UNITED STATES OF AMERICA
The execution of mentally ill offenders
I cannot believe that capital punishment is a solution – to abolish murder by murdering,
an endless chain of murdering. When I heard that my daughter’s murderer was not to be
executed, my first reaction was immense relief from an additional torment: the usual
catastrophe, breeding more catastrophe, was to be stopped – it might be possible to turn
the bad into good. I felt with this man, the victim of a terrible sickness, of a demon over
which he had no control, might even help to establish the reasons that caused his insanity
and to find a cure for it...
Mother of 19-year-old murder victim, California, November 1960(1)
Today, at 6pm, the State of Florida is scheduled to kill my brother, Thomas Provenzano,
despite clear evidence that he is mentally ill.... I have to wonder: Where is the justice in
killing a sick human being?
Sister of death row inmate, June 2000(2)
I’ve got one thing to say, get your Warden off this gurney and shut up. I am from the
island of Barbados. I am the Warden of this unit. People are seeing you do this.
Final statement of Monty Delk, mentally ill man executed in Texas on 28 February 2002
Overview: A gap in the ‘evolving standards of decency’
The underlying rationale for prohibiting executions of the mentally retarded is just as
compelling for prohibiting executions of the seriously mentally ill, namely evolving
standards of decency.
Indiana Supreme Court Justice, September 2002(3)
On 30 May 2002, a jury in Maryland sentenced Francis Zito to death. It had earlier
convicted him of shooting two police officers at point-blank range in February 2001 after
they came to his trailer home in response to a complaint that he was playing music too
loud. The killings were as brutal as they were apparently motiveless. The crime is not the
whole story, however. Francis Zito had long suffered from serious mental illness,
including a combination of schizophrenia and bipolar disorder, for which he had been
hospitalized some two dozen times in the previous decade, but for which he was not
taking medication at the time of the crime.
Francis Zito’s pre-trial detention was spent in a psychiatric hospital. At a subsequent
hearing, doctors for the defence said he was not competent to stand trial, while others for
the prosecution said that he had regained competence after his treatment. The court
decided that he was competent and the trial went forward. Interviewed on the opening
day, the prosecutor summed up the state’s theory: "You can have a mental illness and still
be capable of understanding your actions. That’s the case with Mr Zito. This isn’t going
to be rocket science. He was right there on planet Earth in Centreville, Maryland. He
knew they were police officers."(4) For the defence, the plea was one that Francis Zito

was not criminally responsible by reason of insanity. At the trial, during which the
defendant had difficulty focussing on the proceedings, and would repeatedly stand or
speak out of turn, the jury rejected the plea and found him guilty of first-degree murder.
At the sentencing, the defence lawyer appealed to the jury to reject execution: "The death
penalty is reserved for the worst of the worst. Frank Zito is not the worst of the worst".
For his part, the prosecutor urged the jury instead to recall the crime and the suffering of
the relatives, saying "I can’t think of anything worse".(5) After six hours of deliberation,
the jury sent Zito to join the large number, believed to be hundreds, of people on death
rows in the United States of America (USA) with histories of serious mental illness.(6)
Ten years before Francis Zito was sent to death row, Ricky Ray Rector was taken off it
and executed. His is one of the defining cases of the "modern" era of judicial killing in
the USA. To this day, that such a severely brain-damaged man could be found competent
to stand trial, and then competent to be executed, still defies belief. Once the courts had
washed their hands of his fate, the politics of the death penalty ensured the execution of
this African American man sentenced to death by an all-white jury for killing a white
police officer in Arkansas in 1981.
Ricky Rector had shot himself in the head prior to his arrest. The bullet wound and
subsequent surgery resulted in the loss of a large section of the front of his brain. As his
execution approached, the death watch log maintained by prison personnel at the
Cummins Unit in Varner revealed an inmate displaying clear signs that he was seriously
mentally disabled. The log’s entry for 21 January 1992, for example, described Ricky
Rector as "dancing in his cell.... Howling and barking while sitting on his bunk....
Walking back and forth in the Quiet Cell snapping his fingers on his right hand and began
noises with his voice like a dog." Whether or not to proceed with his execution, a
journalist later wrote, "became a test in Arkansas of the lengths to which a society would
pursue the old urge to expiate one killing by performing another – and a test of the state’s
highest temporal authority, the governor, who alone could stop it."(7)
The Arkansas governor, who at the time was seeking the highest office in the country,
chose not to stop it. Breaking off from presidential campaigning, Governor Bill Clinton
flew back from New Hampshire for Ricky Ray Rector’s execution. This calculated
killing, when it came on 24 January 1992, had a final outrage in store. The execution
team had to search for 50 minutes to find a suitable vein in which to insert the lethal
injection needle. Rector, apparently not comprehending what was happening to him,
helped them in their macabre task. Earlier, as was his daily habit, he had left the slice of
pecan pie from his final meal "for later". And shortly before that, catching a glimpse of
Governor Clinton on the television news, Ricky Rector told one of his lawyers, "I’m
gonna vote for him for President".
Some people did get access to come into my brain against every law and make odvious
scrabble word games and show me horrible gouls lunging at my face like every dam
second of every dam day and knight now for 2 years…It’s torture. I can’t sleep
hallucinating with all of these voices I hear. Medical help needed right away!
Thomas Provenzano, grievance form, 1 August 1995, death row Florida. Thomas

Provenzano was executed in 2000. [Spelling as in original.]
In 1999, US Supreme Court Justice Anthony Kennedy wrote: “It must be remembered
that for the person with severe mental illness who has no treatment the most dreaded of
confinements can be the imprisonment inflicted by his own mind, which shuts reality out
and subjects him to the torment of voices and images beyond out own powers to
describe”. Olmstead v. L.C., 527 U.S. 581 (1999).
On 14 August 2000, President Clinton, approaching the end of his term in office,
described his country as "the leading force for human rights in the world" and one that
was "more decent, more humane" than it had been eight years earlier.(8) He made his
claim in the same month that 10 more people died in his country’s death chambers,
including at least four who had serious mental impairments,(9) and only a matter of
weeks after an execution that echoed that of Ricky Ray Rector in 1992. This time it was
Thomas Provenzano, a prisoner with a long history of mental illness, who was put to
death in Florida. A judge ruled him competent for execution despite finding "clear and
convincing evidence that Provenzano has a delusional belief that the real reason he is
being executed is because he is Jesus Christ". On 20 June 2000, Thomas Provenzano was
strapped to a gurney and had the lethal injection needles inserted in his arms. Eleven
minutes before he was due to be killed, a federal court issued a stay of execution. The
needles were withdrawn and he was taken back to his cell. A few hours later, the court
lifted the stay, without comment, and Thomas Provenzano was put through the same
procedure again. This time he was killed.
Terminology used in this report
Terminology used in discussing mental health is subject to wide variation both nationally
and internationally. The most widely recognized sources of medical definitions in mental
health are the Diagnostic and Statistical Manual of the American Psychiatric Association,
Fourth Edition (DSM-IV) and the International Classification of Diseases, of the World
Health Organization Edition of the World Health Organization (ICD-10).(10) These
definitions can be technical and very detailed. Key concepts used in this report are
defined below. Simplified explanations of particular mental disorders are given on pp.1819.
Mental disorder: This term encompasses all types of problem with mental function
including mental illness, arrested or incomplete development of mind (known as mental
retardation), psychopathic disorder and any other disorder or disability of the mind.
Mental illness: This term refers to disorders of thought, mood or behaviour. They are
unrelated to intelligence and many can be treated effectively. Examples include
depression, anxiety, and psychosis.
Mental retardation: This refers to arrested or incomplete development of intellectual
capacity. It starts in childhood and is irreversible. It is not curable, though education and
training can improve the life skills of many of those with this disability.
Insanity: The definition of insanity is a legal rather than medical concept. The first

concept of insanity was drawn from English common law (the M’Naghten Rule) and
stated that accused persons were absolved of criminal responsibility if they were
incapable of understanding their action or its wrongfulness. A finding of insanity could
lead to acquittal on these grounds. More recently the concept of "volition" – the capacity
of the person to ensure that their behaviour conforms to the law – was introduced in US
jurisprudence. A person unable to conform to legal requirements may be ruled to have a
diminished level of responsibility.
Competence: Like insanity, competence is a legal, rather than medical, term. In the USA
and many countries, an accused or convicted person must have a capacity to understand
the legal process they face and the possible consequences of that process in order to be
liable to trial or punishment. Competence must be demonstrated to proceed with a trial,
with sentencing the prisoner or with carrying out an execution.
President Clinton’s successor arrived in the White House with his record on the death
penalty well known. George W. Bush’s five years as governor of Texas had seen 152
executions in that state, one in five of all executions nationwide in the previous quarter of
a century. However, with national concern about the fairness and reliability of the capital
justice system on the increase, a small sign that the death penalty was perhaps no longer
the unadulterated vote-winner in the USA that it had been perceived to be in 1992 was
that during the 2000 presidential campaign, Governor Bush was placed on the defensive
about his support for executions. Campaigning in Iowa in January 2000, for example,
Governor Bush came under pressure to stop the execution of Larry Robison, a man with
paranoid schizophrenia who had been denied appropriate mental health care before his
crime. The Dallas Morning News wrote that the governor "has a responsibility to step
away from the campaign trail" to oppose Larry Robison’s killing, adding that "executing
a criminal who suffered from mental illness before he murdered and who lacked the
resources for psychiatric care serves no public purpose".(11) The grassroots advocacy
organization, the National Alliance for the Mentally Ill (now NAMI), appealed to the
Governor not to "compound the tragedy of [Robison’s] crimes and the failures of the
mental health system with the cruelty of a criminal justice system that lacks compassion",
a veiled reference to the governor’s campaigning platform of "compassionate
conservatism". In the event, conservatism rather than compassion won the day, and the
governor refused to intervene. His spokesman said that the governor had supported
increased funding for mental health services in Texas, and was not responsible for any
inadequacy in treatment afforded to Larry Robison years earlier.
In addition to the obvious suffering due to mental disorders, there exists a hidden burden
of stigma and discrimination faced by those with mental disorders. In both low- and highincome countries, stigmatization of people with mental disorders has persisted
throughout history, manifested by stereotyping, fear, embarrassment, anger and rejection
or avoidance. Violations of basic human rights and freedoms and denial of civil,
political, economic, social and cultural rights to those suffering from mental disorders
are a common occurrence around the world, both within institutions and in the
community. Physical, sexual and psychological abuse is an everyday experience for many
with mental disorders. In addition, they face unfair denial of employment opportunities

and discrimination in access to services, health insurance and housing policies.
World Health Organization, 2005 (WHO Resource Book on Mental Health, Human
Rights and Legislation,)
More than 800 men and women have been put to death in the USA since Ricky Ray
Rector was executed in 1992. Dozens of these people had histories of serious mental
impairment, either from before the crimes for which they were sentenced to death, or at
the time of their execution. Some had mental retardation(12), others suffered from mental
illness, and some were diagnosed with both. For some, the diagnosis was of mental
disorders caused by appalling childhood abuse, prison violence, or their experiences as
soldiers sent into combat by their government. For others, mental illness appears to have
been inherited. For some of those executed, years on death row had led to mental health
problems or exacerbated existing ones. Mentally ill inmates are among the more than 100
people since 1977 to have dropped their appeals and "consented" to their own execution,
a death wish made possible by a state all too willing to see freedom of choice for such
individuals carried through to its lethal conclusion.
You know, we recognize that we are not perfect people, that we suffer from infirmities of
the mind, and that’s all right. What’s important is that all our mistakes are made of the
mind and not the heart, and if we can do these things, we can live with them.
White judge to an all-white jury which had just voted for the death penalty for Howard
Gooden, a mentally ill African American man, 19 May 1999, Mississippi.
In some cases, there were serious doubts about the defendant’s competence to stand trial
– whether they genuinely understood the nature and seriousness of the proceedings
against them or had the capacity to assist in their defence. Some had been restored to
competency in psychiatric hospitals after their crimes, including with anti-psychotic
medication. Doubts existed also in some cases about the defendants’ competence to plead
guilty or to waive trial counsel and to represent themselves – indeed, some mentally ill
defendants have demanded the death penalty as part of an apparent suicide bid.(13) Some
may even have committed murder in order to get a death sentence. In some cases,
inadequate legal representation left juries unaware of the existence or extent of the mental
impairment of the person they were being asked to sentence to death. In other cases,
protecting their mentally ill clients from the death penalty proved an insurmountable
challenge for under-resourced defence lawyers. Perhaps the defendant was medicated
into a haze of non-cooperation, appearing to the jury as remorselessness – a highly
aggravating factor in the life or death decisions of capital jurors. Or perhaps the
defendant’s delusional illness rendered them unwilling to divulge information to a lawyer
or doctor believed to be part of a conspiracy against them.
For some, a prosecutorial willingness to denigrate evidence of mental disability or even
to portray such impairment as a sign of a person’s dangerousness and thus a reason
against leniency, may have tipped their punishment towards a death sentence, rather than
life imprisonment. In some cases, medical professionals joined in an unethical pact with
the state to predict with absolute certainty the future threat posed by a defendant. In
numerous instances, society’s decision to kill followed its own failure to heed warnings

of a particular individual’s potential for violence and to ensure appropriate remedial
assistance or care.
In an Appendix to this report, Amnesty International lists 100 of the men and women
executed in the USA since the resumption of judicial killing there in 1977. Each of these
individuals had suffered from some form of serious mental disorder other than mental
retardation.(14) They represent one in 10 of the USA’s judicial death toll since that date.
The list is illustrative only. Many others from among the remaining over 900 executed
prisoners have raised mental health issues, either at trial or on appeal. However, it is not
possible to know how many people who had serious mental impairments are on death
row or have been executed. Defence lawyers may not have recognized that their clients
had mental problems. Many inmates have not had thorough mental health examination
because of lack of funds to allow such assessments.
The US Supreme Court halted executions in 1972, in Furman v. Georgia.(15) However,
only two of the Justices found that the death penalty violated the US Constitution per se,
in all cases violating the Eighth Amendment’s ban on "cruel and unusual punishments".
The other three Justices who concurred in the judgment found only that it was
unconstitutional in the arbitrary way in which it was being applied. Rather than lead their
jurisdictions towards abolition, state legislators set about rewriting their capital statutes to
take account of the Furman decision. In Gregg v. Georgia on 2 July 1976, having
examined such statutes, the US Supreme Court accepted that the problem of arbitrariness
could be fixed by a system under which the judge or jury would be provided "adequate
information and guidance", preferably at a sentencing hearing separate from the
guilt/innocence stage of the trial. It stated that the application of the punishment must be
compatible "with the basic concept of human dignity at the core of the [Eighth]
Amendment" and therefore must serve valid penological purposes, namely deterrence and
retribution. It lifted the moratorium and executions resumed on 17 January 1977.(16)
The Eighth Amendment was added to the US Constitution in 1791. In 1910, the Supreme
Court stated that the Amendment "is progressive and does not prohibit merely the cruel
and unusual punishments known in 1689 and 1787, but may acquire wider meaning as
public opinion becomes enlightened by humane justice".(17) The Court took up this
theme half a century later when it said that the definition of "cruel and unusual
punishments" was not permanently fixed, but instead must draw its meaning from "the
evolving standards of decency that mark the progress of a maturing society".(18) The
Gregg decision essentially took the view that the death penalty must be compatible with
contemporary US values because of the number of states that had enacted new capital
statutes after the Furman ruling.
Over the years since the Gregg decision, the Supreme Court has provided some
constitutional protections for mentally impaired people facing the death penalty, although
these protections have either come only recently, or have been somewhat limited in
effect. In 1986, in Ford v Wainwright, the Supreme Court ruled that the execution of the
insane violates the US Constitution’s Eighth Amendment ban on "cruel and unusual
punishments". The Ford majority noted that the Eighth Amendment’s prohibitions "are

not limited to those practices condemned by the common law in 1789", but also
recognize the "evolving standards of decency that mark the progress of a maturing
society". It continued: "In addition to considering the barbarous methods generally
outlawed in the 18th century, therefore, this Court takes into account objective evidence
of contemporary values before determining whether a particular punishment comports
with the fundamental human dignity that the Amendment protects".(19)
However, the Ford majority neither defined competence for execution (although Justice
Powell’s suggestion that the test should be whether the prisoner is aware of his or her
impending execution and the reason for it has generally been adopted), nor did a majority
mandate specific procedures that must be followed by the individual states to determine
whether an inmate is legally insane. The result has been different standards in different
states, judicial uncertainty, and minimal protection for seriously mentally ill inmates – as
demonstrated by what happened to Thomas Provenzano.
Indeed, Thomas Provenzano’s experience was echoed a year later in Ohio. In mid-2001, a
seriously mentally ill prisoner, Jay Scott, twice came minutes from execution – once, he
had already had catheters inserted in his arms ready for the lethal injection when a court
issued a stay. He was eventually put to death on 14 June 2001. Shortly before he was
killed, he reportedly told relatives that he was "looking forward to the basketball game",
apparently referring to a match to be played the following night. Protesting his
colleagues’ refusal to stop the execution, Justice Paul Pfeifer of the state Supreme Court
applied the "evolving standards of decency" theory to Ohio’s own constitutional ban on
"cruel and unusual punishments":
"When the Constitution of the United States was ratified, slavery was legal and
women could not vote. At various times in our country’s past, states tortured
prisoners and performed barbaric executions, including flogging, castration,
drowning, pressing, and sawing-in-half. Over the years, our society evolved…
When Ohioans consider the countries that still practice slavery, we call them
uncivilized; when Ohioans consider the countries that do not permit women to
vote, we call them repressive; when Ohioans consider the countries that commit
state-sponsored torture, we call them barbaric.
This court has a chance to take a step towards being a more civilized and humane
society. This court could declare that in the interests of protecting human dignity,
Section 9, Article I of the Ohio Constitution prohibits the execution of a convict
with a severe mental illness. I believe that the ‘evolving standards of decency that
mark the progress of’ Ohio call for such a judicial declaration.
Jay D. Scott is in no other way a sympathetic man. He is a twice-convicted
murderer who does not appear to express remorse for his crimes. But I cannot get
past one simple irrefutable fact: he has chronic, undifferentiated schizophrenia, a
severe mental illness… Executing Jay D. Scott says more about our society than it
says about him."(20)
The state killing of people such as Thomas Provenzano and Jay Scott indicate that the

Ford ruling is, at best, a minimal standard, and at worst a fig leaf for excusing one of the
most indecent aspects of this cruel, inhuman and degrading punishment. In any event, the
Ford decision never pretended to exempt those whose serious mental illness was found to
fall short of a narrow definition of incompetence for execution. Two decades on, the time
has surely come for judicial construction of a broader prohibition and greater protections
for the seriously mentally ill in the capital justice process.
Justice Powell stated in his Ford concurrence that "the only question raised" by Alvin
Ford’s claim was "not whether, but when, his execution may take place", and noted that
"if petitioner is cured of his disease, the State is free to execute him". A reminder of this
came in 2003, when the US Court of Appeals for the Eighth Circuit ruled by a narrow
majority that Arkansas officials could forcibly medicate mentally ill death row prisoner
Charles Singleton even if that made him competent for execution. In October 2003, by
refusing to take Singleton’s appeal against this ruling, the US Supreme Court allowed it
to stand and the State of Arkansas to set an execution date. Charles Singleton was put to
death on 6 January 2004.
A landmark decision in June 2002 finally outlawed the death penalty for people with
mental retardation. In Atkins v. Virginia, the Supreme Court held by six votes to three that
the execution of such offenders is an excessive sanction, violating the Eighth Amendment
ban on "cruel and unusual punishments".(21) The Court reasoned that mental retardation
diminishes personal culpability, and renders the death penalty in the case of this category
of offenders difficult to justify on deterrence and retribution grounds. The Atkins ruling
overturned a 1989 decision, Penry v. Lynaugh, by finding that "standards of decency" in
the USA had evolved in the intervening years to the point at which a "national
consensus" had emerged against such executions – primarily reflected in state-level
legislation banning the execution of the mentally retarded. From an international human
rights perspective, an encouraging footnote attached to the Atkins opinion acknowledged
that "within the world community, the imposition of the death penalty for crimes
committed by mentally retarded offenders is overwhelmingly disapproved."
On 1 March 2005, the US Supreme Court removed another category of defendant from
the reach of the death penalty, namely children. In Roper v. Simmons, a majority of five
Justices to four brought the USA into compliance with "the overwhelming weight of
international opinion against the juvenile death penalty".(22) The Court "affirmed the
necessity of referring to the evolving standards of decency that mark the progress of a
maturing society to determine which punishments are so disproportionate as to be cruel
and unusual". In finding that the death penalty against offenders who were under 18 years
old at the time of the crime was indeed excessive, the Roper majority quoted the Atkins
decision: "Capital punishment must be limited to those offenders who commit a narrow
category of the most serious crimes and whose extreme culpability makes them the most
deserving of execution".
The Atkins and Roper decisions cannot but leave a question mark over another category
of offender, namely the mentally ill. If the diminished culpability associated with youth
and mental retardation render the death penalty an excessive punishment when used

against offenders from those categories, what about people suffering from serious mental
disorder other than retardation, such as serious brain damage, at the time of the crime?
Should they not also be ineligible for execution?
Justice Stevens, writing for the Supreme Court majority in Atkins, concluded that:
"Mentally retarded persons… have diminished capacities to understand and
process information, to communicate, to abstract from mistakes and learn from
experience, to engage in logical reasoning, to control impulses, and to understand
the reactions of others. There is no evidence that they are more likely to engage in
criminal conduct that others, but there is abundant evidence that they often act on
impulse rather than pursuant to a premeditated plan…Their deficiencies do not
warrant an exemption from criminal sanctions, but they do diminish their
personal culpability."
While mental retardation and mental illness are not the same, the analysis given in the
Atkins ruling nevertheless could be applied to the latter. For example, a mentally ill
person’s delusional beliefs may cause them to engage in illogical reasoning and to act on
impulse. A former President of the American Psychiatric Association wrote following the
Atkins decision that:
"… the mentally ill suffer from many of the same limitations that, in Justice
Stevens’ words, ‘do not warrant an exemption from criminal sanctions, but they
do diminish their personal culpability".(23)
Only a tiny percentage of murders in the USA result in execution. As the lawyer trying to
defend Francis Zito from the death penalty in Maryland in 2002 argued, the death penalty
is a punishment in the United States that is supposed to be reserved for the "worst of the
worst" crimes and offenders. In a decision in 1980, for example, the US Supreme Court
overturned a death sentence because the defendant’s murders had not shown "a
consciousness materially more ‘depraved’ that that of any person guilty of murder".(24)
The Atkins decision picked up on this and stated: "If the culpability of the average
murderer is insufficient to justify the most extreme sanction available to the State, the
lesser culpability of the mentally retarded offender surely does not merit that form of
retribution."
Can someone with a serious mental impairment other than retardation at the time of the
crime ever be said to possess the "extreme culpability" assumed by the death penalty? If
society’s standards of decency have evolved to prohibit the state-sanctioned killing of
child offenders and those with mental retardation, how can that same society still permit
the likes of Ricky Ray Rector, Thomas Provenzano and Charles Singleton to be put to
death?
Some judges in the USA have already recognized this fundamental inconsistency. In July
2003, for example, Judge Robert Henry on the US Court of Appeals for the 10th Circuit
noted the Atkins ruling, and concluded that the imposition of the death penalty against
Robert Bryan, a mentally ill Oklahoma death row inmate, "contributes nothing" to the
goals of retribution and deterrence. Although Judge Henry was joined by three other
judges on the court, it was not enough to stop Robert Bryan going to his execution in
June 2004.(25) In similar vein in September 2002, Justice Robert Rucker of the Indiana

Supreme Court dissented against the death sentence of Joseph Corcoran, an Indiana
inmate suffering from mental illness including schizophrenia. Justice Rucker drew
attention to the Atkins decision:
"I respectfully dissent because I do not believe a sentence of death is appropriate
for a person suffering a severe mental illness. Recently the Supreme Court held
that the executions of mentally retarded criminals are ‘cruel and unusual
punishments’ prohibited by the Eighth Amendment of the United States
Constitution. There has been no argument in this case that Corcoran is mentally
retarded. However, the underlying rationale for prohibiting executions of the
mentally retarded is just as compelling for prohibiting executions of the seriously
mentally ill, namely evolving standards of decency".(26)
The United Nations Safeguards Guaranteeing Protection of the Rights of Those Facing
the Death Penalty, adopted in 1984 and endorsed by consensus by the UN General
Assembly, prohibit the execution of “persons who have become insane”. A resolution
adopted in 1989 on the implementation of the Safeguards recommended that UN member
states eliminate “the death penalty for persons suffering from mental retardation or
extremely limited mental competence, whether at the stage of sentence or execution”. In
recent years, the UN Commission on Human Rights has repeatedly adopted resolutions
calling for an end to the use of the death penalty against anyone suffering from any form
of mental disorder.
There are, of course, many judges in the USA who have not yet come to this view. For
example, in upholding the death sentence against mentally ill inmate John Edward Weik
on 3 September 2002, all five Justices on the South Carolina Supreme Court wrote:
"while it violates the Eighth Amendment to impose a death sentence on a mentally
retarded defendant, the imposition of such a sentence upon a mentally ill person is not
disproportionate."(27) In November 2004, two federal judges upheld the death sentence
of Indiana death row inmate Arthur Baird, noting that while the US Supreme Court had
prohibited the execution of offenders with mental retardation in Atkins, "it has not yet
ruled out the execution of persons who kill under an irresistible impulse" brought about
by mental illness. The judges acknowledged that "as an original matter, we might think it
inappropriate to sentence to death a man as seemingly insane as Baird at the time of the
murders. But it is not our judgment to make".(28) Arthur Baird’s death sentence was
commuted by Governor Mitch Daniels on 29 August 2005, just two days before Baird
was due to be executed. While he based his decision on other factors involved in the case,
Governor Daniels’ commutation order referred to court findings that Baird was suffering
from mental illness at the time of the crime and noted: "it is difficult to find reasons not
to agree" with the findings of an Indiana Supreme Court judge that Baird is "insane in the
ordinary sense of the word."
On the question of young offenders, the Supreme Court majority in Roper v. Simmons
wrote that "the overwhelming weight of international opinion against the juvenile death
penalty rest[s] in large part on the understanding that the instability and emotional
imbalance of young people may often be a factor in the crime". So, too, surely, in the
case of people with mental illness. A month after the Atkins ruling, Justice James Zazzali
of the New Jersey Supreme Court wrote in the case of death row inmate Leslie Ann
Nelson, who according to both defence and prosecution psychiatric testimony is "a

seriously disturbed and depressed person who has suffered from serious mental illness
throughout her life":
"The State’s legitimate penological interests that purportedly are served by the
death penalty are unconstitutionally diminished if the State executes such a
mentally ill and psychologically disturbed person… Executions, our most extreme
form of indignation, cannot be carried out on a defendant whose irrationalities
were exacerbated at the time of her criminal acts to such an extent as to
undermine our confidence that she is fully culpable. If capital punishment is
constitutional, it must be reserved for those defendants whose capacities allow
them to be fully culpable."(29)
While the US Supreme Court majority in Atkins v. Virginia had given a nod to
international standards, the majority in Roper v. Simmons gave an even firmer one: "It
does not lessen fidelity to the Constitution or pride in its origins", they said, "to
acknowledge that the express affirmation of certain fundamental rights by other nations
and peoples underscores the centrality of those same rights within our heritage of
freedom". Just as on the question of child offenders, in repeated resolutions in recent
years the United Nations (UN) Commission on Human Rights has called on all countries
to desist from using the death penalty against anyone suffering from a mental disorder.
The USA should also end the use of the death penalty against anyone. The death penalty
per se contravenes evolving international standards of decency, with a clear and growing
majority of countries not executing anyone, let alone the mentally ill. In 1998, an Illinois
Supreme Court Justice wrote in dissent in the case of a (mentally impaired) death row
prisoner:
"My colleagues turn aside defendant’s constitutional challenge with the
observation that the American criminal justice system is one of the best in the
world. The sentiment has a pleasant and reassuring tone, but it overlooks an
important fact. The supposedly ‘inferior’ justice systems of other nations are
abandoning capital punishment at an unprecedented rate."(30)
In the seven years since Justice Harrison’s dissent, over 20 more countries have abolished
the death penalty, bringing to 121 the number of countries which have abandoned this
punishment in law or practice.(31) In those same six years, the USA has executed more
than 500 prisoners, dozens of whom had serious mental impairments.
Amnesty International opposes all executions, regardless of the nature of the crime, the
characteristics of the offender, or the method used by the state to kill the prisoner. While
this report is about people with mental illness facing the death penalty, their cases also
illustrate the wider flaws of an outdated punishment. The state’s attempt to select the
"worst of the worst" crimes and offenders out of the thousands of murders committed
each year inevitably leads to inconsistencies and errors, inescapable flaws which are
exacerbated by discrimination, prosecutorial misconduct and inadequate legal
representation.
In the cases of offenders with claims of mental retardation or mental illness, their fellow
human beings will in the end be called upon to make subjective life-or-death decisions
about which of these defendants or inmates should be included in these categories and

which should not. In the 1986 Ford v. Wainwright decision, four US Supreme Court
Justices acknowledged that although "the stakes are high", the evidence of whether a
prisoner is incompetent for execution "will always be imprecise". A fifth Justice added
that "unlike issues of historical fact, the question of [a] petitioner’s sanity calls for a
basically subjective judgment." In a recent decision, in April 2005, the US Court of
Appeals for the Fourth Circuit reiterated this when it said "undoubtedly, determining
whether a person is competent to be executed is not an exact science".(32) In other
words, there will always be errors and inconsistencies on the margins. Arbitrariness in the
application of the death penalty is abhorrent as well as unlawful. In the end, there is only
one solution – abolition.
To oppose the death penalty is not to excuse or minimize the consequences of violent
crime, whether it is committed by mentally impaired offenders or anyone else. If it were,
then a majority of countries are currently apologists for violent crime, clearly a
nonsensical suggestion. Instead, to end the death penalty is to recognize that it is a
destructive, diversionary and divisive public policy that is not consistent with widely held
values. It not only runs the risk of irrevocable error, it is also costly – to the public purse,
as well as in social and psychological terms. It has not been shown to have a special
deterrent effect. It tends to be applied discriminatorily on grounds of race and class. It
denies the possibility of reconciliation and rehabilitation. It promotes simplistic responses
to complex human problems, rather than pursuing explanations that could inform positive
strategies. It prolongs the suffering of the murder victim’s family, and extends that
suffering to the loved ones of the condemned prisoner. It diverts resources that could be
better used to work against violent crime and assist those affected by it. It is a symptom
of a culture of violence, not a solution to it. It is an affront to human dignity. It should be
abolished.
"Our Government", wrote a US Supreme Court Justice in 1928, "is the potent, the omnipresent teacher. For good of for ill, it teaches the whole of our people by its
example".(33) By its use of the death penalty, in the end, the state is peddling what
amounts to a delusional theory: namely that by killing a selection of those it convicts of
murder, it can offer a constructive solution to violent crime. In reality, the state is taking
to refined, calculated heights what it seeks to condemn – the deliberate taking of human
life. As French writer Albert Camus asked, what is capital punishment but the most
premeditated of murders, to which no criminal act, however calculated it may be, can be
compared? For there to be equivalence, the death penalty would have to punish criminals
who had warned their victims of the date at which they would be killed and who, from
that moment onward, had been confined at the captor’s mercy for years. "Such a
monster", Camus suggested, "is not encountered in private life."(34)
In 1972, US Supreme Court Justice William Brennan put it another way: "The calculated
killing of a human being by the State involves, by its very nature, a denial of the executed
person’s humanity… In comparison to all other punishments today, then, the deliberate
extinguishment of human life by the State is uniquely degrading to human dignity."(35)
In the 1995 decision outlawing the death penalty in South Africa, Justice Mahomed on
that country’s highest court built on Justice Brennan’s conclusion: "It is not necessarily

only the dignity of the person to be executed which is invaded. Very arguably the dignity
of all of us, in a caring civilization, must be compromised, by the act of repeating,
systematically and deliberately, albeit for a wholly different objective, what we find so
repugnant in the conduct of the offender in the first place."(36)
For the USA to be pursuing this premeditated ritualistic killing in the 21st century against
offenders suffering from serious mental illness is particularly offensive to widely held
standards of decency.
Background information and scope of this report
The stark realities are that many death row inmates were afflicted with serious mental
impairments before they committed their crimes and that many more develop such
impairments during the excruciating interval between sentencing and execution.
US Supreme Court Justice, 24 June 1991(37)
From the outset of a capital case, the mental condition of the defendant may have a
bearing on the case. For example, the defendant’s mental state at the time of the crime
may be reflected in the plea he or she enters in the trial court, such as "not guilty by
reason of insanity".
The modern legal definition of insanity derived from the 1843 English M’Naghten
case.(38) Under this rule, the defendant is "insane", and therefore absolved from criminal
responsibility, if, as a result of mental impairment, he or she did not know at the time of
the otherwise criminal act that the act was wrong. This defence was subsequently
broadened in the USA to include a "volitional" clause, exonerating defendants from
criminal responsibility if they lacked the capacity to control their conduct to the
requirement of the law.
This relaxation of the insanity defence led to a backlash, particularly after the 1982 case
of John Hinckley, who was sent to mental hospital after being found not guilty by reason
of insanity for his attempted assassination of President Ronald Reagan. Several states and
the federal government amended their insanity laws – such as by dropping the volitional
criterion to make it a harder verdict to achieve – or even abolished the defence entirely.
Indeed, the defence is successful in only a minority of cases. In 2002, a veteran California
prosecutor suggested that "you can be crazy as a loon, but that does not mean you’re
legally insane".(39) Contrary to what some prosecutors have hinted to jurors, a successful
insanity plea does not mean release from detention, but involuntary commitment to a
psychiatric facility.
National attention was drawn to the insanity defence in 2002 by the case of Andrea
Yates, against whom Texas prosecutors were seeking a death sentence for drowning her
five young children. There was compelling evidence that she had been suffering from
severe mental illness, namely undiagnosed schizophrenia and post-partum depression.
The jury rejected the insanity defence, however, a decision that was inconsistent with
current scientific knowledge relating to post-partum psychosis.(40) Debate about the
issue continued after another Texas jury in 2004 found Deanna Laney not guilty by
reason of insanity for killing two of her children.

In the 1970s and 80s, some US states created a new verdict between "not guilty by reason
of insanity" and "guilty", namely "guilty but mentally ill". In theory, defendants found
guilty but mentally ill were supposed to be guaranteed mental health care during their
incarceration. However this has largely proved illusory and the "guilty but mentally ill"
verdict has been widely criticized. It appears to have been a legislative response aimed at
assuaging public outrage following particular high-profile cases, rather than a more
preventive and treatment approach to people with mental illness who commit serious
crimes.(41)
Evidence relating to the mental health of the defendant may also be introduced in
mitigation against a death sentence. In the USA, death penalty trials are split into two
stages. First there is the guilt/innocence phase. If the defendant is found guilty of the
capital charge, the trial will move into a sentencing phase. At this second stage of the
trial, the defence can present any mitigating evidence in an attempt to persuade the jury to
vote for life rather than death, while the prosecution will make the case for execution by
presenting the "aggravating" factors relating to the crime and offender.
Aside from the defence plea and the mitigating evidence, the question of an individual’s
mental "competence" may also be raised at any one of a number of points in the capital
process, including:
o Competence to waive interrogation rights, e.g. the right to a lawyer or to remain silent
o Competence to stand trial
o Competence to waive their right to counsel and to act as their own lawyer
o Competence to plead guilty
o Competence to drop appeals against conviction and death sentence
o Competence to be executed
These issues will be illustrated with cases later in the report, showing that the procedures
used to assess "competence" have frequently failed to protect people suffering from
serious mental illness.
●Mental illnesses cannot be overcome through “will power” and are not related to a
person’s “character” or intelligence.
●Mental disorders fall along a continuum of severity. The most serious and disabling
conditions affect five to 10 million adults (2.6 – 5.4%) and three to five million children
ages five to 17 (5 – 9%) in the USA.
●Without treatment the consequences of mental illness for the individual and society are
staggering: unnecessary disability, unemployment, substance abuse, homelessness,
inappropriate incarceration, suicide and wasted lives; The economic cost of untreated
mental illness is more than 100 billion dollars each year in the United States.
●The best treatments for serious mental illnesses today are highly effective; between 70
and 90 percent of individuals have significant reduction of symptoms and improved

quality of life with a combination of pharmacological and psychosocial treatments and
supports;
●Stigma erodes confidence that mental disorders are real, treatable health conditions. We
have allowed stigma and a now unwarranted sense of hopelessness to erect attitudinal,
structural and financial barriers to effective treatment and recovery.
From: About mental illness. www.nami.org
In the June 2002 Atkins decision prohibiting the execution of people with mental
retardation, the US Supreme Court noted that "[n]ot all people who claim to be mentally
retarded will be so impaired as to fall within the range of mentally retarded offenders
about whom there is a national consensus". As in the Ford v. Wainwright decision in
1986 ruling that it is unconstitutional to execute prisoners who have become incompetent
for execution, the Court left it up to the individual states to decide how to comply with
the decision.(42) While the Ford ruling – as will be shown below – has offered minimal
protection for people with serious mental illness at the time of their execution and needs
to be revisited by the Court as a matter of urgency, the extent of the protection provided
by the Atkins decision remains to be seen.(43) This matter is beyond the scope of this
current report.
Neither does this report attempt to answer the complex question of precisely which
defendants should be exempt from the death penalty on the grounds of mental illness at
the time of the crime. At the time of writing, US experts on mental health and law, led by
a Task Force of the American Bar Association Section of Individual Rights and
Responsibilities (ABA-IRR), were continuing to discuss this matter with the aim of
achieving common agreement amongst legal and mental health professionals and
advocates as to precisely what the term "mental illness" should mean when seeking to
extend the "Atkins" protection to people with mental illness.(44) Obviously, mental
illness can incorporate a wide range of conditions, some more serious than others. In
addition, mental illness is not necessarily present all of the time in a sufferer, whether
because of treatment or remission. Mental retardation on the other hand is a permanent
developmental disability.(45)
Nevertheless, it may be helpful to the reader to have a brief description of the mental
illnesses that are most frequently mentioned in this report. This information is adapted
from that provided by NAMI, a grassroots advocacy organization in the USA (formerly
known as the National Alliance for the Mentally Ill). This and further information can be
accessed at www.nami.org. Information can also be accessed on the website of the
National Institute of Mental Health, at www.nimh.nih.gov.
Schizophrenia. Schizophrenia is a serious brain disorder that affects approximately 2.2
million adults in the USA. It interferes with a person’s ability to think clearly, to
distinguish reality from fantasy, to manage emotions, to make decisions and to relate to
others. The first signs of schizophrenia typically emerge in the teenage years or early 20s.
Most people with schizophrenia suffer chronically or episodically throughout their lives,

and are often stigmatized by a lack of public understanding about the disease. A person
with schizophrenia does not have a "split personality", and almost all people with
schizophrenia are not dangerous or violent towards others when they are receiving
treatment. The World Health Organization has identified schizophrenia as one of the 10
most debilitating diseases affecting humans. Symptoms of schizophrenia include
hallucinations – hearing voices when no one has spoken or seeing things that are not
there – and delusions such as believing that people are reading their mind, controlling
their thoughts or plotting against them.










Bipolar disorder. Bipolar disorder, or manic depressive illness, is a
serious brain disorder that causes extreme shifts in mood, energy, and
functioning. It affects 2.3 million adults in the USA, and is characterized
by episodes of mania and depression that can last from days to months. It
can run in families. Bipolar disorder is a chronic and generally lifelong
condition with recurring episodes that often begin in adolescence or early
adulthood, and occasionally even in children. It generally requires lifelong
treatment, and recovery between episodes is often poor.
Major depression. Major depression is a serious medical illness affecting
nearly 10 million people in the USA in any given year. It causes lowering
of mood, reduction of energy, and tiredness. Left untreated, depression
may lead to suicide.
Schizoaffective disorder. This illness is characterized by a combination
of symptoms of schizophrenia and an affective (mood) disorder. Today,
most clinicians and researchers agree that it is primarily a form of
schizophrenia. For a diagnosis of schizoaffective disorder, a person must
have primary symptoms of schizophrenia (such as delusions,
hallucinations or disorganized speech or behaviour) as well as prolonged
symptoms of major depression or a manic episode.
Dissociative disorders. These are so called because they are marked by a
loss of the normal integration between memories of the past, awareness of
identity and immediate sensations, and control of bodily movements.
There are many forms, the best known of which is dissociative identity
disorder (formerly known as multiple personality disorder) where an
individual has one or more distinct identities or personalities that surface
on a recurring basis. All of the dissociative disorders are thought to stem
from trauma experienced by the sufferer.
Post traumatic stress disorder (PTSD). PTSD is an anxiety disorder that
can occur after someone experiences a traumatic event that caused intense
fear, helplessness, or horror. The traumatic events can include war,
childhood abuse, rape, natural disasters, accidents and captivity.
Symptoms include re-experiencing (e.g. nightmares, flashbacks,
hallucinations); avoidance (e.g. lack of recall of the traumatic event,
limited range of emotion, feelings of detachment from others, feelings of
hopelessness about the future); and increased arousal (e.g. inability to
sleep, irritability, outbursts of anger, inability to concentrate,
watchfulness, jumpiness).



Brain damage. Also of relevance to this report is the issue of serious
brain damage that may be equivalent to mental retardation, but which
would not be defined as such because it occurred not as a lifelong
developmental disability, but as the result of an accident or other traumatic
event.(46)
 Organic brain syndrome (also known as organic mental disorder,
chronic organic brain syndrome). Organic brain syndrome is a general
term referring to physical disorders of the brain arising from disease or
trauma that cause decreased mental function such as problems with
attention, concentration and memory, confusion, anxiety and
depression.(47)
There are currently around 3,400 people on death row in the USA. It is not known how
many of them suffer from mental disorders of the sort listed above. The National Mental
Health Association has estimated that five to 10 per cent of the US death row population
have serious mental illness.(48) This would be consistent, for example, with a recent
study which investigated 2,005 people convicted of homicide in Sweden over a 14-year
period. The researchers believe that it is the largest study to date of mental disorders in
homicide offenders. It found that one in five suffered from a psychotic illness.
Specifically, 8.9 per cent of the individuals had been diagnosed with schizophrenia, 2.5
per cent with bipolar disorder, and 6.5 per cent with other psychotic disorders. The study
pointed out that the homicide rate in Sweden was about three times lower than in the
USA and suggested that "in countries with more liberal gun laws, the proportion of
mentally disordered homicide offenders may be different". The study pointed out that
earlier research in the United Kingdom and Finland had each found that six per cent of
homicide offenders suffered from schizophrenia. (49)
In any event, the primary purpose of this report is to illustrate that people with serious
mental illness continue to be sentenced to death and executed in the United States of
America, that existing safeguards are clearly inadequate to prevent this from happening,
and that there is a profound inconsistency in exempting people with mental retardation
from the death penalty while those with serious mental illness remain exposed to it.
Amnesty International is an abolitionist organization which campaigns to end the death
penalty in all cases everywhere. While pursuing this aim, which may take many decades
in some countries, it also seeks to narrow the scope of capital punishment, in line with
international standards, and to promote moratoriums on executions. Therefore, as it did
previously on the issue of child offenders and those with mental retardation, Amnesty
International will join with others seeking to protect people with mental illness from the
death penalty in the USA. It recognizes that some individuals or organizations may
support such an exemption from the less-than-abolitionist position that the death penalty
is acceptable as long as it is more narrowly and reliably applied. Indeed, some may even
see a narrower death penalty as easier to defend against the abolitionist tide. For its part,
Amnesty International supports narrowing the scope of the death penalty insofar as it
represents progress towards abolition. Thus, even while it supports such measures, the
organization will continue to seek to persuade all proponents of the death penalty,

whether they are politicians, prosecutors, or members of the public, to change their minds
and drop their support for any judicial killing at all.
Reality check 1 – Existing protections are clearly not enough
He did a terrible thing, but he was sick. Where is the compassion? Is this the best our
society can do?
Yvonne Panetti, mother of Scott Panetti, Texas death row inmate, 2003(50)
Pro-death penalty officials, whether they be prosecutors, legislators, governors or judges,
may claim that existing safeguards in US federal and state law protect the seriously
mentally impaired from execution. For example, in August 2000, the then Attorney
General of Texas, the state which accounts for a third of all executions in the USA since
1977, claimed that the Texas justice system "offers no less than five separate procedural
protections for capital murder defendants who may have any form of mental incapacity".
He said the "five-layered system of safeguards ensur[ing] due process for all mentally
impaired defendants" consists of the following protections:








No person may be put to trial unless he is mentally competent to
understand the charges against him and to assist his attorneys at trial;
No person may be convicted of a crime unless the state proves beyond a
reasonable doubt to the jury that the defendant intended to commit the
criminal act;
It is a defense to prosecution for a crime if a defendant shows he was
mentally unable to know that his conduct was wrong;
In the punishment phase of a capital murder case, a defendant may present
to the jury any and all evidence of mental impairment in mitigation against
a death sentence;
A death row inmate cannot actually be executed unless he is mentally
competent, which means that he understands that he is going to be
executed and the reasons why.(51)

Do the Attorney General’s assurances remain credible when set against the reality on the
ground? A case in point is that of Scott Panetti, who was sentenced to death in Texas in
1995 for killing his parents-in-law in 1992. He has a long history of mental illness,
including schizophrenia. He was hospitalized more than a dozen times in numerous
facilities before the crime, which he claimed was committed under the control of an
auditory hallucination. He also claimed that divine intervention had meant that his
victims did not suffer, and that demons had been laughing at him as he left the scene of
the crime.
In July 1994, a hearing to determine if he was competent to stand trial was declared a
mistrial when a jury could not reach a verdict. Two months later a second hearing was
held. His lawyer testified that in the previous two years, he had had no useful
communication with Scott Panetti because of his delusional thinking. A psychiatrist for
the defence concluded that Panetti was not competent to stand trial. A psychiatrist who
testified for the prosecution agreed with the previous diagnoses of schizophrenia, and that
Scott Panetti’s delusional thinking could interfere with his communications with his legal

counsel, particularly under situations of stress as in a courtroom. However, he concluded
that the defendant was competent to stand trial. The jury agreed.
Scott Panetti then waived his right to counsel, and the case went to trial in September
1995 with the defendant acting as his own lawyer. He pleaded not guilty by reason of
insanity (at the time of the crime), a notoriously difficult plea on which to be successful,
even for an experienced trial lawyer. Scott Panetti dressed as a cowboy during the
proceedings, and gave a rambling presentation in his defence. Numerous people who
attended the trial as witnesses have variously described the trial as a "farce", a "joke", a
"circus", and a "mockery". In post-conviction affidavits they concluded, from their prior
knowledge of Panetti and their observations of him during the proceedings, that he was
incompetent to stand trial. For example, a doctor who had previously treated Scott Panetti
for schizophrenia in 1986 concluded that Panetti was "acting out a role of an attorney as a
facet of his mental illness, not a rational decision to represent himself". An attorney
called by Scott Panetti as a witness later stated: "The courtroom had the atmosphere of a
circus. The judge just seemed to let Scott run free with his irrational questions and
courtroom antics."
Another lawyer, who was appointed as Panetti’s stand-by counsel, wrote in an affidavit:
"This was not a case for the death penalty. Scott’s life history and long term mental
problems made an excellent case for mitigating evidence. Scott did not present any
mitigating evidence because he could not understand the proceeding". He recalled that
"His trial was truly a judicial farce, and a mockery of self-representation. It should never
have been allowed to happen." The lawyer said that he spoke to two jurors who "told me
that Scott probably would not have received the death penalty if the case had been
handled differently". Another lawyer spoke to two other jurors. They "said that if Scott
had been represented by attorneys that he would not have received the death penalty".
One of them said that the jurors had voted for death out of their fear of his irrational
behaviour at the trial.
Another witness at the trial, a reporter familiar with courtroom procedures, has recalled:
"I watched as Scott questioned some of the jurors. The jurors would look scared." One of
the doctors who was at the trial has said: "In my opinion, Scott’s mental illness had an
effect on the jury that was visible. It was obvious from the appearance of the jury that
Scott antagonized them by his verbal rambling and antics. Scott was completely unaware
of the effect of his words and actions. Members of the jury had hostile stares and looked
at Scott in disbelief while he rambled and made no sense."
A psychiatrist who evaluated Scott Panetti in 1997 concluded that he suffers from
schizoaffective disorder, a combination of schizophrenia and bipolar disorder. This expert
added that Panetti’s decision to waive his own counsel was under the influence of
persecutory delusions, and his ability to represent himself in court was substantially
impaired by disturbances in his thought processes". The psychiatrist further concluded
that Panetti had not been competent to stand trial.
However, the state successfully continued to defend the death sentence on appeal. In

2002, the US Court of Appeals for the Fifth Circuit wrote: "During trial, Panetti
proceeded while dressed in a cowboy suit, gave the appearance of hallucinating, and
carried on rambling dialogues. He did, however, formulate a trial strategy, improved his
performance over time, and was able to effectively examine and cross-examine
witnesses". In its subsequent brief to the US Supreme Court in 2003, the Texas Attorney
General’s Office argued that "Panetti’s apparent inability to consult with his court
appointed attorney was the result of his conscious choice not to cooperate rather than a
by-product of his mental illness". On 1 December 2003, the Supreme Court announced
that it was refusing to consider the case.
The state set a date for Scott Panetti’s execution of 5 February 2004. The Texas Board of
Pardons and Paroles rejected clemency by 15 votes to one. Then, on the eve of the
execution, a federal judge issued a stay of execution in order that Panetti’s competency
for execution could be determined.
At state-level, two court-appointed mental health experts concluded that Scott Panetti
knew that he was to be executed, and had the ability to understand why. The defence
objected to their methods and conclusions and sought funds to do their own investigation
and requested that the state court hold an evidentiary hearing. Their efforts were
unsuccessful; on 26 May 2004, the state court concluded that Scott Panetti had "failed to
show by a preponderance of the evidence that he is incompetent to be executed". His
lawyers appealed to the federal District Court, which granted resources to the defence and
ordered a hearing on the competency issue.
The hearing was held on 7 and 8 September 2004. The defence presented four mental
health experts. The state presented the two experts appointed by the state court in the
earlier proceedings, and two correctional staff from death row (who, in essence, testified
that Panetti appeared to know that he is going to be executed, but they did not know if he
understood why).
The defence experts, including a forensic psychologist who had worked for the Federal
Bureau of Prisons for 20 years, testified that Scott Panetti suffers from either
schizophrenia or schizoaffective disorder. They testified that Panetti knows that he is on
death row, and that he is to be executed. However, they had also concluded that Panetti
believes that the official reason for his execution is "a sham" and that the real reason is to
stop him from preaching the gospel. Far from being grounded in reality, they said, Scott
Panetti’s delusional and grandiose belief is that his execution is part of a conspiracy
against him, involving "the forces of evil, demons, and devils". The experts testified that
they did not believe that Scott Panetti was faking his illness, and also noted that his
condition had worsened on death row because he had stopped taking his medication after
he had a "revelation" in April 1995.
For the prosecution, the two state court-appointed experts testified that Panetti had
refused to co-operate with their evaluation because they would not answer questions
about their religious preferences, although they acknowledged that he had told them that
he believed he was to be executed to stop him from preaching. The psychiatrist admitted

that Scott Panetti had "serious psychological problems", but that simply because Panetti
"is preoccupied with religion and may even, at some level, genuinely believe that he is
being executed for preaching the gospel" did not "render him incapable of understanding
why the authorities have ordered his execution". He and the other state expert said that
Panetti was capable of understanding why he was going to be executed, but admitted that
they did not know if he actually did understand.
On 29 September 2004, the federal judge ruled that because Scott Panetti "knows he has
committed two murders, he knows he is to be executed, and he knows the reason the
State has given for his execution is his commission of those murders, he is competent to
be executed".(52) The defence appealed, and the federal judge, clearly of the opinion that
the standard for competency for execution is a minimal standard and the law on the issue
"less than clear", granted leave to appeal to the US Court of Appeals for the Fifth Circuit.
In their opening brief, Scott Panetti’s lawyers wrote:
"Mr Panetti holds a Kafkaesque belief that the State of Texas, in league with
demonic forces, wants to execute him to prevent him from preaching God’s word.
His belief is genuine. His belief is not grounded in reality. His belief is the
product of his delusions brought on by severe mental illness… Although he
appears to have a factual awareness of the State’s professed reason for his
impending execution, the nature of his mental illness causes him to misperceive
the logical connection between his murder of his parents-in-law and his penalty of
death. He does not have a rational understanding of the reason for his
execution."(53)
At the time of writing, the case was still in the Fifth Circuit. Previous cases raised doubts
that the outcome would be a just one.
Reality check 2 – Insane in most people’s books yet executed
[A]ll of his understanding about his legal situation was delusional: in his view, and he
truly believed this, his only ‘offense’ was knowing the mafia’s secrets, and his
punishment, which was death, was being exacted by the mafia to keep him from telling
their secrets.
Former Chief Psychiatrist, Texas death row, on Harold Barnard(54)
The Texas Department of Criminal Justice records Harold Barnard’s final statement
before being executed on 2 February 1994 as ending in "a couple of sentences garbled".
What Harold Barnard was trying to say before the state killed him will never be known.
Perhaps there was some reference to the "Japanese Duck Mafia", the people he had long
believed were going to kill him. In any event, what is clear is that the system failed to
heed overwhelming evidence that he was insane and stop his execution. It is staggering
that, more than a decade later, the problem has still not been addressed. People as ill as
Harold Barnard can be, and have been, executed in the USA.
Harold Barnard was sentenced to death in 1981 for the killing the previous year of 16year-old Tuan Nguyen during the robbery of a convenience store in Galveston, Texas. At
the sentencing his defence lawyers presented some evidence about his troubled childhood
and the large amount of alcohol and drugs he had consumed shortly before the crime. The

jury also heard that, several months before the murder, Harold Barnard had been beaten
on the head with a tyre lever by his son-in-law. He had sustained severe head injuries
which apparently went largely untreated. His mother testified how his personality and
ability to function changed after this incident. For example, he had been a successful
carpenter, roofer and construction worker prior to the injury, but was unable to work after
it. However, the defence did not present any expert testimony relating to possible brain
damage or psychological disorder, including incipient schizophrenia.(55)
On death row, Harold Barnard’s serious mental illness became more and more
pronounced. By the time his execution date was set in early 1994, all the mental health
professionals, including prison doctors, who had examined, diagnosed and treated him
over the years were in agreement – he could not understand the reason for or reality of his
execution, rendering his execution unlawful under Ford v. Wainwright. However, one
doctor, after having conducted a brief interview with Barnard, testified that he was
competent for execution. The fact that Harold Barnard was executed, in effect, on the
opinion of a single doctor in the face of overwhelming expert opinion to the contrary
speaks volumes of the state’s willingness to kill on the basis of unreliable evidence.
Five different prison doctors, all psychiatrists and psychologists employed by the Texas
Department of Corrections (TDC), agreed that Harold Barnard was not competent to be
executed. These were not doctors employed by the defence or the prosecution as part of
the litigation on Harold Barnard’s case. They were experts who had observed, examined,
evaluated and treated Barnard over the course of the previous decade that he had spent on
death row. They had come to their respective decisions before the issue had been raised
in the courts.


