by Hayley Knight, Department of Law, University of Warwick
ABSTRACTTaking inspiration from a work placement with the Texas Defender Service and the recent decision of the United States Supreme Court in Panetti v Quarterman 127 S. Ct. 2842 (2007), this discussion seeks to highlight the very real problem facing those on Texas Death Row who, despite having documented and extensive mental health problems, have seemingly failed to be protected by the Supreme Court decision prohibiting their execution. Despite the decision of the US Supreme Court in Ford v Wainwright, Texas has continued to expose mentally incompetent offenders to execution, which arguably serves no retributive value. This discussion explores how Texas has evaded this ruling for so long and the significance of the latest U.S. Supreme Court decision.
KEYWORDS: Death penalty, Ford v Wainwright, mental health, Texas, Panetti v Quarterman.
In the summer of 2006 I visited Austin,
Part One of this paper explains my inspiration for this discussion and identifies the research questions that will form the focus of the rest of the paper. Part Two is concerned with the current position in law and whether there is evidence that
The Texas Defender Service (TDS) is a not-for-profit firm which seeks ‘to help improve the quality of representation afforded to indigent Texans charged with a capital crime or under sentence of death’ (Texas Defender Service).
Throughout the placement it became impossible for me to avoid the issue of mental health, particularly at post-conviction stages. Many of the assignments involved reviewing cases where one simply could not ignore the fact that the offender had a documented history of mental health problems, often dating back to his or her childhood. From concentrating on petitions of writs of habeas corpus, it was shocking to discover how often claims of ‘ineffective assistance of counsel’ are raised, and more troubling, perhaps, how often these claims relate to evidence of a mental health history that was never introduced at either the guilt/innocence or sentencing stages of trial. Established in Strickland v
It was, however, the case of Scott Panetti that provided the motivation to address the issue of mental health and the death penalty. I found his case to be a striking example of the manner in which some such cases are handled in
On 22 September 1995, Scott Louis Panetti was sentenced to death by lethal injection for the murder of his parents-in-law, José and Amanda Alvarado, in 1992. Since then, his case has sparked furious debate around the globe. It is not his innocence that is in question. Instead, it is his eligibility for execution.
At the centre of the controversy is Panetti’s extensive and well-documented history of mental health problems. Prior to the trial, two competency hearings were conducted. The first resulted in a hung jury; the second found Panetti competent to be tried. The judge in the case granted Panetti’s decision to waive his right to counsel and represent himself at trial. Panetti did so dressed in full cowboy attire including a cowboy hat, which reports suggest was highly intimidating and inappropriate. His behaviour was equally worrying. It is reported that Scott ‘rambled incoherently and tried to subpoena Jesus Christ, John F. Kennedy and Anne Bancroft. He went into trances, nodded off, and gestured threateningly at jurors’ (Blumenthal, 2004). His questioning was irrational and he even cited from the bible on numerous occasions. Indeed an attorney who was called as a witness at the trial said that ‘the courtroom had the atmosphere of a circus. The judge just seemed to let Scott run free with his irrational questions and courtroom antics’ (International Justice Project). Despite this, Panetti was sentenced to death.
There is irrefutable evidence that before the fatal shooting, Panetti had been hospitalised fourteen times for mental illness (Blumenthal, 2004), with worrying symptoms. Records recall that he was suffering from paranoia and hallucinations. In 1986 he ‘buried furniture because he believed the Devil to be in the furniture’ (The International Justice Project). It is also reported by the International Justice Project that later on, Panetti hallucinated that he saw the Devil on the walls on his house. He killed the devil, but then believed that he could see ‘blood coming out of the walls’ causing him to wash his entire house. Consequently he was repeatedly diagnosed with schizophrenia and schizoaffective disorder with three personalities at Kerrville Veterans Hospital.
After the trial some jurors indicated that they would not have imposed a death sentence had Panetti been represented by an attorney. Furthermore, ‘one of them said that the jurors had voted for death out of their fear of his irrational behaviour at the trial’ (The International Justice Project).
This has thrown up key questions that need to be answered in order to establish whether
PART TWO: THE CURRENT LEGAL POSITION REGARDING THE EXECUTION OF THE MENTALLY INSANE IN THE UNITED STATES,
AND THE POSITION OF
Following the United States Supreme Court decisions in Ford v Wainwright and Atkins v
The 1986 decision of the United States Supreme Court in Ford v Wainwright banned the execution of the insane, reasoning that it is a contravention of the Eighth Amendment to the United States Constitution, which prohibits cruel and unusual punishment. The 2002 decision of the US Supreme Court in Atkins v
A defendant is incompetent to be executed if the defendant does not understand: that he or she is to be executed and that the execution is imminent; and the reason he or she is being executed. (Art. 46.05 (h)(1)(2))
This is a seemingly straightforward provision, especially as it is the duty of the courts and the Texas Court of Criminal Appeals to ensure that the death penalty is not ‘wantonly or freakishly’ imposed (Ellason v State, 1991: 660). It would appear however that Tex.C.Crim.P. Art 46.05 fails to incorporate the full reasoning of the court in Ford v Wainwright.
