Eighth Amendment and insanity: Argument 4/18/07
on Apr 17, 2007 at 6:35 pm
Analysis
Nearly 21 years ago, the Supreme Court indicated strongly that convicted murderer Alvin Bernard Ford was too insane to be executed for his crime. The controlling opinion on the point in Ford v. Wainwright (477 U.S. 399, decided June 26, 1986, by a 5-4 vote) was by Justice Lewis F. Powell, Jr. “The Eighth Amendment forbids the execution…of those unaware of the punishment they are about to suffer and why they are to suffer it,” Powell wrote. Ford’s claim of insanity, he added, “plainly fits within this standard.” Almost a quarter-century later, the Court on Wednesday will examine whether to refine the “Powell standard,” or to keep it as is, perhaps leaving any refinements to state legislatures.
In the one-hour oral argument scheduled to begin at 1 p.m. in Panetti v. Quarterman (06-6407), the Court will be examining a variety of formulations of “insanity” in the Eighth Amendment context. (The Court may also spend some time discussing with counsel whether Panetti’s case should be dismissed — an issue the Court raised belatedly. This blog discussed that aspect of the case is a post that can be found here; that issue will not be further explored in this post.)
Scott Louis Panetti has a lengthy history of mental impairment. His lawyer, in fact, told the Court that “evidence of incompetency runs like a fissure through every proceeding in this case.” As his lawyer further expressed it, “Panetti is a captive to a malfunctioning brain that cannot tell the difference between what is real and what is imagined…The hallmark of Mr. Panetti’s condition is his psychotic delusion of religion persecution. Mr. Panetti believes that demonic forces, in league with the state of Texas, have orchestrated his execution in a final effort to prevent him from preaching the Gospel of Jesus Christ.” He “is in the grip of a delusion that puts his execution at the center of his irrational beliefs,” the merits brief added.
The Fifth Circuit Court, however, has found him competent to be executed. In that Court’s view, applying its own Circuit precedent, Panetti need not “rationally understand” why he would be executed; he need only be “aware” that he is to be executed for his crime — murdering his wife’s parents as she and their child stood by. He has that awareness, the Circuit Court found. He was found competent earlier to stand trial; he defended himself at the trial, with occasional flights of fancy and delusion and meandering questioning and testimony. His appeal does not challenge his conviction nor the sentence of death; it contends only that he is too mentally ill to be executed at present.
Arguing for Panetti on Wednesday will be Gregory W. Wiercioch of San Francisco through an affiliation with the Texas Defender Service. Texas will be represented by its state Solicitor General, R. Ted Cruz.
The Court granted review on Jan. 5, on the question posed by his appeal: whether the Eighth Amendment forbids the execution of an inmate “who has a factual awareness of the reason for his execution, but who, because of severe mental illness, has a delusional belief as to why the state is executing him, and thus does not appreciate that his execution is intended to seek retribution for his capital crime.”
If the Court does reach and decide the insanity issue, Panetti wants it to lay down this rule: the Eighth Amendment “does not permit the execution of a person who is so lacking in rational understanding that he cannot comprehend that he is being put to death because of the crime he was convicted of committing,” or that he is “too mentally ill to understand the connection between the crime and the punishment.”
A group of legal historians has filed a brief supporting Panetti’s appeal, and sharing its finding thaqt “the common law would not have permitted the execution of a mentally ill defendant suffering from conspiratorial delusions regarding the reason for his sentence.”
The American Bar Association has offered a variation of its own: “Execution of a mentally ill offender should occcur only if the offender not only is aware of the nature and purpose of punishment but also appreciates its personal application in the offender’s own case — that is, why it is being imposed on the offender.’
Three other groups on Panetti’s side — the American Psychological Association, the American Psychiatric Association and the National Alliance on Mental Illness — have offered this version: “A person is not competent to be executed if he has a mental disorder or disability that significantly impairs his or her capacity to understand the nature and purpose of the punishment, or to appreciate the reason for its imposition in the prisoner’s own case.”
The state of Texas suggests that the case should be disposed of without ever reaching the insanity question. It suggests that the “dispositive” issue is whether the state court’s determination that Panetti was competent to be executed is entitled to deference under the Antiterrorism and Effective Death Penalty Act of 1996 — the habeas-limiting law. Thus, Texas argues, Panetti’s federal challenge is barred by statute.
It says that, while the Court has not yet resolved the standard for measuring insanity in the execution context, “its approach to Eighth Amendment questions leaves no doubt that ‘rational understanding; is not the constitutional threshold of execution competence.” It argues that there is no consensus in “contemporary values” on the point.
If the Court, using its own judgment, decides the issue, Texas goes on, it should “hold that a mentally ill capital convict is incompetent to be executed only if, because of his illness, he lacks the capacity to recognize that his punishment (1) is the result of his being convicted of capital murder and (2) will cause his death.” Panetti, it contends, is competent under that standard.
Supporting the state, the Criminal Justice Legal Foundation, an advocacy group, urges the Court to leave the “line-drawing” to state legislatures. If there is a national consensus now on the key legal point, the Foundation argues, is it limited to the view of Justice Powell in the Ford case — that is, “the need to require that those who are executed know the fact of their impending execution and the reason for it.”
That brief concludes that “the last thing we need is a new frontier for last-minute litigation under a broad and vague standard.”
The Court is expected to decide the case before its summer recess.