Dr Joseph Leggett, one of Harold Barnard’s former treating psychiatrists,
testified that Barnard was "a severely mentally ill man with a fixed, deeply
ingrained delusional system. He was very psychotic throughout the time I
saw him as my patient. He also experienced auditory hallucinations. He
was diagnosed as paranoid schizophrenic. Mr Barnard is not one of those
people whose psychosis is periodic or cyclical, coming and going at times.
Rather, he was always psychotic…The primary theme in his delusion,
which remained constant throughout the time I treated Mr Barnard, was
one of conspiracy: that the mafia and its agents were involved in an
elaborate conspiratorial plot to have him put to death…because he knew
all of their secrets, about the terrible things they were doing…. He had no
appreciation or understanding that there was a connection between the
crime for which he was convicted and his being on death row. This was
because all of his understanding about his legal situation was delusional:
in his view, and he truly believed this, his only ‘offense’ was knowing the
mafia’s secrets, and his punishment, which was death, was being exacted
by the mafia to keep him from telling their secrets… I have no doubt that
Mr Barnard’s severe mental disorder is real, and that he is in no way
malingering"(56)



Dr Yates Morgan, one of Harold Barnard’s former treating psychologists,
testified that Barnard was "incapable of having a rational or cogent
understanding or appreciation about his legal status or his reason for being
on death row. Mr Barnard’s delusional thinking contaminated his entire
understanding of the world around him… I cannot imagine that he could
appreciate in any way the actual purpose of his punishment… For
example, I remember Mr Barnard telling me that the oriental mafia was
practicing germ warfare around the perimeter of his cell."(57)
 Dr Santiago Caberto, who was one of Harold Barnard’s treating
psychiatrists at TDC from 1982 to 1991, stated that during his treatment of
Barnard, "he was psychotic as evidenced by his formal thought disorder
with auditory hallucinations, paranoid delusional system and lack of
insight and defective judgment. I firmly believe that he was not able to
understand in a rational manner the reason for impending execution".(58)
 Dr Howard Blevins evaluated Harold Barnard in 1987 on behalf of the
Texas Attorney General’s Office. In that evaluation, Barnard had
"launched into a rather confusing diatribe in which he mentioned the
‘Mafia’, ‘Japanese hit men’, ‘Three D Ducks’, ‘Italians’, and ‘Greeks’, in
which he and his father ‘did not commit any crimes but fought them in self
defense’… Mr Barnard reiterated that he had allowed his wife to
hypnotize him and that she was able to ‘blank out my memory of the
Mafia killings and the memory of hypnosis’." Dr Blevins concluded that
Barnard was not legally insane at that time, but predicted that his
condition was likely to deteriorate. By 1994, he believed that his
prediction had come to pass: "In my professional opinion, the results of
the [current] evaluations… appear to be consistent with the results,
conclusions and prognosis I rendered in my evaluation of September 21,
1987. At that time I concluded that there was a distinct probability that he
could become substantially dysfunctional in his cognitive and reasoning
abilities."(59)
 Dr Windel Dickerson, former chief psychologist for the TDC, concluded
that Harold Barnard was incompetent for execution.(60)
In addition, Harold Barnard’s appeal lawyers hired other experts to assess their client on
the question of his competency for execution. They, too, concluded that he was
incompetent.


Dr Allen Childs, a psychiatrist, reviewed Barnard’s records, interviewed
prison guards and inmates and examined Barnard. He concluded that: "Mr
Barnard is profoundly psychotic, is unquestionably not feigning this
psychosis and is likely to remain in this state of delusion indefinitely. He
thoroughly believes the Mafia is behind his impending execution. Mr
Barnard does not suspect this to be true, he knows it. His delusional
system which dominates his thinking renders him incapable of any rational
understanding why he is being put to death."(61)



Dr Philip Murphy, a clinical psychologist, reviewed Harold Barnard’s
records, interviewed prison mental health personnel, guards and inmates
and examined the prisoner himself. He concluded that "Mr Barnard is
presently psychotic, due to a long-standing schizophrenic illness. This
illness is marked especially by a bizarre delusional system whereby a plot
by an ‘oriental’ arm of the Mafia was going to assassinate him… Mr
Barnard believes, based on his delusional psychosis, that he is to be
executed by members of the mafia (or ‘Japanese Duck Mafia’, or the
‘Cosa Nostra’, or the Gambino crime family, etc.) as a vendetta against
him and his family".(62)

Harold Barnard denied that he had any mental illness. For example, he told Dr Childs that
the prison personnel were "lying" when they related his bizarre behaviour such as rolling
around in the exercise area "shouting at or batting away imaginary persecutors". Dr
Childs also revealed that TDC records on Harold Barnard over the years variously
diagnosed him as "schizophrenic", "psychotic", or "paranoia delusional". Dr Murphy also
stated that the TDC records reflected Harold Barnard’s long-standing history of auditory
hallucinations, most commonly of members of the mafia who were trying to have him
killed. As early as 1985, a nurse in the Ellis 1 Unit noted that Harold Barnard "states that
his food and medicine are poisoned. Wants to make the streets of Houston safe – children
being stolen by the mafia – old women being raped by organized crime. Wants the
federal marshals called in, so that he can explain what is going on – his life and his
family’s lives are endangered by the mafia."
At an evidentiary hearing in state court in July 1993, a federal magistrate judge for the
Western District of Texas, Austin Division, testified on Harold Barnard’s behalf. Prior to
becoming a federal magistrate judge in 1992, Judge Alan D. Albright had been Harold
Barnard’s former volunteer appellate lawyer. Judge Albright unequivocally stated that, in
his opinion, Harold Barnard had no rational understanding of his legal situation. He
stated that he and Barnard "did not have an attorney/client relationship that is anything –
that is like anything that has been in my experience before. I wasn’t able to go to Harold
to get any help on the case. I wasn’t able to explain to him why I was raising the defense
I was raising… In fact, during our conversations when I was there [on death row],
sometimes he would stop and basically ask me who I was and why I was there." A
lawyer, who was involved in challenging Harold Barnard’s competency for execution,
wrote to Amnesty International in June 2005:
"Harold did not believe the young victim he shot actually died. He believed with
maniacal certainty that his impending execution was not punishment for his
crime, but was simply another of many examples of the omnipresence and
malevolence of the Japanese Ducks, controlling the courts, police, all authorities.
Harold wrote his schizophrenic mother long letters almost every other day, telling
her to buy a gun to protect herself from the Japanese Ducks, and that he would be
out of prison and home soon to protect her. When Harold’s attorneys visited him,
he frequently spent some time warning them personally to beware of the Ducks,
out of what appeared to be a very genuine concern for their own families…

No one could have observed Harold in the courtroom for his execution
competency hearing, with his pyjama-like prison outfit hanging off him and his
shackles rattling due to his constant shaking, without perceiving that this gentle,
anxious, diminutive man was, at the same time, utterly harmless and mentally
destroyed".
With this extent of evidence, one would imagine that Harold Barnard would have been
removed from the reach of the executioner. It was not to be. The state produced one
doctor, Dr Edward Gripon, who concluded that Barnard, although mentally ill, was
competent for execution. Dr Joseph Leggett, the TDC psychiatrist described Dr Gripon’s
assessment as "a woefully inadequate determination of Harold Barnard’s present sanity.
He appears to have made numerous diagnostic decisions based upon a very cursory and
conclusory examination". Dr Leggett emphasised that "unlike Dr Gripon" he had
observed Harold Barnard over a prolonged period and had personally conducted
"thorough psychiatric examinations of Harold Barnard on many occasions, and I have
had access to and have read Harold Barnard’s full medical history".(63) Dr Childs
responded that "frankly, I am astonished at Dr Gripon’s conclusions. There are a number
of factual inaccuracies in his evaluation which could not possibly be there had he
reviewed all of the records as he says he did." Dr Murphy likewise criticized Dr Gripon’s
conclusions. Yet another psychiatrist who treated Harold Barnard on death row also
disagreed with the state’s expert, stating that "I am not clear how Dr Gripon came to such
a vastly different conclusion", except that he "appears to have done only a cursory and
superficial evaluation of Mr Barnard."(64)
Dr Gripon said that Barnard had explained to him "the circumstances of his conviction
and the fact that he had been found guilty", that he was on "Death Row", and that he
faced the process of lethal injection. However, Dr Gripon had apparently not asked
Barnard why he was on death row or was to be executed. The fact that Barnard knew he
was on death row and was going to be killed and that he had been convicted was not the
point. The point was that he thought it was all part of a conspiracy by the mafia to
assassinate him. Dr Leggett continued: "Though I do not hold any opinion about the
ultimate correctness of the death penalty, I do firmly believe that no one should be
executed on the basis of conclusions drawn from questions never asked, or from a critical
line of inquiry inadequately pursued."
Not only did Dr Gripon’s report contradict all the other experts, he also contradicted
himself on a number of issues during his live testimony at the evidentiary hearing in July
1993. For example, in his report, unlike every other doctor, Dr Gripon had denied that
Harold Barnard experienced auditory hallucinations. In his testimony, he conceded that
Barnard did experience hallucinations, thereby undermining his own conclusion that
Barnard was not suffering from schizophrenia.
In September 1993, the state court recommended denial of relief. It took the position of
Dr Gripon, finding that Harold Barnard knew that he was going to be executed by lethal
injection and that he had been convicted of murder. It found that the defence had
established only that "his perception of the reason for his conviction and pending

execution is at times distorted by a delusional system in which he attributes anything that
happens to him to a conspiracy…" The Texas Court of Criminal Appeals adopted the
lower court’s findings. An execution date was set. The federal courts refused to stop the
execution. The US Court of Appeals for the Fifth Circuit noted the defence’s assertion
that seven experts had been ignored in favour of a single court-appointed witness, but
held that "an unexpected outcome does not automatically render the state procedure
unfair" and that "a state court’s finding of competency to be executed is entitled to a
presumption of correctness".(65) Ten years later, in 2004, a federal judge would cite the
Fifth Circuit’s decision in Harold Barnard’s case in ruling that Scott Panetti (above) was
competent for execution – despite Panetti’s delusional belief that his execution was part
of a conspiracy between the state and satanic forces to have him killed for preaching the
gospel.
The Fifth Circuit Court of Appeals has recently and repeatedly come in for sharp
criticism from the US Supreme Court for its findings in death penalty cases.(66) The
Barnard case suggests that it should have stepped in much earlier. The Supreme Court
should intervene at the earliest opportunity to prohibit the execution of inmates with
serious mental illness.
Reality check 3 – ‘Guilty but mentally ill’ and sentenced to die
James Wilson could not control his own worst impulses. Sometimes our judicial system
has the same problem.
Editorial, Georgia, 14 May 1989(67)
If doubts still remain that a person with serious mental illness can be condemned to death
in the USA, the case of James Wilson should dispel them. While his case may be unique
in the post-1977 era of judicial killing in the United States – a judge sentenced him to
death despite finding that Wilson’s mental illness rendered him unable to control his
conduct at the time of the crime – it demonstrates how a person with mental illness can
end up on death row and how the appeal system may fail to remedy a manifest injustice.
On 26 September 1988, 19-year-old James William Wilson walked into the cafeteria of
Oakland Elementary School in Greenwood, South Carolina, and opened fire with a gun
he had earlier taken from his grandmother’s house and ammunition he had bought from a
shop. When the .22 nine-shot revolver was empty, he reloaded, walked into a classroom
down the hall and began shooting again. He ran out of ammunition for a second time and
climbed out of a window. Outside, Wilson surrendered to the school’s head teacher who
told him to put his hands up. He did so until the police arrived and took the teenager into
custody. As a result of the shooting rampage, eight-year-old Shequila Bradley was dead
and 10 other people - eight children and two teachers - had bullet wounds. A second
eight-year-old girl, Tequila Thomas, died of her injuries three days later, having never
regained consciousness. It was a crime, among the first of a number of school shootings
that would occur across the USA over subsequent years, which traumatized the small city
of Greenwood, and reverberated across the nation.(68) It was also to set a legal precedent
in the state for the treatment of the mentally ill by the criminal justice system.
James Wilson comes from a family with a history of mental illness going back at least

four generations and he himself began displaying mental problems from an early age, as
well as becoming the target of emotional and physical abuse within his home
environment.(69) By the age of 13, when he showed symptoms of mental illness, family
members gave him prescription drugs meant for other relatives. He began to selfmedicate with illicitly obtained medication, including sedatives, pain-killers, antidepressants and anti-psychotic drugs. He was an inpatient in psychiatric hospital at least
six times during his teens. However, the family failed to ensure that he attended followup appointments or other treatment programs. In April 1988, when he turned 19, his
father’s health insurance ceased to cover him, and he was denied readmission to hospital.
His mental condition deteriorated over the months leading up to the shooting. He was
placed under psychiatric evaluation the day after his arrest. He was evaluated as suffering
from borderline personality disorder. In its onset period, schizophrenia is commonly
misdiagnosed as borderline personality disorder. James Wilson’s illness would indeed
later be diagnosed as schizophrenia.
Recent research supported by the National Institute of Mental Health, an agency of the
US Department of Health, has found that half of all lifetime case of mental illness begin
by the age of 14, and that there are often long delays – sometimes decades – between the
onset of symptoms and when the sufferers seek and obtain help.(70) A recent study of 18
young offenders on death row in Texas found that all but one came from extremely
violent and/or abusive families in which mental illness was prevalent in multiple
generations. Fifteen (83 per cent) of the inmates had signs and symptoms of early-onset
mental illness in the bipolar, schizoaffective or hypomanic range of disorders.(71)
The prosecution decided to seek the death penalty against James Wilson for the murder of
the two girls.(72) The defendant had a number of possible pleas, including not guilty by
reason of insanity. Under the latter defence, if successful, he would have been found not
criminally responsible if at the time of the crime he was unable to tell right from wrong.
He would have been committed to secure confinement in a psychiatric hospital.
In the event, James Wilson pleaded "guilty but mentally ill" under a law enacted by the
South Carolina legislature in 1984. Under this law, a defendant is guilty but mentally ill
if, at the time of the crime, he or she could tell right from wrong but was unable to
conform his or her conduct to the requirements of the law "because of mental disease or
defect". The burden is on the defendant to prove this. After a three-day hearing at which
he heard testimony from various experts, Circuit Judge James E. Moore determined that
James Wilson’s mental state at the time of the crime met the statutory definition of
"guilty but mentally ill". James Wilson’s plea was accepted and he became the 92nd
person to be found guilty but mentally ill under the 1984 statute. Two weeks later, on 9
May 1989, James Wilson became the first of them to be sentenced to death.
The mental health professionals who had evaluated Wilson after the crime had considered
the question of whether James Wilson was legally insane or guilty but mentally ill as
"debatable" and "more than a close question". During the plea hearing, Dr Donald
Morgan, then Associate Director of a division of the South Carolina Department of
Health, who had been ordered by the court to evaluate James Wilson, testified that

Wilson fitted the category of guilty but mentally ill. After his testimony, Dr Morgan
stayed in the courtroom. During a break in proceedings, he informed one of the defence
lawyers that he had altered his opinion having heard further testimony about Wilson’s
behaviour at the time of the crime. Dr Morgan now believed that the defendant had been
legally insane at the time of the offence. However, the lawyer neither told the defendant
of this development nor requested a recess to consider the matter further.(73)
Perhaps the lawyer failed to inform James Wilson that there was now professional
support for an insanity defence because the mentally ill teenager was showing signs of
being incapable of assisting in his defence or deciding how to plead. It only emerged after
the trial that he had told his lawyers that he was scared of being seen by a jury,
suggesting that fear may have motivated his decision to waive trial by jury, enter a guilty
plea, and face sentencing by a judge. Shortly before the plea, James Wilson had shaved
off all his head and body hair, telling his attorneys that this was so that he could receive
"special thoughts". For post-conviction proceedings, Dr Seymour L. Halleck, an eminent
forensic psychiatrist who conducted an exhaustive review of the case, concluded that
James Wilson was suffering from schizophrenia at the time, had not been competent to
evaluate his legal options and make the guilty plea, and was probably not competent to
stand trial at that time either.
His trial lawyers presented no mitigation evidence or witnesses at the sentencing. Nor did
they present evidence that was available of James Wilson’s remorse about the shooting.
Nor did they seek to explain that the powerful anti-psychotic medication their client was
taking during his trial proceedings was causing him to appear unemotional and detached.
His lawyers, experts and other observers variously described the defendant as having "a
flat facial expression", "a very flat affect", or displaying a "disinterested", "totally flat", or
"zombie-like" demeanour. James Wilson’s lack of visible emotion was even noted in the
media reporting of the case.(74) The theme of the prosecutor’s argument for execution
was that James Wilson, a mentally ill teenager from an abusive background, "chose to
live the way that he did". The prosecutor argued that despite "a tendency today to put the
blame on society, or to put the blame on circumstances, we can never as a civilized
society abandon individual responsibility for actions". The judge agreed, despite finding
four statutory mitigating factors in addition to his earlier finding that Wilson had not, due
to mental impairment, been able to control his conduct at the time of the crime.(75)
There was widespread criticism of the judge’s decision, from lawyers, advocates for the
mentally ill, and newspaper editorials. A few days after the sentence, for example, the
South Carolina paper, The State, wrote, "[I]f Wilson were a cold-blooded killer in control
of his mental faculties, we would applaud the death sentence. But is there any justice in
electrocuting a young man who desperately needed help and did not get it, whose mind
was so diseased that he could not resist his murderous impulses? We think not."(76) In
neighbouring North Carolina, The Charlotte Observer posed a similar question: "Why
impose on this pathetic man the maximum penalty a sane, calculating murderer would
get? ...A humane society does not compound its fear and ignorance of mental illness by
treating the mentally ill as common criminals. That’s what South Carolina has done in the

case of James William Wilson."(77) In similar vein, the Atlanta Journal-Constitution in
Georgia said:
"While Wilson’s crime was inarguably ghastly, his disordered mental state makes
his rampage more a hideous tragedy than unmitigated outrage. What purpose
would his execution serve? At best, Wilson’s execution would be no more than a
hopeless gesture of protest against a crime that defies understanding. At worst, it
would be an act of unspeakable meanness. James Wilson could not control his
own worst impulses. Sometimes our judicial system has the same problem."(78)
At a post-conviction hearing, one of James Wilson’s trial lawyers testified that he and his
co-counsel had "felt confident that [the judge] would decide that [Wilson] shouldn’t
receive the death penalty" because of the defendant’s mental illness.(79) The lawyer
testified to their belief that even if their client was sentenced to death, the acceptance of
the plea of guilty but mentally ill "would have some power on appeal" which would lead
to the death sentence being overturned. The other trial lawyer testified that he had
believed that the court’s acceptance of the plea meant that "Wilson would not get the
death penalty or if he did, it would never be upheld [on appeal]." The two lawyers were
wrong. The death sentence has survived the appeals process intact.
On 6 January 1992, James Wilson’s case set a legal precedent in South Carolina when the
state Supreme Court confirmed the death sentence. The court ruled that it was not
unconstitutional to execute a person found guilty but mentally ill for actions over which,
due to that illness, they had no control. It further ruled that the execution of such a
defendant does not violate the constitutional ban on cruel and unusual punishment.(80) In
a dissenting opinion, Justice Finney wrote:
"When considered in light of [Wilson’s] personal culpability, it becomes obvious
that the penalty of death in this case is excessive; both in an absolute sense and
when compared with other death sentences confirmed by this Court. This may be
the only instance in South Carolina and indeed, according to my research, in the
entire nation where the death penalty has been imposed after a factual
determination that mental illness deprived the offender of sufficient capacity to
conform his conduct to the standard required by law.... I would find that under
these circumstances, a death sentence amounts to cruel and unusual punishment
in violation of the eighth amendment."
The case went to the federal courts. In January 2003, a federal judge on the District Court
for the District of South Carolina overturned the death sentence, finding various
constitutional errors in the guilty plea proceedings and the sentencing hearing. The state
appealed to the US Court of Appeals for the Fourth Circuit to overturn the District
Judge’s ruling. The defence also appealed, arguing that to impose a death sentence on
someone who was unable to conform his conduct to the requirements of the law violates
the US Constitution.
On 17 December 2003, the Fourth Circuit Court of Appeals vacated the District Court’s
ruling, applying the substantial deference that federal courts must apply to state court
rulings in the USA.(81) It rejected the defence lawyer’s claim that there was a national

consensus against such executions (see Waiting for the Evolution, below). In June 2004,
the US Supreme Court refused to take the case. The following month the South Carolina
Supreme Court ordered a hearing into the question of whether James Wilson is competent
to be executed. At the time of writing, that hearing was still pending.
James Wilson remains on death row. His schizophrenia has become more pronounced
over the years. Due to the lack of stimulation and lack of treatment, he has become more
withdrawn and isolated. He rarely leaves his cell and has difficulty carrying on even
rudimentary conversation. He has gone through periods where he refuses to wash; prison
guards have sometimes dressed him in nothing but plastic rubbish sacks because he
defecates and urinates in his clothes; he has lost all but one of his teeth because he let
them rot.
Regardless of whether James Wilson meets the (minimal) standard of competency to be
executed under Ford v. Wainwright, Amnesty International believes that his execution
would violate the international prohibition on the arbitrary deprivation of life. The Atkins
v. Virginia ruling in 2002 found that the execution of people with mental retardation was
unconstitutional on the grounds that their impairments, while "not warrant[ing] an
exemption from criminal sanctions… diminish their personal culpability" and render
execution an excessive punishment. While no claim has been made that James Wilson
has mental retardation, it is an "unreviewable fact" that James Wilson is facing execution
for a crime over which he "was unable to control his behaviour".(82) In other words his
personal culpability was diminished as a result of his mental illness.
Arbitrariness, whether in relation to the deprivation of liberty or of life, violates
international law, including the International Covenant on Civil and Political Rights
(ICCPR), which the USA ratified in 1992.(83) The Human Rights Committee, the expert
body established by the ICCPR to oversee its implementation, has stated, regarding the
right to liberty, that "arbitrariness" is not to be equated simply with "against the law", but
should be interpreted more broadly to include elements of inappropriateness, injustice
and lack of predictability.(84)
The fact that James Wilson is facing execution, while a person with mental retardation
will not, is neither appropriate, nor just, nor consistent. His execution would be
arbitrary.(85)
Reality check 4 – Finality at the expense of fairness?
A legal system is based on rules; it also seeks justice in the individual case. Sometimes
these ends conflict.
US Supreme Court Justice, June 2005(86)
At a hearing in Arizona on 9 June 1999, all three mental health experts who had
examined, observed and interviewed death row inmate Michael Poland said that his
mental illness – a delusional disorder that made him believe that he had superhuman
powers that would keep death at bay – rendered him incompetent for execution. This
included the psychiatrist chosen and appointed at the state’s request, who testified that the
prisoner’s "full psychological awareness is that he’s not to be executed". However, the

state Attorney General argued that it was time for Michael Poland to "pay the price that
he deserves for killing these two men twenty-one years ago".(87) The state got its way,
and Michael Poland was put to death a week later.
Punishments do not come more final or irreversible than the death penalty. An error
discovered after execution cannot be rectified. An inequity revealed post-mortem cannot
be redressed. If this were the only reason to abolish the death penalty, it would be reason
enough. This is a punishment that denies the possibility of human error. Yet no system
can eradicate error and the inevitability of inconsistency in sentencing outcomes. This is
as true in cases involving defendants with mental illness as with any other. Perhaps more
so, given that our knowledge of the ailments of the human mind remains an inexact
science, and people with mental impairments are generally less able to assist in their
defence than others.(88)
From the executing state’s perspective, however, the death penalty brings with it an
interest in achieving "finality". Once the state obtains a death sentence, finality becomes
the aim rather than the problem. State prosecutors urge judges to reject appeals.
Legislators respond to what they perceive as unnecessarily long or "frivolous" appeals
with laws aimed at speeding up the process of getting the condemned inmate to the
execution chamber. Judges elected or appointed in part in the belief that they will not
oppose the death penalty may also adopt a conservative position on motions and appeals
brought on behalf of condemned prisoners challenging aspects of the capital process. In a
federated system of government, it may be that "states’ rights" demand deference for
state court rulings by the federal judiciary.
This has been the case in the USA. Since 1977, for example, the US Supreme Court has
handed down rulings creating strict rules of procedural default (whereby an issue is lost
for appeal if it was not raised in the lower courts); raising the hurdle over which
condemned inmates must step to win evidentiary hearings; limiting the retroactivity of
constitutional decisions; facilitating state claims that a constitutional violation amounted
to "harmless error"; and erecting barriers to the filing of successive petitions.(89) In
1995, Congress eliminated federal funding for post-conviction defender organizations
which had provided lawyers for indigent death row inmates for their appeals and had a
high success rate in uncovering violations. Then, in 1996, President Bill Clinton signed
the Anti-Terrorism and Effective Death Penalty Act (AEDPA) into law. "From now on",
he said at the signing, "criminals sentenced to death for their vicious crimes will no
longer be able to use endless appeals to delay their sentences."(90) The Act placed new,
unprecedented restrictions on prisoners raising claims of constitutional violations. It
imposed severe time limits on the raising of constitutional claims, restricted the federal
courts’ ability to review state court decisions, placed limits on federal courts granting and
conducting evidentiary hearings, and prohibited "successive" appeals except in very
narrow circumstances.
The cases of Horace Kelly, Ronnie Conner and Gregory Thompson – each of whom has
been diagnosed as suffering from serious mental illness, including schizophrenia –
illustrate how the state’s pursuit of finality can run into conflict with fairness – and how

execution threatens to cement injustice into such cases.
In the years since being sent to death row in California in 1986, prison doctors have
described Horace Kelly as "psychotic", "gravely disabled" and suffering from chronic
schizophrenia. In 1995, a court-appointed psychiatrist found that Kelly was "suffering
from a psychotic mental disorder of such severity that it precludes his capacity to
appreciate his current legal position and make rational choices". In September 1997, a
three-judge panel of the US Court of Appeals for the Ninth Circuit ruled that Horace
Kelly had lost the right to federal judicial review because he had missed the one-year
deadline, imposed by the AEDPA, for filing federal appeals after a state death sentence
becomes final. "The Act will not have been very effective at all", the panel majority said,
if it failed to stop delays in cases such as Kelly’s, which it described as a "saga" and an
attempt at "semipiternal [everlasting] delay". The decision overturned a District Court
decision that the AEDPA did not apply to the case. One of the three Ninth Circuit judges,
Judge Wallace Tashima, dissented against what he called a "Draconian result –
precluding Kelly from ever filing a first federal petition", pointing out that much of the
delay had been caused by the District Court’s "attempts to grapple with Kelly’s mental
problems", including the question of the prisoner’s competence to proceed with
appeals.(91)
The Ninth Circuit agreed to rehear the case in front of 11 judges who, at a hearing in July
1998, were urged by California’s Deputy Attorney General to dismiss the appeal on the
grounds that "this case is about finality."(92) The state’s appeal was rejected by the full
court, who decided that the AEDPA did not apply to the case. This time, Judge Tashima
wrote the majority opinion, stating that "it would be inappropriate for us to prevent
[federal judicial review] merely to accommodate the state’s desire for a quick
execution".(93) Given that a jury had earlier found Kelly competent for execution despite
compelling evidence that he was insane (see below), if the original Ninth Circuit panel
decision that the AEDPA governed had been allowed to stand, Horace Kelly would have
been put to death. As it is, he remains on death row, hopefully providing an opportunity
for an appropriate outcome to prevail.
In November 2002, the US Court of Appeals for the Fifth Circuit noted that the AEDPA
did control the appeal filed on behalf of Ronnie Conner, a death row inmate in
Mississippi. Conner had first been diagnosed with schizophrenia in the 1980s. He was
sentenced to death in 1990 for the murder in January of that year of an elderly woman
who was abducted and died after having her throat slit. At the capital trial, Ronnie
Conner’s lawyer did "nothing whatsoever" to prepare for the sentencing phase of the trial,
despite knowing of his client’s mental illness and despite this evidence being "readily
available".(94) After the jury voted to convict Ronnie Conner, the lawyer "frantically"
tried to locate a doctor or other expert witness to testify at the sentencing stage which was
due to begin the next day. He failed to find anyone, and instead put the defendant’s sister
on the stand, much of whose testimony was excluded as hearsay. She said that her brother
had been treated for mental illness for about a decade and that she thought that he
sometimes did not take his medication. Conner himself gave contradictory testimony on
whether or not he had taken his medication on the day of the crime. The Fifth Circuit

conceded that the mental health evidence presented in mitigation was "skeletal" and
"presented to the jury in an abbreviated form with no elaboration".
Under the 1984 US Supreme Court decision Strickland v. Washington, to win an appeal
on the grounds of inadequate legal representation at trial, a condemned inmate must show
not only that the trial lawyer’s performance was deficient, but also that this deficiency
had altered the outcome of the trial. The appeal courts are required to be "highly
deferential" to a defence lawyer’s performance, "indulge a strong presumption that
counsel’s conduct falls within the wide range of reasonable professional assistance", and
avoid "the distorting effects of hindsight".(95) The AEDPA made a successful claim on
this issue even harder to achieve. It prohibits a federal court from granting relief unless
the state appeal court’s decision in the case "was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme Court of
the United States".
On appeal, a number of experts signed affidavits relating to the question of Ronnie
Conner’s mental health. A doctor who had treated Conner in the two years before the
crime, for example, said that he could have told the jury about Conner’s schizophrenia,
that its symptoms included auditory hallucinations, that Conner had once jumped from a
moving train as a result of voices telling him to, that he did not always take his
medication, and that he had impaired control over his conduct because of his mental
illness. A social worker testified that she would have told the jury that Conner was in all
likelihood off his medication at the time of the crime. A psychiatrist signed an affidavit
that, in his opinion, Conner was mentally ill at the time of the crime and unable to control
his conduct to the requirements of the law.
Nevertheless, applying the Strickland test, the Mississippi Supreme Court decided that
although the trial lawyer’s performance had been deficient, it had not altered the trial’s
outcome.(96) The US Court of Appeals for the Fifth Circuit agreed. The trial lawyer’s
performance had been deficient – he "had an obligation at least to investigate and perhaps
present this potentially mitigating evidence because it could reasonably have been
expected to augment [Conner’s] case", it said, but added that "deficiency is not enough".
The federal court noted that it was bound by the AEDPA, and ruled that the Mississippi
Supreme Court’s finding had not "unreasonably" applied the Strickland test, in fact had
"faithfully" applied it despite acknowledging that "it might be tempting to argue that
Conner was prejudiced by his attorney’s lack of foresight."(97)
At the time of writing, Ronnie Conner remained on death row. In 2002, his lawyers
informed Amnesty International that he would often refuse to come out of his cell,
convinced of a conspiracy against him and that any conversation would be bugged. He
frequently refused to take his medication because of his paranoia.(98) In 2003, a federal
judge described the mental health care on Mississippi’s death row as "grossly inadequate"
(see below).
Gregory Thompson, who has been diagnosed as suffering from schizophrenia, has been
on Tennessee’s death row for two decades. In June 2005, the US Supreme Court was split

on his case. Four Justices suggested that Thompson’s execution would amount to "a
serious miscarriage of justice". The five others, citing the state’s interest in "finality",
gave the State of Tennessee the green light to put Thompson to death for the murder of
Brenda Lane 20 years earlier.(99)
Arrested the day after the 1 January 1985 murder, Gregory Thompson had quickly
confessed to the crime and helped police to find Brenda Lane’s body. Prior to the trial,
his lawyers asked for funds so that they could hire a psychiatrist to examine Thompson.
Their request was granted by the trial court. However, they did not hire a psychiatrist, but
rather an industrial psychologist. At Thompson’s subsequent trial the defence submitted
no evidence at the guilt/innocence stage and he was convicted of first degree murder. At
the sentencing phase, the defence psychologist testified that he did not think that
Thompson had any serious mental illness, but that he was very remorseful. The
prosecution presented a psychologist, who testified that Thompson was not mentally ill,
and in fact had shown signs of faking mental illness. The jury sentenced Gregory
Thompson to death.
For state post-conviction proceedings in 1991 and 1992, Gregory Thompson’s appeal
lawyers sought funding for further mental health evaluations. They submitted testimony
from a psychologist who stated that a review of Thompson’s prison records revealed that
he had been variously diagnosed with bipolar disorder, schizoaffective disorder and
paranoid schizophrenia, that he had displayed symptoms such as hallucinations,
delusions, paranoia, suicide attempts, that he was considered not to be malingering, and
that he had been prescribed anti-psychotic medication. She stated that a full evaluation
was needed to establish if it was likely that such impairment had existed at the time of the
crime. The request for funds was denied, as was the claim that Thompson had been
denied adequate legal representation at his trial. The state courts affirmed the death
sentence and the case moved into the federal courts.
In January 2003, a three-judge panel of the US Court of Appeals for the Sixth Circuit
ruled by two votes to one against Thompson. Applying the AEDPA, Judge Suhrheinrich
deferred to the state courts and said that under the limitations imposed by the AEDPA on
inmates obtaining evidentiary hearings in federal court, the US District Court had not
erred in dismissing his petition in 2000 without holding such a hearing. Judge Moore
concurred in the result. Judge Clay dissented, saying that the performance of the trial
lawyers had been "well below an objective standard of reasonableness" in failing to hire
an experienced psychiatrist rather than an industrial psychologist with no experience in
capital cases to assist on the mental health question. Even under the stringent
requirements of the AEDPA, he said, the death sentence should not stand. Judge Clay
concluded that it was likely that a thorough psychiatric evaluation would have revealed
evidence of Thompson’s mental illness and could have been used to portray a "far more
sympathetic figure" to the jury, with the reasonably probable outcome that the jurors
would not have voted for the death penalty. Judge Clay may well have been right. As will
be shown later in this report, in many cases jurors left unaware of a defendant’s mental
impairment at the trial have later signed affidavits indicating that they would have voted
for life if such evidence had been presented.

The Sixth Circuit’s rejection of Gregory Thompson’s appeal was not its final word on the
matter, however. On 23 June 2004, after the US Supreme Court had said that it would not
review the case and the state had set an execution date, the three judges on the Sixth
Circuit issued a new opinion, reversing their January 2003 ruling. A medical report by a
forensic psychologist retained by Thompson’s federal appeal lawyers had come to Judge
Suhrheinrich’s attention – for some reason it had been missing from the documents filed
in the original appeal. The psychologist, Dr Faye Sultan, had investigated Thompson’s
"horrendous childhood, his family history of mental illness his self-destructive
schizophrenic behaviour (including auditory hallucinations) as a child, his mood swings
and bizarre behaviour as a young adult, and a worsening of that behaviour after a serious
beating to the head that he suffered while in the Navy."(100) She concluded that
Thompson had already suffered from episodes of schizophrenia at the time of the crime.
This, the Sixth Circuit said, "was extremely probative testimony" which demanded the
evidentiary hearing denied by the District Court in 2000. It also issued a stay of
execution.
The state appealed, and on 27 June 2005, the US Supreme Court, by five votes to four,
reversed the Sixth Circuit’s ruling. It found that the Sixth Circuit panel had abused its
discretion in the way it had revisited Thompson’s case. The majority wrote:
"a dedicated judge discovered what he believed to have been an error, and we are
respectful of the Court of Appeals’ willingness to correct a decision that it
perceived to have been mistaken. A court’s discretion… must be exercised,
however, in a way that is consistent with the State’s interest in the finality of
convictions that have survived direct review within the state court system.
Tennessee expended considerable time and resources in seeking to enforce a
capital sentence rendered 20 years ago, a sentence that reflects the judgment of
the citizens of Tennessee that Thompson’s crimes merit the ultimate
punishment…[T]he Court of Appeals did not accord the appropriate level of
respect to that judgment".(101)
Writing for the four Justices in the minority, Justice Breyer said:
"I believe we should encourage, rather than discourage, an appellate panel, when
it learns that it has made a serious mistake, to take advantage of an opportunity to
correct it, rather than ignore the problem… When we tell the Court of Appeals
that it cannot exercise its discretion to correct the serious error it discovered
here, we tell courts they are not to act to cure serious injustice in similar cases.
The consequence is to divorce the rule-based result from the just result. The
American judicial system has long sought to avoid that divorce. Today’s decision
takes an unfortunate step in the wrong direction".
Gregory Thompson was scheduled to be executed on 7 February 2006, despite the fact
that seven of the last 12 judges to review his case had concluded that he should have been
granted relief. Indeed, Thompson’s prison file contains over 4,000 pages documenting his
serious mental illness. On 5 January 2006, the execution was stayed by the US District
Court for the Eastern District of Tennessee in order for it to consider whether Thompson

is competent to be executed. In the name of fairness and decency, the state should use the
opportunity afforded by this stay to abandon its bid for lethal finality.
Waiting for the evolution: state law as a measure of ‘decency’
We have pinpointed that the clearest and most reliable objective evidence of
contemporary values is the legislation enacted by the country’s legislatures.
US Supreme Court, Atkins v. Virginia, June 2002
In both the Roper v. Simmons and Atkins v. Virginia rulings, outlawing the execution of
child offenders and people with mental retardation respectively, the US Supreme Court
used as its principle measure of "evolving standards of decency" state-level legislation on
the two issues. Writing the Roper decision, Justice Kennedy noted that the tallies were
the same on both issues – 30 states prohibited the execution of each category of offender,
including the 12 states which were abolitionist all together. Because of the nature of the
juvenile and mental retardation issues – for which definitions are relatively
straightforward – it was easy for the Supreme Court to tally which states had prohibited
the death penalty in each category. It is not so easy to make a similar assessment on the
question of mental illness. Amnesty International understands that only one of the death
penalty states in the USA, Connecticut, currently prohibits the execution of a person on
the grounds of mental illness at the time of the crime.(102)
Although Amnesty International recognizes that the US Supreme Court uses this tallying
method to assess whether a national consensus has emerged – indeed the organization
argued that this method mandated the prohibition of the juvenile death penalty following
the Atkins ruling(103) – the organization considers it a questionable method by which to
decide an issue of basic human rights. History shows that countries which have turned
their backs on the death penalty, or any particular aspect of it, have done so as the result
of principled leadership rather than following some measure of popular opinion.
"Democracy" should surely not be used to justify a measure which "is uniquely degrading
to human dignity".(104) The USA claims to be founded upon and committed to human
dignity. Fundamental human rights are to be promoted and respected now, not put aside
for some unspecified day in the future.
Certainly the Supreme Court’s technique of measuring a national consensus by state
legislative activity is hugely slow – the Roper ruling, for example, came 30 years after
entry into force of the International Covenant on Civil and Political Rights, one of the
treaties banning the execution of child offenders. There was a wait of more than a decade
between the United Nations adopting a resolution urging member states to eliminate the
death penalty "for persons suffering from mental retardation", and the Atkins decision in
June 2002.(105) A country’s claims to be a progressive force for human rights are
drained of meaning when it lags so far behind on this fundamental human rights issue. In
an increasingly abolitionist world, the USA’s credibility when criticising other country’s
human rights violations will be increasingly undermined by its resort to judicial killing.
The credibility gap will be even greater when it is offenders with serious mental illness
who are being killed by the state.
In the Roper and Atkins decisions, having found that state legislation pointed to a national

consensus against executing child offenders and those with mental retardation, the US
Supreme Court conducted its own independent analysis and found no reason to disagree
with those states that had legislated to that effect. On the question of the mentally ill,
Amnesty International would hope that the Supreme Court could reverse this procedure,
so that "in the end [its] own judgment will be brought to bear on the question of the
acceptability of the death penalty under the Eighth Amendment".(106) It should apply its
independent analysis to the question of the execution of people with serious mental
illness, and recognize that such executions achieve nothing, just as the execution of
minors and people with mental retardation cannot fulfil the would-be goals of the death
penalty. In Supreme Court parlance, executions which fail "measurably" to contribute to
the goals of retribution or deterrence are "nothing more than the purposeless and needless
imposition of pain and suffering".(107) The execution of the seriously mentally ill surely
falls into this category.
Regardless of whether the Supreme Court finds that some measure of legislative activity
reveals a "national consensus" against executing the mentally ill, it should surely not
insult the population of the USA by suggesting that, when fully informed, their standards
of decency have not evolved to the point of opposing such executions.(108) This time,
the Court should take the lead and, at the earliest opportunity, give a clear signal to the
individual states that the execution of people with serious mental illness will no longer be
tolerated. The message should be clear: either state legislators prohibit the execution of
offenders with serious mental illness or their prosecuting authorities will face reversal of
death sentences against such offenders in the courts.
Amnesty International considers it unlikely that the US Supreme Court will in the near
future accept the argument that a national consensus against the execution of people with
serious mental illness is already reflected in state laws. However, of relevance to such an
argument might include the fact that:


12 US states are abolitionist, and a 13th, New York, has a de facto
moratorium on the death penalty in place after its capital statute was found
unconstitutional by the state’s highest court and has not been reinstated.
These states are not using the death penalty against anyone, let alone
people with mental illness. (109)
 25 of the 37 death penalty states, as well as the federal government, have
as statutory mitigating factors for consideration by capital juries at
sentencing either (1) the defendant’s capacity to appreciate the
wrongfulness of his or her conduct or to conform that conduct to the
requirements of the law was impaired; or (2) the defendant was acting
under extreme mental or emotional disturbance.(110)
 In at least five states – Arizona, Florida, Mississippi, Ohio and Nevada – a
number of inmates suffering from mental illness have been removed from
death row under proportionality review.(111)
 Of the death penalty states which allow defendants to plead "guilty but
mentally ill" (GBMI), only four have passed death sentences in GBMI

cases.(112) Only one such defendant is believed to remain on death row –
James Wilson in South Carolina (see Reality Check 3, above).
The difficulty faced by those arguing that even a case as clearly unjust as James Wilson’s
is unconstitutional is shown by the response of the appeal courts. Ruling on Wilson’s
case in December 2003, the US Court of Appeals for the Fourth Circuit considered the
question of the constitutionality of executing a person who had been found by the trial
court to have "lack[ed] sufficient capacity to conform his conduct to the requirements of
the law". The Fourth Circuit deferred to the South Carolina Supreme Court’s rejection of
this claim. The state court had concluded that it was "unconvinced that Wilson has
proven a national consensus exists against the imposition of the death penalty" upon
defendants who had suffered from an "irresistible impulse" rather than those who lacked
all reason and inability to distinguish right from wrong.
James Wilson’s appeal lawyers had presented the Fourth Circuit with evidence of a
national consensus against executing individuals who lacked the capacity to conform
their conduct to the law. They argued that in 17 states, 10 of which have the death
penalty, the acceptance by the trial court of the equivalent level of volitional capacity as
had been found by Wilson’s trial judge, would have protected the defendant from all
criminal responsibility and any punishment.(113) In addition, in two other death penalty
states(114), an equivalent defendant would not have been eligible for the death penalty.
In other states the question remains unclear. In any event, South Carolina is the only state
whose law defines a GBMI defendant as someone who was unable to control his or her
conduct due to mental illness and which has also decided that such a defendant can be
eligible for the death penalty.
However, the Fourth Circuit rejected this argument, holding that "the fact that nineteen
states would not have allowed Wilson to receive the death penalty does not, standing
alone, establish a national consensus against the execution of individuals like Wilson. At
best it demonstrates that the number of states where the execution of such individuals was
not possible roughly equalled the number of states in which the South Carolina Supreme
Court found that such individuals could have been executed". (115)
In any event, state legislation may lag behind what informed opinion on issues relating to
the death penalty would consider acceptable. Capital punishment is a highly politicized
punishment. While supporting the death penalty – all too often for its perceived appeal as
a vote-winning "tough-on-crime" measure – politicians have generally failed to offer the
electorate any measurable evidence that judicial killing, let alone of offenders with
mental illness, offers a constructive solution to violent crime. A politician who supports
the death penalty should surely at least ensure that his or her electorate is fully informed
about the issue.
In March 2002, the White House spokesman was asked: "Does President Bush believe
the death penalty is appropriate for anyone who’s convicted who’s mentally ill?" The
spokesman responded that "the President believes that those are decisions for juries to
make based on the laws of their states."(116) When he was Governor of Texas, George

W. Bush had said the same thing about the execution of people with mental retardation.
In 1999, opposing a bill that would have prohibited the execution of such offenders in his
state, he responded that "that’s up to the juries to make those decisions. I like the way the
law is now".(117) He made this statement not long before the US Supreme Court in
March 2001 decided to re-examine the constitutionality of such executions, eventually
outlawing them, in Atkins v. Virginia in June 2002. Governor Bush’s response suggests
that the politics of the death penalty can render a politician’s stated position on this
punishment an unreliable indicator of contemporary standards of decency.(118)
Similarly, jury decisions to pass death sentences against mentally ill defendants should
not necessarily be taken as a reliable indicator of wider societal values. As the American
Psychiatric Association pointed out in the wake of the Atkins decision:
"A systematic risk of disproportionate punishment also arises in cases involving
defendants with severe mental illness. Even though defendants with mental illness
are entitled to introduce mental health evidence in mitigation of sentence,
commentators on capital sentencing have often observed that juries tend to
devalue undisputed and strong evidence of diminished responsibility in the face of
strong evidence in aggravation. Indeed, such evidence is often a double-edged
sword, tending to show both impaired capacity as well as future
dangerousness".(119)
In any event, citizens who will not pass a death sentence for moral or other reasons
cannot sit on a capital jury. Those who do sit as capital jurors, therefore, by definition
hold views at the punitive end of the punishment/rehabilitation spectrum. For example,
research has indicated that "death qualified" jurors are more likely to convict capital
defendants who suffer from mental disorders.(120) Moreover, capital jurors may be
denied the full picture of the defendant’s impairment, or have their prejudices stoked by
prosecutors.
If juror decisions were the measure, then a case such as that of Richard Taylor in
Tennessee might suggest that standards of decency failed to evolve on this issue in the
two decades from 1984. Richard Taylor, who suffers from mental illness including
schizophrenia, was first sentenced to death in that year. His conviction for a 1981 murder
was overturned because his mental health history had not been properly investigated by
the defence. However, he was then found incompetent to stand trial, and only found
competent again 19 years later after being treated in state hospital, including by forcible
medication. The conservative Nashville City Paper described the 2003 retrial as a "sad
spectacle" and a "grave injustice":
"Taylor asked to act as his own attorney because he said he believes all capital
defense attorneys are conspiring to have their clients executed. Judge Russ
Heldman granted Taylor’s request because he said Taylor appeared polite,
cordial and seemingly competent. We have a huge problem believing that, given
Taylor’s demeanour in the courtroom. Taylor didn’t ask any questions of most
witnesses. He gave no closing argument, called no witnesses of his own and
waived his right to present mitigating evidence, such as his mental health history,
during sentencing. For most of the trial he sat in a semi-catatonic state, arms

dangling at his side. Several times, Heldman had to call to him to get his
attention, a possible side effect of the anti-psychotic medication he is taking.
Predictably he was found guilty again and sentenced to death."(121)
It had taken the jury less than three hours to convict Richard Taylor and sentence him to
death.(122) Informed jurors, on the other hand, may be sympathetic to mental health
mitigation if it is properly presented in a way that seeks to explain, not excuse, the
defendant’s actions. In a number of cases, jurors have later come forward to say that they
would not have voted for death if they had known the extent of the defendant’s mental
impairments (see A double-edge sword, below, for examples). Are not these belated but
informed opinions – reached away from the heightened atmosphere of a capital trial and
the prosecution’s relentless pursuit of a death sentence – an indicator of how "standards
of decency" can evolve when people are better informed?
Among other informed people are those involved in advocacy for people suffering from
mental illness. The US organization, NAMI, for example, takes the position that "the
death penalty is never appropriate for a defendant suffering from schizophrenia or other
serious brain disorders".(123) It believes that "persons who have committed offenses due
to states of mind or behaviour caused by a brain disorder require treatment, not
punishment".(124) The National Mental Health Association (NMHA) has concluded that
"our current system of justice inadequately addresses the complexity of cases involving
criminal defendants with mental illness. Therefore, NHMA calls upon states to suspend
using the death penalty until more just, accurate and systematic ways of determining and
considering a defendant’s mental status are developed".(125) The American Psychiatric
Association has adopted the language in the current three-prong proposal on exempting
people with mental illness from the death penalty put forward by the Task Force of the
American Bar Association Section of Individual Rights and Responsibilities (see
Appendix 2). The American Psychological Association is also expected to adopt the same
language in early 2006.(126)
Perhaps a Kentucky judge spoke for many people in the USA in 1999 when he granted a
defence motion to exclude the death penalty as an option in the case of Kimberly Harris
on the grounds of her mental illness. She had been charged with capital murder following
the April 1997 shooting of Deborah Bell and Patty Eitel, two directors at the Louisville
nursing home where Harris had worked as a nursing assistant until she was fired several
weeks earlier. At first she had been found incompetent to stand trial due to her mental
illness, but after treatment she was found competent and her trial was scheduled for April
1999.
Circuit Judge Stephen Ryan granted the motion to remove the death sentence as an option
after having held an evidentiary hearing. He said: "Based upon the record in its entirety,
including the uncontroverted evidence before this Court that Kimberly Harris suffers
from a significant mental illness, the Court finds under the principles of fundamental
fairness, due process and proportionality it would be unconscionable to impose a death
sentence upon this particular defendant. Kimberly Harris is an emotionally disturbed,
mentally ill, 23-year-old female who has no prior criminal history. Pursuant to its

authority and discretion, the Court declines to engage in an exercise in futility by
submitting the option of the death penalty to the jury in this case."(127)
Judge Ryan then allowed Kimberley Harris to enter a plea of "guilty but mentally ill" to
two counts of intentional murder and scheduled her sentencing for 15 April 1999. At that
stage the maximum sentence she could have faced was life imprisonment without the
possibility of parole for 25 years. Although Judge Ryan’s ruling was subsequently
overturned, that was the sentence she received after a jury rejected the prosecution’s bid
for a death sentence.(128)
‘Mindless vengeance’: Would-be goals of death penalty fail
Mental illness reduces his personal culpability for his acts, rather than increases it. If his
violence was the result of illness, then punishing him for his violence is the same as
punishing him for his illness
Psychiatrist, report on schizophrenic man on Virginia’s death row, 1997(129)
In 2001, the Washington Post wrote an editorial on the case of Russell Weston, a
seriously mentally ill man accused of shooting dead two police officers in the US Capitol
building three years earlier, and against whom the US federal government had not ruled
out seeking a death sentence if ever he could be found competent to stand trial:
"It’s hard to imagine that trying, convicting and sentencing Mr Weston – to
confinement, to death or to anything else – would deter other paranoid
schizophrenics from acting on their murderous delusions. Nor is it clear what
great retributive interest is served by punishing someone who believes that he is
saving the world from cannibals, that time reverses itself and that the people he
killed are not permanently dead."(130)
The following year, the US Supreme Court ruled in Atkins v. Virginia that the death
penalty should no longer be used against offenders with mental retardation. It concluded
that the penological goals of retribution or deterrence are not furthered by such use of the
death penalty. On deterrence, the six Justices in the majority wrote:
"The theory of deterrence in capital sentencing is predicated upon the notion that
the increased severity of the punishment will inhibit criminal actors from carrying
out murderous conduct. Yet it is the same cognitive and behavioral impairments
that make these defendants less morally culpable – for example, the diminished
ability to understand and process information, to learn from experience, to
engage in logical reasoning, or to control impulses – that also make it less likely
that they can process the information of the possibility of execution as a penalty
and, as a result, control their conduct based upon that information. Nor will
exempting the mentally retarded from execution lessen the deterrent effect of the
death penalty with respect to offenders who are not mentally retarded. Such
individuals are unprotected by the exemption and will continue to face the threat
of execution. Thus, executing the mentally retarded will not measurably further
the goal of deterrence."
The theory that the death penalty has any special deterrence effect has largely been
discredited.(131) Indeed, "in a civilized society where people are valued for their intrinsic

worth, as ends rather than means, to deliberately kill an individual so that he may serve as
an example to others seems untenable. Using capital punishment as a deterrent seems
patently unfair because it punishes the inmate for the potential crimes of others, not just
for what he has done."(132) Nevertheless, some politicians continue to ascribe their
support for judicial killing to a belief in the deterrent theory (without providing any
credible supporting evidence).(133) Amnesty International urges them to ask themselves
how executing the 100 people listed in the appendix to this report furthered the goal of
deterrence. Certainly no one believes that the death penalty can deter people from
becoming psychotic. The 1976 Gregg v. Georgia Supreme Court decision that allowed
executions to resume in the USA noted that, whatever the evidence surrounding the
deterrence argument, "[w]e may nevertheless assume safely that there are murderers,
such as those who act in passion, for whom the threat of death has little or no deterrent
effect." Any deterrent effect, the Court suggested, would only apply to "carefully
contemplated murders, such as murder for hire, where the possible penalty of death may
well enter into the cold calculus that precedes the decision to act".
How, under this theory, would it further the goal of deterrence to execute, for example,
George Banks? Pennsylvania Governor Ed Rendell said that the warrant he signed in
October 2004 for 62-year-old Banks to be executed was "very, very appropriate", adding
that when he had campaigned for election he had "told people I was for the death penalty
in the most severe cases – and I believe this fits into the ‘most severe case’
category".(134) George Banks’ crime was indeed unusually extreme – he was sentenced
to death for a shooting that left 13 people dead, including five of his own children. That
he suffers from mental illness, however, is also undisputed. The shootings occurred
within days of his having been assessed as suicidal, depressed and displaying paranoid
thinking. At his trial, both prosecution and defense experts agreed that he suffered from a
"serious mental defect", including "paranoia psychosis". Affirming his death sentence in
1987, the Pennsylvania Supreme Court noted that:
"we wish to make clear that we are aware that [Banks] suffers and has suffered
from a mental defect that contributed to his bizarre behavior both in the
courtroom and on September 25, 1982, when thirteen innocent persons were
murdered by his hand. His behavior was inexplicable, and his thought-processes
remain difficult to comprehend."
Since being on death row, George Banks has made numerous suicide attempts and threats
of suicide. He has been diagnosed with suffering from various mental illnesses, including
paranoid schizophrenia, depression, and schizoaffective disorder. His delusional thoughts
and behaviour included engaging in a hunger strike in an attempt to force the authorities
to exhume his murder victims to prove his conspiracy theory that one or more of them
had been killed by the police. In 2004, a psychiatrist concluded that George Banks was
incompetent to be executed under Ford v. Wainwright and incompetent to assist his
lawyers. He wrote:
"As a result of Mr Banks’ psychotic thought disorder, clinically significant
depression and disordered personality, his contact with reality, and ability to
determine what reality is, are seriously impaired. For example, for several years
Mr Banks has expressed the belief that his convictions and sentences were

vacated by God, and that he should have been released from prison as a result.
He believes that he is being held illegally as the result of a conspiracy."(135)
George Banks’ 2 December 2004 execution date was stayed on the question of his
competency. At the time of writing, a hearing in state court on the question of
competency was still pending, with the State of Pennsyvlania continuing to seek his
execution. It is surely clear that not only was he not deterred from his crime by the threat
of the death penalty, but no-one suffering from similarly delusional thinking would be so
deterred either.
On the question of the retributive goal of the death penalty, the Atkins majority said:
"With respect to retribution – the interest in seeing that the offender gets his just deserts –
the severity of the appropriate punishment necessarily depends on the culpability of the
offender". The death penalty assumes absolute, 100 per cent culpability, on the part of the
condemned. If there is any diminished culpability, then the retributive goal fails, as the
punishment becomes disproportionate. In Roper v. Simmons in March 2005, the Court
found the same in the case of children under 18 years old at the time of the crime: "Once
the diminished culpability of juveniles is recognized, it is evidence that the penological
justifications for the death penalty apply to them with lesser force than to adults".(136)
So, too, with the seriously mentally ill. As Scott Panetti’s sister, Vicki Panetti, said to
Amnesty International three weeks before this seriously mentally ill man was scheduled
to be executed on 5 February 2004:
"My brother did an awful thing, but he was a mentally ill man… now the state is
doing all it can to make sure it gets him to the execution chamber. How does this
help anyone? I believe that Scott could not help what he did. He was sick. But the
State of Texas will be committing a coldly calculated murder if it kills Scott. How
can this be justice? Surely my country can do better than this?"
Scott Panetti was not executed as scheduled. However, at the time of writing he was still
on death row and facing the possibility of a new execution date (see Reality Check 1).
Protecting the dignity of society
A psychologist testified at David Long’s Texas trial that Long was probably insane at the
time of the crime and recommended a full neurological examination because of the "high
probability" that brain damage played a role in the offence. The psychologist said that
without such an examination, a complete diagnosis was impossible. The court refused to
release the funds to the defence lawyers so that they could have such an evaluation
carried out. The prosecution psychiatrist testified, without having examined David Long,
that the defendant was "sociopathic" but sane. The jury sentenced him to death. Postconviction neurological testing confirmed that David Long did indeed have brain
damage.
David Long attempted suicide by drug overdose two days before he was due to be
executed in Texas on 8 December 1999. He was still in intensive care in hospital in
Galveston, about 200 kilometres from the Texas death chamber, as his scheduled
execution approached. As in other cases, David Long’s suicide bid was not interpreted as

a mental health issue, but rather a prisoner’s effort to cheat the executioner.(137) In
denying a stay of execution, state Judge Ed King ruled: "The desire to cheat the hangman
or thumb your nose at the state does not mean you’re incompetent to be executed." The
state authorities saw no reason to delay either, and in contrast to the lack of resources
provided for his defence at the time of the trial, the state spared no expense in having him
killed. He was flown by aeroplane to Huntsville, accompanied by a full medical team to
ensure his safe arrival. As he was given the lethal injection, David Long "snorted and
began gurgling. A blackish-brown liquid spouted from his nose and mouth and dribbled
to the floor".(138) This was the charcoal solution that had been used to detoxify his body,
only hours before it would be injected with lethal chemicals. The niece of one of David
Long’s murder victims, who had come to attend the execution, became distressed at the
spectacle and left the witness room.
According to the US Supreme Court, "the basic concept underlying the Eighth
Amendment [ban on cruel and unusual punishments] is nothing less than the dignity of
man".(139) The US government claims to be committed to the principles of human
dignity. In September 2003, President George W. Bush told the UN General Assembly
that the USA and the United Nations shared a common commitment, namely "that human
beings should never be reduced to the objects of state power or commerce, because their
dignity is inherent". In his inaugural address as President on 20 January 2001, a little over
a year after he refused, as Governor of Texas, to intervene to stop the execution of David
Long, he pledged "to affirm the dignity of our lives and every life". He has repeated his
country’s commitment to the "non-negotiable demands of human dignity" many times
since.
In Ford v. Wainwright, outlawing the execution of people who are incompetent to be
executed, the US Supreme Court majority noted that one of the aims of such a ban was
"to protect the dignity of society itself from the barbarity of exacting mindless
vengeance".(140) The death penalty, in Amnesty International’s opinion, is per se
incompatible with human dignity – both of the condemned and of society itself.
Sometimes there are signs that it is indeed vengeance rather than retribution fuelling proexecution sentiment, even in the case of condemned inmates with serious mental illness.
There are numerous examples of elected state officials – prosecutors, governors,
legislators, even judges – making comments that suggest it is anger, hatred and politics,
rather than justice and fairness, that drive the system.
In 1992, dissenting from the Louisiana Supreme Court’s prohibition of the state forcibly
medicating Michael Perry in order to make him competent for execution, Justice Cole
wrote:
"What seems arbitrary to me is the fact the survivors of the victims of Perry’s
crimes, as well as society at large, should be deprived of a just resolution of the
matter through the fortuity of Perry’s having become insane after conviction and
sentence but before the sentence should be carried out… One thing that will not
be arbitrary but will be fairly predictable, however, is the number of present and
future death row inmates who become ‘insane’ upon reading the majority’s
opinion…

American citizens grow increasingly appalled by, and alienated from, a legal
system that affords criminals greater rights than law abiding taxpayers.
Contemporary society is awash with callous, cold-blooded killers who themselves
are provided room, board, clothing, and medical care at taxpayers’ expense for
an average of 8-15 years from the time of the crime to the time (if ever) of
execution. Restoring a convicted murderer to sanity and subsequently carrying
out the sentence is in no way unacceptable to contemporary society…The fact that
he fortuitously, perhaps conveniently, became insane prior to his execution does
not detract from the legitimacy of his sentence."(141)
In 1996, the Oklahoma Attorney General displayed a similarly disturbing attitude to the
execution of the mentally ill. His comments concerned the case of Glen Ake and Steven
Hatch. Glen Ake shot dead two people after he and Hatch had robbed their home. Steven
Hatch had already left the house when the seriously mentally ill Glen Ake shot the
couple. The two men were sentenced to death in separate trials. Diagnosed with chronic
paranoid schizophrenia, Glen Ake had initially been found incompetent to stand trial.
After treatment in a mental hospital, he was ruled competent on the condition that he be
treated with anti-psychotic medication during the proceedings. In a landmark ruling, his
conviction and death sentence were overturned by the US Supreme Court because,
despite the fact that his sanity at the time of the crime was a significant factor at the trial,
the indigent defendant was denied access to expert psychiatric assistance.(142) At his
retrial, Glen Ake was sentenced to life imprisonmnent. Steven Hatch’s death sentence
survived, however. At his clemency hearing in July 1996, his appeal lawyer asked if
Hatch’s execution would serve justice "or vengeance because we can’t reach the one who
pulled the trigger?" State Attorney General Drew Edmondson, who is still in office,
countered that the injustice was not that Hatch would be executed, but that Ake would not
be.(143) Steven Hatch was put to death in August 1996. A state Senator, who was the son
of the murder victims, witnessed the execution. He had written the law that allowed him
to do so. In 1997 he authored an amendment to the law which allowed additional murder
victims’ relatives, including in-laws and grandchildren, to witness executions.(144)
When the murder victim’s family is against the execution, the state will tend to ignore it
as much as it will ignore the suffering of the condemned prisoner’s family and as much as
it will stand shoulder to shoulder with bereaved relatives who favour a retributive
killing.(145) Shortly before the execution of Pedro Medina in Florida in 1997, a state
Supreme Court Justice noted that that "the surviving daughters of the victim in this case
have testified that they do not believe that Medina killed their mother and they are against
him being executed." He noted that "it is undisputed at this point that the State possessed
evidence that implicated [another man] in the murder and failed to disclose this evidence
to the defendant". (146)
Pedro Medina maintained his innocence to the end. His final words before being executed
in the electric chair were "I am still innocent". His execution caused international outrage.
During the execution in the state’s electric chair, the mask covering Medina’s face burst
into flames and smoke filled the death chamber. The response of various state politicians

was highly disturbing. The Attorney General Bob Butterworth said: "People who wish to
commit murder, they better not do it in Florida because we may have a problem with our
electric chair".(147) Governor Lawton Chiles said: "Putting somebody to death is not the
most friendly thing that you do, [but] that is the law of Florida" (148) The chairman of
the Senate Criminal Justice Committee, Al Gutman, said: "The death penalty is not a
pleasant thing. It’s not meant to be. It’s supposed to work as a deterrent."(149) Senate
Majority Leader Locke Burke rejecting suggestions that the state should switch to lethal
injection, said that "A painless death is not punishment. It’s important that there is a
deterrent and a punishment element."(150)
The indecency of the execution and the official reaction to it was compounded by the fact
that Pedro Medina had a long history of mental illness, including a diagnosis of paranoid
schizophrenic or major depressive disorder with psychotic features. At the age of 19 he
had been taken from a mental hospital in his native Cuba and put on a boat to the USA as
part of the Mariel boatlift in 1980. The crime for which he was sentenced to death
occurred in Florida in 1982. His appeal lawyers challenged his imminent execution based
on expert evidence that he was insane. They presented "extensive evidence of his long
mental illness which included the detailed reports and affidavits of three professional
mental health experts who had examined the defendant at length. These experts
concluded that the defendant was incompetent to be executed insofar as his mental ability
to comprehend what was happening to him." (151)
Two years and a half years after Pedro Medina’s execution, at a Florida House of
Representatives Criminal Justice and Corrections Council hearing, Representative
Howard Futch suggested that because death row inmate Thomas Provenzano thought he
was Jesus Christ – which even the courts agreed was the reason he believed he was to be
killed – the state should "just crucify him". The legislator continued: "I’d make him a
cross, and we could take it out there to Starke [death row] and nail him up." The St
Petersburg Times described Representative Futch’s comments as "vicious, ill-judged and
revealing. In his dim-witted way, Futch has laid bare the truth of the death penalty in
Florida: It’s not about justice. It’s not about deterring crime. It’s about vengeance."(152)
Thomas Provenzano was executed in Florida on 21 June 2000.(153) Shortly before he
was killed, his sister wrote:
"I have to wonder, where is the justice in killing a sick human being? I know that
the death of a loved one is an incredibly awful experience – particularly when the
cause of death is murder. But the horror of losing a loved one to execution is all
but ignored by this society. Why? Must this society pick and choose who to feel
sympathy for? Does this indifference to inmates’ families somehow make
executions more tolerable? Despite what one may feel about the concept of the
death penalty, it must be remembered that it is a deliberate, but avoidable act of
homicide that always leaves a grieving family in its wake. It never brings a victim
back to life. And, even death penalty proponents now concede the fact that it does
not deter others from committing violent crimes.
I tried to get help for Thomas when he first started having these problems, but we
were denied the help he needed. We could not afford private hospitalization. The

only way I could get help for him without his permission was if he did something
violent. Eventually he did do something violent, but instead of being offered help,
he was sentenced to death.
We need intervention programs so that people like myself can find help for a
loved one who is mentally ill – before they harm either themselves or an innocent
person. If my brother had been properly treated years ago, he wouldn’t be on
death row now. More importantly, the three people he harmed would still be
whole.
Try to remember me at 6pm…this Tuesday. That is when the State will
deliberately take the life of my mentally ill brother, despite the fact that other
alternatives exist. That is when I will join the ranks of Florida citizens who have
lost a loved one to unnecessary violence."(154)
In denial: Burying society’s mistakes
If Larry had got the treatment that we begged for for years, five people would be alive
today and Larry wouldn’t be on death row.
Lois Robison, mother of Larry Robison, 1999
The death penalty represents a refusal by society to accept even minimal responsibility in
the crime which resulted in a punishment that assumes 100 per cent culpability on the
part of the defendant. In some cases involving mentally impaired defendants, there are
indications that individuals within wider society failed to heed warnings that could have
averted a tragedy. This is not to suggest that crimes committed by mentally impaired
people are to be condoned or excused. It is, however, to ask whether society could devote
its energies and resources more constructively.
Should society have taken any responsibility in Cyril Wayne Ellis’s crime, for example,
rather than responding with the death penalty? He had a history of mental illness and in
the weeks leading up to his crime, Cyril Ellis had been displaying mental problems,
including auditory hallucinations. A test taken at the time indicated possible paranoid
schizophrenia. After an apparent suicide attempt, Ellis was treated in a psychiatric
hospital. He left the hospital voluntarily after two days, in a disturbed state. On the same
day, 30 January 1986, he attempted to buy a gun from a local shop. He did not have
enough money to purchase the weapon, so one of the shop assistants agreed to loan him
his own gun. Ellis then purchased ammunition from the shop and left. That transaction
had appalling consequences. The following day, Cyril Ellis killed two people and injured
several others during a shooting spree in Oklahoma City. He was sentenced to death and
remained on death row for the next 15 years. During that time, the state devoted legal
resources arguing in the appeal courts that it should be allowed to kill Cyril Ellis. It
almost succeeded. It was not until 10 December 2002 that the US Court of Appeals for
the Tenth Circuit overturned Ellis’s death sentence on the grounds that the trial court had
improperly excluded critical evidence of his insanity at the time of the crime.(155)
Scott Panetti is on death row in Texas for shooting his parents-in-law in 1992, several
years after he was first diagnosed with schizophrenia and two months after the last of his

many hospitalizations in psychiatric facilities. In a 1999 affidavit, Sonja Alvarado, the
victims’ daughter and Scott Panetti’s estranged wife, recalled a number of incidents prior
to the crime in which she alleged that the police had failed to act on the family’s concerns
about the threat that Scott Panetti posed. She recalled that after one incident only weeks
before the killing of her parents, "My mother and I begged the police to take the rifles.
Scott had his deer rifle, the 30.06 rifle he used to kill my parents, and the other shotgun at
my parents house. Even though the police were told to take the guns, they did not. Scott
had made threats against my parents."
Police, prosecutors and the courts should conduct themselves in a way that protects the
rights, not only of the victims of crime but also of particularly vulnerable populations,
including persons with mental disorders. One important goal of the criminal justice
system should be to ensure that no one with a mental disorder is inappropriately held in
police custody or in a prison. At present, this goal is not often achieved. Far too many
people with mental disorders are prosecuted and imprisoned, often for relatively minor
offences. There is increasing worldwide concern about people with mental disorders
being incarcerated in prisons, rather than being cared for in mental health facilities…
The large numbers of persons with mental disorders incarcerated in prisons is a byproduct of, among other things, unavailability or reduced availability of public mental
health facilities, implementation of laws criminalizing nuisance behaviour, the
widespread misconception that all people with mental disorders are dangerous, and an
intolerance in society of difficult or disturbing behaviour… Unfortunately, prisons have
become de facto mental hospitals in a number of countries… Mental health legislation
can help to prevent and reverse this trend by diverting people with mental disorders from
the criminal justice system to the mental health care system.
World Health Organization, 2005 (WHO Resource Book on Mental Health, Human
Rights and Legislation,
Forty-two-year-old Larry Keith Robison was executed in Texas on 21 January 2000, 17
years after he killed five people in Fort Worth. He always maintained that the appalling
events of 10 August 1982 were the result of auditory and visual hallucinations brought on
by his mental illness. He was first diagnosed as suffering from paranoid schizophrenia
three years before the murders, but the Texas mental health care services repeatedly said
that they did not have the resources to treat him unless he turned violent. The state had no
such hesitation in devoting resources to its own lethal response to the crime.(156)
Larry Robison’s story is not unique, and one does not have to look far to find a similar
case. Forty-three-year-old James Colburn was executed in Texas on 26 March 2003. He
had an extensive history of paranoid schizophrenia, an illness with which he was first
diagnosed when he was 17 years old. In November 2002, his sister Tina Morris recalled
to Amnesty International:
"As a child, James was very good, but when he reached puberty that’s when we
started seeing differences in him. He became very isolated, not into the family at
all, real withdrawn, he was scared of everybody, he was in constant fear… He
would say this little man would eat out of his stomach… The little demon would
tell him what to do. He said that one time it told him to kill my grandmother,

which was like his mother, and he said he had to leave the house for about a week
to fight the voices. He was 16.
When my parents’ insurance wouldn’t cover him after [he was] 18, he didn’t have
insurance coverage. But James himself tried to check himself in to Tri County
[hospital] in Conroe. James begged for help. He had been in Galveston mental
hospital, he had been at one here in Houston. He had been in a lot of different
facilities, but when he turned 18 and the insurance was cut off, …, we begged for
help, begged for help... My grandparents and my parents drained their finances
pretty much trying to help him. He tried himself, he went to the Tri County, he
himself wanted help, and they, you know, just pushed him out on the street, give
him his SSI [social security] check, and just push him out there, and he was
scared in society. He likes being in confined places, because he feels like he can
fight those voices off if he is by himself.
My brother --, I’m going tell you honestly -- everybody pushed him away because
when you would meet him, it would look like he was looking straight through you,
and he was scared, and he never smiled. He was just constantly scared. I
remember taking him numerous times to places trying to get him jobs as a
dishwasher and everything else and everybody was just scared of him. And he
never hurt anybody up until this day, up until when he did this to Peggy Murphy,
he never hurt anyone. In his previous convictions, you see, my brother never hurt
anyone, he was never violent. But I think he committed this crime because he
knew he’d be locked away, he thought for the rest of his life.
My mother called me at home, and I was living in an apartment at the time, and
she said ‘Tina you need to get the Conroe Courier and look at the front page’.
And I went and got it and I seen what happened…this is what it had come to. He’s
committed such a desperate crime because he’s so… he just needs help, he’s so
desperate. Nobody helped him. Nobody helped him. Nobody."
After the execution, Tina Morris said: "The state has killed a very mentally ill man. I feel
sorry for the victim’s family but I also feel sorry for my family right now, too." James
Colburn’s brother added: "Society is very uneducated when it comes to mental illness".
As James Colburn’s execution approached in November 2002, the Houston Chronicle
asked "what justice is there, really, in carrying out a capital punishment sentence for a
person who suffers from voices and hallucinations caused by a disabling major mental
illness? Adequate mental health services may have spared Colburn years of suffering and
might have spared his victim’s life. It is no secret that Texas has inadequate resources for
helping the mentally ill lead normal lives. Looked at another way, it would be better for
all and a service to justice if such serious mental health issues were addressed before
there is any need to deal with them within the criminal justice system and on death
row."(157)
In July 2004, the Houston Chronicle wrote that the problem has not yet been fixed,

noting that there were nearly 7,000 people with mental illness in Texas waiting for
treatment. The paper continued:
"The vast majority of mentally ill people are not violent; taken seriously, either
with supervision or institutionalization, those who do pose a threat to others can
also be managed… The [waiting] list exists because funds simply aren’t there to
treat them all. Meanwhile, it costs about $2.3 million to try one capital murder
case and endless appeals can drive the cost higher. No matter how many
executions jurors order up, Texas always manages to find the cash. These
priorities are wrong and dangerous. For the sake of public safety, legislators
must value prevention as much as punishment for violent crime. Attending to the
mentally ill is a sane way to start."(158)
Subjective opinion & inexact science in an adversarial system
It is well known that prejudices often exist against particular classes in the community,
which sway the judgment of jurors, and which, therefore, operate in some cases to deny
to persons of those classes the full enjoyment of that protection which others enjoy
US Supreme Court, 1880(159)
In a landmark ruling in 1995, the highest court in South Africa found the death penalty to
be unconstitutional. Writing his concurrence with the opinion, the Chief Justice of the
Court noted that:
"The differences that exist between rich and poor, between good and bad
prosecutions, between good and bad defence… and the subjective attitudes that
might be brought into play by factors such as race and class, may in similar ways
affect any case that comes before the courts, and is almost certainly present to
some degree in all court systems. Such factors can be mitigated, but not totally
avoided, by allowing convicted persons to appeal to a higher court…
Imperfection inherent in criminal trials means that error cannot be excluded; it
also means that persons similarly placed may not necessarily receive similar
punishment. This needs to be acknowledged. What also needs to be acknowledged
is that the possibility of error will be present in any system of justice and that
there cannot be perfect equality as between accused persons in the conduct and
outcome of criminal trials…[T]he question is, whether this is acceptable when the
difference is between life and death."(160)
The following examples serve as a reminder that, in addition to the subjective lay opinion
that will come into play in the jury room, subjective prosecutorial and judicial opinion, as
well as divergent expert opinion, can often feature in cases involving defendants who
raise claims of mental illness, either in arguing diminished criminal responsibility, in
mitigation against a death sentence, or as a reason not to carry out an execution. One
reason to abolish the death penalty is the inherent impossibility of even the most
sophisticated justice system ensuring the fair, consistent and error-free selection of those
who "deserve" to die.
There is much we do not know about mental health – it is not an exact science, and
inevitably experts and lay witnesses alike will make errors or bring their own biases into
the courtroom. Indeed, the fear and ignorance surrounding the question of mental illness

may make the adversarial system of criminal justice particularly unsuited to adjudicating
such cases, not least where decisions of life and death are concerned. The US capital
justice system has been shown to be prone to prosecutorial misconduct, inadequate legal
representation for indigent defendants, as well as juror prejudice.(161) In such a system,
how much more vulnerable is a category of offender, the mentally ill, about whom there
is a general level of ignorance and fear?


At the June 2005 death penalty trial of Isaac Jones in Chattanooga, Tennessee, for
the shooting of a police officer, three experts for the defence testified that they
had diagnosed the defendant with schizophrenia. The prosecutor told the jury,
"Let’s get one thing perfectly straight. Schizophrenics don’t kill. Killers
kill".(162)



In Texas, Ramon Mata vacillated between appealing his death sentence and
dropping his appeals and asking to be executed as soon as possible. Mata had a
long history of mental illness, was receiving medication in prison for such illness
and had made several suicide attempts on death row. A court-appointed
psychologist and psychiatrist both concluded that Mata was not competent to drop
his appeals. The psychiatrist had determined that Mata was suffering from a
paranoid delusional disorder and that his suicide attempts and his delusions of
seeing and talking with his murder victim were genuine. The defence urged a
federal judge to declare Mata incompetent to waive his appeals or to hold a
hearing to determine the issue. The federal judge described the defence motion as
based on "trendy and trashy psycho-analytical analysis" and dismissed the motion
without ruling on competency. In 1999, after further vacillation by the prisoner,
the judge ruled Mata competent, without having held any hearings, or ordered any
further examination. The court based its decision on the fact that Mata had been
found competent to stand trial 13 years earlier.(163)



In the case of Arthur Baird, the Indiana Supreme Court wrote in 1997 that: "We
do not exclude the possibility that a scientific breakthrough [relating to our
understanding of mental illness] may generate post-trial evidence that justifies
revisiting the findings of an earlier jury or an earlier sentence".(164) In 2004, in
the same case, the US Court of Appeals for the Seventh Circuit wrote:
"No doubt had Baird been sane he would not have killed his wife and parents, if
only because he would not have believed that the government was going to pay
him a million dollars for his ideas about how to solve the nation’s problems; the
delusion seems somehow to have precipitated these rationally motiveless crimes.
But he knew he was committing murders and knew it was wrong to do so, and no
one can assign a precise weight to the delusion, or the obsessive-compulsive
disorder to which the delusion was in some way related, in the mental process
that led to the killing of his parents. Clearly, his volition, his self-control, was
impaired by a mental disease – but how much, in relation to other unknown
factors at work in his mind during the period in which the murders occurred, we
shall never know. Judgment in a case such as this is committed to the discretion of
the state courts. It is for them, not us, to determine in each individual case what

weight to give mental disease that does not obliterate consciousness of
wrongdoing in deciding whether to impose the death penalty for murder." (165)


In May 1998, at a competency hearing, a California jury decided by nine votes to
three that death row inmate Horace Kelly was sane enough to be executed, in
other words that he knew the reality for, and reality of, his punishment, despite
compelling evidence to the contrary. One of the jurors who voted for execution
reportedly said that the prohibition on executing the insane was "a bunch of
baloney", adding that "anyone locked up in a tiny cell for 13 years with no
windows and no contact with the outside world is going to go crazy", but that was
no reason that they should not be executed. Another of the pro-execution jurors
described the evidence of Kelly’s severe mental illness as "too textbook".(166)
Another said: "I think he’s definitely ill, but I don’t think he was insane". Another
of the nine said: "Our purpose was to determine is this man sane or not. After
three weeks of testimony, it wasn’t a hard decision to make. He knew that he is
going to die." Another said: "[E]ven with schizophrenia, there are levels of
awareness. He knows what’s happening. I think he knows why." In contrast, the
foreman of the jury pointed to the fact that six of the seven psychiatrists who
testified had concluded that Kelly was incompetent: "The evidence clearly
showed that he was insane".(167) Although the 9-3 ruling cleared the way for
execution, Horace Kelly remains on death row in California.



Jerry McWee was executed in South Carolina on 16 April 2004 for a murder of a
shop assistant during a robbery in 1991. At the sentencing phase of the trial, the
defence presented a psychiatrist who testified that the defendant was mentally ill,
suffering from "severe depression", "psychosis" and "command hallucinations"
from a dead cousin. For the prosecution, another psychiatrist testified that, in his
opinion, Jerry McWee was faking his mental illness.(168) During closing
arguments, the prosecutor referred to the defendant as "like a dog turned wrong
and gone rabid".(169)

When the mental health of the defendant or inmate is an issue in the trial or on appeal, it
will frequently be the case that the defence and the prosecution will each find one or
more mental health experts to testify. Too often it can become, in essence, a "swearing
match" between the two sets of experts, with the jury ending up none the wiser. Worse, in
some cases, prosecutors will have inflamed the situation by playing on juror prejudice
and fear.
At Andrew Brannan’s trial in Georgia in January 2000, the defence raised an insanity
defence, presenting experts to testify that Brannan, a Vietnam War veteran, had been
under the influence of combat-related post-traumatic stress disorder when he shot a police
officer. In closing arguments the prosecutor urged the jury not to let the defence experts –
what he called "these hired guns" – "muddy up the water", like an octopus squirting out
ink to confuse attackers: "And while they’re in that murky ink, that old octopus slithers,
just slithers away". "What’s an expert?" the prosecutor asked the jury, urging them to

reject the insanity defence. Responding to his own question, he characterized an expert as
"somebody thirty miles from home with a briefcase", whom the jurors should ignore in
preference to their own "common sense". Stoking juror fears, he suggested that an
insanity verdict would mean release, rather than involuntary commitment to a psychiatric
facility. The jury was persuaded and it sent Andrew Brannan to death row, where he
remains (see Killing State, below).
In Atkins v. Virginia, US Supreme Court Justice Antonin Scalia dissented from the
majority’s ruling prohibiting the execution of people with mental retardation (as he did in
the subsequent Roper v. Simmons ruling against the execution of child offenders). He
argued that the Atkins decision threatened to turn "the process of capital trial into a
game", and suggested that it would lead to many individuals faking mental retardation to
escape the death penalty. He said that "whereas the capital defendant who feigns insanity
risks commitment to a mental institution until he can be cured (and then tried and
executed), the capital defendant who feigns mental retardation risks nothing at all."
Justice Scalia’s opinion would undoubtedly find favour among some in the prosecutorial
community. In 2002, for example, a former District Attorney in Georgia wrote that "the
problem with many death penalty cases is that defense lawyers are raising issues related
not to insanity but to the much broader area of mental illness… I would be mentally ill if
I thought they were going to put me to death". He suggested that jurors can "sift it out
and come to a proper conclusion. But then years later, we have a hue and cry, ‘This
person should not be executed because they are mentally ill or retarded’."(170) In similar
vein, in 1999 the head of the criminal appeals division of the Arizona Attorney General’s
Office, frustrated by the refusal of members of the medical profession to breach ethical
codes by restoring mentally ill death row inmate Claude Maturana to competency for
execution, said: "It’s the excuse of the month. All of a sudden, everyone on death row is
incompetent to be executed". The mother of the murder victim agreed that the prisoner
should be executed, despite having been found to be insane: "It’s time to set a precedent.
The whole thing is nothing but a scam. [The prisoner] understands what he did and why
he did it. The victim should have rights, too."(171) Her suffering is understandable. The
state’s response, however, is unacceptable. It should find ways other than executing
mentally ill inmates to help the families of murder victims.
The suggestion that the defendant or inmate is faking or exaggerating their mental illness
is a position that has frequently been adopted by the state. This occurred in the case of
James Willie Brown in Georgia, and raises serious questions about the fairness of the
system that took him to the execution chamber.
James Brown had a long history of mental illness, including repeated diagnoses of
schizophrenia. He joined the army at the age of 17, but was discharged after less than two
years because of his mental illness.(172) Without proper treatment, he began to take
illegal drugs and was first arrested in 1968 when he was 20. He was found incompetent to
stand trial, and committed to a psychiatric facility. He was arrested in 1975 for the
murder of Brenda Watson. Again, he was found incompetent to stand trial due to his
mental illness and committed for treatment. His trial was delayed for six years on the

grounds of mental incompetence. This meant that between the time of his first arrest and
his 1981 murder trial, he was in mental facilities for 70 per cent of the time, both on an
involuntary and voluntary basis. His 1981 trial resulted in a death sentence, but in 1988 a
federal court overturned his death sentence due to doubts that he had been competent to
stand trial seven years earlier. He was retried in 1990, and again sentenced to death.
At the retrial, the defence presented two experts who testified that James Brown suffered
from chronic paranoid schizophrenia. In a subsequent affidavit, given in 1994, one of
these experts stated: "Considering the type of illness, his extensive medical history and
my examination of Mr Brown, it was my opinion to a reasonable degree of medical
certainty that Mr Brown was psychotic at the time of the alleged offense and that he acted
upon delusions and therefore, could not distinguish between right and wrong at the time.
Based upon my recent review of the additional materials, I stand by my original diagnosis
and this opinion." In addition, two inmates who were in the county jail at the time of
James Brown’s arrest gave post-conviction affidavits that describe how he was out of
touch with reality and psychotic.
The state’s position at the 1990 retrial, however, was that James Brown was faking his
mental illness. It presented a doctor who stated that, in his opinion, the defendant did not
have schizophrenia, but had suffered drug-induced flashbacks. This doctor appears to
have ignored James Brown’s long history and repeated diagnoses of mental illness – over
the years more than 25 mental health experts employed by the state had found James
Brown to be mentally ill and not malingering. In closing arguments, the prosecutor stated
to the jury: "That brings us to the question that [the defence lawyer] wanted you to
consider, should we put the mentally ill to death. Well, I don’t know the answer to that
question... And you don’t have to decide that question in this case. Because, ladies and
gentlemen, this man isn’t mentally ill, he has never been mentally ill, and he is not
mentally ill today. He was not mentally ill on the [day of the crime]."
To bolster the state’s theory that the defendant was malingering, the prosecution
presented a former inmate, Anita Tucker, who said that James Brown had confided in her
that he was faking his illness. Anita Tucker later recanted that testimony, and testified in
post-conviction proceedings that her earlier testimony was part of a deal with the
prosecution in exchange for her early release on her own criminal charges. James Willie
Brown was executed in Georgia on 4 November 2003.
The state’s claim that a person is faking their mental illness may also come in the postconviction stage as the state pursues the execution of the death sentence it obtained at
trial. This happened in the case of Monty Delk who was put to death in Texas on 28
February 2002 for the murder of Gene Olan Allen in 1986 when Delk was 19 years old.
Monty Delk’s mental health problems first emerged in 1989. In 1990, the prison medical
authorities diagnosed him with bipolar disorder with psychotic features, and also raised
the possibility that he was suffering from schizo-affective disorder. He was given antipsychotic drugs and lithium. Monty Delk displayed a pattern of disturbed behaviour over
his years on death row, including covering himself in faeces, and incoherent jabbering.
He repeatedly expressed delusional beliefs, such as that he was a submarine captain, a

CIA or FBI agent, or a member of the military. At a court hearing in 1993, at which an
earlier execution date was set, he responded to the judge in prolonged streams of
unbroken gibberish. At another hearing in 1997 to determine his competency to continue
with his appeals, Monty Delk was gagged and then removed from the courtroom after
repeatedly interrupting the court with nonsensical utterances. He was later brought back
in, but removed again when he continued to utter nonsense, such as saying to the judge "I
is you"; "Will you please blow my head off"; and "I’m an FBI agent". At the hearing, a
former chief mental health officer with the Texas prison system said that his review of
the prison records and his own contact with Monty Delk suggested that the prisoner was
suffering from a severe mental illness.
Three years earlier, the prison diagnosis of Monty Delk had been changed to one of
malingering - that he was feigning mental illness to avoid execution. This followed an
alleged statement to this effect made by Delk to another inmate and overheard by a prison
staff member. In 1999 when the state’s death row was transferred from Huntsville to
Livingston, medical staff at the new unit diagnosed Delk with bipolar disorder. However,
after they were made aware of the 1994 re-diagnosis, the official position once again
became that his mental illness was pretence. If Monty Delk was indeed acting, he fooled
many mental health professionals. He also maintained the "act" for years and right up to
the point of his death. The Texas Department of Criminal Justice recorded Monty Delk’s
final statement as:
"I’ve got one thing to say, get your Warden off this gurney and shut up. I am from
the island of Barbados. I am the Warden of this unit. People are seeing you do
this".
Some prosecutors have revealed that they consider mental health defences to be an
excuse, a position which may be shared by a certain percentage of the population and,
therefore, jurors. In 1999, Sean Sellers became the first and only person to be executed in
the USA in the "modern" era of the death penalty for a crime committed at the age of 16.
In his post-conviction proceedings, evidence emerged that he suffered from serious
mental illness. A few months after the trial, a renowned expert, Dr Dorothy Lewis, found
that Sellers was chronically psychotic and exhibiting symptoms of paranoid
schizophrenia and other major mood disorders. In 1992, six years after the trial, three
mental health professionals diagnosed Sean Sellers as having multiple personality
disorder (MPD – now known as dissociative identity disorder), an illness in which "alter"
personalities manifest themselves in the sufferer. In 1998, the US Court of Appeals for
the 10th Circuit admitted that, if believed by a jury, the evidence that Sellers was
suffering from this mental illness at the time of the crime, "renders the person known as
Sean Sellers actually innocent". It noted that the psychiatric evidence was "clear, strong
and supportive". Nevertheless, restricted by the rules applicable to appeals of state
sentences in federal court, the 10th Circuit upheld the sentence.(173)
As Sean Sellers’ execution approached, the prosecutor who put him on death row,
Oklahoma County District Attorney Bob Macy, was asked in an interview if it would
"make any difference to your view if it turned out he did have Multiple Personality
Disorder?" The prosecutor replied: "No, I regard it as an excuse, it would not change my

mind. One of the personalities did the killing and needs to be held accountable".(174)
Two years later, in a dissent against the impending execution of an inmate with
schizophrenia in Ohio, a more enlightened view was heard. Justice Paul Ffeifer of the
Ohio Supreme Court wrote: "Mental illness is a medical disease. Every year we learn
more about it and the way it manifests itself in the mind of the sufferer. At this time, we
do not and cannot know what is going on in the mind of a person with mental illness…
Executing [Jay Scott] will be another assertion that taking the life of a person with mental
illness is no different than taking the life of a person without mental illness… I believe
Ohioans are better than that… I believe that executing a convict with severe mental
illness is a cruel and unusual punishment".(175)
An execution cannot provide an answer to an apparently inexplicable crime or the role
that the offender’s mental impairment may have played in it. Instead it is a response that
seeks to blot out the symptom rather than understand the disease.
The mentally ill: Also at ‘special risk of wrongful execution’?
The US Supreme Court majority in Atkins v. Virginia noted that a part of the reason for
prohibiting the execution of offenders with mental retardation was that "in the aggregate
[they] face a special risk of wrongful execution". By this, the Court meant not only that
the particular vulnerabilities of such individuals placed them at particular risk of
wrongful conviction, but also of being sentenced to death when a non-impaired
individual might receive a life prison term. The Atkins ruling stated:
"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 may be less able to give
meaningful assistance to their counsel and are typically poor witnesses, and their
demeanor may create an unwarranted impression of lack of remorse for their
crimes… [M]oreover, reliance on mental retardation as a mitigating factor can
be a two edged sword that may enhance the likelihood that the aggravating factor
of future dangerousness will be found by the jury."(176)
As in the case of individuals with mental retardation, most people suffering from mental
illness will never commit a violent crime. Nevertheless, a mentally ill defendant who has
committed a capital offence may be at heightened and unfair risk of receiving a death
sentence compared to defendants with no or lesser impairments, or in some cases being
wrongfully convicted:


Even if found competent to stand trial, the defendant’s capacity to assist their
lawyer or understand the proceedings may still be impaired;



As a part of their illness, a defendant suffering from a mental condition such as
severe depression or a paranoid disorder may refuse to allow mitigation to be
presented or may even plead guilty and demand the death sentence.