Alvin Bernard Ford was convicted of capital murder and sentenced to death in 1974. It is accepted that before then and at the material time of the offence, Ford did not suffer with any mental health problems. It was only later that Ford manifested behaviour indicative of mental illness. He became obsessed that he was the target of a conspiracy involving the Klu Klux Klan and that the female members of his family were being tortured. This delusion developed to the point that Ford reported ‘that 135 of his friends and family were being held hostage in prison and that only he could help them’ (Ford v Wainwright, 1986:402). Ford even began referring to himself as Pope John Paul
The U.S. Supreme Court decision in Ford v Wainwright explains why it is unconstitutional to execute the mentally incompetent. Justice Marshall comments that ‘now that the Eighth Amendment has been recognised to affect significantly both the procedural and substantive aspects of the death penalty, the question of executing the insane takes on a wholly different complexion’ (1986: 402). Much of the judgment focuses upon the Eighth Amendment to the United States Constitution, which provides that ‘excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.’ In his concurrence, Justice Powell states that ‘executions of the insane are simply cruel’ (Ford v Wainwright, 1986: 422) and looks to the so-called retributive purpose of executions to substantiate his claim, arguing that there can be no retributive purpose if the defendant cannot understand the reason for his punishment. Indeed, he argues that ‘the Eighth Amendment forbids the execution only of those who are unaware of the punishment they are about to suffer and why they are to suffer it’ (Ford v Wainwright, 1986: 422). Accordingly the standard for determining eligibility for the death penalty based on mental competence was established. This, however, is despite the dissenting opinion of Justice Rehnquist who felt that the decision ‘needlessly complicates and postpones still further any finality in this area of law’ (Ford v Wainwright, 1986: 435), and ‘allows for numerous unsubstantiated claims regarding a condemned man's sanity’ (Horstman, 2002: 834). The reasoning of the court will be dealt with later in this discussion. What needs to be considered at this stage is whether
Harold Amos Barnard was convicted of capital murder on 1 April 1981. The State Habeas Court held Barnard competent to be executed according to the Ford standard. This meant that in the opinion of the Court, Barnard understood the fact of his impending execution and the reason for it. This is despite testimony from two experts who found upon examination of Barnard that he suffered from delusions that he was being persecuted by minority groups. The Court did not accept claims by Barnard’s experts that he was incompetent to be executed. Instead, the Court found that he was aware of his impending execution, although ‘his perception of the reason for his conviction and pending execution is at times distorted by a delusional system in which he attributes anything negative that happens to him to a conspiracy of Asians, Jews, Blacks, homosexuals and the Mafia’ (Barnard v Collins, 1994: 876). The U.S. Court of Appeals for the Fifth Circuit upheld the decision of the lower court which held that ‘Barnard knew that he was going to be executed and why he was going to be executed – precisely the finding required by the Ford standard of competency’ (Barnard v Collins, 1994: 877). Barnard was executed on 2 February 1994.
Consequently one may argue that Barnard is indicative of the fact that
Kelsey Patterson was convicted of a double murder in
it was the darkest moment of my professional life. This is a case that should never have happened. He should have been institutionalised a long time ago. The system failed him. But they don’t indict the system.
Despite this, on May 18 2004, Kelsey Patterson was executed.
James Colburn is yet another example of a man convicted of capital murder and sentenced to death in
The cases of Barnard, Colburn, Patterson, Panetti and others are perhaps surprising when one has regard to the legislative history of Article 46.05 Texas Code of Criminal Procedure. Supporters of House Bill 245, which ultimately became Article 46.05, welcomed the new provision and saw it as the codification of the ruling in Ford v Wainwright. The House Committee Report (1999) noted that:
Even though Courts throughout
This is a seemingly powerful statement to make. Those in favour of the provision argued that codification was important and would mean that courts and attorneys could turn to the statute for guidelines. It was felt ultimately that this would result in more uniform treatment of offenders. What appears to have happened, however, is the confirmation of fears expressed by the opponents to the House Bill who argued that, like the ruling in Ford, the provision did not ‘go far enough in establishing procedures for determining competency’ (House Committee Report, 1999). Those opposed to the Bill suggested that more detailed procedures were required to ensure that the mentally ill are not executed. With regard to the cases highlighted above, they would appear to be right. So how did these mentally ill defendants fail to be protected by the system?
