Death penalty opponents rally to protest execution date for mentally ill prisoner

According to the last Gallup poll, most Americans still favor the death penalty. Nevertheless, over the years, the number of capital-eligible defendants has been gradually whittled down because of challenges over the execution of juveniles, the intellectually disabled, and for defendants guilty of crimes other than murder. The latest challenge came up again in December, when lawyers for Texas death row inmate Scott Panetti sought a reprievealleging that he was incompetent to understand the reason for his execution.

Scott Panetti had a longstanding history of schizoaffective disorder dating back to the age of 20 years and had been hospitalized for treatment of his hallucinations and delusions at least 14 times. He once was convinced that the devil had possessed his home and had buried several valuables next to the house to “cleanse” it. His wife sought emergency intervention once when he threatened to kill her. In 1992, dressed in camouflage, he broke into the home of his estranged wife’s parents and killed them in front of her. He took his wife and young daughter hostage overnight but eventually surrendered to police.

At trial he wanted to represent himself, so the court ordered an evaluation of his competence to waive counsel. He was found competent and proceeded to present his own insanity defense to a jury. By the time of trial, he had been off medication for 2 months, and his behavior during the hearing was later described as bizarre and confusing at best. He came to court dressed in a cowboy suit, referred to himself as his alter-ego “Sarge,” and attempted to subpoena the Pope. He was convicted, in part, because jurors feared his behavior enough that they wanted to ensure he would never be released. He was sentenced to death.

Panetti received appointed counsel for his appeal after he was found incompetent to waive representation. His execution date was set in 2003, but the defense filed a motion alleging that he was incompetent to be put to death. The motion was accompanied by supporting documentation from a psychologist that Panetti did not understand the reasons for his punishment. The court appointed two experts who disagreed, stating that Panetti knew that he was about to be put to death and that he had the ability to understand the reason for the execution. They also implied that Panetti’s bizarre behavior in court was a calculated plan to present himself as insane.

Without a hearing, the court found Panetti competent. Panetti appealed to the Supreme Court, stating that under an earlier Supreme Court case, Ford v. Wainwright, he had a right to have a hearing on the competency issue, which would allow him to challenge the state’s experts and to present contrary medical evidence. The question at appeal was not whether execution of the mentally ill per se was cruel and unusual, but what standard should be applied to determine competency, and whether Texas followed the proper procedure to determine it.

Under Ford v. Wainwright, the bar was set extremely low. In order to be competent for execution, a defendant had only to know that he was being put to death, and that the death sentence was a punishment for a crime he had committed. This was a standard that required no more than intellectual or factual knowledge. Panetti was found competent to be executed because he could recite these facts. However, he disagreed with the facts: He believed that he was being executed by the state to prevent him from preaching the gospel. The Court of Appeals held that delusions alone would not necessarily mean that someone was incompetent. In 2007, the Supreme Court held in Panetti v. Quartermanthat competency requires a prisoner to have a rational as well as a factual understanding of the execution.

The American Psychiatric Association, the American Psychological Association, and the National Alliance on Mental Illness all joined to file an amicus brief on the case. In the brief, all the organizations agreed that “a prisoner 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.’ ” In other words, punishment is futile if the person in question doesn’t have the ability to understand that he is being punished.

The case was sent back for a formal hearing, and Panetti was again found competent. This time, the Supreme Court refused to hear his appeal. An execution date was set for Dec. 3 but was stayed 7 hours before he was to be put to death. Another competency assessment is probably on the horizon, given that 7 years have passed since the last one. The outcome this time will probably be the same, since Panetti reportedly has been on no medications for most of the last 20 years, and he has not been diagnosed with a psychotic illness in the prison system by any of the 14 mental health staff who have evaluated him.

Of course, none of this litigation to date settles the question of whether our judiciary should be executing anyone, with or without a mental illness. But until that question is settled, psychiatry will struggle along with the courts to decide exactly how ill is too ill to die.

Dr. Hanson is a forensic psychiatrist and coauthor of “Shrink Rap: Three Psychiatrists Explain Their Work.” The opinions expressed are those of the author only, and do not represent those of any of Dr. Hanson’s employers or consultees, including the Maryland Department of Health and Mental Hygiene or the Maryland Division of Correction.