Due to the stigma attached to mental illness, not least if it is linked to a family
history of such illness or to childhood abuse, a defendant may seek to downplay
his or her ailment or simply not be a good reporter of it to defence counsel.



If the defendant’s mental illness is still showing symptoms at the time of the trial,
he or she may act irrationally or appear to do so to jurors, heightening fears of
future dangerousness, a highly aggravating factor in the minds of capital jurors.



A mentally ill defendant, especially if taking medication at the time of the trial,
may display a flat affect and be perceived as remorseless, again a highly
aggravating factor in the mind of capital jurors.



A mentally ill defendant may be particularly difficult to represent for an underresourced or inexperienced defence lawyer;



A mentally ill defendant may be particularly vulnerable to unscrupulous
prosecutors or police;



Jurors ignorant of or frightened by mental illness or suspicious of the state’s
capacity to appropriately treat the mentally ill may be swayed towards a death
sentence, fearing the defendant’s propensity for future violence.



If their crime was committed as a result of mental illness, it may appear
motiveless. Thus, the offence may display a senseless brutality, further
heightening the jury’s fears about future dangerousness.

Arbitrariness thus threatens to be a result of the fact that people with mental retardation
have been exempted from execution while those with serious mental illness at the time of
the crime have not.
In addition, the choices made by mentally ill capital defendants and inmates can inject a
further arbitrariness into the death penalty process. Due to mental illness, a defendant
may plead guilty, demand the death penalty and/or refuse to appeal their death sentence
beyond the mandatory direct appeal. Even if found competent to do so, this potentially
adds to the arbitrariness of the death penalty. Such inmates could win on appeal, as
happened in Pennsylvania in the case of Joey Miller. He gave up his appeals and came 48
hours from execution before he changed his mind and allowed an appeal to federal court
to be filed. Six months after the Atkins v. Virginia ruling, Joey Miller’s death sentence
was commuted to life imprisonment because of his mental retardation.
The rate of error in US capital cases has been found to be very high.(177) Dissenting
against their colleagues’ refusal to stop the execution of an Arkansas inmate who had
waived his appeals, two US Supreme Court Justices warned in 1990 that such statistics
"make clear that in the absence of some form of appellate review, an unacceptably high
percentage of criminal defendants would be wrongfully executed – ‘wrongfully’ because

they were innocent of the crime, undeserving of the severest punishment relative to
similarly situated offenders, or denied essential procedural protections by the State".(178)
The case of Joey Miller, who would have been killed if he had not allowed his appeal to
be filed, illustrates this point.
In 1977, Justice White of the US Supreme Court argued that "the consent of a convicted
defendant in a criminal case does not privilege a State to impose a punishment otherwise
forbidden by the Eighth Amendment". Two years after that, Justice Marshall protested
that "the Court has permitted the State’s mechanism of execution to be triggered by an
entirely arbitrary factor: the defendant’s decision to acquiesce in his own death".(179)
Mental illness has often appeared to be trigger in this acquiescence, and thus the cause of
potential arbitrariness and error left irreversible by the finality of execution (see Death
Wish 2, below).
James Elledge was executed in Washington State on 28 August 2001 for the murder of a
woman in 1998. He had turned himself in after the crime, after allegedly twice attempting
suicide. At the trial, he pleaded guilty. He refused to allow any mitigating evidence to be
presented, telling the jury that "the wicked part of me needs to die". The jury was
therefore left unaware of evidence that there was a history of mental illness in his family,
and that he himself suffered from mental illness. On death row, Elledge refused to appeal
against his death sentence. On 6 August 2001, the state Clemency and Pardons Board
voted 3-2 against clemency. One of the dissenting members said that the case was "very
troubling", in that the outcome of the trial might have been different "depending on
whether [the jury] got the full story or not".
A double-edged sword: aggravator and mitigator?
In Texas, the state responsible for more than a third of all US executions, jurors can only
hand down a death sentence if they decide that the defendant will likely commit future
acts of violence if allowed to live, even in prison. This is the so-called "future
dangerousness" question. In a Texas case in 1989, Penry v. Lynaugh, the US Supreme
Court recognized that evidence of a defendant’s mental retardation could act as a "twoedged sword", by being both a mitigating factor against, and an aggravating factor for, a
death sentence. The offender’s mental retardation, the Court wrote, "may diminish his
blameworthiness for his crime even as it indicates that there is a probability that he will
be dangerous in the future".(180)
At that time, the sentencing instructions provided to Texas juries gave them no explicit
way to give mitigating effect to such evidence.(181) Indeed a year before the Penry
ruling, two US Supreme Court Justices had dissented against the Court’s refusal to take
the case of Robert Streetman, a Texas death row inmate who had sustained a serious head
injury as a child and thereafter suffered from a series of mental problems including
persistent delusions and hallucinations. In the dissent, Justices Brennan and Marshall
wrote: "the record discloses that Streetman has had a history of mental illness, stemming
from an injury incurred while he was in the fifth grade, a circumstance that in every other
jurisdiction would be considered mitigating. Yet the jury that sentenced him to die could
draw but one inference from this evidence: Streetman posed a substantial threat of future

dangerousness… [E]vidence that could evoke feelings of sympathy or convince a jury
that the defendant is not culpable enough to deserve death is perversely transformed into
a factor militating solely in favor of death...."(182) Robert Streetman was executed in
1988.
However, the Supreme Court’s analogy of a "two-edged sword" was not limited to one
particular state – Texas – at one particular time – pre-1989. A defendant’s future
dangerousness has been shown to be a highly aggravating factor in the minds of capital
jurors in the USA. A jury which has just convicted a mentally ill defendant of a violent
capital crime may have a particular fear of his or her capacity for future violence, or
distrust the state’s ability or willingness to ensure appropriate mental health care and
public security. In Texas, a finding of "future dangerousness" remains a prerequisite for a
death sentence. Even though capital jurors in Texas now have a specific instruction that
allows them to give mitigating weight to any aspect of the crime or defendant they think
calls for lenience, fear, prejudice or ignorance may still leave mental illness on balance as
an aggravating factor in their minds. Indeed, studies have found that capital jurors can
view a defendant’s serious mental illness as an aggravating factor.(183)
One study, for example, describes a case in which a California jury returned a death
sentence despite being persuaded by expert psychiatric witnesses that the defendant had a
severe mental illness. However, the jurors were also concerned about the defendant’s
future dangerousness. One juror questioned for this study said: "What we decided was
that regardless of his illness, if he was a danger to society, then the only solution would
be the capital punishment". Another juror, asked to characterize the strongest factors for
and against handing down the death penalty in the case, responded in a way that captured
the potentially double-edged nature of mental illness in the minds of capital jurors: "For:
His incurability. Against: His illness".(184) Yet the Supreme Court has suggested that
mental illness is among those factors "that actually should militate in favor of a lesser
penalty".(185) For such illness to act as an aggravating factor would be unconstitutional.
Arguing for a death sentence, the prosecutor at the 1995 Texas trial of seriously mentally
ill defendant James Colburn (see above p.56) suggested that the jury might prevent mass
murder if they voted for execution: "To save the life of an innocent person is a huge thing
when it is compared with the taking of a person that voluntarily chose to kill. How many
lives will it save? I submit to you, even if there’s a chance it will save one, he should be
executed. But who knows, it may save one, it may save a dozen, it may save a hundred."
Despite such exhortations, the jury evidently wished to consider a life sentence for this
mentally ill man. During its deliberations, the jury foreman wrote a note to the trial judge
asking if the defendant would be eligible for parole if he received a life sentence. The
judge replied that the jurors were not to concern themselves with the issue of parole.(186)
In 1999, the foreman from the Colburn jury signed an affidavit. In it, he stated that, in his
opinion, "the lack of information regarding when Mr Colburn could be released was a
significant factor in some jurors’ decisions at the punishment phase". This would appear
to be confirmed by the affidavit of another member of the jury who said that her "central
concern was with protecting society, and the only way I thought I could do that was to

make sure that Mr Colburn did not receive parole... [Th]e Judge’s reply only increased
our frustration. We still had no idea if Mr Colburn would be released in ten, fifteen,
twenty or forty years... Consequently, jurors continued to discuss the possibility that Mr
Colburn would be released early". This juror said that the "primary reason" that she had
voted for a death sentence was because of her "fear that Mr Colburn would be released
early. Mr Colburn was 34 years old at trial. Had I realized that he would not finish
serving his prison time until he was over 70 years of age, I sincerely believe that I would
have voted to give him a life sentence".
The aggravator/mitigator dilemma faced by lawyers representing mentally ill defendants
has been noted within the judiciary. For example, in rejecting claims that the trial lawyers
of Florida death row inmate Pedro Medina (see above) had been ineffective for failing to
investigate and present evidence of his mental illness to the jury, the trial judge wrote in
post-conviction proceedings:
"the testimony of the two psychologists and one psychiatrist…showed in essence
that defendant was psychotic; he had organic brain damage; he was diagnosed to
be suffering from paranoid schizophrenia or major depressive disorder,
recurrent, with psychosis, of long standing, and he was potentially dangerous.
Only the psychiatrist testified that Medina could be rehabilitated and then only if
stabilized by proper medication and therapy. All of this testimony was derogatory
and would have had, if anything, an adverse effect on the jury… [I]t would have
more likely strengthened the jury’s resolve to recommend a sentence of
death."(187)
The Florida Supreme Court upheld the lower court’s finding that the defence lawyers had
not performed inadequately. As one of its Justices wrote in 1997, the Court made such a
finding "not on the basis that the illness was not serious, but rather by approving the trial
court’s determination that the evidence of mental illness may have harmed Medina’s
case".(188) Pedro Medina was executed in March 1997.
In some states, such as Oklahoma and Virginia – which, along with Texas, account for
half of the USA’s executions since 1977 – "future dangerousness" is one of a number of
possible aggravating factors that can make a murder eligible for the death penalty. Robert
Bryan was executed in Oklahoma on 8 June 2004 for killing his aunt in 1993. He had
been diagnosed with chronic paranoid schizophrenia, and had a history of organic brain
disease which may have been related to his severe diabetes dating back decades. Despite
serious concerns about his competence to stand trial, and the fact that he had previously
been found incompetent to stand trial, Robert Bryan’s trial lawyer presented no mental
health evidence at either stage of the trial. The US Court of Appeals for the 10th Circuit
upheld his death sentence in 2003. The federal court found that the lawyer had acted
"strategically" by not raising mental health mitigation at the sentencing phase of the trial,
noting that "he was fearful that any [mental health testimony] during the second stage
would do more harm than good." The lawyer, it found, had been concerned that any such
testimony "might play into the prosecution’s case that Bryan was a continuing threat to
society". (189)

In the USA, appeal courts are required to give substantial deference to the performance of
trial lawyers and federal appeal courts to the rulings of their state counterparts. In many
cases, seemingly excessive deference has led to death sentences being upheld on the
grounds that the failure of trial counsel to present mental health evidence was either
"harmless" to the outcome of the trial or the result of "strategic" choice. In the above case
of Robert Bryan, for example, one of the 10th Circuit judges wrote a strong dissent,
joined by two colleagues:
"Robert Leroy Bryan is a delusional, severely diabetic victim of organic brain
damage… Mr Bryan’s counsel provided the most ineffective defense I have ever
seen, amounting to a concession of guilt and relating none of the reams of
compelling mitigating evidence… [W]e cannot insulate an unreasonable tactic
not to present mitigating evidence by labelling it a two-edged sword. Mr Bryan’s
lawyer was clearly ineffective as a matter of law."
A member of the ABA-IRR Task Force (see Appendix 2) has pointed to evidence that
"contrary to the apparent beliefs of juries and prosecutors, offenders with mental disorder
do not pose a greater risk than their non-disordered counterparts".(190) Moreover,
informed jurors may be sympathetic to mental health mitigation if it is properly presented
in a way that seeks to explain, not excuse, the defendant’s actions, and if they do not have
their fears or prejudices stoked by a state in pursuit of a death sentence. In a number of
cases, jurors have later come forward to say that they would not have voted for death if
they had known the extent of the defendant’s mental impairments. For example:


In the case of Abu-Ali Abdur’Rahman, on death row in Tennessee, eight of the
jurors from his trial have signed affidavits saying that they might or would not
have voted for death if they had heard the mitigating evidence of his childhood
abuse and mental health problems, including post-traumatic stress disorder. For
example, one of them said: "If I had known anything about the defendant’s
background, that he had been abused as a child, and that he may have suffered
from a mental disorder or mental illness that could help explain why he did what
he did, then I do not believe that I would have voted for the death penalty".
Another wrote: "It is my belief that I would have voted for life for
[Abdur’Rahman] rather than death if I had heard the details of this man’s life and
the extent of his mental illness."And another: "I would have voted to know all
about the way his father treated him and about his mental problems. I don’t want
[him] put to death".
 In the case of Arthur Baird, a seriously mentally ill man sentenced to death
in Indiana,, six jurors from the original trial later indicated that they would
have supported a sentence of life imprisonment without parole, which was
not an option at the time of the trial.(191)
 The foreman of the jury from James Chambers’ trial in Missouri later
signed an affidavit stating his belief that the jury would not have sentenced
Chambers to death if it had heard evidence of his mental limitations,
which the defence lawyer had failed to present. A mental evaluation of
Chambers in 1982 found that he had suffered from depression for about
two months prior to the murder. He was reported to have spent time in five









mental hospitals for evaluation and treatment during his lifetime. He
suffered a serious head injury at the age of six, and is alleged to have been
regularly beaten by his father. He had been diagnosed as suffering from
"incipient paranoid schizophrenia". None of this evidence had been
presented to the jury. However, James Chambers was executed in 2000.
In 2000, five jurors signed statements that they would not have sentenced
Alexander Williams to death if they had known about his abusive
childhood and serious mental illness, including schizophrenia. His
execution was halted in 2002 and his death sentence commuted.
Three jurors from the trial of Tracy Hansen in Mississippi later signed
affidavits that they might not or would not have voted for a death sentence
if they had heard of the physical, sexual and psychological abuse Hansen
suffered as a child, and of his subsequent substance abuse and brain
damage. One of them stated: "very little evidence was presented on Tracy
Hansen’s behalf… If I am to be responsible for so serious a penalty as the
death penalty, I deserve to hear all of the evidence, both for and against
the defendant, before making my decision." Tracy Hansen was executed in
July 2002.
Donald Beardslee was executed in California on 19 January 2005. One of
the jurors from his trial had said that if he had known that Beardslee had
severe brain damage, as revealed only after the trial, he would not have
voted for the death penalty.(192) One such vote at the trial would have
meant a life rather than a death sentence.
Several of the jurors from Troy Kunkle’s trial in Texas later stated that
they would have voted for life, but had felt constrained by the jury
instructions they were given. One of them stated that "I feel that the
evidence of mental health problems, especially the schizophrenia, would
have made a big difference", if such evidence had been presented. Troy
Kunkle was executed on 25 January 2005.

Apparently motiveless crimes
An apparently motiveless murder may be more likely to end in a death sentence, given
that a jury may consider a random inexplicable act of extreme violence as an indicator of
more to come. A violent crime that is the result of a delusional mind may appear to the
rational observer to be motiveless and generate fear for that reason. This will be even
more so if the state plays on those fears.
Kelsey Patterson committed just such a crime. The state played on the jurors’ fears. The
result was the execution of a seriously mentally ill man. There is no doubt that it was
Kelsey Patterson who shot and killed Louis Oates and Dorothy Harris on 25 September
1992. There would appear likewise to be little doubt that his serious mental illness lay
behind the crime. After the shootings, Kelsey Patterson took off all his clothes except his
socks and began to pace up and down the street, gesticulating and yelling
incomprehensibly until the police arrived.
Kelsey Patterson had long suffered from paranoid schizophrenia. In 2000, a federal

magistrate judge wrote that "Patterson had no motive for the killings – he claims he
commits acts involuntarily and outside forces control him through implants in his brain
and body. Patterson has consistently maintained he is the victim of an elaborate
conspiracy, and his lawyers and his doctors are part of that conspiracy".(193) He was
found competent to stand trial despite his bizarre behaviour driven by his delusions and
paranoia. Indeed, the federal judge magistrate wrote in his 2000 opinion that if he were
reviewing this question de novo (anew), he would have found that Kelsey Patterson was
incompetent to stand trial. However, he deferred to the jury’s finding of competence.
During his actual trial, Kelsey Patterson’s mental illness was again on display and he was
repeatedly removed from the courtroom when he kept interrupting. The defence plea was
one of not guilty by reason of insanity – that is, that at the time of the crime he had not
known right from wrong. The prosecutor had argued to the jury that to find a defendant
legally insane on the basis that he has been diagnosed with schizophrenia would be
tantamount to "a licence to kill", and suggested that the defendant could be faking his
illness. Kelsey Patterson’s jury rejected the insanity plea and sentenced him to death. He
was executed on 18 May 2004.
Stephen Vrabel was executed in Ohio two months later, on 14 July 2004. He had been
convicted of the murders of Susan Clemente, with whom he lived, and their three-yearold daughter, Lisa. On 3 March 1989, he bought a handgun and ammunition from a gun
shop in Youngstown, near where they lived. In the apartment later that day, Stephen
Vrabel shot Susan Clemente as she walked into the kitchen, and then shot her again when
she was on the floor. It was an apparently motiveless crime, the couple had apparently
had no recent argument or confrontation. He subsequently put both bodies in the
refrigerator, the child’s in the freezer compartment along with her favourite toys. Stephen
Vrabel himself continued to live in the apartment for the rest of March 1989.(194)
The following month, while he was away from the apartment, the bodies were found by
the landlord. On hearing this, Stephen Vrabel conferred with a priest and turned himself
in to the police. He admitted to the killings, saying that he did not know why he had first
shot his girlfriend. He said that he had fired the second shot in order that she did not
suffer any more, and that he had then shot Lisa because he surmised that her mother was
dead and her father would be going to prison, leaving her alone. He directed the police to
the gun used in the shootings. The police never discovered a motive for the crime.
Stephen Vrabel had no significant prior criminal history.
Vrabel was found incompetent to stand trial because of his mental illness. He was
committed to a maximum security psychiatric hospital, where he was forcibly medicated,
and where he remained for the next five years until he was found competent to stand trial
in 1995. In assessment reports in August 1995, one mental health professional concluded
that Stephen Vrabel was "capable of participating meaningfully in his own defense", and
another concluded that Vrabel had not known the "wrongfulness of his act" at the time of
the murders, but that he was "capable of working with his attorney and aiding in his
defense, though his cooperation will be erratic". The trial was held in September 1995.
The jury rejected Vrabel’s plea of not guilty by reason of insanity and convicted him of
murder. At the sentencing phase, Stephen Vrabel presented only his own unsworn

statement as evidence. During his statement, he said: "Basically what I am saying is there
is nothing of a mitigatory factor that can outweigh the aggravating circumstances that
occurred most notably of two people’s lives being wiped out". The jury agreed and
sentenced him to death.
In 2003, responding to Stephen Vrabel’s direct (mandatory) appeal, the Ohio Supreme
Court upheld the death sentence by a 4-3 vote, despite the majority acknowledging that
Stephen Vrabel had been "evaluated by various mental health professionals as suffering
from paranoid schizophrenia or a personality disorder with schizophrenic features". Chief
Justice Thomas Moyer, joined by two other Justices, wrote in dissent:
"I am persuaded by clear evidence in the record that [Stephen Vrabel] suffers
from a severe mental illness. On the record before us, I cannot conclude beyond a
reasonable doubt that Vrabel’s mental illness did not causally contribute to his
tragic criminal conduct, thereby reducing his moral culpability to a level
inconsistent with the imposition of the ultimate penalty of death. I do not believe
that [his] crime falls within the category of the most heinous of murders for which
the [Ohio] General Assembly has properly reserved the death penalty… [B]oth
the facts surrounding the murders and the bizarre reasoning employed by Vrabel
in explaining them are certainly consistent with the conclusion that Vrabel
suffered from a mental disease or defect at the time of his criminal course of
conduct".(195)
Stephen Vrabel did not pursue his appeals. Once an execution date was set in 2004, the
Ohio clemency board considered the case at a meeting on 25 June 2004. The board was
presented no petition for clemency. It noted that among the state’s arguments opposing
clemency was: "The senselessness of the crime – no explanation of it has been given".
(196) With execution, of course, any hope for an explanation was extinguished.
Particularly "aggravated" crimes
Only a tiny percentage of murders in the USA lead to a death sentence, and an even
smaller number end in execution. In order to qualify as capital crime in the first place a
murder has to have "aggravating" circumstances. It has been estimated that only around
10 to 15 per cent of murders in the USA are "death-eligible". Only around one per cent of
murders result in a death sentence, and fewer still end in execution. As Amnesty
International has illustrated elsewhere, this rate of attrition is not a sign of a system
reliably selecting the "worst of the worst", but a shameful lottery marked by arbitrariness,
discrimination and error.(197) Indeed, the system of using "aggravating" factors to select
which crimes will result in the death penalty may actually have an unfair impact on
defendants with mental illness. Some of the crimes which appear to have been the result
of mental illness are particularly bloody, brutal or frenzied. As with murders that appear
motiveless, those that are particularly stomach-wrenching are more likely to end in a
death sentence. Again, however, the brutality may be the result of a delusional or
tormented mind, not some coolly calculated "clean" killing of an assassin.
Larry Robison’s crime was just such an offence. He decapitated his friend Ricky Bryant,
and shot and slit the throats of four neighbours. Larry Robison later wrote about the

killings. Entitled The Making of a Schizophrenic, the 31-page document relates how he
had been called upon to liberate souls to ascend to a higher plane of existence. He
recounted his hallucination that Ricky Bryant had urged him on even as he worked to
sever his friend’s head from his body. Robison described how a digital clock in the
bathroom had flipped over to display a row of zeros and had then begun acting like a stop
clock. He wrote that he had interpreted this as a message that he had to liberate as many
souls as possible before the liberation of his own.
The prosecution presented an expert who stated that there was no evidence that Larry
Robison had ever suffered from mental illness, and argued that he was faking it. None of
the three doctors who had diagnosed Robison as suffering from paranoid schizophrenia
prior to the crimes of August 1982 testified at the trial. The prosecutor urged the jury to
reject Larry Robison’s insanity defence, suggesting that acceptance of such a plea means
that the defendant’s "conduct is excused under the law" and "he cannot be held
responsible". Given that a Texas jury cannot be told what is the consequence of a
successful insanity plea, such comments are likely to have played on juror fears of
releasing a dangerous offender back into the community. The prosecutor also argued to
the jury to recognize Larry Robison’s crime as one against which to "unleash" the
"outrage of society and the righteous indignation of our society". The jury agreed, and
their verdict was carried out in the Texas execution chamber on 21 January 2000.
James Bigby was sentenced to death in 1991 in Texas for a double murder despite one of
the most notoriously pro-prosecution psychiatrists in the country testifying that this
undoubtedly aggravated crime was the product of Bigby’s paranoid schizophrenia. James
Bigby was convicted of murdering Michael Trekell and his baby son in their home. The
former was shot in the head, and the latter was drowned in the sink. James Bigby gave
himself up and confessed to the killings. At his trial, Dr James Grigson, who appeared for
the prosecution in scores of death penalty cases in Texas (see Unethical, below), testified
that at the time of the murders, James Bigby was operating under the schizophreniainduced delusion that Michael Trekell was involved in a conspiracy against him. Dr
Grigson testified that "without the delusional state, without his schizophrenia, he would
not have killed that person. There was no reason for it". The baby boy was killed, Dr
Grigson said, as "part of an irrational act".(198)
The killing of a law enforcement official is a particularly aggravated crime, and in certain
jurisdictions it is a statutory aggravating factor making a crime eligible for the death
penalty. Yet some such crimes appear to have specifically been the product of paranoid
delusions in which the offender believes in the existence of a malevolent official
conspiracy. Two such cases involved Russell Weston and Thomas Provenzano. The
federal government has not ruled out seeking a death sentence against Weston if he is
found competent to stand trial. Provenzano was put to death by the Florida authorities in
2000.
According to the indictment, on 24 July 1998, Russell Weston walked into the US
Capitol building in Washington, DC, and shot dead two officers of the US Capitol Police
and wounded a third. Russell Weston has a long history of mental illness, including

paranoid schizophrenia.(199) For example, during the mid-1990’s he had developed the
notion that he was in possession of secret information that made him a target of the
government, and that rocking on the porch of his Montana cabin would make him a less
easy target to hit. In 1996, he initiated an interview at the CIA’s headquarters at Langley
in Virginia, in which he "frequently returned to systematized bizarre delusional themes
with paranoid and grandiose features". During the interview he told the CIA interviewer
that before birth everyone is "bombarded with a microwave" that "mutates the cells", that
had been cloned at birth, and that his father had been "hit by that interactive beam". He
asked the agent, "how do you get a job at the CIA anyway? I’ve worked as an operative
for the last 33 years" (Weston was 39 at the time). Three months later, after he showed
signs of becoming dangerous, he was involuntarily committed to a psychiatric facility
and given anti-psychotic medication, including forcibly. He was discharged after seven
weeks, but his illness deteriorated as he failed to take his medication or return to hospital.
In the week prior to 24 July 1998, he was said to be preoccupied with bizarre delusional
beliefs: "In the greenhouse of time and neglect, Weston’s illness worsened. His obsession
with Washington grew. The city was diseased by ‘Black Heva’. He was convinced that
the override console for his imaginary Ruby Satellite System was kept on the first floor
of the US Capitol."(200)
For seven years, the US Government has refused to rule out seeking the death penalty
against Russell Weston if he is found competent to stand trial. They have been allowed
by the courts to forcibly medicate him to render him competent to be tried.(201) At the
time of writing, he had not yet been found to be competent.
Thomas Provenzano was executed in Florida in June 2000 for killing a bailiff, Arnie
Wilkerson, in Orange County Courthouse, Orlando, in 1984. The shooting left two other
bailiffs paralyzed, one of whom died in 1991. Provenzano’s serious mental illness
predated his crime.(202) His clemency petition to Governor Jeb Bush in June 2000
contained the following observations:
"Thomas Provenzano is a 50-year-old man with a life-long history of mental
illness. By his early teens, Thomas’s family noticed that he became unusually
wary and suspicious of people. He grew increasingly anxious around others, even
being suspicious of friends and family. By 1980 he refused to eat or drink at
anyone’s home but his own. He began telling his family that the police and courts
were really trying to hurt people, particularly him. In August 1983, Thomas was
stopped by two Orlando police officers for a traffic violation, and an altercation
occurred resulting in charges for disorderly conduct. Thomas became obsessed
with the case against him, constantly checking the court file and monitoring the
whereabouts of the two officers. No matter what the outcome of his court hearing
would be, it would have had little impact on Thomas’s life. But he could not see it
that way. By then Thomas had developed a fixed delusion in which he was Jesus
Christ, and the police and courts were engaged in a conspiracy against him.
When his name was called on January 10, 1984, and a bailiff approached him,
Thomas believed this was it. He took out a gun and fired at sheriff’s deputies. In
the melee that followed Bailiff William Arnold Wilkerson was killed, and Officer
Mark Parker was left paralyzed. Thomas did not shoot at any civilians."

At his trial the defence and prosecution experts had all agreed that Thomas Provenzano
was mentally ill, and that his paranoid fears included the fixed delusional belief that he
was being persecuted by the legal system and that these fears had contributed to his
crime. However, the jury rejected his insanity defence and voted by the narrowest of
margins, 7-5, that he should be executed. On direct appeal, the then Chief Justice of the
Florida Supreme Court dissented against the death sentence, saying that he believed the
evidence was "overwhelming that Provenzano’s capacity to appreciate the criminality of
his conduct or to conform his conduct to the requirements of the law" had been
"substantially impaired".(203)
Violent crimes involving children, again, are particularly "aggravated". In some states,
the fact that the murder victim is a child will be the factor that makes the crime eligible
for the death penalty.
Durlyn Eddmonds was executed in Illinois in 1997 for the murder two decades earlier of
a nine-year-old boy who suffocated as his face was pushed into a pillow as he was being
raped. Durlyn Eddmonds had a history of mental illness. Four years before the crime, he
had spent three months in a psychiatric hospital. A number of doctors initially found him
incompetent to stand trial. Prior to his trial at least four doctors concluded that he suffered
from schizophrenia. As two of the three judges on a panel from the US Court of Appeals
for the Seventh Circuit reviewing the case pointed out in 1996, "even a cursory review of
Eddmonds’ file would have revealed long-standing, complex, and often severe mental
problems".(204) Yet despite this well-documented mental health history, his trial lawyer
conducted no investigation into the mental health evidence to present in mitigation
against the death sentence. Instead, the lawyer simply made a plea for mercy on the
grounds that Durlyn Eddmonds had not meant to kill the child. The trial judge chose
death, finding that Eddmonds represented a "continuing danger to society both inside and
outside the prison walls".
Yet even the two Seventh Circuit judges who believed that the trial lawyer had
"essentially abdicated his duty to make a reasonable inquiry of mitigating circumstances"
agreed that that the death sentence should stand. In so doing, the court was choosing
eradication rather than explanation, and perhaps allowing the inflammatory nature of the
crime to cloud its better judgment. The judges focussed on the crime, describing it as
"abominable", "almost unspeakable", and perhaps "what we simply call ‘evil’", and
characterizing the defendant as a "rampaging sexual predator who poses a danger both in
and outside of prison". They added that "we are certain counsel’s failure to throw a few
more tidbits from the past or one more diagnosis of mental illness onto the scale would
not have tipped it in Eddmonds’ favour".(205) Fifteen months later, on 19 November
1997, Durlyn Eddmonds was killed in Illinois’ death chamber.
Like Durlyn Eddmonds, Eugene Gall was convicted of the rape and murder of a child.
Like Durlyn Eddmonds, Gall suffers from serious mental illness, including paranoid
schizophrenia. In October 2000, the US Court of Appeals for the Sixth Circuit noted that
the murder of 12-year-old Lisa Jansen in April 1978 "engendered an understandably

outraged and angry public as well as a prosecution determined to convict". In such
situations, the federal court wrote, "it is a court’s duty to ensure that amid the tragedy,
anger and outrage over hideous acts perpetrated, a fair and constitutional trial took place".
It found that this had not occurred, concluding that "high publicity, Gall’s own actions,
trial court mistakes, overzealous prosecutorial tactics combined with inexcusable
oversights, and poor defense advocacy at various stages", denied Gall a fair trial. (206) It
had taken more than 20 years for a court to find this.
In upholding Eugene Gall’s death sentence in 1980, the Kentucky Supreme Court said
that "[w]hatever may be our personal viewpoints with regard to his mental condition, we
are not permitted to substitute them for what the jury found under substantial conflicting
evidence."(207) It then offered the opinion that: "It may be too much to ask of any set of
men or women to make a dispassionate assessment of a criminal defendant’s mental
condition, especially in the setting of a revolting offense he has committed."(208) This
will particularly be the case when the prosecution engages in inflammatory or prejudicial
arguments. At Eugene Gall’s trial, the prosecutor had suggested that the defendant might
be faking his mental illness and expressed his own personal beliefs about the credibility
of key expert witnesses. He urged the jury not to be "hoodwinked into the defense of
insanity", and warned that the jurors would "turn [Gall] loose on society" if they accepted
such a plea. The defendant, the prosecutor argued, should not be allowed to "escape the
ends of justice by retreating within the safety of his own skull".
The Sixth Circuit found that "because ours is a system of law, the arsenal available to a
prosecutor to achieve that legitimate goal is limited to arguments rooted in properly
introduced evidence and testimony rather than words and tactics designed to inflame
passions, air unsubstantiated prosecutorial beliefs, and downplay the legitimacy of a
legally recognized defense." The federal court found that the "overwhelming and
undisputed evidence" was that Gall had not been sane at the time of the crime, and that he
suffers from a permanent and severe mental illness. It reiterated that the heinousness of
the crime had driven the prosecution to "secure a conviction at the expense of Gall’s
constitutional rights" The court recalled a US judge’s warning from almost 200 years
earlier, that the "constitution was made for times of commotion".(209) Too often,
prosecutors have allowed their pursuit of a death sentence to erode the constitutional
rights of capital defendants.
Easy prey for unscrupulous police and prosecutors
With children and people with mental retardation since removed from the reach of the
death penalty, at least in law, mentally ill offenders remain among its most vulnerable
targets. Because of their mental impairments they have a diminished capacity compared
to less impaired individuals to defend themselves in the capital justice process. Any
prejudice or ignorance towards the mentally ill among law enforcement officials will
compound this problem.
Police
A mentally ill suspect facing capital charges may, like people with mental retardation, be
particularly susceptible to police coercion during interrogations. This may place them at

risk of making false confessions or confessions that less impaired individuals would be
less likely to give without seeking legal advice first. In addition, some mental
impairments can lead to "confabulation" whereby the individual makes up details, or
adopts those provided by others, in order to fill in gaps in memory. This can happen with
people who have brain damage, seizure disorders, post-traumatic stress disorder or
dissociative disorders.(210) A confession is a powerful piece of evidence for the state to
obtain. It may even open the door to the death chamber.(211)
James Colburn (see p.56 above) was arrested in June 1994 having told a fellow resident
in the trailer park where he lived to call the police because he had just killed a woman
and her body was in his home. On the same day, Colburn gave a videotaped statement to
police, confessing to having strangled and stabbed Peggy Murphy. He told police that he
suffered from schizophrenia, and during the confession there were indications that
Colburn was struggling with his mental illness. He rocked back and forth in the chair
when sitting and paced to and fro when standing. He lost control of his bladder, and had
to be provided with dry clothing. The interrogating officer noticed that James Colburn
was shaking uncontrollably. In his confession, Colburn said that he had seen Peggy
Murphy on the highway and had invited her into his apartment. He stated that he had
"this flash that he was going to hurt her". He said that he tried to have sex with her, but
that she did not want it, and he abandoned his attempt. He said that "this one impulse
came over me said to kill her... I couldn’t stop myself." After the murder he said that he
had considered leaving the area, but had instead decided to go to his neighbour’s home
and tell him to call the police. Despite his cooperation and his severe mental illness, the
state pursued and obtained a death sentence, and James Colburn was executed in March
2003.
On 14 February 2000, the police were called to a shooting in a rural home outside
Warrensburg in Johnson County in mid-western Missouri. The caller, Raymond Wood’s
mother, said that her son had told her that he had shot his family. She also told the police
that her son was mentally ill and was on medication. Raymond Wood was first admitted
to a psychiatric facility in 1985 and had been admitted on numerous occasions since. He
had been diagnosed with severe mental illness, including schizoaffective disorder. The
police went to the house and found that Tina Wood and her six young children (aged
from 18 months to 10 years) had been shot. The two youngest children were wounded,
but alive. The four other children, and their mother, were dead. Raymond Wood was
arrested at the scene.
On the evening of the same day, Raymond Wood was questioned at the police station by
two plainclothes police officers, one of whom was a close personal friend of Wood and a
lay minister at his church. He led the interrogation, adopting the style he used when
ministering to a member of his congregation. Raymond Wood explained that he had shot
his wife, and then, realizing that his children would suffer from the loss of their mother,
shot each child. He said that he then shot himself, and showed the officers abrasions and
gunpowder burns on his forehead. During his interview, Raymond Wood referred to the
"turmoil" he had been experiencing in the days leading to the shootings, and he talked of
the "snares" in his head and of "too many ensnaring thoughts". The interrogation was

terminated abruptly when Raymond Wood’s mental health took a turn for the worse. He
was placed on suicide watch and was placed in a restraint chair after he became
uncontrollable. He was subsequently taken to hospital in restraints, and was assessed as
suffering from a major psychosis, severe depression, and a major affective disturbance.
He was involuntarily committed to a state psychiatric facility.
In February 2003, Raymond Wood’s lawyer filed a motion in the trial court seeking to
suppress his confession, arguing that it had not been given voluntarily because he was
mentally ill and because the authorities had used coercive conduct in selecting an
interrogator who was a friend and minister to the prisoner. At a hearing, the
minister/officer testified that he had had concerns at the time of the interrogation that
Raymond Wood was out of touch with reality, and he described the defendant as being
"gravely disabled" at that time. Members of Raymond Wood’s family testified that he
had been exhibiting signs of his mental illness in the days before the shootings. For
example, he and his wife had gone to a mental health facility on 11 February 2000, at
which time he was described as suffering serious mental problems. Hospitalization was
recommended, but he and Tina Wood opted for him to return home and start the
prescribed medication, an antipsychotic and an antidepressant, at home. From 11 to 14
February, his condition continued to deteriorate, and he complained of hearing voices and
of being possessed by the devil.
A psychiatrist for the defence testified that she believed that Raymond Wood’s mental
illness meant that he could not have made a voluntary waiver of his rights (such as his
right to have a lawyer present or to remain silent). A psychiatrist for the state, while
concluding that Wood was able to knowingly make such a waiver, acknowledged the
evidence that the defendant was actively psychotic in the days immediately preceding the
shooting and at the time of the interrogation, and that on the morning of the shooting,
Wood would have qualified for involuntary commitment to a mental hospital.
Following the hearing, the judge found that the confession had been involuntary. She
found that the police had known at the time of the interrogation that Raymond Wood was
mentally ill and that he had a history of serious mental illness and had been previously
committed to psychiatric care. The authorities also knew that Wood was deeply religious
and would likely respond to his minister during the interrogation. The judge stated:
"Certain interrogation techniques…are so offensive to a civilized system of justice that
they must be condemned. Such interrogation techniques, applied to the unique
characteristics of the Defendant, exist in this case". The state appealed the trial judge’s
suppression of the confession, but the Missouri Court of Appeals upheld the decision in
March 2004.(212) It was not until July 2004 that the prosecutor agreed to drop pursuit of
the death penalty against him, following a national and international campaign urging her
to do so. Currently, Raymond Wood remains in psychiatric hospital.
Sometimes it may be a combination of youth and mental impairment that may render a
defendant vulnerable to coercive interrogation techniques. Todd Rettenberger was 18
years old when he was arrested in Salt Lake City in Utah in 1996, and questioned about a
murder. He was interrogated for about two hours and then put in solitary confinement,

without a pillow or blanket for about 22 hours, before being interrogated a second time.
During the interrogation, the police repeatedly lied to the teenager, telling him they had
evidence against him. They made at least three dozen false claims, "not merely ‘halftruths’ but complete fabrications" about evidence of Retternberger’s guilt.(213) They
used the "false friend" technique, whereby they pretended to be his friends and acting in
his best interest. They repeatedly indicated that a confession would lead to leniency,
including protecting him from execution. He admitted his involvement in the crime.
Todd Rettenberger’s defence lawyer argued that the confession – which "contained little
information that was not first suggested or provided by the interrogating officers"(214) –
should be ruled inadmissible because it had made under coercive circumstances. At a
hearing, an expert testified that Rettenberger suffered from Attention Deficit Disorder, a
below average IQ, and displayed symptoms of depression, anxiety disorder, thought
disorder and schizophrenia. One of the police officers also testified, agreeing that the
defendant had displayed such impairments and that he had been afraid of the death
penalty. Nevertheless, the trial court ruled that the interrogation had not been "objectively
coercive" and denied the defence motion. The decision was appealed to the Utah
Supreme Court, which overruled the lower court.(215)
While such cases illustrate the vulnerability of people with mental illness to state
misconduct, the case of Ronald Williamson illustrates the potential consequences. He
was sent to Oklahoma’s death row in 1988 for a murder he did not commit. He had a
documented history of mental illness, including possible schizophrenia and bipolar
disorder, going back to 1979. Yet despite this, and despite the fact that Williamson had
been found incompetent to stand trial in the same court in an unrelated case under three
years earlier, no competency determination was ever made. Despite Williamson’s
disturbed behaviour during a preliminary hearing in 1988 being such that it led his lawyer
to ask the judge "do you want me to load him down with about a hundred milligrams of
[medication]", the attorney never sought a competency hearing. Neither did the lawyer
challenge a "confession" Williamson gave to police describing a dream in which he had
committed the murder.(216) Williamson was released in 1999 after DNA evidence
exonerated him. He had come within five days of execution in 1994.(217)
Prosecutors
The US Supreme Court has stressed that the death penalty "is a different kind of
punishment from any other which may be imposed in this country", and that "[i]t is of
vital importance to the defendant and the community that any decision to impose the
death sentence be, and appear to be, based on reason rather than caprice or
emotion".(218) However, as already noted, there has been a willingness among some
prosecutors in the USA to engage in highly questionable tactics in order to secure death
sentences, including playing on the ignorance, fears and prejudices of jurors being asked
to pass death sentences on defendants with mental impairments. Appeal courts have
frequently failed to offer a remedy for serious misconduct they describe as "harmless".
Arguing for Stanley Hall’s execution at his 1996 trial in Missouri, for example, the
prosecutor related a story to the jurors of how, when he was a child, he had had his dog
put down, and that is what they should decide should happen to the defendant:

"When I was a young boy, I had a puppy and his name was Beauregard. He was
about this long. Beauregard came from an animal shelter and he was a wonderful
animal. He would follow you everywhere. He would stay on a little leash. He
would come and he would wag his tail when you got home, pant and jump on you,
and I found out Beauregard had distemper… And the veterinarian said… the right
thing to do is have him put to sleep. And as a young child, I was – it was a
tremendous decision. But there was only one right thing to do. You are faced with
a tremendous decision but there is only one right thing to do and that man
(Stanley Hall), this crime deserves the death penalty."
The Missouri Supreme Court called the prosecutor’s argument a "shameless ploy". (219)
The US Court of Appeals for the Eighth Circuit called his remarks "irrelevant,
unnecessary, and improper".(220) Nevertheless, they upheld the death sentence.
Governor Matt Blunt denied clemency, despite compelling evidence that Stanley Hall had
mental retardation, and that his execution would violate the Atkins v. Virginia ruling.
Stanley Hall was executed on 16 March 2005. His co-defendant, alleged to be a driving
force in the crime for which Hall was killed, was never charged.(221)
On other occasions, prosecutors have suggested that the mental impairment renders the
defendant more dangerous, and therefore more "deserving" of execution. This was true in
regard to the issue of mental retardation also.(222)
Percy Walton is on death row in Virginia. He has been diagnosed by numerous mental
health experts as suffering from serious mental illness, including schizophrenia. His
conduct in pre-trial detention was bizarre, and in the days before he entered a guilty plea
he insisted that he would return to earth after his execution and bring the victims back
with him. At his sentencing trial in Virginia in 1997, Percy Walton’s conduct was
extremely prejudicial. He repeatedly burst out laughing and smiled inappropriately. For
example, he laughed out loud during the testimony of the granddaughter of two of the
murder victims. The prosecutor argued that Walton’s outbursts were a sign of lack of
remorse, stating that "Percy Walton’s demeanour at the penalty phase of the trial,
particularly on Wednesday when he repeatedly smiled while some of the saddest
testimony was being presented, clearly reveals that he is a sadistic, ruthless and coldblooded murderer who has no conscience, no remorse and no right to live in a civilized
society". The sentencing judge agreed, finding one of the aggravating factors warranting
the death penalty was that Percy Walton posed a future danger to society.
The prosecution presented testimony from a known jailhouse "snitch" [informer] that
Percy Walton had said that he was going to "play crazy". The informant went to the
prosecutor six weeks after the statement was allegedly made and only after the courtappointed psychologist had told the court that Percy Walton’s mental health was
deteriorating and recommending that he be placed in a secure psychiatric facility. This
was not the first time that this particular prosecutor had presented a witness who claimed
that the defendant had said that he was going to "play crazy". The earlier case – tried in
front of the same judge with the same defence lawyer and same prosecutor – involved
Calvin Swann, a man with a history of serious mental illness. The prosecutor presented a

neighbour of Calvin Swann who testified that the latter had said that he was going to
"play crazy". Swann was sentenced to death.
In Oklahoma, Cyril Ellis was sent to death row for the murder of three people during a
shooting spree. Prior to the crime, he had been admitted to a state psychiatric hospital for
a court-ordered assessment of his competency to stand trial and of his mental condition at
the time of the crime. He was diagnosed as suffering from chronic paranoid
schizophrenia. The psychiatric report stated that while Ellis’s mental illness was currently
in remission and he was competent to stand trial, there was evidence that he had been
"completely depersonalized" at the time of the shootings. Ellis had said that he had been
hearing voices and felt that "his body was frozen by the demons and spirits trying to take
over his body and his spirit".
His plea at the trial was one of not guilty by reason of insanity. However, the trial judge
did not allow the pre-trial psychiatric report to be admitted into evidence. In its closing
arguments, the prosecution urged the jury to reject the insanity defence, stressing the lack
of supporting evidence from mental health professionals. Indeed, the prosecution mocked
the defence and argued that Cyril Ellis was faking insanity. For example:


"This insanity defence that Mr Ellis has brought to you is what I refer to as
instant insanity. It’s like instant mashed potatoes."
 "Again, instant insanity, insanity to his liking, insanity to justify these acts.
That’s what he is doing, folks: . . . He’s a con."
 "Then the voice leaves him, and I guess he runs around the back of the
house to see what is happening. Then the voice comes back again, and he
runs over and he shoots Teresa three or four more times. The voice leaves.
Then he sees Tameca; and the voice comes back, and he shoots Tameca.
That’s the way his insanity is working, folks."
Cyril Ellis was sentenced to death for the two murders and to prison terms of 3,000 years,
2,000 years and 1,000 years for the other shootings. Ellis remained on death row for 15
years until a federal court overturned his conviction and sentence on the grounds that the
psychiatric report should have been admitted.(223)
Poor witnesses on their own behalf
David Kevin Hocker’s murder trial in Alabama started and finished on the same day, 22
August 2000. Proceedings began at 9 o’clock in the morning and were completed before
5pm. The defence called no witnesses at either stage of the trial. Hocker had refused to
allow his lawyer to present any mitigating evidence. The jury therefore never heard about
Kevin Hocker’s history of bipolar disorder or his abusive childhood. Nor did the jurors
hear that his father, who also suffered from bipolar disorder (this illness can run in
families), committed suicide when Kevin Hocker was eight years old. The father had
been abusive to the children – Kevin Hocker’s sister is reported to have been treated for
post-traumatic stress disorder sustained as a result of the abuse. Kevin Hocker was first
diagnosed with bipolar disorder as a teenager. His mother tried to get him help for his
mental illness, but he would deny that he was ill. Instead, he took to self-medicating. His

mother has said: "Had I been real well-heeled, I could have accomplished more, so I just
feel like a failure". She recalled: "His mental illness, … that messed him up. But selfmedicating that illness with street drugs is what destroyed him". Kevin Hocker was again
diagnosed with bipolar disorder by a prison doctor when incarcerated in the 1990s, but he
stopped taking his medication because he said that it was not helping. His sister has said
that he told her that he committed the crime in order to get the death penalty. The jury
voted for death. On death row, he engaged in acts of self-mutilation. He was found
unconscious in his cell one day, having removed one of his testicles with a razor blade. A
few months later, he removed the other. He refused to appeal his death sentence, and was
executed on 30 September 2004.(224)
In 1978, the US Supreme Court ruled that the sentencing authority in a capital case,
whether judge or jury, must "not be precluded from considering, as a mitigating factor,
any aspect of a defendant’s character or record and any of the circumstances of the
offense that the defendant proffers as a basis for a sentence of less than death".(225) A
defendant with all their mental faculties intact is likely to be able to assist in their defence
in this regard far better than a mentally impaired individual. The more serious the mental
impairment, the more serious will be the barriers to preparing a full mitigation case. A
capital mitigation specialist has written of the difficulties of defending mentally impaired
and emotionally scarred clients from the death penalty:
"Because of cognitive and other impairments and negative past experiences in the
legal system, it is unlikely that the client will have immediate trust for the
members of the defense team. In many instances, the client’s disabilities have
been exploited and s/he has been deceived and manipulated by individuals s/he
trusted to help her/him…. Many clients have experienced brain trauma through
abuse, illness, accidents, or exposure to toxic substances, rendering them unable
to process, retain and apply information. Many clients also suffer from
psychiatric diseases, such as bi-polar disorder (manic-depression), schizophrenia
and clinical depression, which so distort their perception of reality that they are
unable to understand or comply with requests for information."(226)
It is, at best, an uphill task for a lawyer to represent a capital client, whether at trial or in
post-conviction proceedings, if that client believes that the lawyer is part of a conspiracy
against him or her. In 2002 Amnesty International was told by Andre Rosemond’s
lawyers that this seriously mentally ill inmate in South Carolina was convinced that his
lawyers were conspiring against him and was writing letters daily to the judge about the
conspiracy. During a post-conviction hearing, he sent the judge a letter saying that he
wanted his lawyers arrested. In the case of Mar-reece Hughes, also on death row in South
Carolina, Amnesty International has been told that his cooperation with his postconviction lawyers and whether he wishes to continue to challenge conviction and death
sentence depends on the severity of his schizophrenia at any one time. Yet his
cooperation is crucial: there is evidence that he may not have been the gunman in the
crime – the shooting of a police officer. Mar-reece Hughes was forcibly medicated in
order to be made competent to stand trial, something to which his inexperienced trial
lawyers did not object (see Drugged Defendants, below).

