When is a Person too Insane to Execute?

by Matt Clarke

The Fifth Circuit Court of Appeals is hearing arguments to determine whether a Texas death row prisoner is too mentally ill to execute for murdering his in-laws as their daughter and granddaughter looked on.

The appellate court issued a stay on December 3, 2014 for Scott Panetti, 56, less than 12 hours before he was scheduled to be executed for the 1992 deaths of Joe and Amanda Alvarado, his wife’s parents. The Court of Appeals stated in its order that the stay was granted “to allow us to fully consider the late arriving and complex legal questions at issue in this matter.”

“We are grateful that the court stayed tonight’s scheduled execution of Scott Panetti, a man who has suffered from schizophrenia for three decades, for a careful review of the issues surrounding his competency,” stated Panetti’s attorneys, Gregory W. Wiercioch and Kathryn M. Kase.

“Mr. Panetti’s illness, schizophrenia, was present for years prior to the crime, profoundly affected his trial, and appears to have worsened in recent years,” they continued. “Mr. Panetti has not had a competency evaluation in seven years, and we believe that today’s ruling is the first step in a process which will clearly demonstrate that Mr. Panetti is too severely mentally ill to be executed.”

The Texas Attorney General’s office disputed their contentions. In a brief filed with the court, state officials said Panetti’s claims of incompetence had been “tried, appealed, reviewed in state and federal habeas proceedings and conclusively put to rest.”

The brief included an affidavit from Dr. Joseph V. Penn, director of Mental Health Services for the Texas prison system, in which he stated that none of the 14 mental health staffers who have met with Panetti since 2004 had “identified any clinical signs and symptoms indicating a psychiatric diagnosis or required the need for additional mental health or psychiatric treatment such as psychotropic medications.”

Panetti’s supporters have long argued that executing him would violate the Eighth Amendment’s prohibition on cruel and unusual punishment, and that his death sentence should be commuted to life in prison.

The case has attracted the attention of even the most ardent conservatives.

“Texas was about to cross a line by executing a severely mentally ill man,” said Mark Hyden, national coordinator for Conservatives Concerned About the Death Penalty. “A wide array of conservative and faith leaders have spoken out in record numbers about this case. We have made it abundantly clear that numerous conservatives and Evangelicals view executing those who are mentally ill as a violation of our values as Americans.”

Even former Texas Governor Mark White, whose tenure in office included 19 executions, argued that Panetti should not be put to death.

“There are incredibly close and difficult calls that have to be made to either allow or prohibit the death penalty from being carried out,” said White. “But Scott Panetti’s plea for clemency is no such case. He is a severely mentally ill man. His trial was a sham. And executing Panetti would say far more about us than it would about the man we are attempting to kill.”

Panetti had been hospitalized at least 14 times for paranoid delusions, schizophrenia, auditory hallucinations and bipolar disorder before he shot and killed his mother-in-law and father-in-law. He represented himself at trial, sometimes wearing a purple cowboy outfit. His requested witnesses included Jesus Christ and John F. Kennedy. Prosecutors suggested that he was faking his mental illness; the jury apparently agreed, rejecting his insanity plea, and he received the death penalty.

Court filings over the years tell a tale of Panetti’s first diagnosis of schizophrenia in 1978 after he was taken to Brooke Army Medical Center for treatment of burns suffered in an accident while working as an electrical lineman.

According to documents filed with the U.S. Supreme Court, Panetti’s first wife, Jane, had him committed to a psychiatric facility in May 1986 after he nailed shut the curtains in their home, buried some of their furniture in the backyard and conducted an exorcism of the devil from their house that involved spraying water on valuables he had not buried.

The Supreme Court held in Ford v. Wainwright, 477 U.S. 399 (1986) that executing people who are insane is unconstitutional. Further, in Atkins v. Virginia, 536 U.S. 304 (2002), the Court found that executing defendants who are intellectually disabled – formerly known as mental retardation – violates the Eighth Amendment’s ban on cruel and unusual punishment, but that states can define who is considered intellectually disabled.