According to the last Gallup poll, most Americans still favor the death penalty. Nevertheless, over the years, the number of capital-eligible defendants has been gradually whittled down because of challenges over the execution of juveniles, the intellectually disabled, and for defendants guilty of crimes other than murder. The latest challenge came up again in December, when lawyers for Texas death row inmate Scott Panetti sought a reprievealleging that he was incompetent to understand the reason for his execution.

Scott Panetti had a longstanding history of schizoaffective disorder dating back to the age of 20 years and had been hospitalized for treatment of his hallucinations and delusions at least 14 times. He once was convinced that the devil had possessed his home and had buried several valuables next to the house to “cleanse” it. His wife sought emergency intervention once when he threatened to kill her. In 1992, dressed in camouflage, he broke into the home of his estranged wife’s parents and killed them in front of her. He took his wife and young daughter hostage overnight but eventually surrendered to police.

At trial he wanted to represent himself, so the court ordered an evaluation of his competence to waive counsel. He was found competent and proceeded to present his own insanity defense to a jury. By the time of trial, he had been off medication for 2 months, and his behavior during the hearing was later described as bizarre and confusing at best. He came to court dressed in a cowboy suit, referred to himself as his alter-ego “Sarge,” and attempted to subpoena the Pope. He was convicted, in part, because jurors feared his behavior enough that they wanted to ensure he would never be released. He was sentenced to death.

Panetti received appointed counsel for his appeal after he was found incompetent to waive representation. His execution date was set in 2003, but the defense filed a motion alleging that he was incompetent to be put to death. The motion was accompanied by supporting documentation from a psychologist that Panetti did not understand the reasons for his punishment. The court appointed two experts who disagreed, stating that Panetti knew that he was about to be put to death and that he had the ability to understand the reason for the execution. They also implied that Panetti’s bizarre behavior in court was a calculated plan to present himself as insane.

Without a hearing, the court found Panetti competent. Panetti appealed to the Supreme Court, stating that under an earlier Supreme Court case, Ford v. Wainwright, he had a right to have a hearing on the competency issue, which would allow him to challenge the state’s experts and to present contrary medical evidence. The question at appeal was not whether execution of the mentally ill per se was cruel and unusual, but what standard should be applied to determine competency, and whether Texas followed the proper procedure to determine it.

Under Ford v. Wainwright, the bar was set extremely low. In order to be competent for execution, a defendant had only to know that he was being put to death, and that the death sentence was a punishment for a crime he had committed. This was a standard that required no more than intellectual or factual knowledge. Panetti was found competent to be executed because he could recite these facts. However, he disagreed with the facts: He believed that he was being executed by the state to prevent him from preaching the gospel. The Court of Appeals held that delusions alone would not necessarily mean that someone was incompetent. In 2007, the Supreme Court held in Panetti v. Quartermanthat competency requires a prisoner to have a rational as well as a factual understanding of the execution.

The American Psychiatric Association, the American Psychological Association, and the National Alliance on Mental Illness all joined to file an amicus brief on the case. In the brief, all the organizations agreed that “a prisoner 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.’ ” In other words, punishment is futile if the person in question doesn’t have the ability to understand that he is being punished.

The case was sent back for a formal hearing, and Panetti was again found competent. This time, the Supreme Court refused to hear his appeal. An execution date was set for Dec. 3 but was stayed 7 hours before he was to be put to death. Another competency assessment is probably on the horizon, given that 7 years have passed since the last one. The outcome this time will probably be the same, since Panetti reportedly has been on no medications for most of the last 20 years, and he has not been diagnosed with a psychotic illness in the prison system by any of the 14 mental health staff who have evaluated him.

Of course, none of this litigation to date settles the question of whether our judiciary should be executing anyone, with or without a mental illness. But until that question is settled, psychiatry will struggle along with the courts to decide exactly how ill is too ill to die.

Dr. Hanson is a forensic psychiatrist and coauthor of “Shrink Rap: Three Psychiatrists Explain Their Work.” The opinions expressed are those of the author only, and do not represent those of any of Dr. Hanson’s employers or consultees, including the Maryland Department of Health and Mental Hygiene or the Maryland Division of Correction.