the execution of a death row 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 the capital crime? (Panetti v Quarterman)
This goes to the heart of the issue. The Fifth Circuit has a ‘bare factual awareness’ standard for determining a defendant’s competency to be executed. It creates a distinction between being ‘aware’ and reasonable understanding. Essentially the standard will be satisfied so long as the defendant recognises why he will be executed. It is predicated on the view that ‘if the defendant perceives the connection between his crime and his punishment, the retributive goal of the criminal law is satisfied’ (Ford v Wainwright, 1986: 422). This is a contentious issue. Indeed in the article ‘The Competency Conundrum: Problems Courts Have Faced in Applying Different Standards for Competency to be Executed’, John Farringer (2001) states that ‘mere knowledge or awareness of an impending execution, without a rational understanding of the reasons for it, is not sufficient to find competency to be executed’. Allowing competency for execution to be determined on such a low standard is arguably not what Justice Powell in Ford intended. Keith Hampton, one of Panetti’s lawyers, noted that ‘the Fifth Circuit ruling all but erased the ban on executing the insane by reading the law in the most narrow conceivable way’ (Robbins, 2007). He continued to say that so long as one has ‘a pulse and can understand the state's trying to kill you – however muddled that understanding may be in your mind – that is sufficient to make you eligible to put you there on the gurney and be killed’ (Robbins, 2007). Scott Panetti appears to be conscious that he will be executed and the stated reason for this, therefore the Court regards him as competent to be executed. Such a theory would also explain the unfortunate cases of James Colburn and Kelsey Patterson. Arguably part of the problem is that the test is so narrow that it focuses ‘solely on the person's ability to understand the legal consequences of his actions, instead of the complexities of the mental illness from which the person suffers’ (Horstman, 2002: 838).
This issue has since been addressed by the decision of the United States Supreme Court in the case of Panetti v Quarterman. The U.S. Supreme Court reversed the finding of competence by the Texas court and remanded the case back to the state of Texas. While perhaps the value of the decision concerns the proper procedure that should be adopted by states when determining competence, the U.S. Supreme Court uses the decision to express dissatisfaction with Texas’s narrow interpretation of the Ford ruling. Writing the decision of the Court, Justice Kennedy claims that ‘the Fifth Circuit’s incompetency standard is too restrictive to afford a prisoner Eighth Amendment protections’ and continues to argue that the test
Ignores the possibility that even if such awareness exists, gross delusions stemming from a severe mental disorder may put that awareness in a context so far removed from reality that the punishment can serve no proper purpose. (Panetti v Quarterman, 2007:2846)
This is aptly illustrated in the case of Scott Panetti who, while understanding that he is to be executed by the state, believes that his execution forms part of a conspiracy to stop him from preaching, rather than as a form of punishment. Indeed the testimony of four experts highlighted the ‘strength and sincerity of this fixed delusion’ (Panetti v Quarterman, 2007:2859). Using the terminology adopted in the Ford precedent, Texas held that Scott Panetti could not be held incompetent to be executed because they held that ‘”awareness”, as that term is used in Ford, is not necessarily synonymous with “rational understanding”’ (Panetti v Quarterman, 2007: 2860). Justice Kennedy stated that this is too restrictive ‘to afford a prisoner the protections granted by the Eighth Amendment’ (ibid., 2860). Indeed he argues that the Texas Court of Appeals regards a prisoner’s ‘delusional belief system as irrelevant’ (ibid., 2861) and that this appears inconsistent with the Ford ruling. This narrow interpretation is arguably not what the court in Ford v Wainwright intended and consequently one can see that it is feasible that the standard adopted by Texas will not rescue many of the mentally ill defendants sentenced to death in Texas. However, it is yet to be seen what effect the recent decision of the United States Supreme Court will have with regard to this issue as the Texas Legislature will not now convene until 2009.