“The risk ‘that the death penalty will be imposed in spite of factors which may call for a less severe penalty’ ... is enhanced, not only by the possibility of false confessions, but also by the lesser ability of mentally retarded defendants to make a persuasive showing of mitigation in the face of prosecutorial evidence of one or more aggravating factors.... Mentally retarded defendants in the aggregate face a special risk of wrongful execution,” the Court wrote in Atkins.

More recently, in May 2014 the Supreme Court held that states cannot use a “bright-line” IQ test score to determine whether someone is intellectually disabled for the purpose of deciding whether they can be executed. See: Hall v. Florida, 134 S.Ct. 1986 (2014).

Yet states persist in seeking the death penalty against defendants who have obvious mental health problems. Nor is Panetti’s case the only one in Texas that has prompted experts and observers to question how insane mentally ill prisoners must be before they are considered too insane to execute.

Another extreme example is Andre Lee Thomas, who is awaiting execution in a Texas psychiatric prison for stabbing to death his estranged wife, his 4-year-old son and his wife’s 13-month-old daughter, cutting out the children’s hearts and part of a lung he mistook for his wife’s heart, and using different knives so the victims’ blood would not be mixed and the demons living in them would die. He believed that God had instructed him to commit the murders because his wife was Jezebel, his son the Antichrist and her daughter an evil spirit.

Thomas is “clearly ‘crazy,’ but he is also ‘sane’ under Texas law,” wrote Court of Criminal Appeals Judge Cathy Cochran in an opinion upholding Thomas’ conviction.

“The system is very skeptical toward the mentally ill,” noted Panetti’s attorney, Kathryn Kase, who is also executive director of the Texas Defender Service.

Thomas was known to be mentally ill prior to his horrific crime. He began hearing voices before age 10, when he first attempted suicide by cutting his wrist. He tried to kill himself again three years later by slicing his arm with a butcher knife.

Three weeks prior to the murders, he begged the staff at a mental health facility to kill him because “life is too much for me to handle.” Nonetheless, after he was treated for overdosing on cough medicine he was released from the facility.

Just two days before the murders Thomas again overdosed, this time stabbing himself with a knife, too. After he walked into the emergency room at the Texoma Medical Center, an attending physician called him suicidal and quoted him as saying he was trying to “cross over into heaven.”

“Thomas is psychotic,” the physician wrote. “He thinks something like [the] holodeck on Star Trek is happening to him.”

That doctor, who testified at Thomas’ trial, said Thomas was “really mentally ill.” He told the jury that he filled out an emergency detention order to hold him, but was thwarted when Thomas left the hospital before the order could be signed by a judge. Forty-eight hours later, Thomas turned himself in to police officers and confessed to the killings.

Thomas had been incarcerated at the Grayson County Jail for six days after the murders when he gouged out his right eye, believing that the eye had caused him to sin and should be removed according to a Bible passage he read. His trial was put on hold for a psychological evaluation, and after 47 days of testing and medication, doctors at a state mental hospital concluded that his hallucinations were induced by substance abuse and he was exaggerating his mental illness. They determined that he was competent to stand trial.

In Texas, mental illness induced by substance abuse cannot be used to support an insanity defense; consequently, Thomas was convicted and sentenced to death.

Prison psychiatrists diagnosed him as suffering from paranoid schizophrenia, not drug-induced mental illness. Despite their precautions and medications, Thomas managed to cut himself on several occasions and even ripped out his remaining eye and ate it, explaining that he wanted to stop the government from using the eye to read his thoughts.

Despite apparently overwhelming evidence to the contrary, prosecutors continue to maintain that Thomas is not insane and persist in pursuing his execution.

“Anyone can do strange things, and if strange things were good enough to get criminals off of death row, believe me, they’d be doing strange things all the time, every day,” remarked Texas Attorney General Greg Abbott.

Sources: www.motherjones.com, www.texastribune.com, www.huffingtonpost.com

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