According to the last Gallup poll, most Americans still favor the death penalty. Nevertheless, over the years, the number of capital-eligible defendants has been gradually whittled down because of challenges over the execution of juveniles, the intellectually disabled, and for defendants guilty of crimes other than murder. The latest challenge came up again in December, when lawyers for Texas death row inmate Scott Panetti sought a reprievealleging that he was incompetent to understand the reason for his execution.

Scott Panetti had a longstanding history of schizoaffective disorder dating back to the age of 20 years and had been hospitalized for treatment of his hallucinations and delusions at least 14 times. He once was convinced that the devil had possessed his home and had buried several valuables next to the house to “cleanse” it. His wife sought emergency intervention once when he threatened to kill her. In 1992, dressed in camouflage, he broke into the home of his estranged wife’s parents and killed them in front of her. He took his wife and young daughter hostage overnight but eventually surrendered to police.

At trial he wanted to represent himself, so the court ordered an evaluation of his competence to waive counsel. He was found competent and proceeded to present his own insanity defense to a jury. By the time of trial, he had been off medication for 2 months, and his behavior during the hearing was later described as bizarre and confusing at best. He came to court dressed in a cowboy suit, referred to himself as his alter-ego “Sarge,” and attempted to subpoena the Pope. He was convicted, in part, because jurors feared his behavior enough that they wanted to ensure he would never be released. He was sentenced to death.

Panetti received appointed counsel for his appeal after he was found incompetent to waive representation. His execution date was set in 2003, but the defense filed a motion alleging that he was incompetent to be put to death. The motion was accompanied by supporting documentation from a psychologist that Panetti did not understand the reasons for his punishment. The court appointed two experts who disagreed, stating that Panetti knew that he was about to be put to death and that he had the ability to understand the reason for the execution. They also implied that Panetti’s bizarre behavior in court was a calculated plan to present himself as insane.

Without a hearing, the court found Panetti competent. Panetti appealed to the Supreme Court, stating that under an earlier Supreme Court case, Ford v. Wainwright, he had a right to have a hearing on the competency issue, which would allow him to challenge the state’s experts and to present contrary medical evidence. The question at appeal was not whether execution of the mentally ill per se was cruel and unusual, but what standard should be applied to determine competency, and whether Texas followed the proper procedure to determine it.

Under Ford v. Wainwright, the bar was set extremely low. In order to be competent for execution, a defendant had only to know that he was being put to death, and that the death sentence was a punishment for a crime he had committed. This was a standard that required no more than intellectual or factual knowledge. Panetti was found competent to be executed because he could recite these facts. However, he disagreed with the facts: He believed that he was being executed by the state to prevent him from preaching the gospel. The Court of Appeals held that delusions alone would not necessarily mean that someone was incompetent. In 2007, the Supreme Court held in Panetti v. Quartermanthat competency requires a prisoner to have a rational as well as a factual understanding of the execution.

The American Psychiatric Association, the American Psychological Association, and the National Alliance on Mental Illness all joined to file an amicus brief on the case. In the brief, all the organizations agreed that “a prisoner 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.’ ” In other words, punishment is futile if the person in question doesn’t have the ability to understand that he is being punished.

The case was sent back for a formal hearing, and Panetti was again found competent. This time, the Supreme Court refused to hear his appeal. An execution date was set for Dec. 3 but was stayed 7 hours before he was to be put to death. Another competency assessment is probably on the horizon, given that 7 years have passed since the last one. The outcome this time will probably be the same, since Panetti reportedly has been on no medications for most of the last 20 years, and he has not been diagnosed with a psychotic illness in the prison system by any of the 14 mental health staff who have evaluated him.

Of course, none of this litigation to date settles the question of whether our judiciary should be executing anyone, with or without a mental illness. But until that question is settled, psychiatry will struggle along with the courts to decide exactly how ill is too ill to die.

Dr. Hanson is a forensic psychiatrist and coauthor of “Shrink Rap: Three Psychiatrists Explain Their Work.” The opinions expressed are those of the author only, and do not represent those of any of Dr. Hanson’s employers or consultees, including the Maryland Department of Health and Mental Hygiene or the Maryland Division of Correction.