At jury selection for a hearing in Texas in 1993 to determine Kelsey Patterson’s
competency to stand trial, Patterson suddenly stood up and said: "I have an implant in
me. I heard you in Dallas County in ’86. As you how much you are going to invest. You
said one percent". He was removed from the courtroom, as he would repeatedly be
through this hearing and the subsequent trial. Patterson, who had been diagnosed as
suffering from paranoid schizophrenia, refused to take advice from his trial lawyers,
whom he accused of being part of the conspiracy against him.
At one stage in the competency hearing, the following interchange took place between
him and his lawyer after he took the witness stand (against the advice of his legal
counsel):
Patterson: Purposely you have been part of it, then you come in here and play
crazy with me, just as straight faced as ever.
Lawyer: What kinds of things have I done to you?
Patterson: You have talked on the speaker system. Even nasty in my food. I have
put a spoon of mashed potatoes in my mouth and had to spit them out, after he
said that he did something to the food.
And in a subsequent exchange, Patterson accused the trial lawyer of having control of the
"devices" that had been implanted in him:
Patterson: They have some type of implant devices that they used on me in the
military, which I receive. Like the device that they put in the inner ear in which
they can send subliminal message and make a person act beyond their
controllability to know you have taken an action.
Lawyer: Kelsey, do you believe those implants are still in your body?
Patterson: I know for a fact. Y’all play with it all of the time.
He was sentenced to death. On death row, he refused to cooperate with his appeal
lawyers or mental health professionals, still believing they were part of the conspiracy.
Kelsey Patterson was executed on 18 May 2004. His appeal lawyer fought long and hard
to keep him from being killed. The only "conspiracy" – apart from an alliance of state
officials failing to see that they were involved in an indecent execution – was inside
Kelsey Patterson’s delusional mind.(227)
A defendant or inmate may seek to downplay his or her mental illness, either due to the
stigma attached to mental illness or because he or she is actually seeking a death sentence
in order to escape their suffering. At an October 2003 hearing to determine Indiana death
row inmate Joseph Corcoran’s competency to drop his appeals, three mental health
experts testified that Corcoran suffers from paranoid schizophrenia, the symptoms of
which included a delusion that the prison guards are torturing him via an ultrasound
machine that causes him pain and his body to twitch and move uncontrollably. One of the
experts, a forensic psychiatrist, testified:

"[Joseph Corcoran] does his best to minimize the severity of his symptoms, to
downplay that he might have any mental disorder. This has been a consistent
theme throughout this process… [H]e has a real desire to appear bad rather than
mad. So, he wants to be – it is better for him psychologically to appear that he is
criminally responsible, than to admit that he has a serious mental illness that may
have contributed to his behaviour in the past. It speaks to how powerful the
stigma is against serious mental illness, that he would rather be executed than
admit that schizophrenia might be contributing to his desire to die".(228)
Representing José Amaya Ruiz, an illegal immigrant from El Salvador accused of a
double murder in Arizona, posed a huge challenge. His trial lawyer was unable to
investigate Amaya Ruiz’s life experiences in El Salvador or to determine the extent of his
exposure to the war and political violence there before he came to the USA in 1984.
Scars of bullet wounds on his body remained unexplained, for example. Two of his
brothers were killed in the violence, and he recalled burying dead bodies in his village
with his hands because he had no spade. However, his mental impairments made him a
poor reporter of his life story, and an under-resourced defence lawyer was severely
hampered in what she could discover for mitigation purposes. She recalled to Amnesty
International in June 2005 that it had been "essentially impossible to obtain any
mitigating evidence for José because he would not cooperate in providing information for
family members or friends who might have been able to provide additional information
as to his background. I believe his refusal to provide this information was a direct result
of his mental health issues and his lack of understanding of the criminal justice system".
The trial lawyer had informed the court during pre-trial and trial proceedings that her
client was not cooperating with her and that he did not understand the proceedings. The
court had found José Amaya Ruiz competent to stand trial. However, after each day of
the trial, the defendant asked the lawyer whether the trial was over. At one point, he had
asked her if it was the spectators in the court or the jury that would make the decision on
his case. Prior to the trial a psychologist appointed by the court to evaluate Amaya Ruiz’s
competency, had acknowledged that the defendant "had difficulty grappling with the
concept of a jury". The defence lawyer told the judge that Amaya Ruiz did not appear to
understand what the role of the prosecutor was or what it meant to testify. She also
relayed instances of "irrational behaviour" that suggested mental health problems, such as
an attempt by Amaya Ruiz to commit suicide in his jail cell, and his speaking out in a
loud voice at inappropriate moments during proceedings.
Amaya Ruiz was convicted. His lawyer again raised the question of his competency
during the sentencing proceedings, during which he was removed after objecting to being
shackled. After he was returned to the courtroom, the defence lawyer noted that her
Hispanic client was upset and not listening to the proceedings through the interpreter. The
judge admitted that he did "not know either whether or not he is competent", but did not
order an additional evaluation. The judge was not given information later revealed in the
defendant’s medical records, that the jail authorities were prescribing him anti-psychotic
medication, that Amaya Ruiz had displayed irrational behaviour at the jail, such as
banging his head on the cell door, and had made another apparent suicide attempt.

Without any further evaluation, José Amaya Ruiz was sentenced to death. The trial
lawyer recalled to Amnesty International in June 2005 that "at the time of the sentencing,
I believe he thought he would be executed that day in the courtroom".
The state had maintained throughout the proceedings that José Amaya Ruiz was not
mentally impaired. He remained on death row for nearly two decades. He came within
days of execution in January 2001. By then he had been diagnosed with bipolar disorder
and paranoid schizophrenia. He was treated with anti-psychotic medication for more than
a decade, although he sometimes refused treatment, either because he believed he was not
ill or that the drugs were poison. In 2000, he was taken to a secure psychiatric facility
after a prison doctor concluded that he was incompetent to be executed under Ford v.
Wainwright. He was restored to competency after treatment and given an execution date.
A federal judge stopped the execution. In 2004, José Amaya Ruiz was ruled to have
mental retardation and to be exempt from the death penalty under Atkins v. Virginia. His
trial lawyer reflected to Amnesty International: "It is interesting that after all of the
doctors’ evaluations and volumes of evidence that José was seriously mentally ill, the
ultimate result was that the death penalty was dismissed because he was determined to be
mentally retarded."
A death row inmate who has mental illness but not mental retardation may still be
executed. Monty Delk’s lawyer told Amnesty International in 2002 that he had had no
rational communication with his client in the whole six years that he had represented him
on appeal. For example, when the lawyer visited him on death row in December 2001,
Monty Delk did not acknowledge his presence, or provide him any useful information.
He apparently continued to believe that he was in the military and that he was in control
of a large and powerful organization. Monty Delk, repeatedly diagnosed as suffering
from serious mental illness, was executed in Texas in February 2002, shouting gibberish
as he was killed.
Especially vulnerable to inadequate defence representation
William Jones was executed in Missouri on 20 November 2002. At his trial, he had been
represented by lawyers who had no experience in capital cases. They failed to arrange for
a mental health evaluation, and did not investigate or present evidence from hospital
records which would have indicated that he had suffered a serious brain injury several
months before the crime took place. A neurologist who examined William Jones during
appeal proceedings, concluded that his behaviour at the time of the crime may have been
affected by the injury. The US Court of Appeals for the Eighth Circuit upheld the death
sentence in 2001 despite finding that "Counsel at least should have investigated [Jones’]
hospital records and had them evaluated by an expert".(229)
One of the defining aspects of the death penalty in the USA since 1977 has been the
frequent inadequate legal representation afforded to indigent capital defendants. In case
after case, people have been sentenced to death by juries who were left unaware of the
real story of the person they were condemning to the execution chamber. In many cases,
appeal courts have overturned the death sentences because of such failures. In many
cases, they have not and the condemned prisoner has been put to death (see also Death

wish 1, below).
While defendants suffering from serious mental illness pose particular and substantial
challenges even to experienced trial lawyers who are willing to put the maximum effort
in to defending his or her client from the death penalty, such a defendant is particularly
vulnerable to a lawyer who does not have the motivation, experience or resources to put
in a defence to the state’s pursuit of an execution. In some cases, a lawyer may not even
recognize that there is a mental health issue in the case, especially if the defendant
attempts to hide his or her illness or other impairment. There may also be significant
problems in the cases of clients who have less well-documented mental health problems,
such as serious brain damage or post-traumatic stress disorder.
The case of Gerardo Valdez in Oklahoma illustrates that thorough legal representation
can make the difference between life and death. Gerardo Valdez, a Mexican national,
confessed to police, having clearly misunderstood his rights. He was represented at trial
by a lawyer who had never handled a capital case before. Valdez was sentenced to death
in 1990. He was due to be executed on 19 June 2001. The Oklahoma Pardon and Parole
Board voted by three votes to one to recommend that Governor Frank Keating commute
the death sentence. The Board had been presented with newly-discovered evidence
concerning Valdez’s background and medical history, including that he sustained brain
damage as the result of a serious head injury during his youth. The Board had also
received a letter from the Mexican government expressing its grave concerns over the
Oklahoma authorities’ failure to notify Valdez of his right to consular assistance after
arrest and stressing that this had contributed to his right to adequate representation. It was
only with the post-conviction assistance of the Mexican authorities that the mental health
evidence was revealed. However, with his appeals exhausted, Valdez’s fate was left with
the executive clemency authorities.
Governor Keating initially granted a 30-day reprieve, following a personal telephone
appeal from the President of Mexico. However, the Governor rejected the Board’s
recommendation and a new date of 30 August 2001 was set. It was only after this that the
Oklahoma Court of Criminal Appeals stepped in and issued an indefinite stay. In 2002,
the Court overturned the death sentence, finding that Valdez’s trial lawyer "did not have
the financial resources available to properly investigate" mitigating evidence. It added:
"This Court cannot have confidence in the jury’s sentencing determination…where the
jury was not presented with very significant and important evidence bearing upon
[Valdez’s] mental status and psyche at the time of the crime."(230) In November 2003,
Gerardo Valdez was sentenced to life imprisonment. Many others have gone to their
deaths – clemency rejected and no last-minute judicial reprieves – despite the fact that the
jury which sent them to death row had not been presented with significant and important
mental health evidence.
Fellow Mexican national Javier Suárez Medina was executed in Texas on 14 August
2002 for the murder of an undercover police officer. He, too, had been denied his
consular rights after arrest. He never denied shooting the officer, but always maintained
that he fired out of fear when he heard what he thought were gunshots. With the post-

conviction assistance of the Mexican government, Javier Suárez’s appeal lawyers
uncovered compelling mitigating evidence not heard by the jury which sentenced him to
death. This included new evidence that he was suffering from post-traumatic stress
disorder (PTSD) as a result of traumatic events and abuse during his childhood and
adolescence (he was 19 years old at the time of the crime). In his late teens he had
witnessed at close quarters the drive-by shooting of an acquaintance at a party. An expert
concluded that Suárez’s mental impairments had affected his behaviour at the time of the
crime. He concluded that Javier Suárez’s description of the shooting was "consistent with
an exaggerated acoustic startle response, one of the classic symptoms" of PTSD. The
Texas Board of Pardons and Parole rejected clemency, Governor George W. Bush
refused to intervene, and no court stepped in at the last minute as had occurred in
Oklahoma in the Gerardo Valdez case.
Dwayne Allen Wright was executed in Virginia on 14 October 1998 for a crime
committed when he was 17 years old. He had grown up in a deprived neighbourhood of
Washington, DC, rife with criminal drugs activity, where he witnessed habitual gun
violence and murder. He lost his father to incarceration in prison, his mentally ill mother
was unemployed for long periods and, when he was 10 years old, his half-brother, with
whom he was very close, was murdered. Dwayne Wright developed serious emotional
problems. As a teenager, he was treated for "major depression with psychotic episodes",
and doctors found signs of organic brain damage. At the sentencing phase of his trial for
the murder of Saba Tekle, the defence lawyer accepted the court’s nomination of a
clinical psychologist to present evidence in mitigation. On cross-examination, the lawyer
discovered for the first time that this expert, Stanton Samenow, was the author of a study
in which he concluded that mental illness and environment are not responsible for people
committing crimes, but that criminals act because they develop an ability to "get away
with" their crimes and "live rather well" as a result.(231) In 1998, the US Court of
Appeals for the Fourth Circuit acknowledged that the psychologist’s testimony had "dealt
quite a blow to Wright’s mitigation defense", but upheld the death sentence.(232) Shortly
before his execution, Dwayne Wright’s appeal lawyers obtained affidavits from two of
the jurors from the 1991 trial who said that they would not have voted for death if they
had known the full extent of his mental impairment.
Drugged defendants
Kevin Hughes was removed from death row in Pennsylvania in 2005 not because of his
mental illness – he has been diagnosed with paranoid schizophrenia – but because he was
16 years old at the time of the crime. Even without the Roper v. Simmons ruling in March
2005, he should have been taken off death row. At the time of his arrest in January 1980
for the murder of nine-year-old Rochelle Graham, there were signs that Kevin Hughes
was suffering from mental health problems, when he told police that "voices" had driven
him to murder the girl. He was found competent to stand trial. One doctor had found
signs of schizophrenia, but believed that it was under control as a result of the antipsychotic drug Thorazine. Another psychiatrist believed, however, that Kevin Hughes
was not competent to stand trial as he was suffering from a delusional belief that "all he
has to do is to tell his story to the judge and he will be sent home". The judge ruled that
the trial could proceed, but ordered, at the prosecutor’s request, that Kevin Hughes be

kept on Thorazine throughout the proceedings.
The prosecutor argued to the jurors that they would have to "go beyond being human" to
"show him mercy". Arguing for the jury to hand down a death sentence, the prosecutor
suggested that the defendant’s demeanour during the proceedings had showed a
remorseless individual. Studies have shown that a perceived lack of remorse can be a
highly aggravating factor in the minds of US capital jurors.(233) The prosecutor pointed
out that Kevin Hughes had been calm and taken notes during the proceedings. His appeal
attorneys would later argue that this "calmness" was the result of the Thorazine he was
being given and that the "notes" he was making were childish scribblings. In a postconviction affidavit, Kevin Hughes’s aunt said that "the drugs they gave Kevin for the
trial made him quiet and less moody, but he was even less able to understand… It was
like having a trial with a three-year-old child. We could not understand how they could
try someone so out of touch." The jury duly sentenced Kevin Hughes to death, having not
heard anything about his abusive childhood from which he was just emerging, or his or
his family’s mental illness. Post-conviction affidavits revealed that his mother had been
diagnosed with schizophrenia and gave details of Kevin Hughes’s own history of mental
health problems.
Many capital defendants with mental illness have been prescribed medication during their
trial proceedings. Indeed, some may have been declared incompetent to stand trial unless
or until medication restored them to competency. Medication can have a prejudicial
impact on the demeanour of the defendant. US Supreme Court Justice Anthony Kennedy
noted this in 1992:
"It is a fundamental assumption of the adversary system that the trier of fact
observe the accused throughout the trial, while the accused is either on the stand
or sitting at the defense table… At all stages of the proceedings, the defendant’s
behaviour, manner, facial expressions, and emotional responses, or their absence,
combine to make an overall impression on the trier of fact, an impression that can
have a powerful influence on the outcome of the trial…
The side-effects of anti-psychotic drugs may alter demeanor in a way that will
prejudice all facets of the defense… The defendant may be restless and unable to
sit still. The drugs can induce a condition called Parkinsonism, which, like
Parkinson’s disease, is characterized by tremor of the limbs, diminished range of
facial expression, or slowed movement and speech. Some of the side effects are
more subtle. Anti-psychotic drugs such as Mellaril can have a ‘sedation-like
effect’ that, in severe cases, may affect thought processes…
As any trial attorney will attest, serious prejudice could result if medication
inhibits the defendant’s capacity to react and respond to the proceedings and to
demonstrate remorse or compassion. The prejudice can be acute during the
sentencing phase of the proceedings, when the sentencer must attempt to know the
heart and mind of the offender and judge his character, his contrition or its
absence, and his future dangerousness. In a capital sentencing proceeding,

assessments of character and remorse may carry great weight and, perhaps, be
determinative of whether the offender lives or dies."(234)
James Colburn, a diagnosed paranoid schizophrenic, was executed in Texas on 26 March
2003. During his 1995 trial, he received injections of Haldol for his mental illness. Haldol
is an anti-psychotic drug which can have a powerful sedative effect. A lay observer at the
trial, a nurse with experience of mentally ill patients, stated in an affidavit that Colburn
appeared to fall asleep on frequent occasions during the proceedings.(235) In her opinion,
his "lethargic state prevented him from participating in his defence or even paying
attention to his own murder trial".
In post-conviction affidavits, James Colburn’s trial lawyers stated that they believed that
their client had been competent to stand trial. However, they acknowledged that their
client had "dozed occasionally during the trial. On one occasion, Mr Colburn commenced
snoring loudly and we requested a recess to permit him to wake up". The trial record
contains the following on that particular incident:
Defence lawyer 1: Judge, I don’t think that it matters, but I think I need a break to
walk my client around the room a little bit. He’s snoring kind of loud.
Defence lawyer 2: They apparently injected him last night to calm him down and I
appreciate it. But he’s sleeping right now.
Defence lawyer 1: I don’t know if it’s going to matter too much, but I think it
would be better if we had a minute to walk him around to wake him up.
Before the trial, a psychologist had been appointed by the court to evaluate whether
James Colburn was sane at the time of the murder, and whether he was competent to
stand trial. The psychologist concluded that he was both sane and competent. However,
his examination of Colburn was conducted 10 months before the trial. In a postconviction affidavit, the psychologist said that having learned of the Haldol injections
and the apparent sedative effect they had on James Colburn, "it is my opinion that during
the trial itself, as opposed to the date on which I examined him...it is not reasonably
probable that... Mr Colburn was legally competent to stand trial". He further suggested
that proceedings should have been suspended to "adjust Mr Colburn’s medication so that
he was oriented and aware".
A psychiatrist who conducted an assessment of James Colburn in 1997, and reviewed the
records in the case, concluded that there were "serious questions and concerns regarding
[Colburn’s] competency to stand trial at that time", and that Colburn had been "seriously
sedated during the time of his trial".
As already noted, studies have shown that a perceived lack of remorse can be a highly
aggravating factor in the minds of capital jurors, as is perceived future dangerousness
which may be adduced from such demeanour.(236) If the defendant’s demeanour is
indeed the result of medication taken to treat mental illness, the defendant not only
suffers the possible prejudice of this misperception, but the drug also may quell the more
extreme symptoms of the mental illness, causing the jurors not to give so much weight to

it in mitigation. In pre-trial detention four months before his capital murder trial in
Virginia in 1997, Bobby Swisher was prescribed medication for his depression. However,
the medication was not begun until two days before the trial. His lawyers, who did not
ask for a postponement of proceedings or a competency hearing, decided not to put him
on as a witness because the drugs were having such a sedative effect. In post-conviction
affidavits, two jurors said that Bobby Swisher had presented like a "zombie" at the trial,
and that "he showed no remorse". Bobby Swisher was executed on 22 July 2003.
In some cases, the individual facing capital charges may be forcibly medicated. The US
Supreme Court looked at this issue in 1992, when it ruled that David Riggins, a mentally
ill death row inmate in Nevada, had been denied due process when he was forcibly
medicated with anti-psychotic drugs during his 1988 capital trial. Its ruling was specific
to the circumstances in which this had been done, however. Because the Nevada courts
"failed to make findings sufficient to support forced administration of the drug", the
Supreme Court found in favour of Riggins. It stated that "Nevada certainly would have
satisfied due process if the prosecution had demonstrated, and the District Court had
found, that treatment with antipsychotic medication was medically appropriate and,
considering less intrusive methods, essential for the sake of Riggins’ own safety or the
safety of others". (237)
The US Supreme Court further held that the Nevada trial court’s error in not conducting a
sufficient inquiry before ordering the forced medication left a "strong possibility" that the
defendant’s fair trial rights had been "impaired". "It is clearly possible", the Court wrote,
that the side effects of the drugs he was given – which could include a sedative or
confusing effect in the patient – "had an impact upon not just Riggins’ outward
appearance, but also the content of his testimony on direct or cross-examination, his
ability to follow the proceedings, or the substance of his communication with counsel".
Seven years after the Riggins v. Nevada ruling, the US Supreme Court halted the
execution in Louisiana of Feltus Taylor 30 minutes before it was due to be carried out on
9 September 1999. The Court was responding to an appeal based on the claim that:
"the State of Louisiana misadministered powerful psychotropic medication to Taylor
during his capital trial without notice to either counsel. The failure to administer
properly the medication had an extremely damaging effect on Taylor’s demeanor during
trial and on his ability to convey appropriately his expressions of remorse to the jury.
Even more significantly, this conduct by officials of the state contributed to a dramatic
outburst by Taylor during the penalty phase of the trial when he overturned the defense
counsel table in the presence of the twelve jurors who would soon decide whether to
sentence him to life imprisonment or give him the death penalty".(238)
Feltus Taylor’s trial was held in January 1992. In pre-trial detention he was prescribed
anti-psychotic medication for sleeplessness and anxiety. By the time of his federal
appeals, most of his medical records from his pre-trial custody period had been
destroyed. Some records did remain, however, and his appeals lawyers argued, supported
by an affidavit from a psychiatrist, that his fair trial rights had been violated through the
use of medication, the dosage of which had allegedly been doubled two weeks before the

trial. The alteration or misadministration of the drugs, they argued, citing Riggins v.
Nevada, had caused Feltus Taylor to have a flat affect and caused his violent outburst the
day before this African American man was sentenced to death by an all-white jury.
Having stayed his execution, the US Supreme Court dismissed the appeal without
comment and Feltus Taylor was executed in June 2000.
Given the rate of wrongful conviction in capital cases in the USA – more than 120 people
have been released from death rows in the country since 1973 on the grounds of
innocence – the possible impact of powerful medication on defendants should not be
overlooked in this regard. The case of Ernest Willis provides food for thought. He was
sentenced to death in Texas in 1987 for an arson murder committed the year before. The
state had only a weak circumstantial case. Ernest Willis had been on death row for years
before his appeal lawyers uncovered evidence that he had been put on high dosages of
anti-psychotic medication during the trial – not for mental illness, but for back pain. The
dosages of Haldol and Perphenazine were higher even than for someone suffering from
severe psychosis.
At the trial, the prosecutor had used the defendant’s drugged-induced flat emotionless
demeanour to urge the jury to pass a death sentence. He called Ernest Willis "an animal",
a "satanic demon", referring to his "deadpan, insensitive, expressionless face" and "cold
fish eyes" – "those weird eyes" that would "pop open like in some science-fiction horror
film".(239) In June 2000, a trial-level judge found that Willis had been denied adequate
legal representation, that the prosecution had withheld favourable evidence (a psychiatric
evaluation that it had requested which had found that Willis did not pose a future danger),
and moreover that Willis had "sat through his entire trial under the debilitating influence
of significant doses of two anti-psychotic medications that were administered to him by
the state…without any medical basis or justification". The judge recommended that the
Texas Court of Criminal Appeals order a new trial. Six months later, the Court refused to
do so, rejecting all the claims. However, in 2004 a federal District Judge overturned
Ernest Willis’ conviction, finding that the prosecution had withheld exculpatory
evidence, the defence representation had been inadequate, that the fire may well not have
been caused by arson, and that the state had administered medically inappropriate
medication.(240) The county District Attorney (not the same official who prosecuted
Willis) dismissed all charges after examining the case, saying that Willis "simply did not
do the crime... I’m sorry this man was on death row for so long and that there were so
many lost years."(241) Ernest Willis was released on 6 October 2004.
Racial, cross-cultural and cumulative aspects in a broken system
Before he was arrested for murder in Danville, Virginia, Calvin Swann had been
involuntarily committed at least 16 times to mental hospital. State employees had
diagnosed him as suffering from schizophrenia more than 20 times prior to the crime, and
had treated him with at least eight different powerful anti-psychotic drugs. There was a
history of mental illness in his family. At the time of the crime, he was receiving social
security benefits for his mental disability, and his family reported that he was "more ill
than ever".

Dr Mark Mills, a psychiatrist who reviewed the records and met Calvin Swann on death
row in December 1996, described him as "an extraordinary victim of this extraordinary
disease [schizophrenia]. I have only ever seen one person I would classify as exhibiting a
more devastating pathology than Calvin Swann." He concluded that Swann was insane at
the time of the crime – "so impaired by disease that he was totally deprived of the mental
power to control or restrain his acts." Furthermore, he concluded that there was "a
substantial probability that Calvin Swann was not competent to stand trial: "He was
engaging in bizarre behaviour in jail. At trial, observers say, he did not appear to
understand the gravity of the proceedings. He was squirming in his seat and looking for
people he recognized in the audience, even when the death sentence was read. He was
drinking water constantly. On the sole occasion he spoke on the record, it appeared that
he did not understand the proceedings." At that time, the psychiatrist concluded, Calvin
Swann had "no factual or rational understanding of why he is in prison, or the fact that he
is to be executed, or that there is a relationship between his crime and the impending
execution".(242)
How can such an ill person end up on death row? How can it be that his death sentence
was upheld in the state and federal appellate courts? Although his death sentence was
eventually commuted by the state governor just before his execution, his case shows how
severely mentally ill people can be particularly vulnerable in the capital justice
system.(243)
After Calvin Swann’s arrest for the 1992 murder, the police told him that they would use
a "Retinal Image Machine" which would produce a photographic image of the last thing
seen by the victim. Calvin Swann made a confession. The defence lawyer requested the
appointment of a psychiatrist to assist in the case, including about the effects on the
defendant of his schizophrenia and medication. The court had already appointed a
psychologist, Dr Stanton Samenow, and rejected the request. This was despite Dr
Samenow’s recommendation that a psychiatrist be appointed because he was not
qualified to offer the assistance the defence was seeking. At the trial, Dr Samenow –
known for his controversial views that crime is never caused by mental illness – testified
that Calvin Swann had control over what he did, and had done so all his life. In his 1997
affidavit, Dr Mills testified that Dr Samenow’s "philosophy is not consistent with the
tenets of forensic psychiatry. Forensic psychiatry is predicated upon the accepted notion
that mental diseases and defects can have legal consequences." Dr Samenow also testified
that Calvin Swann had always been found competent to stand trial. This was not true, he
had twice been found incompetent to stand trial in previous cases before being medicated
and restored to competence.
Calvin Swann’s jury decided that he would pose a future risk to society and voted for
execution. Thus a familiar pattern emerges: a jury passes a death sentence on someone
about whose mental illness they have limited knowledge and not a little fear.
However, no discussion of the USA’s use of the death penalty should ignore the evidence
of discrimination in its application. Studies have consistently shown that race –
particularly race of victim, but also the race of the defendant – plays a role in who

receives a death sentence. Blacks and whites are the victims of murder in approximately
equal numbers in the USA, yet 80 per cent of those put to death since 1977 were
convicted of crimes involving white victims.(244)
Calvin Swann was African American. The murder victim was white. The jury consisted
of 12 white jurors. Calvin Swann became the seventh man sent to Virginia’s death row by
a Danville jury. All were African American.
At least 60 of the African American prisoners who have been put to death in the USA
since 1977 were tried in front of all-white juries, most of them for killing white
victims.(245) The cases show a pattern of prosecutors removing prospective black jurors
during jury selection.(246) Some of these defendants were mentally ill or otherwise
seriously impaired.(247) Gregory Thompson, who is African American and has been
diagnosed with schizophrenia, schizoaffective disorder and bipolar disorder, was
sentenced to death by an all-white jury in Tennessee for the murder of a white woman.
The prosecution peremptorily dismissed the only prospective black juror from the jury
pool, and according to sworn testimony by the defence lawyer, the assistant attorney
general subsequently remarked "I hope they [the 12 white jurors] fry that nigger". In postconviction proceedings, the prosecutor denied making the remark and claimed that he had
dismissed the black juror because he was not strongly in favour of the death penalty. The
state courts gave the prosecutor the benefit of the doubt and kept Gregory Thompson on
death row (see Reality Check 4, above).(248)
Howard Gooden, an African American man, was sentenced to death by an all-white jury
in Lamar County, Mississippi, in 1999 for the murder of a white man in November
1998.(249) According to his trial lawyer, Howard Gooden was the only African
American in the courtroom during the trial.(250) The court allowed into evidence the
statement of the victim, Willis Rigdon, after he had been shot and before he died.
According to the witness, Willis Rigdon had said that he did not know who his assailant
had been apart from "it was a black man". The prosecution emphasised this declaration
during the closing arguments, at least twice reminding the jurors that the victim had said
that his assailant had been "a black male". This declaration, or at least the prosecutor’s
emphasis of it, risked injecting racial prejudice into a trial where the only "black man" in
the courtroom was the defendant, with all of the jurors, prosecutors, defence lawyers,
court personnel, spectators and judge, white. During post-conviction investigations by the
defence in 2002, one of the jurors from Howard Gooden’s trial was interviewed by a
member of the defence team. The interviewer has testified that the juror said that she had
been convinced of Howard Gooden’s guilt because "that’s how black people are".(251)
If being a black defendant in front of an all-white or almost all-white jury, and/or being
accused of killing a white victim can serve as de facto aggravating factors in favour of a
death sentence, how much more so if the defendant is also suffering from mental illness?
Any fears or prejudices held, consciously or subconsciously, about "the other" are likely
to be compounded. This may be even more pronounced if the legal representation of the
defendant on the mental health question is inadequate, or the prosecution tactics overzealous.

Howard Gooden’s lawyer failed to discover a diagnosis of chronic paranoid
schizophrenia made about his client six months before the crime when he was previously
in prison.(252) In this evaluation, the doctor wrote that Gooden displayed "delusional
thinking" and was having "auditory hallucinations", which he had experienced for several
years, and for which he had been treated with anti-psychotic medication.(253) On the
question of mental illness, in his post-conviction affidavit the lawyer stated that:
"I knew something was wrong with Mr Gooden, besides the retardation, but I
really couldn’t put my finger on why he was so odd. I never knew Mr Gooden was
a diagnosed paranoid schizophrenic or that he was receiving Social Security
Disability for his condition. He mentioned it for the first time in passing on the
stand at trial, at which point it was too late to follow up with investigation…
Given the time and resources I had to prepare for his capital murder trial, there
was simply no way I could have known to look for Mr Gooden’s records because
the time I spoke with the client he was very crazy and not helpful in preparing his
defense at all. I had to get his sister to talk to him on occasion for me in order to
explain things to him. I begged Mr Gooden not to take the stand, but he was
completely irrational and would not listen to the advice of counsel in that
regard".
Howard Gooden’s own testimony was the only evidence presented concerning his mental
illness. He stated that he was drawing disability benefit and suffered from hallucinations.
When the lawyer asked him what he meant by this, Howard Gooden replied,
"Encountering voices in my mind. Encountering voices in my mind… talking to me in an
obnoxious way, evil way." On cross-examination, the prosecutor suggested that Howard
Gooden was making his illness and prior treatment up, asking "could we expect any of
those doctors to testify about that today, or are we just pretty much going to have to take
your word for it?" There were no expert witnesses and no medical records submitted to
the jury.
In his closing arguments asking for a life sentence – little more than a rambling statement
of the immorality and ineffectiveness of the death penalty(254) – the defence lawyer
showed his ignorance of his client and of his history of mental illness, when he said to the
jury: "I look over here at Howard, and I don’t know whether Howard cares or not. I really
don’t." Then, he said: "Apparently, he was treated in the Department of Corrections for
his mental problems. Obviously, it did not help". For his part, the Assistant District
Attorney argued to the (12 white) jurors to "give the defendant what he deserves. Give
him the death penalty, just like he gave to Willis Rigdon." The District Attorney argued
for the jurors to give the victim’s family justice: "It would not be justice for them for the
defendant to be able to read and watch television and sleep in his jail cell, while Mr
Rigdon lies cold in his grave". The Mississippi Supreme Court has said that it found it
"troubling that the prosecutor would exhibit such blatant contempt of the law in order to
obtain a death sentence" by using such arguments. However it said that "the prosecutors’
crude appeals likely did not influence the jury one way or another".(255) Howard
Gooden remained on death row at the time of writing.

The only black juror at the trial of African American juror Louis Truesdale in South
Carolina later came forward to say that she had wanted to impose a life sentence, but had
been intimidated into changing her vote to death. She recalled that one of the 11 white
jurors had said of Truesdale, convicted of killing a white person, "this nigger has to fry".
In 1998 the US Court of Appeals for the Fourth Circuit upheld Louis Truesdale’s death
sentence. Among his appeal claims had been that his trial lawyers failed to present the
jury with evidence of brain damage that impaired his judgment and ability to think
rationally. The Fourth Circuit court found that:
"Truesdale’s counsel deliberately steered away from developing any mental
health evidence, calculating that it would not help portray Truesdale as normal
and capable of rehabilitation. Mental health evidence like that of Truesdale’s
organic brain dysfunction is a double-edged sword that might as easily have
condemned Truesdale to death as excused his actions. The decision not to pursue
this line of inquiry exemplifies the type of reasonable ‘strategic judgment’ that we
respect."(256)
Given that the jurors reached their sentencing decision in less than half an hour, it has to
be considered likely that even if the defence had presented mental health evidence in
mitigation, it would have had no effect on their allegedly racially charged
deliberations.(257) Louis Truesdale was executed on 11 December 1998.
Research based on interviews with capital jurors in the USA has concluded that race of
juror can have an impact in death penalty trials, as jurors take into the jury room their life
experiences as well as their cultural prejudices: "Not surprisingly, the perspectives of
blacks on crime and the criminal justice system diverge widely from those of whites".
Generally, blacks have less confidence in the fairness of the system, while whites are
more likely to see the system as over-lenient: "Whites are apt to make pro-prosecution
interpretations of evidence, especially when defendants are black… And in capital cases,
blacks may be more sympathetic than white jurors to mitigating evidence presented by a
black defendant with whom they may be better able to identify and empathize, and whose
background and experiences they may feel they understand better than do their white
counterparts".(258)
The (white) prosecutor at William Hance’s sentencing in Georgia in effect turned the
evidence of his mental health problems into a reason for the (almost all-white) jury to
vote for the death penalty. During its closing arguments, the prosecutor argued that
Hance lacked remorse, was incapable of rehabilitation and that he would pose a future
danger to society. According to his appeal lawyers, the "State went so far as to
characterize [William Hance’s] mental health expert as a witness for the State. The State
argued that [Hance’s] mental health problems were a reason to execute [him] – not reason
to allow him to live."(259) As in Louis Truesdale’s case, it is impossible to divorce
concern about the prosecutor’s actions in this regard from the troubling racial aspects of
the case. Indeed, a US Supreme Court Justice dissented against the death sentence, not
only because there was "substantial evidence that William Henry Hance is mentally
retarded as well as mentally ill", but also because there was "reason to believe that his
trial and sentencing proceedings were infected with racial prejudice".(260)

William Hance, who was African American, was first tried in 1979. His jury consisted of
11 whites and one black after the prosecutor had used nine of 10 peremptory challenges
to dismiss prospective black jurors during jury selection. Hance’s death sentence was
overturned on appeal and a retrial ordered. In 1984, he was condemned to death again,
and again the jury consisted of 11 whites and one black. This time the (same) prosecutor
had used seven out of eight peremptory strikes to remove blacks from the jury pool.(261)
The sole black juror later came forward to say that she had not voted for death because of
William Hance’s mental impairment, but that the 11 white jurors had decided to tell the
judge that all 12 had reached a unanimous verdict for execution. The black juror – who
claimed that one of the white jurors had characterized Hance as "just one more sorry
nigger that no one would miss" – said that she had been too intimidated to protest. One of
the white jurors also later came forward to testify in an affidavit that "there was a good
deal of racial tension in the jury room, and the other jurors made repeated comments
between themselves about the race of the defendant and the one black woman holding
out. I specifically remember one white woman, back in the hotel room, stating ‘the nigger
admitted he did it, he should fry’.
If an immigrant or foreign national accused of a capital crime has mental illness of any
kind, cross-cultural challenges will be substantial (see also case of José Amaya Ruiz,
Poor witnesses on their own behalf, above). The more inexperienced, under-resourced,
unmotivated, or prejudiced the defence lawyer, the greater the problem and the more
likelihood of unfairness in outcome. This unfairness will be further compounded in the
event that prosecutorial zealousness tips over into misconduct.
Hung Thanh Le was sentenced to death for the murder of a fellow Vietnamese refugee in
Oklahoma City in 1992. His post-arrest interrogation was marked by questionable police
conduct against this foreign national who did not have access to consular or other
assistance to help him overcome language and cultural barriers. (262) Hung Le’s trial
lawyers had done almost no investigation into his background or preparation of the
witnesses. As a result, the mitigation testimony was brief, and did not include any expert
evidence about the possible impact of Hung Le’s refugee past on his behaviour. A juror
from the trial later stated that a Vietnamese woman who was on the jury had not wanted
to impose a death sentence, and had unsuccessfully tried to persuade the other jurors that
Hung Le’s actions at the time of the stabbing of his friend may have been affected by his
background. After the trial, a Vietnamese psychologist concluded that, as a result of his
life experiences, Hung Le was suffering from post-traumatic stress disorder at the time of
the crime. Hung Le was 16 years old when he fled Vietnam. He witnessed, and was
subjected to, violence and deprivation in his years in refugee camps in Cambodia and
Thailand.
Not only were the mainly non-Vietnamese jurors denied any expert mental health
evidence on which to base their verdict, they were encouraged by the prosecutor to let
revenge creep into their deliberations. Arguing for execution, the prosecutor asked the
jurors "do you really think that justice would be done if this man goes to prison, gets
three meals a day and a clean bed every night and regular visits from his family while Hai

Nguyen [the murder victim] lies cold in his grave?" This, the prosecutor argued, "doesn’t
even come close to being justice… and you can only do justice in this case by bringing in
a verdict of death". The prosecutor also misstated the law when he told jurors that they
did not need to consider in mitigation any evidence "about whether [Hung Le had] been a
good guy in the past or anything like that". He told the jury that "this man may be a small
man in stature but he’s cold as an icicle. The state submits he’s without compassion or
feelings". Clearly, the actions of the state could be so described when officials took Hung
Le from his cell, strapped him down, and killed him on 23 March 2004.(263) In his final
statement, Hung Le expressed remorse for his crime and apologized to the victim’s wife.
Competence to stand trial
If somebody is competent to stand trial, then they are competent to receive whatever
sentence is appropriate. Most people who commit cruel and heinous crimes have some
sort of mental problem or they couldn’t do it in the first place.
Grant Woods, former Attorney General of Arizona, 2000(264)
Under US law, a criminal defendant may not be tried unless he or she is competent.(265)
The test is whether the defendant has "sufficient present ability to consult with his lawyer
with a reasonable degree of rational understanding" and has "a rational as well as factual
understanding of the proceedings against him".(266) The trial court must hold a hearing
if "bona fide doubt" about the defendant’s competency to stand trial is raised.(267) If the
issue of whether a defendant was competent to stand trial is challenged on appeal, that is,
after the trial, the determination should be based on "evidence of [defendant’s] irrational
behavior, his demeanor at trial, and any prior medical opinion".(268)
Nevertheless, capital defendants have stood trial for their lives despite compelling
evidence that they were incompetent. Once such a defendant has been convicted and
sentenced to death, it is an uphill task to persuade an appeal court that he or she had been
incompetent at the time of the trial. This can be illustrated by the example of Oklahoma.
Oklahoma law used to presume that a criminal defendant was competent to stand trial
unless he or she proved their incompetence by "clear and convincing" evidence. In 1996,
in Cooper v Oklahoma, the US Supreme Court found that this burden of proof was
unconstitutionally high, and that the standard must be a "preponderance" of the evidence.
The case involved Byron Cooper, sentenced to death for the murder of an 86-year-old
man during a burglary. He had been found competent to stand trial despite displaying
mentally disturbed behaviour. For example, he spent much of the proceedings crouching
in the fetal position and talking to himself. The State of Oklahoma had fought the appeal
against his sentence. Shortly before the US Supreme Court heard oral arguments in the
case, Attorney General Drew Edmondson wrote that the "effect of lowering that standard
of proof – to make it easier for criminal defendants to hide behind a claim of mental
incompetence – is to frustrate justice. This lawsuit is another example of why people are
so disgusted with the criminal justice system. It represents another chance for the
criminal to slap justice in the face."(269)
Prosecutors in Oklahoma pursued the execution of Stephen Vann White for nearly two
decades for the 1982 stabbing murder of Shirley Mann in Okmulgee. Stephen White was

first sentenced to death in 1984. He had been found incompetent to stand trial in
November 1983, but found competent five months later after treatment in Eastern State
Hospital (ESH). His 1984 conviction was overturned in 1988 because the jury selection
process had not been transcribed. At a December 1988 hearing, a doctor from ESH
testified that White was incompetent to stand for retrial but that with anti-psychotic
medication he could be restored to competency. After treatment at ESH, the doctor
reported in February 1989 that White was competent as long as he was kept on the
appropriate medication. White was sentenced to death at a retrial in May 1989.
Following the 1996 Cooper decision, Stephen White was granted a retrospective
competency hearing to establish if he had been competent to stand trial under the revised
standard of proof set by Cooper. At the hearing, held in 1997, the defence presented three
expert witnesses and the two defence lawyers from the retrial. All five testified that, in
their opinion, Stephen White had been incompetent in 1989. The two lawyers recalled
that they had never had a meaningful conversation with him about the case, and that he
had never participated in the preparation or presentation of his defence. The lead
attorney, who had been practicing law for 28 years and had defended several hundred
clients, said that he had never encountered a client who had behaved in this way before.
All three mental health experts testified that Stephen White suffers from schizophrenia
and organic brain syndrome. The latter, they claimed, was likely caused by White’s long
history of inhaling toluene, a chemical found in paint, which can cause irreversible brain
damage. In 1983, Stephen White’s IQ was assessed at 67, placing him in the mental
retardation range.
For its part, the state claimed that Stephen White was faking his mental illness and
presented three witnesses in court who testified to this. Two of them were social workers,
who were not qualified to make an expert diagnosis. The state also read into the record
the 1983 opinion of two doctors from ESH, who had claimed that White was
malingering. All three defence experts concluded that White was not faking. One of them
stated that he could not conceive how ESH "would keep a patient over a six-year period
in the hospital on ten different admissions for almost two years of his life", if he was a
malingerer. Another concluded that someone who was not genuinely mentally ill should
not be given the medications that the state hospital was prescribing White, especially at
such high dosages.
Nevertheless, at the 1997 hearing, the court found that Stephen White had been
competent to stand trial eight years earlier. In 1999, the Court of Criminal Appeals
overturned Stephen White’s death sentence because the 1989 jury had not been properly
informed of its sentencing options. For at least two more years, Stephen White was in
Oklahoma State Penitentiary awaiting a resentencing hearing, with Okmulgee County
intending to seek a third death sentence nearly two decades after the crime. Finally, in
2003 the prosecution agreed to a sentence of life imprisonment without parole.
The phenomenon of seriously mentally impaired people being found competent to stand
trial for their lives is not confined to Oklahoma. It was also illustrated on 25 September
2000 when a North Carolina judge ruled that Johnnie Lee McKnight, accused of a capital

crime committed in 1997 when he was 17 years old, was competent to stand trial. Judge
Knox Jenkins had just overseen a competency hearing at which four mental health
experts – two forensic psychiatrists and two forensic psychologists – all testified that
Johnnie McKnight’s learning disability and mental illness rendered him incapable of
understanding his situation and being able to assist his defence attorneys. For example, a
forensic psychiatrist at a state-run mental facility testified that Johnnie McKnight did not
fully appreciate the seriousness of the charges, and that he would be unable to
comprehend the court proceedings or to assist in his defence. She testified that McKnight
had suffered auditory hallucinations since he was 12 years old, and was on anti-psychotic
medication. She also noted the possibility that he might suffer from post-traumatic stress
disorder as a result of seeing his brother stab someone to death when he was about 12. An
expert on learning disabilities testified that the defendant had mental retardation, with an
IQ of 52. No expert evidence was presented to the contrary.(270)
In finding Johnnie McKnight competent to stand trial, Judge Jenkins said that "the Court
must consider the quality and convincing force of the evidence rather than the quantity of
evidence." He said that the experts’ testimony conflicted with that of Johnnie McKnight’s
co-defendant, Maurice Smith. Smith, who in 1999 pleaded guilty to the reduced charge of
second-degree murder in return for testifying against McKnight, told the competency
hearing of Johnnie McKnight’s alleged role in the crime. Judge Jenkins found McKnight
competent after noting Smith’s contention that McKnight was able to perform basic tasks
such as playing cards and driving a car, and had an ability to "purchase items and sell
drugs with the ability to understand correct change" and "to read and remember lyrics
from rap music".(271)
Percy Walton, an African American man, is on death row in Virginia for three murders
committed when he was 18 years old. There is compelling evidence that this seriously
mentally ill man was not competent to stand trial or to plead guilty. After his arrest in late
1996 for the murder of an elderly white couple and a 33-year-old black man in Danville,
he displayed irrational behaviour. In telephone calls from the jail to his family, he insisted
that his mother was his sister, and referred to his father as his brother, his grandfather as
his father and his grandmother as his mother. He said that he had discovered that he had
two brothers, when he had none. He told his mother he was the Queen Bee, and his
grandmother that he was Superman. He told relatives that he was Jesus Christ, and that he
was a millionaire. He insisted that he would come back to life as soon as he was
executed, and that he would retrieve and bring back alive his grandfather who had
recently died.
In pre-trial custody, his lawyer noted Walton’s unusual behaviour. In February 1997, for
example, Percy Walton claimed to be Percy Gunn (Walton’s father) and also the "King of
Hearts". During a subsequent meeting, Walton told his lawyer that if he closed his eyes
he could not be seen. He remained convinced that he would be released on bail despite
his lawyer stating that this would not happen. Walton demanded a speedy trial at which
his innocence would be proven. By July 1997, however, he was saying that he wanted to
plead guilty because the "[electric] chair is for killers". In a 1999 affidavit, his trial
lawyer recalled how Percy Walton "did not meaningfully assist us in preparing a

defense… Often times it was extremely difficult to communicate with Mr Walton, and
there were occasions where we could not tell whether he understood what we were saying
to him. Other times it was clear from Mr Walton’s questions and responses to my
questions that Mr Walton understood little of what I was telling him." The lawyer
recalled that "we were unable to convince Mr Walton that he would not come back to
life" if he was executed.
The defence asked for a mental health expert and the court appointed Dr Stanton
Samenow, known as a prosecution-friendly psychologist (see case of Dwayne Wright, in
Especially vulnerable to inadequate defence representation, above). Neverthless after a
number of meetings with Walton, Dr Samenow had serious doubts about his competence
to stand trial, finding that the articulation of his thoughts was incomprehensible and
irrelevant. He was particularly troubled by Walton’s notion that execution did not result
in permanent death. He recommended that Walton be placed in a secure psychiatric
hospital on the grounds that he was a danger to himself and others. The trial court
rejected this. In a 2001 affidavit, Dr Samenow wrote that the symptoms that Walton
displayed in July 1997 were "consistent with forms of schizophrenia", but that he had not
been able to make such a diagnosis without further evaluation. He stated that it was and
remained his opinion that at that time Percy Walton was not competent to stand trial.
However, he was not called to testify to that effect after the court ordered a psychiatrist at
the state hospital to conduct an assessment. This psychiatrist determined that Walton was
competent after a single meeting with the defendant, and without consulting with the trial
lawyers, the family or Dr Samenow.
In September 1997, Percy Walton told his lawyer that he wanted to plead not guilty and
have a jury trial because he was innocent. Days later, he reverted to admitting guilt again.
At the end of that month, asked whether he would plead guilty or not guilty, he refused to
speak, but responded by writing the word "chair" on a piece of paper. He told his
attorneys that he wanted to be executed in order "to come back to life so he could be with
his honeys". In court in October 1997, Percy Walton pleaded guilty to the murders and
the judge accepted the plea.
The proceedings then moved into the sentencing phase. During the hearing, Percy Walton
laughed, smiled and waved to family members. He even laughed during the "victim
impact" testimony of one of the murder victims’ granddaughters. During a break in the
proceedings, he refused to come out of the holding cell, stating that he wanted to "go
down the road and have the [electric] chair". He was shackled, sprayed with mace, and
forcibly returned to the courtroom. He was sentenced to death. In 1999, a psychiatrist, a
neuropsychologist and a neurologist evaluated Percy Walton and concluded that he
suffered from severe chronic schizophrenia. It was their opinion that he was suffering
from this illness at the time of the trial and that in all likelihood he had been incompetent
to stand trial or to make rational decisions about his various legal options, such as how to
plead.
The trial of a capital defendant is a critical part of the state’s pursuit of an execution.
Questions of professional ethics therefore arise when a defendant the state wants to kill is

declared incompetent to stand trial and is then sent for treatment. For if that treatment is
successful, the defendant may be returned to the courtroom to face trial for his or her life.
An example of this occurred on 7 February 2005 in Louisville, Kentucky, when Sherman
Noble was sentenced to death. He had been convicted of three murders committed in
March 1987. He was found incompetent to stand trial and involuntarily committed to
Central State Hospital in Louisville where he was diagnosed with paranoid schizophrenia,
a diagnosis he had also had before the crimes. He was not found competent to stand trial
until 1997, and following lengthy pre-trial litigation, brought to trial in 2004.
While the state has an undeniable interest in pursuing the conviction of violent offenders,
the death penalty for people suffering from mental illness cannot be described as essential
state policy. What is more the death penalty frequently puts professionals involved in that
process in positions where their involvement raises serious moral and ethical dilemmas.
As ever, the answer to such questions is abolition of the death penalty itself.
Death wish 1 – Competence to waive counsel or plead guilty
A defendant who is utterly incapable of conducting his own defense cannot be considered
‘competent’ to make such a decision, any more than a person who chooses to leap out of
a window in the belief that he can fly can be considered ‘competent’ to make such a
choice.
US Supreme Court Justices, 1993(272)
In numerous cases, seriously mentally ill defendants have been allowed to waive their
right to a lawyer, and have represented themselves. Some have been sentenced to death
after trials where they were clearly not representing their best interests. In some of these
and other cases, such defendants have also been allowed to plead guilty.
Pernell Ford was executed in Alabama’s electric chair on 2 June 2000 for the murder in
1983 of Linda Griffith and her mother, Willie Griffith, committed when Ford was 18
years old. He was tried in 1984 in front of an all-white jury (he was black, the two
victims were white). Shortly before the trial, he dismissed his lawyers. He was found
competent to act as his own lawyer despite his youth, his limited formal education, an IQ
measured at 80, and his history of mental problems. From the age of six, Pernell Ford had
spent extended periods in mental health institutions, and by 13 was being prescribed
powerful anti-psychotic and anti-depressant drugs. During his adolescence he attempted
suicide several times, by methods including overdose, hanging and poisoning.
The only "defence" Pernell Ford offered was that God would intervene at the trial and
bring the victims back to life. For most of the proceedings, Ford remained silent and
withdrawn. There was no opening statement on his behalf, no objections, and no crossexamination of any witnesses. At his sentencing, Pernell Ford dressed himself in a white
bed sheet, worn toga-style with a belt and shoulder strap made from a white towel. In a
long speech, he asked the judge to have the coffins of the Griffiths brought into the
courtroom so that God could raise them from the dead in front of the jurors. He was
sentenced to death. On death row, he periodically gave up his appeals, but resumed them
when his mental health stabilized. He was diagnosed as suffering from schizophrenia and
depression and treated with a range of drugs. He was executed after giving up his

appeals.
In 1993, the US Supreme Court ruled that the competency standard for a defendant to
waive his right to a lawyer or to plead guilty is the same as the competency standard for
standing trial.(273) In other words, once a defendant is found competent to stand trial –
under the test he has "sufficient present ability to consult with his lawyer with a
reasonable degree of rational understanding" and a "rational as well as factual
understanding of the proceedings against him" – the defendant is, by definition,
competent to waive counsel and to plead guilty.
The case before the Supreme Court involved Richard Moran, sentenced to death in
Nevada for shooting two people in a bar and, nine days later, shooting his former wife.
After the latter crime, he shot himself and slit his wrists. He survived, confessed from his
hospital bed, and was charged with capital murder. He initially pleaded not guilty, but 10
weeks later informed the court that he wished to fire his lawyers and plead guilty, giving
the reason that he did not want any mitigation evidence presented. At that time,
psychiatric reports indicated that he was severely depressed. In the jail, he was being
prescribed four drugs which he would later testify had a numbing effect on him. Without
the court conducting a hearing, he was found competent to waive counsel and allowed to
plead guilty. He presented no defense, called no witnesses, and offered no mitigation. He
was sentenced to death.
Two of the US Supreme Court Justices dissented, arguing that the trial court should have
held a separate competency hearing on this issue under these circumstances. They
pointed out that:
"A person who is ‘competent’ to play basketball is not thereby ‘competent’ to play
the violin. The majority’s monolithic approach to competency is true to neither
life nor the law. Competency for one purpose does not necessarily translate to
competency for another purpose… The record in this case gives rise to grave
doubts regarding…Moran’s ability to discharge counsel and represent himself.
Just a few months after he attempted to commit suicide, Moran essentially
volunteered himself for execution… To try, convict, and punish one so helpless to
defend himself contravenes fundamental principles of fairness and impugns the
integrity of our criminal justice system. [We] cannot condone the decision to
accept, without further inquiry, the self-destructive ‘choice’ of a person who was
so deeply medicated and who might well have been severely mentally ill." (274)
Richard Moran was executed in 1996. Meanwhile, seriously mentally ill defendants
continue to be allowed to represent themselves at trial and/or plead guilty in apparent
suicide bids.
In 1995, Jeremy Sagastegui raped and killed a three-year-old whom he was baby-sitting,
and shot and killed the boy’s mother and her friend when they returned home. He gave a
detailed confession to the crime, saying that he had killed the child because he was
"going to grow up to be a molester... he didn’t deserve to die but... he had no supervision
[and] was probably going to grow up to be a murderer". At his 1996 trial, Jeremy