PART THREE: THE SIGNIFICANCE OF THE POSITION ADOPTED BY
The fact that mentally ill defendants are executed on Texas Death Row is a massive failing by the state, particularly because executing the mentally insane ‘has been branded savage and inhuman’. Sir Edward Coke argued that
By intendment of Law the execution of the offender is for example […] but so it is not when a mad man is executed, but should be a miserable spectacle, both against law, and of extream [sic] inhumanity and cruelty, and can be no example to others. (Ford v Wainwright, 1986: 406)
As discussed earlier, the prohibition of the execution of the mentally insane can be justified with regard to the objectives of the death penalty generally. ‘The Supreme Court has identified deterrence and retribution as the two primary social purposes of capital punishment’ (Schopp, 1991: 1005). However, principled on the phrase ‘an eye for an eye’ (the notion that there is a ‘need to offset a criminal act by a punishment of equivalent “moral quality”’ (Ford v Wainwright, 1986: 408) it may be hard to reconcile retributive justice with the execution of the mentally insane. One must question the value of such a punishment for those who do not fully understand or comprehend the reason why their execution is being carried out. Indeed Justice Powell has asserted that as a critical justification for the death penalty, retribution ‘depends on the defendant's awareness of the penalty's existence and purpose’ (Ford v Wainwright, 1986: 421). In line with this, the
In his article, Robert Schopp (1991) recognises another argument which, rather than rejecting execution of the insane on moral ground, rejects such execution for being ‘inadequate satisfaction of the public preference for revenge. This rationale arguably serves to prescribe torture rather than to proscribe execution’ (Schopp, 1991: 1008). It suggests that because the mentally ill defendant does not understand why he is being executed, the punishment is inadequate. Indeed in Panetti v Quarterman, Justice Kennedy argues that even if the purpose of capital punishment is to highlight to the prisoner the gravity of their offence, this purpose is hindered by their severe mental illness (Panetti v Quarterman, 2007: 2847). Nevertheless, both of these positions highlight the futility of capital punishment, suggesting that there is in fact no valid, justifiable purpose for its existence, and that it has no retributive or deterrent effect. Justice Powell supports this view and holds that as ‘executing the insane is inconsistent with one of the chief purposes of executions generally’, the execution of the insane ‘remains a uniquely cruel punishment’ (Ford v Wainwright, 1986: 421). It can be argued, therefore, that ‘whether its [the Court’s] aim was to protect the condemned from fear and pain without comfort of understanding, or to protect the dignity of society itself from the barbarity of exacting mindless vengeance’, the very fact that
Perhaps most worrying is that mentally disabled defendants may face ‘a special risk of wrongful execution’ (Atkins v
Another factor which can affect the imposition of a sentence of execution for mentally insane offenders is an apparently motiveless crime. This was an issue for Kelsey Patterson. In order for a
This discussion has outlined the current situation in
While the U.S. Supreme Court decision in Panetti is now binding across the United States with regard to procedures that should be implemented in determining competency to be executed, it has not established any new law. Though re-affirming the prohibition of execution for the insane as propounded by Ford v Wainwright, the Panetti decision fails to provide a more comprehensive definition of competence to be executed and adds very little to the Ford decision some twenty years ago. By reversing the finding of competence and remanding the case back to the
Atkins v Virginia 536 U.S. 304 (2002)
Barnard v Collins 13 F.3d 871 (5th Cir. 1994)
Colburn v. State 966 S.W.2d 511, (Tex. Crim. App., 1998)
Ellason v. State 815 S.W.2d 656, (Tex. Crim. App., 1991)
Ex parte Briseno 135 S.W.3d 1 (Tex. Crim. App., 2004)
Ford v Wainwright 477 US 399 (1986)
Ford v Wainwright 752 F.2d 526, 531 n.3 (11th Cir. 1985)
Panetti v Quarterman 127 S. Ct. 2842 (2007)
Strickland v Washington 466 U.S. 668 (1984)
American Psychiatric Association (2005), ‘Diagnostic Statistical Manual of Mental Disorders, DSM-IV’, Fourth edition, 274
Amnesty International (2004), Another
Amnesty International (2002), James Colburn: mentally ill man scheduled for execution in
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Blumenthal, R. (2004), ‘Insanity Issue Lingers as
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Farringer, J. (2001), ‘The Competency Conundrum: Problems Courts Have Faced in Applying Different Standards for Competency to be Executed’, 54 V. and. L. Rev., 2441
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House Committee Report, 1999, 76th Legislature, Chapter 654, House Bill 245, www.irl.state.tx.us.
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E.S.C. Res. 1984/50, http://www.ohchr.org/english/law/protection.htm
Schopp, R. (1991), ‘Wake Up and Die Right: The Rationale, Standard and Jurisprudential Significance of the Competency to Face Execution Requirement’, 51 La. L. Rev., 995
Texas Code of Criminal Procedure: Art. 46.05
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Theuman, J. (2003), ‘Propriety of Carrying Out Death Sentences Against Mentally Ill Individuals’, 111 A.L.R.5th, 491
United Nations High Commissioner for Human Rights, ‘The Question of the Death Penalty, Commission on Human Rights Resolution’, http://www.unhchr.ch/Huridocda/Huridoca.nsf/0/cc0e2a6d48fbc470c1256d24003274d6?Opendocument
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To cite this paper please use the following details: Knight, H. (2007), ‘The Absence of Mercy: the Treatment of the mentally ill in death penalty cases by the state of Texas following Ford v Wainwright', Reinvention: a Journal of Undergraduate Research, Launch Issue, http://www.warwick.ac.uk/go/reinventionjournal/pastissues/launchissue/paper3 Date accessed [insert date].
© Reinvention: a Journal of Undergraduate Research (2007). Full copyright remains with the author.