with Ford, for none of the they said, the state court’s determination was entitled to principles set forth therein were in accord with the Fifth Circuit’s rule. Although the Ford opinions did not setforth a precise competency standard, the Court did reach Conclusion
the express conclusion that the Constitution “places a We execute the mentally ill in the United States of substantive restriction on the State’s power to take the life America. We executed the mentally ill before Ford in of an insane prisoner,” because such an execution serves 1986. We did it after Ford and before Panetti. If you think no retributive purpose. It might be said that capital pun- we will cease executing the mentally ill after Panetti, then ishment is imposed because it has the potential to make you haven’t been paying attention. Or you’re as delusional the offender recognize at last the gravity of the crime and Published in Criminal Justice, Volume 22, Number 3, Fall 2007. 2007 by the American Bar Association. Reproduced with permission. All rights reserved.
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