Sagastegui waived his right to counsel and acted as his own lawyer. He rejected jurors
less likely to favour the death penalty, and objected when the prosecution rejected a juror
who would have automatically returned a death sentence. Jeremy Sagastegui pleaded
guilty, and offered no mitigating evidence. The jury was therefore left unaware that he
had been conceived as a result of a rape, rejected by his mother in infancy and childhood,
and subjected to severe abuse as a child, including repeated rape and sexual abuse by his
stepfather and other male relatives. The were left unaware that shortly before the crime, a
doctor had diagnosed Sagastegui as suffering from schizophrenia and bipolar disorder,
and that he had been admitted to a mental facility three months before the crime as a
suicide risk and treated for depression. In custody during the trial proceedings, a doctor
had diagnosed Sagastegui as suffering from probable bipolar disorder as well as posttraumatic stress disorder. Jeremy Sagastegui urged the jurors to sentence him to death,
which they did. On death row, where he was prescribed anti-psychotic medication, he
refused to appeal his death sentence. He was executed in October 1998, less than three
years after the crime.
A natural outgrowth of a mental health system that withholds needed treatment until a
person with a mental illness becomes dangerous is that police officers and sheriff’s
deputies are forced to become front line mental health workers. The safety of both law
enforcement officers and citizens is compromised when law enforcement responds to
crises involving people with severe mental illnesses who are not being treated. In 1998,
law enforcement officers were more likely to be killed by a person with mental illness
than by an assailant with a prior arrest for assaulting police or resisting arrest. And
people with mental illnesses are killed by police in justifiable homicides at a rate nearly
four times greater than the general public…. There are also many cases where
individuals with mental illnesses provoke police into killing them. This is now commonly
called “suicide by cop”.
Law enforcement and people with mental illnesses. Briefing Paper, Treatment Advocacy
Center, Arlington, Virginia, USA, 2005
http://www.psychlaws.org/BriefingPapers/BP16.htm
A matter of weeks after Jeremy Sagastegui was executed, Thomas Akers was arrested in
Virginia for the murder of Wesley Smith. With a history of mental problems and a
childhood of deprivation and abuse, he had come into conflict with the law from an early
age and been confined in juvenile facilities. Despite his mental problems, including brain
damage, hallucinations, extreme depression, and at least one suicide attempt, he never
received the appropriate long-term therapeutic care that was recommended by mental
health professionals at the time. In 1987, when he was 17, he was arrested for stealing,
tried and sentenced to adult prison. After a few months, he wrote to the judge who had
sentenced him, and asked to be put to death in Virginia’s electric chair. After being
paroled in August 1998, he began wearing a necklace with an electric chair pendant. He
told his family that he was going to be executed. In December 1998, he was arrested for
the murder of Wesley Smith. Thomas Akers told his court-appointed lawyers not to
bother with a defence, and in April 1999 wrote to the prosecutor: "I have no sympathy or
remorse for beating Wesley Smith to death... I am my own "god". I take lives at will and I
believe and follow myself. Death is all fun and games to me and my "followers".... By

the way I challenge you and any Franklin County Judge to a courtroom dual by a
"straight trial". I don’t even want a jury trial!... I don’t believe the Commonwealth or
judges have the heart to sentence me to death. And if I do get live [sic] without parole I
promise Virginia I will plot and scheme behind bars and escape and come back to
Franklin County and execute justice to some special people I have in mind! Don’t
procrastinate. Let’s get the killing on the way! ... I’ve mastered 33 degrees in 11 years. I
possess 360 degrees of pure rawl [sic] power." He then wrote to the trial judge directly:
"...If you choose to let me live and not seek the death penalty then the next person or
persons I kill the death will be your fault by allowing me to live and not sentencing me to
death. So what I want to do is waive the jury and plead guilty to capital murder in your
court and be sentenced to death... Don’t have sympathy [sic] or compassion for me in
your courtroom. I don’t have sympathy for myself much less for people or person I intend
to kill in the future..." At the sentencing in November 1999, the judge sentenced Akers to
death. Thomas Akers waived his right to appeal and was executed 15 months later.
Other mentally ill defendants have retained counsel but pleaded guilty in circumstances
suggesting they were embarking on a suicide bid. In Georgia in 1998, Daniel Colwell’s
lawyer was aware that his client suffered from serious mental illness and that he would
demand a death sentence at his trial as part of a suicide bid. Nevertheless, the judge
dismissed the lawyer’s motion to have Colwell ruled incompetent to stand trial and to
receive treatment for his illness. Daniel Colwell had been diagnosed throughout his adult
life as suffering from various mental illnesses, including schizophrenia. His pre-crime
medical records include references to his suicidal ideations.(275) These included
ideations about suicide-by-execution.(276)
At the trial, Colwell insisted that his lawyer read out a letter he had written, warning the
jury of the consequences of not passing a death sentence. "I might torture your family or
friends. As long as I am alive, I might kill again. Jurors, why take the risk? Daniel
Colwell must die. God has selected you jurors to seek justice for Daniel Colwell and the
victims. Death is the answer. God has no problem with it. I should suffer, and the greatest
suffering is death." The judge refused to allow the defence lawyer to withdraw from the
case, dismissed his objections to the court’s deference to Colwell’s illness-driven selfdestructive strategy, and insisted that he put his client on the witness stand as Colwell
wished. There Colwell testified that he committed murder in order that the state would
execute him for it. He said that he brought a gun in July 1996 in order to kill himself, but
when he discovered that he could not do it, he randomly selected Mitchell Bell and Judith
Bell and shot them dead in a car park. From the witness stand, he again threatened the
jurors if they failed to vote to send him to the electric chair. The jury granted Colwell his
wish and sentenced him to death in October 1998.
On death row, Daniel Colwell’s will to live appeared to fluctuate with his medication. In
mid-1999 he decided that he wanted to live and took up his appeals. At that time, his
lawyer said: "He now realizes that the decisions which he made before and during his
trial were decisions which were not the acts of a sane and rational human being. This is
exactly the argument we made: Dan Colwell is ill. Stop the process and get him treated,
so he won’t want to die and realize what he did was a result of his mental illness. The

irony of this is that he’s finally received proper treatment on death row."(277)
However, in 2000, the prison changed his medication back to what he was being
prescribed as an out-patient prior to the 1996 murders. That medication had exacerbated
his bipolar disorder and is thought to have directly contributed to his state of mind around
the time of the crime. He dropped his appeals. Legal efforts continued on his behalf, and
at times Daniel Colwell would be forcibly medicated on death row. Then, in January
2003, Colwell hanged himself in his cell. The state subsequently agreed to an out-ofcourt settlement in a wrongful death lawsuit brought by his family, which they donated to
anti-death penalty and pro-mental health efforts in the state. The extent to which any
misadministration of drugs by the authorities contributed to his death may never be
known. In June 2005, his trial lawyer, now Director of the Georgia Public Defender
Standards Council, recalled to Amnesty International how Daniel Colwell’s case
appeared from the outset to be one in which "no-one in the system seemed to care". He
added that to this day, "someone as mentally ill as Daniel Colwell could be still be tried,
sentenced to death and executed in the State of Georgia. The struggle is far from over."
The death penalty did not deter a severely mentally ill man from committing a double
murder. Indeed, the evidence suggests that it had the opposite effect. Daniel Colwell’s
case should serve as one chilling reminder of why the state should end its attachment to
this destructive punishment.
Death wish 2 – Competence to waive appeals
Rumbaugh seeks death because he knows himself to be mentally ill and has lost hope of
obtaining treatment. If not for his illness and his pessimism regarding access to
treatment, he would probably continue to challenge his death sentence; but faced with his
vision of life without treatment for severe mental illness, Rumbaugh chooses to die... a
desperate man seeking to use the State’s machinery of death as a tool of suicide.
Two US Supreme Court Justices, 1985(278)
An early sign that the USA’s post-1976 era of the death penalty was not going to be
reserved for the most culpable defendants, or comply with international law and
standards, was the execution of Charles Rumbaugh in September 1985. He was 17 years
old at the time of the crime and had serious mental illness. He became the 48th person to
be put to death since the resumption of executions in 1977, and the sixth to have given up
his appeals and "consented" to his execution.
This phenomenon has continued. About one in 10 of the people executed in the USA
since 1977 have been so-called "volunteers", death row prisoners who had dropped their
appeals and "consented" to execution.(279)
Any number of factors may lead a prisoner not to pursue appeals against his or her death
sentence, including mental disorder, physical illness, remorse, bravado, religious belief,
the severity of conditions of confinement, including prolonged isolation and lack of
physical contact visits, the bleak alternative of life imprisonment without the possibility
of parole, pessimism about appeal prospects, a quest for notoriety, or simply a desire to
gain a semblance of control over a situation in which the prisoner is otherwise powerless.

A condemned prisoner who drops his appeals has to be competent to do so. The test
which some courts in the USA use to determine this is based on a 1966 US Supreme
Court decision and is "whether [s/]he has the capacity to appreciate his [/her] position and
make a rational choice with respect to continuing or abandoning further litigation or on
the other hand whether [s/]he is suffering from a mental disease, disorder, or defect which
may substantially affect his [/her] capacity…"(280) If a condemned inmate is found
incompetent to waive his or her appeals, someone found to have legal standing as a "next
friend" may pursue litigation on their behalf.(281) A state court’s finding that an inmate
was competent to waive their appeals is entitled to a presumption of correctness.(282)
According to recent research, between 1976 and 2004 there were only seven cases in
which condemned inmates who waived their appeals were found incompetent to do
so.(283) Again, the standard is a minimal one. The recent case of Joseph Corcoran in
Indiana is instructive on the difficulty in determining what constitutes rational decisionmaking by an inmate under a death sentence and what does not.
Joseph Corcoran is on death row in Indiana, having been convicted in May 1999 of
killing his brother, his sister’s fiancé, and two other people at his sister’s home in July
1997. An expert testified that Corcoran suffered from a mental disorder, and the trial
court found in mitigation, although not enough to warrant a life sentence, that Corcoran
had acted "under the influence of a mental or emotional disturbance" at the time of the
crime. Since being on death row, Joseph Corcoran’s mental health has deteriorated, and
he has been diagnosed as suffering from paranoid schizophrenia.
Joseph Corcoran dropped his appeals, and the trial court held a hearing in October 2003
to determine his competency to do so.(284) The state acknowledged that Corcoran suffers
from mental illness. The defence presented three experts – a forensic psychiatrist, a
clinical psychologist, and a neuro-psychologist – who had each separately evaluated
Corcoran and reviewed his records. All three concluded that he was unable to make a
rational decision to waive his appeals. They stated that the symptoms of his schizophrenia
included recurrent delusions that the prison guards were torturing him through the use of
an ultrasound machine, and that he was saying things without knowing and that this was
causing people to be angry with him and mock him. Such delusions, the experts
concluded, were causing him to hasten his execution in order to be relieved of his
suffering. They were unanimous that his thought processes could not be described as
rational or logical and that he was therefore incompetent to make the decision to drop his
appeals.
Joseph Corcoran himself testified at the hearing, saying that the reason he wanted to
waive his appeals was that he was guilty of murder, and "I should be executed. That is all
there is to it." He appeared to have a good understanding of the legal status of his case,
and that the result of not pursuing his appeals would be execution. Yet at the same time,
he was suffering a delusional sickness. In December 2003, the trial court ruled that
Joseph Corcoran was competent to waive his appeals, and this decision was upheld by the
Indiana Supreme Court in January 2005. However one of the five Justices dissented,

agreeing with the view of the three mental health experts that because of Corcoran’s
delusions, his decision-making could not be described as rational. Justice Rucker pointed
out that according to the expert testimony, far from faking his mental illness, Corcoran
was trying to downplay it, and that the more time one spent with him, the more "you
begin to understand how his thought process is a little bit skewed. And, in fact, the deeper
you go, the more skewed it appears. And you can begin to understand how he might feel
that execution might be preferable to life as he currently experiences it." Justice Rucker
agreed, stating that although "Corcoran is a man of considerable intelligence and
expressive powers…the fact that he offers what otherwise might be considered a rational
explanation for his decision to die is itself intricately related to his mental illness".
Joseph Corcoran was set an execution date of 21 July 2005, but decided to resume his
appeals. A number of condemned prisoners with serious mental illness, who have been
allowed to waive their appeals, have been executed (see Appendix).(285) Two such
people were Gary Heidnik, executed in Pennsylvania in July 1999, and Christina Riggs
who was put to death in Arkansas 10 months later.
By the time of his execution, Gary Heidnik had a history of diagnoses of paranoid
schizophrenia going back two decades. He was convicted of appalling crimes committed
over a six-month period in 1986 and 1987. According to the record, he kidnapped six
women during that period, murdering two of them by starvation and physical abuse. Gary
Heidnik never challenged his death sentence, handed down by a jury in 1988 and
affirmed by the Pennsylvania Supreme Court in 1991, but his execution was delayed for
years as the then governor refused to sign death warrants. In March 1997, a new governor
issued a warrant for Heidnik to be executed the following month, and the prisoner
reaffirmed his refusal to challenge his death sentence. Lawyers filed a claim that Heidnik
was incompetent for execution under Ford v. Wainwright, and the trial court convened a
hearing on the issue. At the hearing, Gary Heidnik asserted his innocence of the murders,
and that he had been framed by the kidnapped victims who had themselves carried out
the killings. He stressed his belief that the Federal Bureau of Investigation could prove
his innocence, and had sought to contact the agency for years. He said that the outrage at
his execution as an innocent man would bring an end to the death penalty in the USA. His
lawyers argued that this was a clear symptom of his delusions.
Three mental health professionals, including the chief psychologist of the state prison
where Heidnik was held, who had all examined Heidnik on a number of occasions,
agreed that he suffered from paranoid schizophrenia. The US Court of Appeals for the
Third Circuit noted that one of the experts, who had treated Heidnik, related that his
symptoms included "a series of fixed false beliefs which are patently absurd and
inconsistent with reality, which are all-encompassing in nature and which color every
aspect of his cognitive functioning… He further observed that there was no point of
contact between Heidnik and the rational world".(286) The prison’s chief psychologist,
along with the other two experts, concluded that Heidnik’s delusions rendered him
entirely incompetent to drop his appeals and be executed.
However, the state’s sole expert witness at the hearing essentially testified that Gary

Heidnik did not suffer from paranoid schizophrenia, was not delusional, was not mentally
ill, and was not incompetent. Dr John O’Brien had met Heidnik once, for about 90
minutes. He said that many prisoners maintained their innocence, so "I don’t regard that
as delusional and I don’t regard it as delusional in Mr Heidnik’s situation either".(287)
The court sided with the state and rejected the claim that the prisoner was incompetent.
The Pennsylvania Supreme Court subsequently issued a stay of execution until further
notice. Separately, a federal district judge held an emergency hearing on the issue of
whether Heidnik was competent to waive his appeals. Dr O’Brien again testified, as well
as sitting at the prosecution’s table and assisting the state in cross-examining the defence
witnesses. The district court’s subsequent decision that Heidnik was competent was
overturned by the US Court of Appeals for the Third Circuit, which in turn was reversed
by the US Supreme Court. However, the state Supreme Court stay of execution held
while litigation continued around the issue of Heidnik’s competence to waive his appeals
and of his daughter’s "next friend" standing to pursue appeals on his behalf. The trial
court appointed Dr O’Brien to evaluate Heidnik, despite the fact that he had been a
witness for the state previously. He concluded that he was competent to waive his
appeals. For the defence, two doctors testified that Heidnik was not competent.
The state courts refused to stop the execution. The litigation turned to the federal courts
again and on 6 July 1999, the US Court of Appeals for the Third Circuit refused to issue a
stay. One of the three judges dissented. Judge McKee pointed out that in a federal district
court hearing a week earlier, the state had agreed that Heidnik’s mental condition was the
same then as it had been in 1997. Judge McKee recalled that in 1997, the Third Circuit
had found Heidnik to be incompetent after reviewing a "nearly identical record" as
now.(288) In 1997, he said, the Third Circuit had issued a stay after finding that:
"a paranoid schizophrenic suffering from broad-based delusional perceptions has
made a decision to die immediately rather than pursue available judicial
remedies that conceivably might save his life. The only explanation he has
advanced for having chosen immediate death is that after his death the public will
become convinced that he was an innocent victim of a conspiracy and that the
realization that he has been executed though innocent will end capital punishment
once and for all. Petitioners’ three experts unanimously concluded that Heidnik’s
death decision is based on his delusional perception of reality – and has no
rational basis. Dr O’Brien [the Commonwealth’s witness] has simply failed to
explain how Heidnik’s choice has a rational basis and is not based on his
delusional perception".(289)
By the state’s own admission, there had been no change in Heidnik’s condition since
then. Judge McKee concluded that the appeal brought by Heidnik’s daughter had
provided "clear and convincing evidence" of Heidnik’s incompetence. The Judge said
that the court must not allow Heidnik’s crimes, which were "etched into the collective
memor[y]" and which "made everyone feel less human to think that anyone could do
what he did to another human being", to "define our analysis". Judge McKee said that he
was dissenting from his colleagues’ refusal to stop the execution because he could not
"stand by and say nothing while an insane person is put to death by the state contrary to

the mores of civilized society". Gary Heidnik was put to death a few hours later.
On the night of 4 November 1997, Christina Riggs, who came from a family with a
history of mental illness and suicidal tendency, killed her two young children, Justin
Dalton Thomas and Shelby Alexis Riggs. Having sedated them with an anti-depressant,
she planned to inject them with potassium chloride (the chemical used to stop the heart in
US lethal injections), which she had got from the hospital where she worked as a nurse.
She did not realize that it should be diluted before use. When she injected Justin,
therefore, he awoke in pain. She then gave him morphine and smothered him with a
pillow. Not wanting to inject Shelby, she proceeded to smother her with a pillow also.
She carried both children to her bed and lay them in it. She then wrote a suicide note to
her mother and took a large quantity of anti-depressant pills and injected herself with
potassium chloride concentrate. Not being diluted, it ate a hole in her arm, collapsing her
vein and never reaching her heart. The pills rendered her unconscious.
She was discovered the next morning and taken to hospital where she was stabilised in
intensive care and kept under police guard. On the night of 5 November 1997, her family,
who had still not been allowed to see her, hired a lawyer. Before he arrived, however, the
police took an eight-minute taped confession from Christina Riggs early on the morning
of 6 November. Much of her statement was inaudible as she was crying throughout, and
towards the end appeared to be hallucinating. At her trial, a psychiatrist and a
psychologist testified that her actions were the result of severe depression. They gave
their opinion that, to her, the children’s deaths were an act of love and an extension of her
own suicide. The psychologist said: "The pathological suicidal depression that she was
in.... effectively precluded her from being able to do something more reasonable,
something more appropriate. From the outside looking in, the death of two children like
this is pretty horrible. From the inside looking out, it looks like an act of mercy." For the
state, a psychiatrist and a psychologist did not dispute that her suicide bid was genuine,
but testified that they did not believe that she was sufficiently depressed to justify the
defence of not guilty by reason of mental impairment. The jury agreed and convicted her
of capital murder after less than an hour of deliberation.
At the sentencing, Christina Riggs refused to have any evidence presented on her behalf
and asked the jury for a death sentence: "I want to die. I want to be with my babes. I
started this out seven months ago. And I want you to give me the death penalty. I don’t
want you to feel guilty." Having been granted her wish, she then refused to appeal her
sentence. On 2 May 2000, Christina Riggs was given the lethal injection by the state that
she had attempted to administer to herself 29 months earlier.
Competency for execution – the 20-year failure of Ford
In Ford, drawing on long-established common law principles, the Supreme Court held
that the Eighth Amendment prohibits execution of the insane. Although the Ford Court
identified some of the components necessary to demonstrate a constitutionally minimum
definition of insanity, application of Ford presents challenges because the Court did not
define insanity or mandate procedures that courts must follow in determining whether a
defendant is insane.

US Court of Appeals for the Fourth Circuit, 28 April 2005
It is nearly two decades since the US Supreme Court ruled, in Ford v. Wainwright, that
the execution of an insane prisoner violates the Eighth Amendment ban on "cruel and
unusual punishments". In effect, this decision only affirmed what was already the case in
the individual states. Indeed, 36 years earlier, a US Supreme Court Justice had written:
"That it offends our historic heritage to kill a man who has become insane while awaiting
execution cannot be gainsaid… [N]ot a State in the Union supports the notion that an
insane man under sentence of death would legally be executed."(290) The majority
opinion in Ford in 1986 reiterated that "[t]oday, no State in the Union permits the
execution of the insane", and added: "For centuries no jurisdiction has countenanced the
execution of the insane, yet this Court has never decided whether the Constitution forbids
this practice. Today we keep faith with our common-law heritage in holding that it
does."(291)
The pressing questions for the Supreme Court, then, were: what is the definition of
competence for execution, and what procedures should the state employ to determine
whether a prisoner meets this standard? The Ford opinion failed to answer either
question. While five Justices – a narrow majority – joined to rule that the execution of the
insane violated the Eighth Amendment of the Constitution, this majority broke down for
the remainder of the ruling. The closest the majority came to the question of definition
was to note that:
"[T]oday, no less than before, we may seriously question the retributive value of
executing a person who has no comprehension of why he has been singled out and
stripped of his fundamental right to life. Similarly, the natural abhorrence
civilized societies feel at killing one who has no capacity to come to grips with his
own conscience or deity is still vivid today… It is no less abhorrent today than it
has been for centuries to exact in penance the life of one whose mental illness
prevents him from comprehending the reasons for the penalty or its implications."
In a separate opinion, Justice Powell built on this to offer "the meaning of insanity in this
context" which had been left open by the Court:
"If the defendant perceives the connection between his crime and his punishment,
the retributive goal of the criminal law is satisfied. And only if the defendant is
aware that his death is approaching can he prepare himself for his passing.
Accordingly, I would hold 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."
Arguably this is a minimal standard. Even if a condemned inmate seems to be able to
make some connection between their crime and their punishment, if this connection takes
place in an inner world that is entirely delusional and the product of profound mental
illness, can they truly be said to have an understanding of what is happening to them and
why? Also, the definition does not require states to determine if the prisoner has the
capacity to be able to assist his or her lawyer. In his Ford concurrence, Justice Powell had
suggested that it is "unlikely indeed that a defendant today could go to his death with
knowledge of undiscovered trial error that might set him free". The intervening years

have shown that Justice Powell’s confidence was misplaced, given the rate of error in
capital cases. For example, in 1998 Anthony Porter came 48 hours from execution for a
crime he did not commit. His execution was stayed on a claim that Porter had mental
retardation and was incompetent for execution. While a competency hearing was
pending, some journalism students investigated the case and uncovered evidence of
Porter’s innocence of the crime for which he had spent some 17 years on death row.
On the question of the procedures to be used to make competence-for-execution
determinations, the Ford Court left to the individual states "the task of developing
appropriate ways to enforce the constitutional constriction upon its execution of
sentences".(292) Four of the Justices found that the Florida procedure (the case involved
Alvin Ford on Florida’s death row) was flawed because it failed to "include the prisoner
in the truth-seeking process", and denied him or her "any opportunity to challenge or
impeach the state-appointed psychiatrists’ opinions". The four Justices found that the
"most striking defect" was the fact that the competency determination rested "wholly
within the executive branch". Justice Powell disagreed that a judicial proceeding was
required, suggesting that "a constitutionally acceptable procedure may be much less
formal than a trial", and that "an impartial officer or board" to review the evidence from
both sides would suffice. Two other Justices believed that the only flaw in Florida’s
procedures was that there was no opportunity for the prisoner to be heard, while the
remaining two Justices, dissenting in full, wrote that "wholly executive procedures can
satisfy due process" on this issue.
This failure to clarify procedures has meant that different states take different approaches.
The fairness of existing procedures in some states remains in serious question. In the case
of Arizona, for example, this was noted by a federal judge when he stopped the execution
of Salvadoran national José Amaya Ruiz in January 2001. This prisoner had been
diagnosed with bipolar disorder and paranoid schizophrenia. He was treated with antipsychotic medication for more than a decade, although he sometimes refused treatment,
either because he believed he was not ill or that the drugs were poison. In 2000, he was
taken to a secure psychiatric facility after two doctors concluded that he was incompetent
to be executed under Ford v. Wainwright. He was restored to what the state hospital
determined was competency for execution. The Arizona prosecuting authorities asked the
state Supreme Court to set a date. The trial court determined that under Arizona law, the
state hospital’s certification of competency meant that it no longer had jurisdiction to
consider further legal challenges. The state Supreme Court upheld that decision and
issued an execution date of 18 January 2001, stating that "all requisite standards are
satisfied". Two Justices dissented, arguing that there should be a hearing at which the
state hospital’s finding of competency could be challenged. US District Judge William D.
Browning stopped the execution. He noted that the Ford decision had left unclear "what
state procedures are adequate for addressing a competency-to-be executed claim." He
found the Arizona procedures wanting, noting that under Arizona law:
"the decision about when and if a prisoner has recovered competency for
execution rests entirely with the chief medical officer of the state hospital… [A]
prisoner found incompetent by a superior court judge and then later declared
competent by the state hospital has no direct method of challenging the state

officer’s determination. The statutes do not provide for a hearing before a judge
to determine sufficiency or reliability of the hospital’s evaluation… nor do the
statutes provide for the appointment of defense experts to examine the prisoner, a
hearing at which to present any evidence which may contradict the hospital’s
report, or a right to appeal [to] the Arizona Supreme Court…."(293)
Judge Browning found that Arizona’s procedures were "substantially inadequate" to
protect a condemned prisoner’s "right to a fair redetermination of his competency". He
cited statutes in a number of other states (Tennessee, California, Kentucky, Mississippi,
Montana, Nebraska, New York and Wyoming) requiring or allowing for a judicial
hearing into a competency-for-execution claim. He ordered a federal evidentiary hearing.
However, in the event, the hearing was never held as José Amaya Ruiz was eventually
found to have mental retardation and re-sentenced to life imprisonment following Atkins
v. Virginia. Arizona had revised its competency-for-execution laws in 1993 and amended
again in 1999. They have not been changed since. In other words, according to Judge
Browning (and at least two state Supreme Court Justices), 20 years after the Ford v.
Wainwright decision, the Arizona procedures still fail to pass constitutional muster.
Other states have provided slow, minimal or no responses to the Ford ruling. For
example, it was 13 years before Texas enacted Article 46.4 of its Code of Criminal
Procedure. The law, which came into force on 1 September 1999, sets out the procedures
governing competency to be executed. Within a year, a judge on the Texas Court of
Criminal Appeals (TCCA) had dissented from the majority’s dismissal of a death row
inmate’s claims surrounding his competency to be executed, accusing the Court of
reading "the absence of a provision in article 46.04 which explicitly deals with the
appointment of counsel" as "negation of the constitutional right to counsel at critical
stages of a criminal prosecution". The judge also found the majority’s finding that the
TCCA could review only findings of incompetence "equally disturbing", pointing out that
"[u]nder the majority’s logic, a trial court may insulate itself from review by this Court
by the simple expedient of finding all applicants competent." "Surely", the judge wrote,
"the legislature would not want its stated intention of not executing incompetent persons
to be so easily over-ridden".(294) Perhaps not, but seriously mentally ill inmates have
gone to their execution in Texas since then, including Monty Delk, James Colburn and
Kelsey Patterson.
In other states, no legislation has been enacted on this issue since the Ford ruling. In
2005, the US Court of Appeals for the Fourth Circuit described as "troubling" the
admission by the authorities in Virginia "that there is no procedure in Virginia for raising
a Ford claim".(295)
A roll call of shame: Time for majority judicial intervention
It is unsurprising, then, that two decades after the laissez-faire ruling in Ford v.
Wainwright, (a) individual states have maintained a range of procedures to determine the
issue of competence for execution and (b) seriously mentally ill inmates have been
executed. This shameful situation has not gone unnoticed by members of the judiciary
along the way. Examples of such judicial concern include the following cases:



Lesley Lowenfeld, executed in Louisiana, 1988

Lesley Lowenfeld, a national of Guyana, had been found competent to stand trial, even
though three psychiatrists had found him to be "paranoid in the extreme". After his
execution date was scheduled, a clinical psychologist concluded that in all probability,
Lowenfield was suffering from paranoid schizophrenia, and also found that he was
"unable to understand the death penalty". Nevertheless, the courts ruled that the execution
could go ahead. In a dissent against the US Supreme Court’s 5-4 vote to deny a stay of
execution, Justice Brennan wrote:
"Every court that has considered petitioner’s insanity claim has made a mockery
of this Court’s precedent and of the most fundamental principles of ordered
justice... It is beyond me why [the psychologist’s] unrefuted affidavit, which was
the sole evidence before the courts, did not establish petitioner’s insanity by a
preponderance of the evidence... The haste that attended disposition of this case is
reprehensible. It is hardly surprising that a case scudding through the state courts
in 24 hours should yield orders devoid of law or logic - the ones in this case
simply read ‘DENIED’ - for which the description ‘terse’ would be charitable. If
the federal courts are intent on accelerating the pace at any cost, as they were in
this case, their only choice is to take procedural shortcuts and give short shrift to
substance. And simple arithmetic suggests grave injustice when the Court of last
resort takes 15 minutes to read and analyze 17 pages of opinions from the court
below and cast a vote on life or death. Due process means little if it requires the
courts to provide an ‘opportunity to be heard’, without imposing on them a
concomitant duty to listen - and, at least when a life is at stake, to listen very
carefully. Presumably, it was in recognition of the injustice that four of us (one
less than the requisite five) voted to stay petitioner's execution, so as to consider
his insanity claim in an atmosphere that was not itself lunatic. Regrettably, this
case is not atypical. It is the natural product of a penal system conducive to
inaccurate factfinding and shoddy analysis..."


Ricky Ray Rector, executed in Arkansas, 1992

Court-appointed examiners found that "no mental illness or defect prevents [Ricky Ray
Rector] from being aware of his impending execution and the reason for it". However,
they also concluded that because of his mental impairments it was unlikely that Ricky
Ray Rector could assist his lawyer in any meaningful way in uncovering facts "that might
make his punishment unlawful or unjust". The courts refused to stop the execution,
saying that, under Ford, the only thing that mattered was whether the prisoner understood
the reality and reason for his execution. Justice Marshall dissented against the Supreme
Court’s refusal to intervene. He noted that the Ford decision had left open the definition
of competence for execution, and therefore had not answered the question as to whether
the prisoner should be able to assist his lawyer or not. Justice Marshall noted that the
Ford majority had cited 200-year-old old commentary on English law (by Sir William
Blackstone) which held that if a condemned prisoner became insane, the execution
should be stayed because only when the inmate was competent, might he be able to allege
"something in stay of judgment or execution". Justice Marshall added further historical

references as to why the definition of competence for execution should include whether
the inmate can assist his or her legal counsel. Justice Marshall noted that there were many
mentally ill inmates on death row in the USA: "Unavoidably, then, the question whether
such persons can be put to death once the deterioration of their faculties has rendered
them unable even to appeal to the law or the compassion of the society that has
condemned them is central to the administration of the death penalty in this Nation." To
this day, however, this question remains unanswered by the US Supreme Court and the
execution of condemned prisoners who cannot assist their lawyers as their execution
approaches continues.


Varnell Weeks, executed in Alabama, 1995

Varnell Weeks had been diagnosed with paranoid schizophrenia at least seven years
before the crime for which he was sentenced to death. An Alabama trial judge held a
competency hearing in April 1995. He noted the wide variations among the individual
states on this issue and that the US Supreme Court "decided an incompetent cannot be
executed, but did not articulate a standard to determine whether a person is competent to
be executed." The judge went on to acknowledge that "Alabama law itself is not a model
of clarity". The law provided for an execution to be suspended if the prisoner is "insane",
but the highest state courts had failed "to give clear meaning to the word insane as used
in the statute". However, the trial judge agreed with the defence lawyers to apply the
American Bar Association’s suggested standard.(296) In his order issued after the
hearing, the judge noted that:
"All of the experts are agreed…that the mental disorder of the Defendant is
significant. Unquestionably, based on the best psychological and psychiatric
evaluations available, the Defendant suffers from a serious mental disorder…
[E]ssentially everyone agrees that the Defendant is schizophrenic, paranoid type;
that he suffers from delusions and occasional hallucinations… Unquestionably,
the average person on the street would regard the Defendant to be ‘insane’, and
the Defendant meets the dictionary generic definition of insanity.The Defendant
asserts that he is God in various manifestations, such as God the Fater, Jesus
Christ, Allah. But the Defendant knows that when he is executed, his physical life
will come to an end. He believes that he will then be transformed."(297)
One of Varnell Weeks’s beliefs was that he would be transformed into a tortoise and
reign over the universe. The judge noted that one of the experts at the competency
hearing pointed out that while many people believe in an after-life, most "don’t think they
will be running the place". The judge acknowledged that "what the expert says may be
true, but it is also true that what happens beyond death is beyond his expertise; and the
Defendant and anyone else is free to believe what they wish about the hereafter". The
judge also acknowledged that the behaviour at the hearing of Varnell Weeks himself
"was a bit unusual". The judge wrote: "He brought unusual objects with him and walked
in a somewhat strange manner. On the first day, he wore a band around his head with a
domino on it that had black dots on a white background. It was a double-seven. The
Defendant explained that the domino was with him, i.e. Weeks, pointing out that there are
seven days in a week."

The judge determined, however, that Varnell Weeks could understand what was
happening and why "despite the fact that he suffers from a severe mental disorder". The
judge said that it would be inappropriate for the court to "veer away…into the
metaphysical arena of the nature of consciousness and the nature of reality, a description
of what is normal, and other philosophical questions". "Even in the realm of psychology",
he continued, "there would be great room for disagreement as to the nature of
‘understanding’ and of what is ‘normal’." The judge found that Varnell Weeks was
"clearly competent to be executed" at the time of the hearing, although he acknowledged
that to adjudicate on the question of whether he would be competent at the time of his
execution, "it might appear that the Court can answer that question only with the use of a
crystal ball", and the state should monitor his mental health up to the point of execution.
On the eve of his execution three weeks later, the US Court of Appeals for the 11th
Circuit refused to issue an emergency stay. One of the three judges dissented: "Tomorrow
morning Alabama plans to execute Varnell Weeks, a delusional paranoid schizophrenic
who two psychologists and one psychiatrist, one of whom was state-appointed, found to
be severely mentally ill and whom the state court acknowledge meets the general
definition of insanity. The majority resolves grave and complex legal issues in Weeks’s
case without oral argument, on less than full briefing, and after a minimal period of
contemplation. Because I believe the Eighth Amendment’s prohibition on executing the
insane requires more than a cursory review, I would grant…a stay".(298) Varnell Weeks
was executed in Alabama’s electric chair the following day, 12 May 1995.


DH Fleenor, executed in Indiana, 1999

DH Fleenor, who had long shown signs of mental illness, had refused to see his lawyers
in the weeks leading up to his execution because of his belief that they were part of a
conspiracy against him. Several priests in recent contact with DH Fleenor had expressed
concern that he was seriously delusional and did not understand his punishment. The
prison’s Catholic chaplain, who had signed an affidavit to this effect, was banned by the
prison authorities from visiting DH Fleenor and other condemned inmates on the grounds
of "philosophical differences", namely the chaplain’s opposition to the death penalty.
Two other priests, apparently intimidated by the prison authorities’ hardline approach,
decided against signing affidavits about DH Fleenor’s mental health because they did not
want to risk losing their access to death row prisoners. Legal attempts to have an
independent psychiatric evaluation of DH Fleenor failed, and he was executed shortly
after midnight on 9 December 1999. The day before, dissenting from a court decision to
allow Fleenor’s execution to proceed, a judge wrote: "...one [cannot] dismiss easily the
evidence of prison chaplains. Although not necessarily trained psychiatrists or
psychologists, their experience, and in some instances training, ought to require that a
judicial system gives their views a respectful assessment, even if such respect is not
found within the prison walls."(299)


Thomas Provenzano, executed in Florida, 2000

Thomas Provenzano had a history of serious mental illness, including paranoid
schizophrenia, dating back to before the crime. In December 1999, following extensive
hearings, Circuit Judge Randolph Bentley found that: "Thomas Provenzano has, for over
twenty years on occasion, believed that he is Jesus Christ. In conjunction with this
delusional belief, Provenzano believes that he is not going to be executed because he
murdered another human being, but that he really will be executed because he is Jesus
Christ". However, Judge Bentley continued: "Provenzano’s delusional belief that his
conviction and sentence of death are not the real reasons for his impending execution
does not impair his factual and rational understanding of the fact that he is facing pending
execution for his conviction and sentence of death for murdering Bailiff Arnie Wilkerson
during a shoot-out at the Orange County Courthouse."
Judge Bentley’s disquiet in reaching this conclusion was clear. He stated that the present
standard for competency is "a minimal standard"; that his ruling "should not be
misinterpreted as a finding that Thomas Provenzano is a normal human being without
serious mental health problems, because he most certainly is not"; and that "if the burden
were on the State to prove beyond a reasonable doubt that Provenzano is competent to be
executed, the Court would conclude that there is reasonable doubt. The Court understands
that this is not the standard, and that the State does not have the burden to prove anything.
Nevertheless, given the nature of the penalty, the Court cannot help but be troubled by
this fact."(300)
On 25 May 2000, the Florida Supreme Court upheld the competency ruling. Two of the
seven judges dissented, saying: "It is impossible to conclude in this case that Provenzano
has a rational understanding of the reason he is to be executed when we have a judicial
finding based upon clear and convincing evidence that Provenzano genuinely believes as
a matter of fact that he ‘really will be executed because he is Jesus Christ’… Provenzano
does not rationally understand the reason the death penalty is being imposed on him.
Indeed, under the trial court’s findings, should he be put to death he will go to his death
believing he is being killed because he is Jesus Christ".(301) Thomas Provenzano’s sister
appealed to Governor Jeb Bush in a hand-delivered letter to spare her brother, saying:
"As you know, Thomas is severely mentally ill. He believes he is Jesus Christ and that he
is going to be executed because people hate Jesus." Governor Bush denied clemency. On
20 June 2000, Thomas Provenzano was granted a stay of execution by the 11th US
Circuit Court of Appeals, 10 minutes before he was scheduled to be put to death. He was
already strapped to the gurney (execution trolley) with the lethal injection needles
inserted in his arms when the stay came through. Less than 24 hours later, the court
dissolved its stay and Thomas Provenzano was put through the same ritual and killed.


Kelsey Patterson, executed in Texas, 2004

Kelsey Patterson, long diagnosed with paranoid schizophrenia, the symptoms of which
included believing that devices had been implanted in him that controlled him, refused to
meet with the independent mental health expert appointed by a federal magistrate judge
and an expert hired by the defence to evaluate his competency to be executed. In
Patterson’s delusional world, doctors and lawyers were a part of the conspiracy against

him. The two experts agreed that Patterson’s refusal to be examined was a product of his
mental illness. After a hearing in 1999, the judge noted that the defence expert "was
concerned because recent letters from Patterson indicated that Patterson believed that the
execution could easily be stopped by the state district court if that court would only
recognize and acknowledge the conspiracy against him, and that Satan was controlling
the legal process and court system, and that he had received a permanent stay of
execution from the board of pardons and parole." The judge nevertheless found Kelsey
Patterson competent to be executed, noting that "all that is required for legal competency
is for the prisoner to understand the fact of his impending execution and connection
between his crime and the execution. That the prisoner may believe that he is not morally
responsible for the killing because he was being controlled by outside forces is not part of
the test." The judge did express concern that Kelsey Patterson believed that he had a
permanent stay of execution from the clemency board. Patterson’s execution did not
happen at that time as legal proceedings continued. During oral arguments in the case in
2002, a federal judge on the US Court of Appeals for the Fifth Circuit asked the state
prosecutor: "What are we doing here? This is a very sick man", and wondered how the
state would respond when Kelsey Patterson was brought into the lethal injection chamber
"screaming about Satan".
When he received another execution date in 2004, Kelsey Patterson began writing
various letters to courts and the Board of Pardons and Paroles. Again, they were clearly
delusional. For example, one written to a federal court in February 2004 urged the judge:
"Honor Honor Honor my rights give me my rights is in amnesty give me my rights
give me my rights stop the death warrants death warrants murders stop the
execution stop and remove the execution execution date execution date told to me
by Major Miller on January 15 who said the order cam from Attorney General of
Texas execution murder execution execution punishments body health destruction
disfigurement… devil murder homo rape death machines death warrants death
warrants murder execution execution date execution hell that is being did to me
my bodies from my body my men from me Kelsey Patterson my eye my sign my
vision my family my family see and apply in action in action for me my family the
fact the Texas Court of Criminal Appeals and kuntz-TDCJ authority have told me
stay and that I have been given a permanent stay from execution based on
innocence…"
Strapped down for execution on 18 May 2004, Kelsey Patterson was asked if he had a
final statement. According to the Texas prison authorities, he responded:
"Statement to what? State what? I am not guilty of the charge of capital murder.
Steal me and my family’s money. My truth will always be my truth. There is no kin
and no friend; no fear what you do to me. No kin to you undertaker. Murderer.
[Portion of statement omitted due to profanity]. Get my money. Give me my
rights. Give me my rights. Give me my rights. Give me my life back."
Judicial recognition of the problem continues
In April 2005, the US Court of Appeals for the Fourth Circuit issued a decision which
illustrated that, two decades later, the Ford ruling is still causing problems. The ruling

concerned Percy Walton, on death row in Virginia for three murders committed in 1996
when he was 18 years old. There is evidence that he has suffered from schizophrenia
since he was 16 years old. He pleaded guilty at his trial in 1997. In 1999, three mental
health experts concluded that he suffers from chronic paranoid schizophrenia and was
probably suffering from this illness at the time of the crime.
Three days before Percy Walton was due to be executed in May 2003, a federal District
Court issued a stay in order to assess the claims that he was incompetent for execution
under Ford v. Wainwright. The District Court held a hearing in July 2003.(302) A prison
psychologist overseeing Virginia’s death row population testified that she did not believe
Percy Walton understood that he was to be executed or why. A prison psychiatrist who
had examined Walton several times recently testified that he was "floridly psychotic" and
did not comprehend his imminent execution. Another psychiatrist testified, who had also
seen Walton several times testified that Walton did not understand "in any sustained sort
of way" the reality of or reason for his execution, and was also incompetent to assist his
lawyer. A neuropsychologist concurred in these findings of incompetence. Percy
Walton’s own testimony at the hearing added weight to these expert views.(303) For the
state, another prison psychiatrist testified that Percy Walton was "a mature young man
who elected a lifestyle which has been a disappointment to him and has not fulfilled his
expectations". He testified that Walton "has a full understanding of what’s going on".
The District Court decided that it could not resolve the competence issue and held
another hearing in February 2004. With the agreement of the two parties, the court
appointed a neutral expert to evaluate Walton within the scope of two questions: 1)
whether Walton understands that he is to be punished by execution, and 2) whether
Walton understands why he is being punished." Anything else, the judge said would be
immaterial. At the hearing, the psychiatrist testified that "my sense is that the standard for
[competency for] execution is sufficiently low that, sadly, Mr Walton meets that
standard". He also concluded that Walton’s mental condition probably unable to prepare
for his death. Following the hearing, the District Court found Percy Walton competent for
execution.(304)
Percy Walton’s lawyers appealed to the US Court of Appeals for the Fourth Circuit,
arguing that the Ford decision requires not only that the condemned inmate understands
that he is to be executed and why, but that he is able to assist in his defence and able to
prepare for his death. The Fourth Circuit admitted that the Ford decision "presents
challenges" because it had neither defined insanity nor mandated the procedures for
making competency determinations. It rejected the argument that to be found competent
for execution a condemned prisoner should be able to assist his lawyer, although it noted
that several states do have that added safeguard in their procedures (for example,
Mississippi). However, the Fourth Circuit agreed that the Ford ruling did require a
finding that the prisoner was able to prepare for his or her death, and that the 1986 ruling
and Justice Powell’s concurrence required a broader inquiry than the one that the District
Court judge had initiated in Percy Walton’s case:
"A person who can only acknowledge, amidst a barrage of incoherent responses,
the bare facts that he will be executed and that his crime is the reason why does

not meet the standard for competence contemplated either in the opinion of the
Ford Court or in Justice Powell’s concurrence."
One of the three judges on the Fourth Circuit panel dissented, accusing the other two of
"creating a new constitutional test for determining competence to be executed". Judge
Shedd said that the "new prong is simply not part of the Ford ruling" and suggested that
the majority had "cobble[d] together stray" statements from that ruling to come up with
the criterion that a prisoner must be able to prepare for his or her death. Judge Shedd,
echoing other prosecutors, judges and politicians who have warned that progressive
standards will allow inmates to fake insanity to avoid execution, suggested that this "new
prong effectively precludes capital punishment for any condemned inmate who even
raises a claim of insanity".
The Attorney General of Virginia appealed for a rehearing of the issue in front of the
whole Fourth Circuit. The Court granted a rehearing and the case was reargued in front of
13 judges in November 2005. By early January 2006, the court’s decision was still
pending.(305)
Clearly, it is time for the US Supreme Court to revisit its Ford v. Wainwright ruling. It
should clarify and broaden the protection. For a start, the standard should include the
defendant’s ability to assist his or her counsel. There are so many errors uncovered in
capital cases, some even found after clemency has been denied, that the prisoner’s
capacity to help their lawyer should be a requirement for a finding of competency.
Moreover, a prisoner should be found to be able to do more than simply state some vague
connection between the crime and their punishment. The condemned prisoner must have
a genuine and rational understanding of the connection not just mere knowledge or
awareness of the facts.
The US Supreme Court has held that the standard for competency to waive appeals in a
death penalty case is whether the prisoner has "the capacity to appreciate his position and
make a rational choice" (emphasis added).(306) The Court has also found that
competency standard for pleading guilty, waiving the right to counsel, and for standing
trial, is one and the same and also contains an element of rationality. The defendant must
have "sufficient present ability to consult with his lawyer with a reasonable degree of
rational understanding" and a "rational as well as a factual understanding of the
proceedings against him" (emphasis added).(307) Seeking to ensure such competency,
the Court said, is a "modest aim". Why should even that modest aim fall by the wayside
in the state’s efforts to get a seriously mentally ill prisoner into the death chamber?
A lawyer recalled to Amnesty International in June 2005 about how the State of Texas
had managed to execute Harold Barnard in 1994 (see Reality Check 3, above) despite
overwhelming evidence that he did not have a rational understanding of his impending
execution. The lawyer, who had been involved in the case at that time, recalled that the
only mental health expert to find that Barnard was competent for execution, "talked to
him just long enough to get Harold to utter the magic words in Ford about knowing that
he is to be executed and the reason why, without tarrying long enough to examine

whether Harold rationally understood what he was saying".
Perhaps, in the end, the US Supreme Court will recognize that it is simply not possible to
find beyond a reasonable doubt which prisoners are competent for execution and which
are not. As the Fourth Circuit court stated in its April 2005 decision on Percy Walton’s
case, "undoubtedly, determining whether a person is competent to be executed is not an
exact science".(308) In other words, there will always be errors and inconsistencies on
the margins. In the end, there is only one solution – abolition.
Curing to kill – masking insanity with medication
Based on the medical history of this case, I am left with no alternative but to conclude
that drug-induced sanity is not the same as true sanity. Singleton is not ‘cured’; his
insanity is merely muted, at times, by the powerful drugs he is forced to take. Underneath
this mask of stability, he remains insane.
Federal judge, 2003
Alexander Williams’s mental illness worsened in his 15 years on death row in Georgia.
This African American, who was sentenced to death for killing a 16-year-old white girl
when he was 17 years old, was diagnosed as suffering from paranoid schizophrenia and
schizoaffective disorder with bipolar features. His symptoms included delusions and
auditory and visual hallucinations. Sometimes, the prison authorities would forcibly
medicate him with anti-psychotic drugs, using teams in full riot gear to enter his cell,
hold him down and shackle him, while others injected him. Without such medication,
Alexander Williams’s competence for execution under Ford v. Wainwright came into
question. A prison doctor’s entry on his case on 16 December 1998, for example, stated:
"I do not believe that this inmate can or will cooperate with us on voluntary medications
due to the severe psychotic illness from which he suffers chronically. There has been a
degree of improvement in his overall functioning since he has been receiving the
medication on a regular basis involuntarily… I believe that should the medications be
interrupted, we could reasonably expect a fairly rapid deterioration in his mental state."
A forcible medication order against him remained in effect as he faced an execution date
in 2002. After an international and national campaign on his behalf, he was granted
clemency because of his mental illness.(309) His death sentence was commuted to life
imprisonment without the possibility of parole on 25 February 2002 after the Georgia
Board of Pardons and Paroles heard evidence from the three psychiatrists whom it sent
into the prison to assess the inmate. Announcing the commutation of the decision, the
Chairman of the Board said that "making sure that Williams will remain in an eight foot
by 10 foot prison cell for the rest of his life with absolutely no hope of parole" would
hopefully help the murder victim’s mother "the closure she so deserves". However, 34year-old Alexander Williams, still serving an unlawful punishment in harsh conditions,
committed suicide in November 2002.(310)
Like Alexander Williams, Charles Singleton’s mental condition worsened in the almost
quarter of a century that he was on death row in Arkansas. He too was diagnosed as
suffering from schizophrenia. He was an African American man sentenced to death by an
all-white jury in 1979 for the murder of a white woman, Mary Lou York, who was

stabbed to death on 1 June that year during the robbery of the grocery where she worked.
By the late 1980’s Charles Singleton had begun to suffer delusions, including that his cell
was possessed by demons, that his brother took him out for walks from his cell, that a
prison doctor had implanted a device in his ear, and that his thoughts were being stolen
when he read the Bible. Over the years, he described himself as "God and the Supreme
Court", expressed the belief that he had been freed by the US Supreme Court, that
execution was just a matter of stopping breathing and that a judge would do something to
restart his breathing again, that the actors Sylvester Stallone and Arnold Schwarzenegger
were somewhere between this universe and another and were trying to save him, and, in a
letter to the Eighth Circuit Court, that Mary Lou York "is somewhere on this earth
waiting for me – her groom".
By the early 1990s Charles Singleton was regularly on anti-psychotic drugs. When he did
not take the medication, or he needed increased or different medication, his symptoms
would worsen. He was put on an involuntary medication regime, under a 1990 US
Supreme Court decision (Washington v Harper) which allows state authorities "to treat a
prison inmate who has a serious mental illness with antipsychotic drugs against his will,
if he is dangerous to himself or others and the treatment is in his medical interest."(311)
While under this forcible medication regime, Charles Singleton’s psychotic symptoms
abated, and the state subsequently set an execution date. His lawyers appealed that it was
unconstitutional to restore his Ford competency through forcible medication – in other
words, that it cannot be in the prisoner’s medical interest to make him competent to be
executed. The execution was stayed while the courts considered the issue.
In October 2001, a three-judge panel of the US Court of Appeals for the Eighth Circuit
ruled 2-1 that Charles Singleton’s death sentence should be commuted to life
imprisonment without the possibility of parole.(312) The state appealed for a rehearing in
front of the full court and in February 2003, the Eighth Circuit ruled 6-5 that Arkansas
officials could forcibly medicate Charles Singleton even if that made him competent for
execution. The majority wrote that "Singleton presents the court with a choice between
involuntary medication followed by an execution and no medication followed by
psychosis and imprisonment." In a breathtaking understatement, the Court wrote that:
"Eligibility for execution is the only unwanted consequence of the medication." The
majority concluded that the state does not violate Ford v Wainwright "when it executes a
prisoner who became incompetent during his long stay on death row but who
subsequently regained competency through appropriate medical care". Dissenting, Judge
Gerald Heaney wrote:
"Charles Singleton suffers from mental illness that makes him psychotic. At time
he has been forced to take powerful psychotropic drugs; at other times he takes
the medication voluntarily. The drugs often mask his underlying psychosis. The
majority believes this makes him fit for execution. I believe that to execute a man
who is severely deranged without treatment, and arguably incompetent when
treated, is the pinnacle of what [Supreme Court] Justice [Thurgood] Marshall [in
Ford v. Wainwright] called ‘the barbarity of exacting mindless vengeance’."

Judge Heaney continued:
"Based on the medical history in this case, I am left with no alternative but to
conclude that drug-induced sanity is not the same as true sanity. Singleton is not
‘cured’; his insanity is merely muted, at times, by the powerful drugs he is forced
to take. Underneath this mask of stability, he remains insane. Ford’s prohibition
on executing the insane should apply with no less force to Singleton than to
untreated prisoners".(313)
Despite the strength of this dissent, which was joined by three other judges (a fifth judge
dissented on different grounds), the US Supreme Court refused to intervene. On 6
October 2003, it dismissed Charles Singleton’s appeal, thereby allowing the Eighth
Circuit’s ruling to stand and freeing up the State of Arkansas to set an execution date. In
the event, in the months leading up to his execution, Charles Singleton took his
medication voluntarily. He refused to apply for clemency, but his lawyer filed a clemency
petition on his behalf. The state governor refused to intervene. Forty-four-year-old
Charles Singleton was executed on 6 January 2004. He had written a rambling final
statement, including "As it is written, I will come forth as you will go. I too am going to
take someone’s place. You’ve taught me what you want done and I will not let you
down".(314)
A question of medical ethics
In his dissent in the Singleton case, Judge Heaney also noted that the majority’s decision
would force the medical community to violate ethical standards:
"Physicians are duty bound to act in the best interests of their patients.
Consequently, the ethical standards of both the American Medical Association
and the American Psychiatric Association prohibit members from assisting in the
execution of a condemned prisoner. Needless to say, this leaves those doctors who
are treating psychotic, condemned prisoners in an untenable position: treating
the prisoner may provide short-term relief but ultimately result in his execution,
whereas leaving him untreated will condemn him to a world such as Singleton’s,
filled with disturbing delusions and hallucinations."
The question of medical ethics when pitted against the state’s pursuit of execution in this
way was raised in the case of French national Claude Maturana. On death row in
Arizona, Maturana was diagnosed as suffering from chronic paranoid schizophrenia. He
was transferred to a cell in a maximum security unit of the state hospital in February 1999
after a judge ruled him incompetent for execution under Ford v. Wainwright. It was then
for the chief medical officer at the hospital to assess if his condition changed. In June
1999, for example, Dr Jerry Dennis wrote to the court that "due to chronic paranoid
schizophrenia, [Maturana] does not adequately understand that he was convicted of
murder and sentenced to death".
Dr Dennis expressed the dilemma in which he found himself as a doctor. He could
change or increase the medication that Claude Maturana was receiving which might
alleviate the symptoms. If this occurred, however, he would be, in effect, sending him to

the death chamber. "I’m frustrated because I’m trying to do what’s right and what’s
ethical. It has nothing to do with whether or not I believe in the death penalty. The
question here is: How can I restore him to competency so he can be killed? I just can’t do
that. I just won’t do that. I’d resign first".(315) Moreover, the authorities could find no
one in the hospital who would take over the case and restore Claude Maturana to
competency.
The Arizona Attorney General’s Office continued to seek Maturana’s execution. The then
head of its criminal appeals section said: "We’re trying to make sure the law is carried
out. We’re not going to stick our heads in the sand simply because a doctor believes he
has an ethical concern". The prosecuting authorities argued that the state law required the
hospital to find a willing doctor. The state advertised around the country for a doctor
willing to do what the Arizona medical professionals were not. It found a willing doctor
in Georgia. He subsequently found Claude Maturana competent for execution, although
acknowledging that he was suffering from serious mental illness.(316) The litigation on
the case continued, until Claude Maturana died in hospital on 26 December 2002.
In 1992, the Louisiana Supreme Court set an example for others to follow. It prohibited
the state from pursing a "medicate-to-execute" scenario. The case involved Michael
Perry, who was convicted of killing five members of his family in 1983. He had first been
diagnosed as suffering from schizophrenia 12 years earlier, at the age of 16, and was
committed to psychiatric hospitals on numerous occasions. He was found competent to
stand trial for the murders only after 18 months of treatment. He was subsequently found
to be incompetent for execution. The medical experts "reported that Perry suffers from an
incurable schizoaffective disorder that causes his days to be a series of hallucinations,
delusional and disordered thinking, incoherent speech, and manic behaviour. These
symptoms can be temporarily diminished with antipsychotic drugs, they testified, but his
underlying insanity can never be permanently cured or quelled."(317) The trial court had
ordered that he be medicated, forcibly if necessary. However, the Louisiana Supreme
Court reversed that decision, finding that forcibly medicating a prisoner to restore him to
competence for execution violated the state’s constitution. Among other things, it said
that "forcing a prisoner to take antipsychotic drugs to facilitate his execution does not
constitute medical treatment but is antithetical to the basic principles of the healing arts."
It continued:
"The punishment intended for Perry is severely degrading to human dignity. It
will involve far more than the mere extinguishment of human life. Unlike other
death row prisoners, Perry will yield to the state the control of his mind, thoughts
and bodily functions, ingest or absorb powerful toxic chemicals, and risk of suffer
harmful, possibly fatal, drug side effects. He will not be afforded a humane exit
but will suffer unique indignities and degradation. In fact, he will be forced to
linger for a protracted period, stripped of the vestiges of humanity and dignity
usually reserved to death row inmates, with the growing awareness that the state
is converting his own mind and body into a vehicle for his execution. In short,
Perry will be treated as a thing, rather than a human being, and deliberately
subjected to something inhuman, barbarous and analogous to torture."

In May 1991, a South Carolina trial judge determined that Fred Singleton was
incompetent for execution. The state appealed to the South Carolina Supreme Court, but
was unsuccessful.(318) The Court adopted a two-prong test for determining competency,
under which it held that Singleton was clearly incompetent.(319) Citing the Perry ruling
in Louisiana, and the similarity between the two states’ constitutions, it also rejected the
notion that it could be constitutional to forcibly medicate an inmate in order to restore
him to competency for execution. It concluded that "justice can never be served" by such
an approach.
The Louisiana and South Carolina rulings render even more shocking the Eighth Circuit’s
decision in the Charles Singleton case in Arkansas a decade later, and the failure of the
US Supreme Court to intervene.
Found incompetent but still on death row
More than a decade later, Michael Perry and Fred Singleton remain on death row in
Louisiana and South Carolina respectively. In another case, Gary Alvord remains on
death row in Florida more than 20 years after he was declared incompetent for execution.
Alvord, who committed three murders after he escaped from a mental hospital in
Michigan in 1973, was sentenced to death in 1974. He was due to be executed on 29
October 1984, but was found to be incompetent for execution by three psychiatrists. He
was transferred to a state mental hospital, where his case caused controversy among the
staff in relation to the ethics of treating a person’s mental illness if the effect of that
treatment was to render him competent for execution. In 1987, after nearly three years in
the hospital, Gary Alvord’s stay of execution was lifted and he was taken back to death
row. There has never been a formal finding of competence.(320) Alvord’s case has been
called "one of Florida death row’s little-known secrets, a living symbol of the system’s
tragic failings".(321)
Gary Alvord, Michael Perry and Fred Singleton are just three of the inmates under
sentence of death in the USA who have been found incompetent for execution, and not
found competent since. They remain in their twilight world serving a "life sentence" on
death row unless and until they are later found to be competent and taken to the execution
chamber.
The total number of such inmates is unknown but is believed to be well into double
figures. For example, Amnesty International understands that there are at least three
people currently on Pennsylvania’s death row who have been found incompetent for
execution, and at least another two on death row in Mississippi, and two others in South
Carolina. The organization also has a copy of a letter from a county District Attorney in
Texas providing a state appeals court with the names of five inmates prosecuted by his
office who were currently "incompetent to be executed". The letter informs the court that
the District Attorney will "periodically" request "re-evaluation" of the inmates’
competency, and that "if any re-evaluation concludes that the listed inmate(s) is
competent to be executed, appropriate steps will be taken" to continue the legal process.
The letter is dated 31 October 1995. More than a decade later, all five remain on death

row.
For decency’s sake, at a bare minimum, Amnesty International urges states to remove
permanently from death row, if necessary through acts of executive clemency, all
condemned inmates found incompetent for execution. By removing them to more
appropriate surrounds, the state also removes the temptation to have doctors restore them
to competency for execution.
Unethical: Psychiatric testimony used to kill
It is impossible to square admission of this purportedly scientific but actually baseless
testimony with the Constitution’s paramount concern for reliability in capital sentencing.
US Supreme Court Justice, 1983(322)
At Thomas Barefoot’s sentencing in Texas nearly 30 years ago, the State of Texas
presented two psychiatrists, whose testimony lasted for more than half of the hearing.
Neither had examined the defendant or asked to examine him. Instead, at the trial, they
were asked an extended hypothetical question about an individual whose case mirrored
that of Thomas Barefoot. One of the doctors responded that the defendant was "a criminal
sociopath". There was no chance, he said, of rehabilitation and the condition might even
"become accelerated" in the coming years. There was "a probability that the Thomas A.
Barefoot in that hypothetical will commit criminal acts of violence in the future that
would constitute a continuing threat to society", even if "society" meant prison. The other
psychiatrist, Dr James Grigson, testified at his trial that whether Barefoot was in prison or
at large, there was a "100 per cent and absolute" chance that he would commit future acts
of violence and be a continuing threat to society. The jury took an hour to sentence
Thomas Barefoot to death.
In 1983, the US Supreme Court took the case and ruled that psychiatric testimony
regarding the future dangerousness of a defendant, presented to the jury during the
sentencing phase of the trial, is admissible even if the testimony is not based on any
interview with the defendant. Such predictions are widely recognized as "junk science",
unreliable and unethical. In an amicus curiae (friend of the court) brief filed in the US
Supreme Court in the Barefoot case, the American Psychiatric Association stated that
"[t]he unreliability of psychiatric predictions of long-term future dangerousness is by now
an established fact within the profession". Justice Blackmun, joined by two other Justices,
protested the Court’s ruling:
"The Court holds that psychiatric testimony about a defendant’s future
dangerousness is admissible, despite the fact that such testimony is wrong two
times out of three. The Court reaches this result – even in a capital case –
because, it is said, the testimony is subject to cross-examination and
impeachment. In the present state of psychiatric knowledge, this it too much for
me. One may accept this in a routine lawsuit for money damages, but when a
person’s life is at stake – no matter how heinous his offense – a requirement for
greater reliability should prevail. In a capital case, the specious testimony of a
psychiatrist, colored in the eyes of an impressionable jury by the inevitable
untouchability of a medical specialist’s words, equates with death itself."

Thomas Barefoot was executed in October 1984. He became the fourth person to be put
to death in Texas since it resumed executions in 1982. More than 350 people have been
put to death in the state since then, and more than 400 await execution. In each of these
hundreds of cases, a jury has unanimously voted that the state has proved beyond a
reasonable doubt that the defendant will pose a future violent risk to society if allowed to
live, even in prison, a prerequisite for a death sentence in Texas. In many cases, the state
has presented psychiatric testimony purporting to predict the defendant’s future
dangerousness in order to seek to persuade the jury to vote for death.
The late Dr James Grigson was one of number of psychiatrists willing to testify for the
prosecution as to their virtual or absolute certainty that a defendant will commit future
acts of violence. Dr Grigson is believed to have so testified in more than 150 cases in
Texas, over 90 per cent of which ended in a death sentence. He repeatedly testified that
his predictions are 100 per cent accurate, despite the fact that they were consistently
based on nothing more than hypothetical questions posed by the prosecutor.(323)
Who knows how much weight jurors give to this "expert" testimony in any particular
case? One Texas Court of Criminal Appeals Judge wrote: "It seems to me that when Dr
Grigson testifies at the punishment phase of a capital murder trial he appears to the
average lay juror, and the uninformed juror, to be the second coming of the Almighty…
When Dr Grigson speaks to a lay jury…the defendant should stop what he is then doing
and commence writing out his last will and testament – because he will in all probability
soon be ordered by the trial judge to suffer a premature death."(324) One of the jurors
who sentenced Texas defendant David Wayne Stoker to death said later of Dr Grigson:
"You couldn’t help but listen to what he was saying. [He’s] a doctor. He had a lot of
influence on what we decided."(325) David Stoker was executed in 1997 despite doubts
about his guilt.
John Thomas Satterwhite, diagnosed with paranoid schizophrenia and learning
disabilities, was executed in Texas on 16 August 2000 for the murder of Mary Frances
Davis in 1979 during the robbery of a shop in San Antonio in March of that year. His
case tells a story of state prosecutors willing to use unreliable and unethical psychiatric
testimony in order to obtain a death sentence against a seriously mentally impaired
individual.
Prior to his 1979 trial John Satterwhite was examined by a psychiatrist, Dr James
Grigson, on the request of the prosecution but without the defence lawyer being
informed. Dr Grigson concluded that John Satterwhite had "a severe antisocial
personality disorder and is extremely dangerous and will commit future acts of violence."
At the actual trial, the prosecution argued that Satterwhite’s "future dangerousness"
meant that he should be executed, and presented Dr Grigson’s testimony in support of its
position. The jury was persuaded and Satterwhite was sentenced to death.
Two years later, the US Supreme Court considered the case of another Texas death row
inmate, Ernest Benjamin Smith. As with Satterwhite, Dr Grigson had testified at Smith’s

trial that the defendant was "a very severe sociopath" who had "no regard for another
human being’s property or for their life" and that he would "go ahead and commit other
similar or same criminal acts if given the opportunity to do so." Dr Grigson’s damning
testimony stemmed from a 90-minute court-ordered interview he had conducted with
Smith in jail to determine his competency to stand trial. In 1981 the US Supreme Court
vacated Smith’s death sentence on the grounds that the use of the testimony had violated
his constitutional right to be told that he could remain silent, have a lawyer present (and
informed that the interview could encompass the issue of the defendant’s future
dangerousness), and be warned that whatever he said could be used against him.(326)
Ernest Smith was subsequently sentenced to life imprisonment. Despite the prosecution
expert’s prediction of Smith’s future dangerousness, he is reported to have been a model
inmate, having an unblemished disciplinary record in over 20 years of
imprisonment.(327)
It took another seven years until John Satterwhite would, temporarily, benefit from the
Smith decision. In 1986, the Texas Court of Criminal Appeals agreed that the use of Dr
Grigson’s testimony had been unconstitutional, as identified in Smith, but argued that it
was a "harmless" error in Satterwhite’s case. In 1988, the US Supreme Court disagreed
and overturned Satterwhite’s death sentence, ruling that it was impossible to tell if the
sentencing outcome would have the same in the absence of Grigson’s testimony.(328)
Not to be denied the execution of Satterwhite, Texas decided to pursue another death
sentence against him at a retrial. The first obstacle was for the prosecution to convince a
jury that this mentally impaired defendant was competent to stand trial. They were twice
unsuccessful, with two separate juries unable to decide whether Satterwhite was
competent. At a third hearing, the state’s psychiatrist, Dr John Sparks, spoke to the
defendant during a break in proceedings, without the knowledge of the defence lawyer.
Over the objections of the defence that the use of this testimony against Satterwhite
would violate Smith, Dr Sparks informed the jury that, based on this clandestine
interview, he had determined that Satterwhite was aware of what was going on around
him. The defence lawyer moved for a mistrial on the grounds that Dr Sparks’s testimony
violated Smith. The jury voted that Satterwhite should stand trial.
At the 1989 retrial, Dr Jerome Tilles, a psychiatrist formerly employed by the state prison
system, testified for the defence that Satterwhite suffered from chronic paranoid
schizophrenia, and had done so since his teens. He also concluded that John Satterwhite
had mental retardation. A second expert endorsed this view. For the state, Dr Sparks
testified that Satterwhite was not mentally ill and had not been so diagnosed. Satterwhite
was sentenced to death again.
After the trial, two "missing" state medical documents came to light, both of which could
have been used to challenge Dr Sparks’s testimony at the pre-trial hearings and the retrial
itself. One was a "Master Problem List", in which the state listed "Mental Illness" as
Satterwhite’s primary problem. The second was a Minnesota Multiphasic Personality
Inventory (MMPI), a standard psychological test performed on Satterwhite in 1983. At an
appeal hearing, Dr Tilles testified that Satterwhite’s abnormal MMPI scores supported a

diagnosis of paranoid schizophrenia. He also testified that Dr Sparks’s interview of
Satterwhite at the third 1989 competency hearing breached ethical standards. All appeals
failed and John Satterwhite was executed, 21 years after the crime.
Rodolfo Hernandez was put to death in Texas two years later, on 30 April 2002. Before
his September 1985 trial, because he had been treated for various mental disorders over
the previous 15 years, and because there were doubts about his sanity at the time of the
March 1985 crime and his competence to stand trial, his lawyer filed a motion for the
judge to appoint a "qualified disinterested expert" to conduct a mental examination. The
motion requested that the defence lawyers be allowed to be present at the examination or
at least that the session be videotaped for future reference. The motion made clear that the
lawyers objected to any such examination if these requirements were not met.
The court denied the motion, instead appointing Dr John Sparks, who proceeded to
interview Hernandez, but did not review his extensive psychiatric or medical records,
except for a single 1974 report indicating that Rodolfo Hernandez suffered from
schizophrenia. He concluded that Rodolfo Hernandez had an antisocial personality
disorder, was not mentally ill, and was competent to stand trial. The defence was not told
that the scope of the examination would include an assessment of future dangerousness.
Hernandez was not warned by Dr Sparks that anything he said during the examination
could be used at the sentencing phase of his trial.
Rodolfo Hernandez was duly convicted and the trial moved into its sentencing phase. The
prosecution called Dr Sparks as an expert witness. He testified to his expertise, saying
that he had been involved in some 1500 criminal cases as a forensic psychiatrist. He was
asked to assume as true a detailed description of a "hypothetical" capital offender and
murder which was identical to the case against Rodolfo Hernandez, including dates and
places. Dr Sparks was then asked to give his opinion on whether such a defendant would
commit future acts of criminal violence and hence pose a continuing threat to society.
The defence objected, but was overruled. Dr Sparks testified that there was "a high
likelihood" that such defendant would commit future acts of violence.
On cross-examination, the defence lawyers introduced Hernandez’s medical records,
showing that he had been diagnosed with chronic paranoid schizophrenia, and that he had
been treated with anti-psychotic medication, electro-shock therapy and other methods.
The defence lawyers elicited testimony from Dr Sparks that it could be possible that
Hernandez had symptoms of schizophrenia at and around the time of the crime. However,
the prosecution then asked him to give his opinion as to how he would diagnose the
"hypothetical" offender that had earlier been described. Dr Sparks responded that,
"assuming a great deal", the case suggest an anti-social personality disorder. He agreed
with the prosecutor’s suggestion that it would "be fair to say then that this type of person
could kill without any problem whatsoever".
After the defence attempted to raise the evidence of the defendant’s history of serious
mental illness, the prosecution abandoned its "hypothetical" scenario and asked Dr
Sparks if he had examined Rodolfo Hernandez prior to the trial. Dr Sparks responded that

he had. The defence objected. The prosecution argued that it had been the defence which
had "opened the door" to mental health diagnoses. The judge ruled that Dr Sparks would
be allowed to testify as to his "medical findings", which had been "opened up by
questions" presented by the defence. However, the judge said that Dr Sparks would not
be allowed to give his opinion on Hernandez’s future dangerousness based upon his
interview with the defendant. Of course, he already had done, albeit under the guise of a
"hypothetical" question.
Under further questioning, Dr Sparks testified that he had diagnosed Hernandez as having
anti-social personality disorder. He further testified that if he had reviewed Hernandez’s
records, he would have diagnosed him with paranoid schizophrenia in remission as well
as anti-social personality disorder. He added that people suffering from paranoid
schizophrenia "are generally well organized, are generally reasonably intelligent, and
although the plans may be part of the illness, they can make and do make plans."
Despite the fact that the prosecution’s use of Dr Sparks’s testimony flew in the face of the
US Supreme Court’s Estelle v. Smith ruling of four years earlier (above), Rodolfo
Hernandez’s death sentence survived the appeals process with minimal dissent. A judge
on the US Court of Appeals for the Fifth Circuit did protest, describing the Fifth Circuit’s
acceptance of the Texas Court of Criminal Appeals "terse" order affirming the death
sentence as "highly creative". He concluded that the unconstitutional use of Dr Sparks’s
testimony "had a substantial and injurious influence on the jury’s determination of the
issue of future dangerousness":
"Dr Sparks was unequivocal in his testimony regarding Hernandez’s future
dangerousness. He stated that an offender who had committed a crime identical
in every detail with Hernandez’s offense had an anti-social personality disorder
and was therefore a continuing threat to society. He revealed that, based on his
examination of Hernandez, Hernandez had an anti-social personality disorder.
Even when confronted with records that might have indicated that Hernandez’s
behavior was attributable to paranoid schizophrenia, he adhered to his original
conclusion based on his examination of Hernandez that Hernandez’s behavior
was attributable to the anti-social personality disorder, conceding only that he
would have altered his diagnosis to reflect paranoid schizophrenia in remission,
in addition to the anti-social personality disorder".(329)
A recent study reviewing 155 Texas cases in which the prosecution used "experts" to
predict a defendant’s future dangerousness found that the "experts" were wrong 95 per
cent of the time.(330) However, the Barefoot v. Estelle decision still holds after more
than 20 years. Although the US Supreme Court in 1993 held that trial judges must act as
"gate-keepers" to assess the credibility of scientific evidence before it is presented to a
jury, the Court has not reconsidered its Barefoot ruling in light of that subsequent
Daubert decision.(331)
In April 2000, a federal judge voted to uphold the death sentence of Miguel Flores, a
Mexican national on death row in Texas. Yet Circuit Judge Emilio M. Garza made no
secret of his concern about the psychiatric testimony which may have put him there, and

his view that such future dangerousness evidence appears to fail the Daubert test.
"Overall," wrote Judge Garza, "the theory that scientific reliability underlies predictions
of future dangerousness has been uniformly rejected by the scientific community absent
those individuals who routinely testify to, and profit from, predictions of dangerousness".
(332)
Dr Clay Griffith, without meeting or examining the defendant, had testified at the trial of
his certainty that Flores was a future danger. Indeed, Dr Griffith had told the jury that
examining the defendant would be "a hindrance" to an accurate prediction. Judge Garza,
who noted that a "brief search" of the published cases involving Dr Griffith’s testimony
revealed that he had testified "yes" to a defendant’s future dangerousness on 22 occasions
and "no" on zero occasions, wrote: "The scientific community virtually unanimously
agrees that psychiatric testimony on future dangerousness is, to put it bluntly, unreliable
and unscientific. It is as true today as it was in 1983 (the year of the Barefoot decision)
that neither the [US Supreme] Court nor the State of Texas has cited a single reputable
scientific source contradicting the unanimous conclusion of professionals that psychiatric
predictions of long-term future violence are wrong more often than they are right"
(internal quotations omitted)". Judge Garza concluded: "If that [legal] process is flawed
because it allows evidence without any scientific validity to push the jury toward
condemning the accused, the legitimacy of our legal process is threatened."
Mental illness on or because of death row
It is a terrible thing to be condemned to death, and confined for years in a small cell, with
little to do except to prepare for execution. It seems self-evident that the conditions under
which the condemned spend those last years should not involve additional punishment.
Yet, at present, the six condemned prisoners on New York’s death row endure a host of
indignities and restrictions that normally are employed only as punishment for the
violation of important prison rules. To impose these conditions on the UCP’s inmates as
a matter of course, that is, even if they have obeyed every rule that the system enacts, is
harshness without purpose, a fair definition of cruelty
The Association of the Bar of the City of New York, 2001(333)
The mental health of Nguyen Tuan Anh Nguyen, a former child refugee from Vietnam
deteriorated during the seven years that he was held in H-Unit of Oklahoma’s State
Penitentiary. His symptoms included psychotic-like episodes in his cell where he would
scream for extended periods. To what extent living under sentence of death in one of the
harshest prisons in the country contributed to his mental health is not known, and it can
only be imagined what effect his screaming had on those other inmates who could hear
him.
Tuan Nguyen was executed in the first few minutes of 10 December 1998, Human Rights
Day, despite evidence that he was legally insane. John Duvall was executed a week later.
His clemency petition noted: "Since November 1991, Mr Duvall has lived in the
underground tomb known as H-Unit at Oklahoma State Penitentiary at McAlester. Except
for a trip to court in 1992 and a trip to the hospital in 1996, John has not seen a blade of
grass, a bird, a tree or anything of nature in these seven years. Except for those brief trips,
John has not breathed real air in these seven years."

H-Unit, where Oklahoma’s male death row population has been housed since November
1991, is constructed entirely of concrete with the living accommodation sited effectively
underground. It is an electronically controlled facility designed to minimize contact
between inmates and prison staff. Prisoners are confined for 23 or 24 hours a day in cells
measuring 7’ 7" (2.31m) wide by 15’ 5" (4.70m) long by 8’ 4" (2.54m) high. The walls,
floors and ceilings are of unpainted concrete. Each cell has two concrete beds on either
side of an uncovered toilet and sink. There is no other furniture in the cells apart from
two concrete shelves on the back wall which serve as a "table" and two similar shelves
above these. The cell doors are solid metal, except for the upper part which has a
plexiglass window with thick bars on the outside. There are no windows to the outside
world. There is no natural fresh air ventilation to the cells, which are air-conditioned
through a pipe system in which air is passed in and out of two vents in the back of each
cell. After visiting the unit in 1994, Amnesty International concluded that the conditions
under which death row inmates were being held in H-Unit constituted cruel, inhuman and
degrading treatment in violation of international law and standards.(334)
Most of the death row population in H-Unit are kept "double-celled", that is, two inmates
to a cell. Prisoners who are kept alone in cells are those who are considered to be a
physical threat to other inmates, or unstable. Tuan Anh Nguyen, for example, was kept
single-celled in the years before he was killed. Until he died in 1997, Thomas Hays had
been kept single-celled for six years in H-Unit because of the severity of his mental
illness.(335) H-Unit is no place for the healthy, let alone people who are mentally ill.
Such conditions can cause mental health problems and exacerbate existing ones.(336)
By all accounts, the conditions in H-Unit remain as harsh as ever more than a decade
after Amnesty International’s report. In 2000, when Human Rights Watch raised
concerns about conditions in the unit and their potential impact on the mental health of
inmates, the Director of the Department of Corrections responded that the Department
had "no intentions of responding to any concerns that you have with H-Unit.... I am not
intending to be impolite, but your correctional philosophy and the correctional
philosophy in the state of Oklahoma differs substantially, and there is no reason to initiate
any further dialogue or correspondence."(337)
Conditions in H-Unit are an example of an increasingly punitive rather than rehabilitative
approach to incarceration adopted during the 1980s and 1990s under which maximum
security prisoners are warehoused until they die, are executed or released. Death row
inmates have seen their conditions of detention worsen as a part of such developments. In
some cases, the conditions are as severe as those in the USA’s "supermaximum" security
prisons, a concept "now embedded in American corrections".(338) Certain aspects of the
supermaximum security prisons have been described by the UN Committee against
Torture as "excessively harsh", and the UN Human Rights Committee as "incompatible"
with international standards.(339) Prolonged isolation in conditions of reduced sensory
stimulation can cause severe physical and psychological damage, even on health
individuals, and even without the added psychological stressor of a death sentence.(340)
An expert on detention conditions and mental health has written: "Every prisoner placed

in an environment as stressful as a supermax unit, whether especially prone to mental
breakdown or seemingly very sane, eventually begins to lose touch with reality and
exhibit some signs and symptoms of pyschiatric decompensation, even if the symptoms
do not qualify for a diagnosis of psychosis."(341) At least two federal courts in the USA
have recognized that the type of conditions of confinement in supermaximum security
prisons can lead to serious psychological harm.(342)
In 1999 and 2000, Texas death row was transferred from Ellis Unit in Huntsville to
Polunsky (formerly Terrell) Unit in Livingston. From being held in tiered cells with
barred fronts and in a regime that allowed group religious and recreational activities,
work in a garment factory, and television, the inmates were transferred to a regime of
confinement alone in his cell (six and a half feet by 11 feet on its longest side) for 23 to
24 hours a day. The cell has a built-in toilet, sink, bed, desk and shelving, all steel. Each
cell has a steel door with two slits that serve as windows into the unit section ("Pod").
There is a single closed window three inches wide and about four feet long running
horizontally high along the outside wall. In order to be able to look out of this window,
the prisoner would have to stand on his bed. The window of a cell viewed by an Amnesty
International delegate during a visit to the prison on 2 May 2001 afforded a view of razor
wire and little else.
Each of the Polunsky Unit’s six Pods has an indoor exercise area, an enclosed space split
into two halves separated by floor-to-ceiling wire mesh. In this small area, a prisoner can
take exercise alone for up to an hour – there may or may not be a fellow inmate in the
opposing half of the exercise area at that time. Because the exercise area is actually
housed in the Pod itself, overlooked by cells, its atmosphere and surrounds fail to provide
a qualitatively different experience from in-cell time. Amnesty International has been told
that many inmates choose not to take exercise because they consider the transfer from the
cell to the exercise area and back a humiliating exercise, including handcuffing and stripsearching. Amnesty International has been told that there are more inmates displaying
possible detention-related mental health problems than there were at Ellis Unit, although
the Texas authorities have not responded to Amnesty International’s request for any
available comparative statistics they may have on this issue.
Visits by family members and others in Polunsky Unit, as in many other states, are "noncontact", conducted through plexiglass and via telephone. Prisoners may thus be held for
many years with almost no human contact and little outside or group stimulation or fresh
air and sunlight. Such harsh conditions may lead to anxiety, depression or other mental
health problems in an inmate and could explain why a number of prisoners have chosen
to drop their appeals and "consented" to their own execution. In New Mexico, for
example, Terry Clark was found competent to drop his appeals despite evidence that he
suffered brain damage (of the right frontal lobe), and suffered from a major depressive
disorder with paranoid features. Lawyers had argued against the execution, holding that
his decision to drop his appeals could not be described as voluntary given the
psychological impact of spending more than 10 years on New Mexico’s death row, where
conditions had become increasingly harsh over the years, with reduced human contact
and restrictions on activities. Again, inmates are held in their cells for 23 hours a day.

The sense of isolation on death row may be one reason why 10 out of 11 of the people
put to death in Nevada between 1977 and June 2005 had given up their appeals. Nevada’s
death row is based at Ely, in the east of the state. It is situated some 400 kilometres from
Las Vegas and over 500 kms from Reno, the two main centres of population in one of the
least densely populated states of the USA. Such distances undoubtedly make it difficult
for people to visit death row inmates.
The isolation to which condemned inmates were being subjected in Mississippi was just
one of the aspects of death row conditions which a lawsuit argued amounted to cruel and
unusual punishment in violation of the US Constitution and "toxic" to the inmates’
mental health.(343) In May 2003, a federal judge agreed, ruling that the death row
conditions in Mississippi State Penitentiary offended "contemporary concepts of decency,
human dignity and precepts of civilization which we profess to possess". Judge Jerry
Davis found that death row inmates were being subjected to "profound isolation,
intolerable stench and filth, consistent exposure to human excrement, dangerously high
temperatures and humidity, insect infestations, deprivation of basic mental health care,
and constant exposure to severely psychotic inmates in adjoining cells."(344) Among
other things, the federal judge found that:



the filthy conditions impacted on the mental health of inmates;
the probability of heat-related illness was high for death row inmates,
particularly those suffering from mental illness who either did not take
appropriate steps to deal with the heat or whose medications interfere with
the human body’s temperature regulation;(345)
 there were at least six severely psychotic inmates on death row, and many
others had been diagnosed with mental illness. The exposure to the
severely psychotic individuals, who would for example scream and throw
feces, was intolerable;(346)
 the isolation of death row, combined with the conditions on it and the fact
that its population are awaiting execution, would weaken even the
strongest individual;
 the mental health care provided to inmates was "grossly inadequate".
Mental health consultations were not conducted in private, causing
inmates not to relate their problems, and powerful medications were
prescribed but the patients not monitored.
The state appealed and in June 2004, the US Court of Appeals affirmed a number of
Judge Davis’ orders for injunctive relief relating to the conditions and the threat they
posed to the well-being of the inmates, a concern to which the prison authorities had
displayed "deliberate indifference".(347)
Deliberate indifference is a phrase that could be used to describe the failure of the US
authorities to lead their country away from the death penalty. This calculated assault on
human dignity is compounded when the conditions to which condemned inmates are
subjected go beyond what is necessary for their confinement. State correctional

authorities should examine whether death row conditions meet international standards for
the treatment of prisoners, and ensure that treatment for those with mental illness is
adequate. Any prisoners suffering from psychosis should be removed from death row to
more appropriate locations.
Cycle of violence – from the home to the death chamber
We do not profess to be unmoved by the dreadful circumstances of Tucker’s childhood,
and we understand the relevance of such evidence to the jury’s determination of Tucker’s
moral culpability at the time he committed the murder
US Court of Appeals for the Fifth Circuit, upholding a death sentence, 2001(348)
Jeffrey Tucker was executed in Texas on 14 November 2001. In July 1988 he purchased
a gun and ammunition from a pawn shop and soon afterwards shot a man and stole his
truck. The jury which sentenced Tucker to death in October 1989 heard little of his
abusive childhood and no expert evidence about its effects on his mental health. In 1997,
both of his trial lawyers signed affidavits acknowleding their failure. One of them wrote:
"it was certainly not due to any legal strategy, tactic or plan that we neglected to pursue
and introduce documents or testimony regarding Mr Tucker’s mental illness... The idea
of investigating a client’s childhood and mental health history was new to us." Both
lawyers said they believed that such evidence could have saved their client’s life.(349)
A psychological evaluation in 1997 found compelling evidence that Jeffrey Tucker had
experienced severe PTSD since childhood and/or adolescence. It suggested that "had
appropriate psychotherapy ever been conducted during residential treatment or his
hospitalization, and had appropriate…medication ever been instituted, the incident for
which Mr Tucker is currently incarcerated may never have occurred." It found evidence
that the shooting of the victim may have occurred during an PTSD flashback when the
victim lunged across the front seat of the truck at Tucker. The latter recalled that during
this episode, "I saw my Dad jumping out at me. I was back there. Then the gun went off."
The evaluation described Jeffrey Tucker’s case as "a prototypical illustration of the
possible long-term consequences of untreated childhood sexual abuse. A pervasive sense
of stigmatization, betrayal, powerlessness, and traumatic sexualization derived from the
child physical and sexual abuse that he endured, coalesced and literally ‘ticked away’,
much like a psychological time bomb, until a constellation of certain external and internal
stimuli and intrusive recollections ‘detonated’ within Jeffrey…"(350) The US Court of
Appeals for the Fifth Circuit upheld the death sentence in 2001, adding that it did "not
profess to be unmoved by the dreadful circumstances of Tucker’s childhood, and we
understand the relevance of such evidence to the jury’s determination of Tucker’s moral
culpability at the time of the crime".(351) Nevertheless, it held that the fact that the jury
had not heard the bulk of such evidence had not altered the outcome of the trial.
In his reflections on the death penalty, Ronald Spivey wrote that among those being
executed in the USA were "those so criminally abused as children that they never had a
chance to develop normally to a well-balanced human being".(352) Ronald Spivey was
on death row in Georgia for a quarter of a century before being executed in 2002. He
himself had suffered a childhood of emotional and physical abuse and had a history of
psychiatric problems. As a child, his father used to beat him, lock him in cupboards, and

threaten to kill him. The boy fled home on numerous occasions, only to be returned by
the authorities. At school, it was recognized that he had severe emotional problems, and
he began receiving mental health treatment at the age of 12. However, his father
frequently prevented him from receiving the psychiatric care he needed, apparently
believing that beating him was more appropriate.
Ronald Spivey’s experience is far from isolated amongst the USA’s death row
population.(353) The background of deprivation and abuse from which large numbers of
those on death row in the USA come – and its possible mental health consequences – is
an aspect of this punishment which, like race and economic class, is impossible to
ignore.(354) Sometimes it is neglect rather than physical abuse which raises questions of
wider societal responsibilities. Adremy Dennis, for example, was executed in Ohio on 13
October 2004 for a murder committed when he was 18 years old. He had been born to a
mentally unstable 19-year-old mother and an abusive father who she left when Adremy
was five years old. His schooling and medical care suffered as a result of the effective
absence of any parenting. He never had any treatment for his history of blackouts, and
there is evidence that he suffered from untreated Attention Deficit Hyperactivity
Disorder, which made him particularly vulnerable to self-medicating on illegal drugs and
alcohol (he was intoxicated at the time of the crime). When he was 15, he was taken into
care by social services. As his execution date approached, three of the eight Ohio parole
board members voted for clemency, noting expert psychological evidence of the "serious
effect" of the "severe and debilitating child neglect from birth until age fifteen". They
also suggested that the "school system had missed a vital opportunity to help Dennis",
when it failed to take any action about his absenteeism (in the year before he was taken
into care, he was absent from school for 122 days).
"Over and over, clinicians and researchers have observed the interactive and
synergistic relationships among childhood trauma, Post-traumatic Stress
Disorder (PTSD), substance abuse and violence. Among the common
psychological legacies of childhood trauma is PTSD, the symptoms of which often
lead abuse victims to seek relief through self-medication – the consumption of
mind-altering drugs and alcohol that deaden feeling, alleviate fears and anxieties,
and provide temporary states of artificial euphoria. Especially when chronic,
such abuse of mind-altering drugs and alcohol often contributes to a generalized
deterioration in patients’ lives; loss of relationships; loss of jobs. As a
consequence and possibly also as a corrolary, it also often leads patients into
violence – through connections with violent individuals, and through an
increasing reliance on crime to find the money to pay for the substances they are
abusing, and through disinhibition of violent impulses. Further, some of the
symptoms of PTSD itself, in particular hyper-vigilance and hyper-reactivity to
particular stimuli, may render a victim more susceptible to violent behaviour, a
susceptibility that may be greatly enhanced by substance abuse."(355)
In case after case among the condemned, a history of physical, sexual or emotional abuse
is revealed. Time after time, lawyers appointed by the state to defend indigent capital
defendants have failed to investigate such backgrounds, leaving juries in the dark about

the life stories of those against whom they are being asked to pass a death sentence.
Scores of such people have been executed in the USA since 1977. They include:


Gary Etheridge. He was physically abused by his father, particularly when
his father was drunk. His mother suffered mental illness and made
repeated suicide attempts, one of which Gary Etheridge had witnessed as a
child. He was repeatedly raped and physically abused by an older brother
starting from when he was six years old. Gary Etheridge began using
drugs and getting into trouble with the law from the age of 12. His four
brothers, also brought up in this abusive environment, have all been to
prison. Gary Etheridge attempted suicide on at least two occasions, once
after being raped while serving a prison term for a prior, non-violent
offence. His severe depression, when left untreated outside prison,
contributed to his self-medicating with illegal drugs and to serious drug
addiction. He was intoxicated on a combination of heroin and cocaine
when the sexual assault and murder of 15-year-old Christi Chauvierre
occurred. At his Texas trial for that murder, his lawyers were aware of
such mitigating evidence, but chose not to present it. They feared that such
evidence could be used by the prosecutor to argue that Gary Etheridge
would be a future danger if allowed to live (a prerequisite for a death
sentence in Texas). Indeed at the 1990 trial, the judge had referred to the
defendant as a "piece of trash" and "a blight on society". The jury’s verdict
that he was an unacceptable risk to society and should be killed was
carried out on 20 August 2002.



Marlon Williams. He was executed in Virginia on 17 August 1999. At the
time of his crime he was emerging from a childhood of appalling physical
abuse. For example, when he was 11 he was beaten with a broom handle
so severely by his mother that his two blackened eyes were 95 per cent
swollen shut. She sent him to school in this condition. He was
immediately taken to hospital, where he was also found to have a ring
imprint on his forehead. He was diagnosed with major depression at 13,
and at 15 a psychological evaluation described him as "a very
psychologically damaged young man", who was having psychotic
episodes. After living in various homes, including his mother’s again, he
was taken back into the custody of Social Services until he turned 18.
Thirteen months later Helen Bedsole was shot dead, the crime for which
Williams was sentenced to death. The judge who sentenced him was left
largely unaware of the abuse and mental health problems.



William Smith. He grew up in an environment of deprivation and abuse.
His mother suffered from mental illness, as did his stepfather, who was
also violent towards the children. From the age of nine to 14, William
Smith himself was resident in a psychiatric facility where he was treated
with anti-psychotic medication and electric shock therapy. After he left
there as a young teenager, he took to living on the streets or with friends.

He began using drugs, and would later be diagnosed with alcohol
dependence, cannabis dependence and cocaine dependence which, in a
post-conviction assessment, a clinical psychologist concluded may have
affected Smith’s conduct on the night of the crime. His trial lawyers did
not begin to prepare for the sentencing phase of the trial until a few days
beforehand, and failed to present expert mental health testimony prepared
for this phase. The Ohio parole board unanimously rejected clemency,
despite finding that there were a number of mitigating factors in the case:
namely that William Smith suffered "an abysmal childhood of deprivation
and abuse"; that he had displayed a "sincere, genuine and strong
expression of remorse" for the crime (in a meeting with a parole board
member, William Smith had "tearfully stated that he takes full
responsibility for his inexcusable, unjustifiable and inexplicable
behaviour"); that, at the time of the crime, he had "suffered from a
personality disorder that may have manifested in a loss of impulse
control"; and that he has "demonstrated exemplary conduct and
adjustment" in prison. William Smith was executed in Ohio on 8 March
2005.


Betty Lou Beets. She went to her death in the Texas execution chamber on
24 February 2000, two weeks before her 63rd birthday. The jury was left
unaware of crucial mitigating evidence, including Beets’ traumatic history
of severe physical and sexual abuse from an early age. Expert testimony in
post-conviction proceedings found that she suffered from post-traumatic
stress disorder (PTSD), Battered Woman Syndrome and organic brain
damage. Appeals from the UN Special Rapporteurs on extrajudicial,
summary or arbitrary executions and on violence against women were
among the thousands of calls for Governor George W. Bush to stop the
execution. The UN experts urged the Governor to consider "the specific
circumstances of the crime and in particular the violent abuse which Betty
Lou Beets suffered at the hands of her spouses and the effect of this abuse
on her state of mind and her actions."



Abu-Ali Abur’Rahman remains on death row in Tennessee for the
stabbing murder of Patrick Daniels in 1986. He has been diagnosed as
suffering from PTSD. While not denying that he was involved in the
crime, Abu-Ali Abdur’Rahman has consistently maintained that he cannot
remember the stabbing itself, a possible sign of a PTSD blackout.(356)
During his childhood, he had suffered appalling abuse at the hands of his
father, a military policeman. This abuse included the child being stripped,
tied up, and locked in a cupboard; being struck on the penis with a
baseball bat; and being made to eat a pack of cigarettes as punishment for
smoking, and when he vomited forced to eat the vomit. His jury heard
none of this evidence. Nor did it learn of his mental health problems. In
1998 a federal judge overturned the death sentence, citing the "utterly
ineffective assistance of counsel at his sentencing hearing". However, the

US Court of Appeals for the Sixth Circuit reinstated the death sentence in
2002 over a dissent by one of the three judges. According to a Tennessee
Supreme Court Justice, not even the two Sixth Circuit judges who voted to
reinstate the death sentence "seriously challenge[d] the finding that
Abdur’Rahman had received deficient representation". By 2002, eight of
the nine jurors contacted by Abdur’Rahman’s appeal lawyers had signed
affidavits saying that they might or would not have voted for death if they
had heard the mitigating evidence.(357)

Others have been executed whose PTSD appears to have been the result of traumatic
violence later in life, including in the context of war (see next section) and in state
institutions. For example, Donald Harding, executed in Arizona in 1992, was diagnosed
with untreated PTSD sustained as a result of sexual and physical brutality he was
subjected to in adult prison, including as a teenager. Another such case was that of
Samuel Smith, executed in Missouri on 23 May 2001.
Samuel Smith was sentenced to death and executed for stabbing to death a fellow
prisoner, Marlin May, in Missouri State Penitentiary in January 1987. A fight had erupted
between a number of inmates, in which Samuel Smith became involved. Five months
earlier, Smith had himself been stabbed and was in hospital for a week. For his trial for
the murder of Marlin May, he was originally represented by the two lawyers who were
representing the two inmates accused of stabbing Smith in the earlier incident. They were
removed after Smith discovered the conflict of interest, but in the eight months they had
been on the case, they had interviewed no witnesses nor prepared any mitigation
evidence. They were replaced by a lawyer who had no capital trial experience, who
presented no mental health evidence. After Smith was sentenced to death, he was
diagnosed as suffering from PTSD as a result of the earlier stabbing that may have
triggered the crime five months later.(358)
Undoubtedly, the links between trauma suffered by individuals during childhood or later
in life and their own propensity to violence are complex and variable. Abolitionists are
not seeking to excuse criminal violence, but to end a sanction that is blind to this
complexity and diverts resources from efforts to explain past violence and prevent its
recurrence. The death penalty is a simplistic solution that denies any causation and is
itself a part of a cycle of violence that does not move our understanding of the roots of
violence forward one iota.
Killing state: the soldier and the executioner
Mr Brannan’s whole life involved service to his country... He served two tours in
Vietnam… Mr Brannan killed at the direction of his government, and he witnessed many
more killings including that of his commanding officer… [He] came home with medals of
commendation; he also came home with Post Traumatic Stress Disorder
Appeal brief for Andrew Brannan, Georgia death row, 2002(359)
In a book published in 1995 on the psychological effects of war on combatants, Dr
Jonathan Shay wrote of his aim to "put before the public an understanding of the specific

nature of catastrophic war experiences that not only cause lifelong disabling psychiatric
symptoms but can ruin good character. I have a specific aim in doing this: to promote a
public attitude of caring about the conditions that create such psychological injuries, an
attitude that will support measures to prevent as much psychological injury as possible. It
is my duty as a physician to do my best to heal, but I have an even greater duty to
prevent."(360) In his introduction to the book, Dr Shay quotes one of his Vietnam veteran
clients, diagnosed with Post Traumatic Stress Disorder (PTSD):
"I haven’t really slept for twenty years. I lie down, but I don’t sleep. I’m always
watching the door, the window, then back to the door. I get up at least five times
to walk my perimeter, sometimes it’s ten or fifteen times. There’s always
something within reach, maybe a baseball bat or a knife, at every door. I used to
sleep with a gun under my pillow, another under my mattress, and another in the
drawer next to the bed. You made me get rid of them when I came into the
program here. They’re over at my mother’s, so I know I can get them at any time,
but I don’t. Sometimes I think about them – I want to have a gun in my hands so
bad at night it makes my arms ache."
Dr Shay noted that about three-quarters of a million heavy combat veterans were still
alive in the mid-1990s, about a third of whom were "still suffering in this manner". A
nationwide study conducted during the 1980s and published in 1992 concluded that 35.8
per cent of male Vietnam combat veterans met the full American Psychiatric Association
diagnostic criteria for PTSD. Over 70 per cent of combat veterans had experienced at
least one of the symptoms at some time in their lives, even if he was not given the full
PTSD diagnosis.(361)
David Funchess had joined the Marine Corps in 1965 at the age of 18, and was sent to
Vietnam in 1967, where he was involved in some of the heaviest fighting of the war. His
military record was excellent, and he received five medals for bravery during his tour of
duty. However, he was badly wounded in a landmine explosion and was hospitalized in
Japan. He was eventually returned to duty, but, suffering from depression, his military
record deteriorated and, after frequently going absent without leave, he received a
dishonourable discharge in 1971. Four years later, this African American Vietnam
veteran was sentenced to death for killing two white people during a robbery of a bar in
1974.
David Funchess was first diagnosed as suffering from PTSD in 1982 by a leading expert
on the disorder. This psychologist found that, although David Funchess was reluctant to
dwell on them, his wartime experiences, together with the murder of his brother shortly
before his tour of duty in South Vietnam and certain incidents in his childhood, had
combined to cause a depressive reaction characteristic of a severe form of PTSD. The
psychologist stated that the disorder was produced by massive internalized stress, which
could erupt on occasion into uncontrollable outbursts of aggressive behaviour. The
symptoms included long-term suppression of emotions, dissocation from reality, mental
impairment and memory loss.
His family described how he returned from Vietnam a changed person and addicted to

heroin. He had been unable to tolerate noise, suffered from frequent flashbacks,
sleeplessness and nightmares. It was said that he could not enter a house or room without
first crouching down with an imaginary machine gun as if ready for combat. Unable to
spend time indoors, he would often build what his sisters described as "foxholes" and
sleep in them under the house. Later he took to sleeping in cars, and unable to find work
drifted into petty crime.
The lawyer who represented David Funchess at trial later testified that he had been
unaware of the existence of PTSD and had had neither the information nor the resources
to seek expert input to present to the jury. Neither had the lawyer talked to his client’s
family. David Funchess was executed in Florida in 1986.
In his 1995 book, Dr Jonathan Shay continues his testimony of combat veterans from the
Vietnam War:
"Once when my daughter was younger… she came up behind me and before I
knew it I had her by the throat up against the wall. I can still see her eyes. I put
her down and just walked out of the house without saying anything to anybody
and didn’t come back for a week. I felt lower than dogshit. I hate it that my kids
have to be so careful around me. I made them that way, and I hate it…
I think I don’t have long to live because I have these dreams of guys in my unit
standing at the end of my sofa and blood coming down off them and up the sofa. I
wake up screaming and the sofa soaked with sweat. It seems like if the blood
reaches me I’m going to die when it does. Other nights I dream of the guys calling
to me from the graveyard. They’re calling to me, ‘Come on , come on. Time to
rest. You paid your dues. Time to rest’."
Manuel Babbitt was a black decorated Vietnam veteran diagnosed with PTSD. On his
return to the USA from the Vietnam War, he experienced severe difficulties adjusting to
civilian life and slid into serious alcohol and drug problems. He spent eight months in a
mental hospital where conditions at the time were described by a federal judge as
"shocking" and "unconstitutional". His declining mental health was diagnosed, but never
treated. A leading expert on PTSD among Vietnam War veterans concluded that Babbitt
was suffering from a combat-related flashback, aggravated by hallucinogenic drugs,
when he killed Leah Schendel in 1980, and hid and tagged her body as soldiers had
hidden and tagged their fallen comrades in Vietnam. Manuel Babbitt was executed in
California on 4 May 1999.
David Funchess, Manuel Babbitt, Wayne Felde, Herbert Richardson, Leonard Laws,
Robert Black, Larry Johnson, Joseph Atkins and James Johnson are among those former
soldiers who served in the Vietnam War who were later convicted of murders in civilian
life and executed.(362) They were all diagnosed with PTSD. Their cases serve as a stark
reminder of the lasting effects of war on individuals and raise questions about the
responsibility of the state towards those it sends to war and who bring home a capacity
for violence in their scarred psyches. With thousands of soldiers returning from the recent
US-led invasions of Afghanistan and Iraq, the US authorities should learn from the earlier

cases if history is not to repeat itself.
There are other Vietnam veterans still on death row in the USA. George Page in North
Carolina and Andrew Brannan in Georgia are two of them.
George Page served 16 years in the military, including in the Vietnam War. Now 65
years old, he has been on death row in North Carolina for the past decade. In late
February 2004, he came one day from execution before he received a court-issued stay
based. He was sentenced to death for the shooting of a police officer in 1995.
On the morning of 27 February 1995, police officers were called to the scene of a
shooting in Winston-Salem. When they arrived, they found that George Page had fired
several shots from the window of his apartment using a high-powered rifle. He fired more
shots, one of which ricocheted through two car windows before striking Officer Stephen
Amos in the chest, fatally wounding him. An officer who was a crisis negotiator spoke by
telephone with George Page who said he wanted to speak with his psychologist and his
psychiatrist, under whose treatment he had been for various mental disorders for some
time. Following further negotiations, George Page agreed to leave his weapon and go
with his psychiatrist and the officer to the psychologist’s office. He was taken into
custody shortly thereafter. He reportedly said at the time of the shooting that he was
surrounded by soldiers who were shooting at him, a possible sign of a PTSD flashback.
The trial jury was told by the state psychiatrist that Page did not have combat-related
PTSD because he served as a mechanic in Vietnam and had not been in combat.
Nevertheless, his military records show that he was stationed in an area of active conflict
and bombing. Research shows that soldiers in various occupations can suffer PTSD.
George Page’s former wife stated in an affidavit in 2004 that "when George returned
from Vietnam, he had completely changed…When he got back, he was really standoffish
and he just didn’t get close to people again. After he returned from Vietnam, there were
many times when I would wake up in the middle of the night and George wouldn’t be in
the bedroom. I would get up and would find him in the kitchen. He would usually be
drinking. He would be sitting on the floor and crying…The next morning, he would never
remember what had happened…Something traumatic must have happened to George
while he was in Vietnam. He very rarely talked about his time in Vietnam but he seemed
to be tortured by those experiences". She did not testify at the trial because she was not
contacted by his lawyers. In her affidavit she states: "I wish I had been able to talk to
George’s trial attorneys and to the jury that decided George’s fate. George had become a
completely different man after he went to Vietnam".
In another affidavit in 2004, George Page’s daughter recalled that there were times after
his return from Vietnam "when he seemed to have lost his mind and not know what was
happening…I clearly remember this one time when my father started hollering, ‘I got him
Charlie. I got him, Charlie.’…After he calmed down, he didn’t remember what had
happened". She was not contacted by the trial lawyers either. George Page’s son-in-law,
who did testify at the trial, has stated in an affidavit that he "didn’t get a chance to tell the
jury about… episodes that made it clear to me that George had serious mental health

problems". In another affidavit, George Page’s brother-in-law has recalled an incident
when Page suddenly "jumped up from his chair and ran out of the house. He was yelling,
‘They’re going to kill me’". George Page’s sister recalls "times that George would see
and hear things that weren’t real. It seemed like he was hallucinating".
A mental health expert who evaluated George Page during appeal proceedings concluded
that he suffers from PTSD and bipolar disorder. George Page’s mental health records
indicate suicide attempts and treatment for major depression. He has been prescribed
medication, including drugs used to treat bipolar disorder, throughout his time on death
row, where he remains pending further appeals.
Four years after a North Carolina jury sentenced George Page to death, a Georgia jury
rejected Andrew Brannan’s plea of not guilty by reason of insanity and found him guilty
of murder. Two days later, on 30 January 2000, the jurors voted for a death sentence.
Again, the murder victim was a police officer and the defendant was a Vietnam veteran.
To the trial prosecutor at Brannan’s trial, the victim was a "hero", while the defendant
was a "savage", "wicked", "Lucifer", "the Devil", and "an animal", whose claim that he
had acted under combat-related traumatic stress was a smokescreen thrown up to avoid
criminal responsibility. The death of Deputy Kyle Dinkheller was an undoubted tragedy,
but such inflammatory arguments by a government official seeking a retributive killing
should be considered unacceptable.
Andrew Brannan was born in Alabama in November 1948. His father and both of his
brothers served in the army. He himself enlisted in the Army Reserves in 1968. In 1969,
he became a Reserve commissioned officer in the US Army. His training and military
records speak of "outstanding leadership", of a soldier who "would be an asset to any
unit" and whose "enthusiasm was contagious and contributed immeasurably to…morale".
Andrew Brannan served two tours of duty in Vietnam, heading Company D of the 23rd
Artillery Infantry Division. As part of his duties, he led reconnaissance missions for six
months at a time.
On return from Vietnam in 1971, Andrew Brannan was still only 22 years old. He had
psychological problems, however, and his attempt to finish his education, and later his
marriage, fell apart. He first sought help for his psychological problems in 1984, two
months after his younger brother, who also served in Vietnam, committed suicide.
Andrew Brannan was diagnosed with PTSD. One particular event which haunted him
was the death of his commanding officer who stepped on a booby trap landmine during a
scouting mission, an incident for which Brannan felt a sense of guilt. A 1989 psychiatric
report referred to this as the incident "to which he most frequently has flashbacks". The
report also refers to his "chronic depression with Vietnam dreams and flashbacks".
In September 1989, Andrew Brannan was admitted to the long-term PTSD treatment
program in the Veterans Administration Medical Center in Augusta, Georgia. From that
point, until the time of his crime in January 1998, he was treated for PTSD on an
inpatient and outpatient basis, receiving psychotherapy and medication. As well PTSD,
he was diagnosed with major depression and bipolar disorder. He was put on 100 per cent

service-connected disability allowance as a result of his combat-related mental illness.
During the 1990s, Andrew Brannan purchased some wooded land in Laurens County in
rural Georgia and built a home, which included a lookout tower on its upper storey. He
would spend long periods there, interspersed with time spent with his mother at her home
in Stockbridge, Georgia, helping her and her neighbours with outdoor work.
Dr. Robert Storms, a psychologist who conducted a psychological evaluation of Andrew
Brannan prior to the trial, summed up his mental health condition in the decade prior to
the crime thus:
"As is made clear through the massive amount of treatment documentation, Mr
Brannan has manifested the major criteria for PTSD. Throughout the late eighties
and early nineties, Mr Brannan reported recurring, intrusive thoughts of
Vietnam; nightmares, avoidance of stimuli associated with battle or Vietnam. His
social/occupational functioning was severely impaired as evidenced by his long
term retreats into hiking and living in the woods; his inability to hold steady
employment; and his inability to develop long term social relationships. He has
engaged in both alcohol and drug abuse in order to self-medicate, although
neither appears to have been a major problem. Mr Brannan has manifested
associated mood disorders such as Major Depression and possibly Bi-Polar
Illness (Manic-depression). He has been treated with medication and
psychotherapy for years. He has manifested both remissions and relapses. Shortly
before the incident leading to his arrest, he appears again to have been
manifesting a relapse as evidenced by his discussion [with a doctor] of near death
experiences in Vietnam."
On 12 January 1998, driving home from Stockbridge, Andrew Brannan pulled his truck
over to the side of the road. Sheriff’s Deputy Kyle Dinkheller, who had recorded Brannan
speeding, pulled in behind and switched on the video camera on his dashboard. Evidence
of what happened next was recorded on the video and played to the jury at Brannan’s
subsequent trial. At Deputy Dinkheller’s instruction, Andrew Brannan got out of his truck
and walked towards the deputy’s patrol car. As he walked, he put his hands in his pockets
and was ordered to remove them. There was then shouting between the two men, with
Brannan telling the officer that he was a Vietnam veteran and that he feared for his life.
Brannan returned to his vehicle and retrieved a gun. Deputy Dinkheller radioed for help,
but shooting between the two men began, lasting for just over five minutes. Deputy
Dinkeller was shot multiple times and died. Andrew Brannan was hit with a single bullet
to the abdomen. He drove home, went into the woods, wrapped himself in a sleeping bag
and covered himself with a tarpaulin and foliage. Police found him there the next
morning. He was arrested and taken to hospital for surgery to his gunshot wound.
Dr Robert Storms reviewed the patrol car videotape and stated that "even to the casual
observer, Mr Brannan’s behavior appears bizarre. He jumps, ducks, and dodges as if in
combat… His behaviour is out of proportion to the stimuli triggering it. Mr Brannan
could state no motive for his actions apart from the military language he used to describe
it." Although Andrew Brannan had only a patchy recall of events, he told Dr Storms that

"I was engaged with a target… I had to suppress enemy fire… I had to follow standard
infantry doctrine… I had to put up a volume of fire…" Dr Storms said that Brannan "was
unable to state any reason for animosity toward the deputy and his basic memory is that
of being afraid."
Once Andrew Brannan was charged and had entered a plea of not guilty by reason of
insanity, the trial judge ordered a psychological evaluation of the defendant. Dr Gary
Carter, a psychiatrist at the Central State Hospital, where Brannan was being held pretrial. Dr Carter found Brannan competent to stand trial and also concluded that he could
distinguish right from wrong at the time of the shootings – that is, that he was not legally
insane at the time of the crime. However, among Brannan’s statements to Dr Carter was
the following, where he recalls the crime and blurs it with his Vietnam experience,
suggesting that he may have been in a dissociative state:
"Well, I believe he was pointing a weapon at me, if I remember correctly. And
that’s when I felt as scared as I had ever been. Now, I used to think I wasn’t
scared in Vietnam. I took a great deal of pride in having been, you know, a small
unit commander. I had more things to do if I was going to die. It was just gonna –
I was just gonna have to die while I was on the radio or whatever, you know, but I
had a job to do. You know, for my men. And that was just all there was to it….
And then I started panicking. And usually I don’t panic either. And then I started
thinking about my men and how I couldn’t leave my men. I couldn’t – I couldn’t
let my men down… I have crossed the thin red line. You know, I have accepted
death. I am just doing it, you know, following training doctrine. You know, you
put down suppressive fire. That way your opponent can’t aim when he shoots at
you… And everything seemed real slow. And these bullets were coming and they
were clicking bamboo – and there was a target but I couldn’t really see it. You
know, it was just green and you know, I could see the foliation jumping, you
know."
Three other mental health experts who testified reached different conclusions to that of
Dr Carter. Dr Storm, above, concluded that "Mr Brannan was not in contact with reality
during the incident leading to his arrest and that his behaviour can be accurately
described as psychotic. It is likely that he was suffering some sort of combat related
flashback… [I]t is my clinical opinion that Mr Brannan was experiencing a disorder of
mood that prevented him from distinguishing right from wrong at the time of the incident
leading to his arrest". Dr Donald Harris, then the Chief of Psychological Services at
Central State Hospital, stated that his assessment of Andrew Brannan suggested that he
may have been "out of touch with reality", and that far from malingering, was actually
defensive in his responses and trying to downplay symptoms and mental health problems.
Dr Avrum Weiss, a psychologist specializing in working with veterans (including
Andrew Brannan) from the Vietnam War and Gulf War suffering from combat-related
PTSD. He had reviewed the patrol car video tape and post-crime interviews, including
with Dr Carter, and testified that "it seems fairly clear to me that Mr Brannan was in a
dissociative state" at the time of the crime.
Dr Weiss was subjected to questioning by a prosecutor clearly aimed at playing on any

prejudices jurors may have against defences based on claims of mental impairment. For
example:
Q. Is it true or not true that most everyone has a mental illness of some degree?
A. No, that’s not true.
Q. That’s not true, so we have perfect mental health, all of us?
In closing arguments, the prosecutor urged the jury not to let the defence experts –what
he called "these hired guns" – "muddy up the water", like an octopus squirting out ink to
confuse attackers: "And while they’re in that murky ink, that old octopus slithers, just
slithers away". Specifically referring to Dr Weiss, the prosecutor said "He’s paid by the
Defendant… He talked about PTSD, I contend everybody’s got a little bit of PTSD.
We’ve all been through some trauma or another. We all have some problems from it."
"What’s an expert?" the prosecutor asked the jury, urging them to reject the insanity
defence. He suggested in response to his own question that an expert is "somebody thirty
miles from home with a briefcase", and that the jury should rely on their "common sense"
instead. Stoking juror fears, he suggested that an insanity verdict would mean release,
rather than involuntary commitment to a psychiatric facility:
"Well, let’s just forget all of them and let’s use some common sense and forget the
experts because you don’t have to listen to ‘em. You’re not stuck with them.
They’re just making opinions. You make the decisions. You are the ones who
make the decisions. And I’m telling you, don’t let ‘em make fools out of all of us.
Don’t fix it so when we get ready to leave here, Andrew Brannan runs up and
says, make way for me on that elevator, I’m going to ride down with you. Don’t
do that. "
Andrew Brannan remains on death row.
A study published in July 2004 concluded that at least one in six of US troops returning
from Iraq would be in need of psychological therapy of some kind as a result of their time
in the conflict.(363) The 2004 annual report of the US Department of Veterans Affairs
(VA) Special Committee on Post-Traumatic Stress Disorder noted that "Past experience
predicts that this generation of combat veterans is at high risk of PTSD and other related
post-traumatic disorders… Preliminary findings demonstrate that combat veterans of
Operation Enduring Freedom (OEF) and Operation Iraqi Freedom (OIF) are at significant
risk for mental health problems." The VA report pointed to an army survey in 2003
finding that about 15 per cent of the surveyed soldiers who had been deployed to Iraq met
the screening criteria for PTSD, seven per cent for depression, and seven per cent for
generalized anxiety. Only about one in three of those who said they wanted mental health
assistance received it. The suicide rate for soldiers deployed to Iraq between January and
October 2003 was higher than rates reported during the Vietnam War or first Gulf
war.(364)
In September 2004, the executive director of the National Gulf War Resource Center in
Washington, DC, wrote of the "hidden toll" of the "war on terror", namely "the rising

mental health toll from the Iraq war and other US combat operations abroad". He
continued:
"Studies indicate that troops who served in Iraq are suffering from post traumatic
stress disorder and other problems brought on by their experiences on a scale not
seen since Vietnam. These figures have mental health professionals and veterans
groups worried, and with good reason. At a time when our troops are working
hard to answer the nation’s call, their own needs remain unmet. Barriers to
mental health care persist both in the field and at home, leaving mental health
problems to fester. The personal burden on troops affected by mental trauma and
on their families is enormous, and these mental health problems have
consequences for communities and the nation as well. The full extent of this
hidden cost of war will not be apparent for some years to come, but experts
believe it may involve tens of thousands of service members. Preparing for the
challenge at hand and extending the appropriate care and respect to our troops
must be a top priority."(365)
Stephen Robinson continued: "The aftermath of the Vietnam War demonstrated the
consequences of failing to provide our warriors with immediate treatment, care, and
readjustment services to help them recover from traumatic wartime exposures… Some
individuals suffering from wartime mental trauma express both suicidal and homicidal
thoughts. ‘Sometimes I want to kill people’, stated one soldier interviewed for this paper.
Others can have violent outbursts with family members and friends…"
Two months earlier, Stephen Robinson, in his capacity as head of the National Gulf War
Resource Center, was among those who had appealed for clemency for Mark Bailey, a
former US Navy submariner on death row in Virginia. Although the case did not involve
post-traumatic stress disorder, it did raise questions of the mental health of a former
serviceman. Mark Bailey, a veteran of the first Gulf war, had been diagnosed with bipolar
disorder and had had long struggle with mental illness, a factor not considered by the jury
which sentenced him to death for killing his wife and child in 1998. The clemency appeal
from the National Gulf War Resource Center pointed out that:
"Right now as we write to you soldiers from Iraq and Afghanistan are returning
home with serious mental health disorders. There are reports of a rise of suicides
among troops stationed in Iraq, and have heard accounts of effective policies not
being fully or properly implemented. We know that returning troops will face
behavioral, emotional, and psychological difficulties re-adjusting to civilian life.
Mr Bailey’s record indicates that he needed and did not receive proper diagnosis,
treatment and care for his mental illness all while serving in the most demanding
and isolated positions in the military. We recognize that in your clemency
determination that you will weigh a variety of factors with respect to this case.
Please ensure that the years of faithful service are included in your decision.
Please ensure that his untreated mental health disorders are considered. In a
perfect world this tragedy would have been averted by proper diagnosis and care.
However, we don’t live in a perfect world but we do believe that putting Mr
Bailey to death will only make this sad story even worse."(366)

Governor Warner denied clemency and Mark Bailey was executed on 22 July 2004 in
Virginia’s death chamber.
In March 2005, the executive director of the National Center for Post-Traumatic Stress
Disorder at the Department of Veterans Affairs urged readiness to help returning US
soldiers from Afghanistan and Iraq:
"[T]he psychiatric consequences for our newest veterans will have much in
common with the psychological anguish of their predecessors. We must be ready
for these veterans. We must learn from past mistakes and make good use of our
new clinical and conceptual tools. Our veterans deserve nothing less."(367)
In an interview on 8 February 2004 on NBC’s "Meet the Press", President George W.
Bush said: "I’m a war president. I make decisions here in the Oval Office in foreign
policy matters with war on my mind." A year earlier, he had not allowed evidence of the
mental damage of war on a former soldier to be a cause for clemency in the case of Louis
Jones, a former soldier on federal death row for a murder committed in February 1995.
After returning home after Operation Desert Storm/Desert Shield in Saudi Arabia in 1990
and 1991, Louis Jones had displayed significant behavioural and personality changes. He
lost his sense of humour, became dominating, possessive, rigid in his thinking, and began
drinking to excess. He suffered from daily headaches. The 2004 annual report of the
special committee on PTSD of the Department of Veterans Affairs noted research finding
that 10 per cent of all veterans of Operation Desert Storm current have PTSD. The VA
report continued:
"As with other medical disorders, the complications of traumatic stress are often
as prevalent, severe and persistent as PTSD itself. These include major
depression, alcohol abuse (often beginning as an effort to sleep), narcotic
addiction (often beginning with pain medication for combat injuries), job loss,
family dissolution, homelessness, violence towards self and others, and
incarceration. It may be possible now to prevent these complications if decisive
action is taken now."(368)
At Louis Jones’ federal murder trial in October 1995, a psychologist testified that, in his
opinion, Louis Jones’ experience in the Gulf war had intensified the PTSD that he had
suffered as a result of his involvement in the US invasion of Grenada in 1983, in which
he had led his platoon in a dangerous parachute jump under hostile fire. At the trial, a
psychologist, a neurologist and a psychiatrist variously stated their opinion that on the
night of the crime, Louis Jones was suffering from various mental problems, including a
major depressive disorder, a dissociative disorder, PTSD, cognitive disorder and alcohol
intoxication. The neurologist testified that Louis Jones had suffered brain damage, which
made it difficult for him to control impulses.
As his execution approached in 2003, Louis Jones’ clemency petition raised the claim
that he suffered from brain damage as a result of Gulf War Syndrome, evidence which
had not been raised at the 1995 trial due to the lack of scientific and medical knowledge
on this subject at that time.(369) President Bush rejected clemency and Louis Jones was

executed on 18 March 2003. Two days later, the USA invaded Iraq.
In a speech in London on 16 February 2004, Nobel Peace Laureate Archbishop Desmond
Tutu made a link between President Bush’s record on executions and his administration’s
pre-emptive military policy. The Archbishop argued that the death penalty is a flawed
policy that brutalizes society while making it no safer, and that the war in Iraq was based
on flawed intelligence and has made the world "a great deal less safe than before".
Archbishop Tutu suggested that a positive development would be if politicians would
more readily admit their human fallibility, adding that it is "large-hearted and courageous
people who are not diminished by saying ‘I made a mistake’."
Amnesty International believes that the death penalty is a mistaken policy that offers a
simplistic response to the complex problem of violent crime. The executions of people
suffering from mental disorders – including former soldiers with post-traumatic stress
disorder as a result of wartime experiences – are among the more indecent manifestations
of an outdated punishment.
Conclusion: The worst of the worst, or a failure of leadership?
Our nation was built on a promise of life and liberty for all citizens. Guided by a deep
respect for human dignity, our Founding Fathers worked to secure these rights for future
generations, and today we continue to seek to fulfil their promise in our laws and our
society…[W]e reaffirm the value of human life…Through ethical policies and the
compassion of Americans, we will continue to build a culture that respects life.
President George W. Bush, 14 January 2003(370)
James Madison, one of the principal Framers of the US Constitution and the country’s
fourth President, warned against setting the Constitution in stone. He wrote: "Is it not the
glory of the people of America that, whilst they have paid a decent regard to the opinions
of former times…, they have not suffered a blind veneration for antiquity".(371) In
similar vein, Madison’s immediate predecessor as President, Thomas Jefferson, wrote in
1816:
"[L]aws and institutions must go hand in hand with the progress of the human
mind. As that becomes more developed, more enlightened, as new discoveries are
made, new truths disclosed, and manners and opinions change with the change of
circumstances, institutions must advance also, and keep pace with the times. We
might as well require a man to wear still the coat which fitted him when a boy, as
civilized society to remain ever under the regimen of their barbarous
ancestors…"(372)
The US Supreme Court has echoed such sentiment when indicating how it will interpret
the Constitution’s prohibition on "cruel and unusual punishments" under the Eighth
Amendment. In 1910, it stated that the Amendment "is progressive and does not prohibit
merely the cruel and unusual punishments known in 1689 and 1787, but may acquire
wider meaning as public opinion becomes enlightened by humane justice".(373) Half a
century later it reiterated that the definition of "cruel and unusual punishments" was not
permanently fixed, but instead must draw its meaning from "the evolving standards of
decency that mark the progress of a maturing society".(374) In 2005, when the Court

prohibited the execution of offenders for crimes committed when they were under 18
years old, Justice Stevens noted that:
"Perhaps even more important than our specific holding today is our
reaffirmation of the basic principle that informs the Court’s interpretation of the
Eighth Amendment. If the meaning of that Amendment had been frozen when it
was originally drafted, it would impose no impediment to the execution of 7-yearold children today. The evolving standards of decency that have driven our
construction of this critically important part of the Bill of Rights foreclose any
such reading of the Amendment."
Regrettably, when the Supreme Court reinstated the death penalty in Gregg v. Georgia in
1976, it concluded that "contemporary standards of decency" in the USA had not evolved
to the point at which capital punishment per se was unconstitutional. It reached this
conclusion after noting that in the four years since the Court had struck down the death
penalty in Furman v. Georgia because of the arbitrary way in which it was being applied,
at least 35 states had enacted new capital statutes, thus demonstrating that public opinion
had not turned against judicial killing. However, the Court also said that "public
perceptions of standards of decency", as measured by such legislative activity, "are not
conclusive". A punishment, it said, "also must accord with the dignity of man which is
the basic concept underlying the Eighth Amendment. This means, at least, that the
punishment must not be excessive".(375)
In Roper v. Simmons in 2005 and Atkins v. Virginia three years earlier, when the US
Supreme Court finally removed children and people with mental retardation from the
reach of the death penalty, it reiterated that "capital punishment must be limited to those
offenders who commit a narrow category of the most serious crimes and whose extreme
culpability makes them the most deserving of execution". In international terms, the
decisions came shockingly late. In national terms, the fact that seriously mentally ill
offenders remain subject to the death penalty in the USA stands in ever starker relief.
Death sentences in such cases are surely excessive and incompatible with human dignity,
whether the dignity in question is that of the offender or of society as a whole.
Norris Taylor was sentenced to death not long after the Gregg ruling. Now 61 years old,
he has been on North Carolina’s death row for more than a quarter of a century. His
current lawyer has said that Taylor is one of the most mentally ill people she has ever
met.
Norris Taylor was brought up in poverty in Virginia. He was subjected to sexual, physical
and emotional abuse by relatives and other adults. He used to wet his bed until
adolescence, and each time he did so he would be beaten and sent to school in soiled
clothes, where he would then be humiliated. He has reported that his lifelong headaches
began when he was thrown down the stairs by his mother when he was seven years old.
In his first five years of school, he was absent for nine weeks, eight weeks, six weeks, 11
weeks, and six weeks respectively. At the age of 15, he came into conflict with the law,
and the following year he was charged with breaking and entering, and sent to juvenile
detention. As a child, Norris Taylor began to have hallucinations, including seeing a man

come out of a cupboard with an axe and try to kill him, and hearing voices in his head
from the age of five or six that told him to hurt people.
In 1978, at the age of 34, Norris Taylor was charged with the murder of Cathy King. She
was a guest at the motel where Taylor was working as a security guard. He had
confronted her about registering as one person rather than as a party of two. He shot her
after she called him a "nigger" and spat at him. Taylor was sentenced to life in prison, but
escaped. He subsequently shot and killed Mildred Murcheson, a pregnant woman whose
car he was trying to steal. During the trial, he repeatedly disrupted the proceedings by
shouting and yelling, and spent much of the proceedings either removed from the
courtroom or refusing to attend. His trial lawyers, with whom he refused to cooperate,
believed that he was incompetent to stand trial. However, he also refused to cooperate
with a doctor who was ordered to evaluate him.
Over the years, Norris Taylor has been diagnosed with paranoid schizophrenia, as well as
post-traumatic stress disorder with dissociative episodes. He apparently believes that he is
possessed by the devil, that he will come back to life if he is executed, and that Mildred
Murcheson was the reincarnation of his dead wife (who he discovered had died of cancer
after his escape from prison and prior to the Murcheson murder). What purpose would
Norris Taylor’s execution serve for wider society? Would it not amount to an act of
senseless vengeance?
Can someone with a serious mental impairment other than retardation at the time of the
crime ever be said to possess the "extreme culpability" assumed by the death penalty? If
society’s standards of decency have evolved to prohibit the state-sanctioned killing of
child offenders and those with mental retardation, how can that same society still permit
people with serious mental illness to be put to death? While the precise definition of who
would be excluded under laws prohibiting the execution of people with mental illness is
beyond the scope of this report, the latter has shown that existing safeguards are
inadequate, that seriously mentally ill offenders are at "special risk of wrongful
execution", and that principled leadership is needed to remedy this situation.
In 1972 in Furman v. Georgia, Justice Marshall wrote: "It is the poor, and the members
of minority groups who are least able to voice their complaints against capital
punishment. Their impotence leaves them victims of a sanction that the wealthier, betterrepresented, just-as-guilty person can escape." Now that children and people with mental
retardation have been removed from the reach of the death penalty, defendants with
mental illness remain its most vulnerable targets in a capital justice system where
prosecutorial misconduct occurs all too often and legal representation for indigent capital
defendants is generally under-resourced.
Amnesty International has long recommended that the death penalty be abolished in the
USA. It is a punishment that should never be a part of society’s response to crime, not
least when that country claims to be a progressive force for human rights and a champion
of human dignity. It is others, however, who have the power to end the death penalty in
the USA, and regrettably, legislators, judges and politicians have shown little inclination

to lead their country away from state-sanctioned killing.
As a minimum first step, however, perhaps the USA can be persuaded to rid itself of one
of the most shameful aspects of this indecent punishment – the execution of people with
serious mental illness. With this report, Amnesty International will join the campaign for
such an exemption for the mentally ill, even as the organization continues to seek to
persuade the USA to end its use of the death penalty altogether.
Recommendations
As already stated, and as illustrated in Appendix 2, experts in the USA on law and mental
health continue to develop criteria for establishing which defendants suffering from
mental illness should be exempted from the death penalty under an "Atkins extension".
Amnesty International will join in working to promote legislation on this issue at state
level in the USA. Meanwhile, the organization will continue to seek total abolition of the
death penalty in the United States, as it does worldwide.
All government officials should promote the United Nations Principles for the Protection
of Persons with Mental Illness and the Improvement of Mental Health Care, including:
o All persons have the right to the best available mental health care, which shall
be part of the health and social care system (Principle 1.1);
o All persons with a mental illness, or who are being treated as such persons, shall
be treated with humanity and respect for the inherent dignity of the human person
(Principle 1.2);
o … persons serving sentences of imprisonment for criminal offences, or who are
otherwise detained in the course of criminal proceedings or investigations against
them, and who are determined to have a mental illness or who it is believed may
have such an illness… should receive the best available mental health care as
provided in Principle 1. These Principles shall apply to them to the fullest extent
possible… (Principle 20.1 and 20.2).
In addition:
The Federal Government, particularly the President, members of Congress, and the
Justice Department, should:
o Ensure that no federal prosecutor pursues a death sentence against any
defendant with serious mental illness;
o Make public statements at every opportunity against the execution of people
with serious mental illness;
o Impose a moratorium on federal executions;
o Legislate to abolish the federal death penalty;
o Engage in a programme of public education about the reality of capital
punishment with the aim of encouraging abolition in individual states.
State legislatures should:
o In consultation with experts in the field of criminal law and mental health, adopt
legislation prohibiting the execution of people with serious mental illness or other
impairments other than mental retardation at the time of the crime or the time of
execution;

o Adopt legislation prohibiting the execution of people with mental retardation, in
line with Atkins v. Virginia, if this has not already been done;
o Ensure adequate funding for indigent capital defence;
o Support or adopt measures imposing a moratorium on executions;
o Legislate to abolish the death penalty.
Prosecutors should:
o Participate in training programs to assist them in recognizing the signs and
symptoms of serious mental illness and other impairments;
o Reject pursuit of the death penalty against anyone in cases where there is
credible evidence of their serious mental illness or other impairment at the time of
the crime;
o Become familiar with and adhere to the United Nations Guidelines on the Role
of Prosecutors, and on international human rights law and standards in general, in
particular the UN Safeguards Guaranteeing Protection of the Rights of Those
Facing the Death Penalty, and respect recommendations of international human
rights bodies such as the Inter-American Commission on Human Rights;
o Reject unreliable psychiatric testimony that claims to be able to predict future
dangerousness of capital defendants.
Capital defence lawyers should:
o Attend training programmes aimed at helping them to recognize signs and
symptoms of serious mental illness and other impairments, and how more
effectively to defend such individuals from the death penalty;
Clemency authorities should:
o Ensure that no one with a claim of serious mental illness or other impairment is
executed;
o Promote a moratorium on executions.
Prison authorities should:
o Ensure that all people with mental illness on death row receive appropriate
treatment, and that anyone suffering severe psychosis is removed from death row.
Mental health professional bodies should:
o Exercise vigilance to ensure that the ethics of their profession are not violated
by the death penalty system;
o Communicate concern to the authorities where widely accepted principles
which protect people with mental illnesses are breached;
Appendix 1 – Illustrative list of 100 executed prisoners
The following is a list of 100 people who have been executed in the USA since it
resumed judicial killing in 1977. This list represents about 10 per cent of those put to
death in the country during this period, and is for illustrative purposes only. It does not
claim to be exhaustive – cases of others who have been executed have also raised serious
questions relating to their mental health. While some of the people listed below had
alleged mental retardation as well as mental illness or brain damage, the list does not

include those whose alleged mental impairment fell squarely and solely within the
bracket of "mental retardation" (for a list of 40 people executed between 1984 and 2001
despite claims of mental retardation see pages 100-101, USA: Indecent and
internationally illegal – The death penalty against child offenders, September 2002,
http://web.amnesty.org/library/Index/ENGAMR511432002). Finally, although some of
the cases listed below raise the question of abusive backgrounds, the list is very far from
exhaustive on this issue. It does not seek to illustrate the very many people executed in
the USA who came from backgrounds of sometimes quite appalling childhood abuse,
deprivation, poverty, racism, social marginalization, but for whom such backgrounds
were not necessarily followed by diagnoses of consequent mental health problems. The
symbol ◘denotes a prisoner who gave up his or her appeals and "consented" to
execution.
1984
Arthur Goode Florida. Arthur Goode had a documented history of mental illness since
the age of three. He escaped from a mental hospital in 1976 and killed a 10-year-old boy.
He represented himself at his 1977 trial, during which, as the 11th Circuit Court noted, he
"brought out evidence to assure his own conviction, testified in gory detail as to his guilt,
and argued to the jury that he should be convicted and sentenced to death". The 11th
Circuit admitted that it had "serious doubts as to Goode’s competence", but upheld his
conviction. The Governor of Florida and three state-appointed psychiatrists held him to
be mentally fit for execution, procedures that would be found unconstitutional two years
later in Ford v. Wainwright.
1985
Morris Mason Virginia. Morris Mason had a long history of mental illness and had spent
time in three state mental institutions where he was diagnosed as suffering from paranoid
schizophrenia. In the week before the murder for which he was condemned, he had twice
sought help from his parole officer for his uncontrollable drinking and drug abuse - on
the eve of the crime he had apparently asked to be placed in a "half-way house";
however, no facilities for this were available in Virginia. Three psychiatrists
independently found Morris Mason to be suffering from paranoid schizophrenia over an
eight-year period before his trial in 1978.
Charles Rumbaugh ◘Texas. Shortly before the murder of Michael Fiorillo during a
robbery in 1975, Charles Rumbaugh had escaped from a mental hospital where he was
being treated for manic depressive illness. Rumbaugh, who was 17 at the time of the
crime, gave up his appeals. A dissenting opinion by two US Supreme Court Justices said:
"Rumbaugh seeks death because he knows himself to be mentally ill and has lost hope of
obtaining treatment. If not for his illness and his pessimism regarding access to treatment,
he would probably continue to challenge his death sentence; but faced with his vision of
life without treatment for severe mental illness, Rumbaugh chooses to die... a desperate
man seeking to use the State’s machinery of death as a tool of suicide."
1986
David Funchess Florida. David Funchess, a decorated Vietnam War veteran, was
sentenced to death in 1975 for the murder of two people during a robbery of a bar in
1974. He had been involved in some of the heaviest fighting in the Vietnam War. He was

first diagnosed as suffering from post-traumatic stress disorder (PTSD) in 1982 by a
leading expert on the disorder. The full extent of his condition was not known until
further investigations in the month before his execution. His family described how he
returned from Vietnam a changed person and addicted to heroin. He had been unable to
tolerate noise, suffered from frequent flashbacks, sleeplessness and recurring nightmares.
His trial lawyer did not investigate his client’s background to present in mitigation.
1987
Billy Mitchell Georgia. Billy Mitchell was found to have suffered from PTSD after being
repeatedly raped while serving a prison sentence for a burglary he allegedly committed at
the age of 16 during a bout of depression brought on by his parents’ divorce. Formerly
known as a student of exceptional intellectual and athletic ability, Mitchell then suffered
from severe depression. He pleaded guilty to the murder of a 14-year-old grocery
assistant during an attempted robbery in 1974. At the sentencing phase, his trial lawyer
called no witnesses and presented no mitigating evidence.
1988
Robert Streetman Texas. Robert Streetman sustained a serious head injury as a child and
thereafter suffered from as series of mental problems including persistent delusions and
hallucinations. He started taking drugs when he was eight, and dropped out of school at
14. Sentenced to death for the murder of a woman during a burglary of her home. He was
22 at the time. Two of his three accomplices served no prison time at all in return for
their cooperation with the prosecution.
Wayne Felde Louisiana. Wayne Felde was a Vietnam War veteran, and had seen heavy
combat service as a "tunnel rat" (one who specialized in finding enemy tunnels). When he
returned from Vietnam, his family found his personality dramatically changed: he
became moody, irritable, prone to bouts of depression and flashbacks. He was diagnosed
with PTSD. At his trial, he asked the jury to sentence him to death, allegedly because of
his PTSD-related depression. His lawyer presented no mitigating evidence.
Leslie Lowenfield Louisiana. A citizen of Guyana, Leslie Lowenfield was found
competent to stand trial, even though three psychiatrists had found him to be "paranoid in
the extreme". His lawyers challenged his competency for execution. A clinical
psychologist concluded that in all probability, Lowenfield was suffering from paranoid
schizophrenia, and also found that he was "unable to understand the death penalty".
Nevertheless, the courts ruled that the execution could go ahead. In a dissent against the
US Supreme Court’s 5-4 vote to deny a stay of execution, a Justice wrote: "Every court
that has considered petitioner’s insanity claim has made a mockery of this Court’s
precedent and of the most fundamental principles of ordered justice..."
1989
Herbert Richardson Alabama. Herbert Richardson was diagnosed as suffering from
PTSD as a result of his service in the Vietnam War. A psychiatrist found that his mental
condition "impacted Mr Richardson’s functioning significantly and played a contributing
role" in the murder for which he was sentenced to death.
1990
Leonard Laws ◘Missouri. A federal judge found that Leonard Laws’ trial attorney had
been negligent for failing to present mitigating evidence at the sentencing, including

evidence of severe psychological damage from his experience in the Vietnam War. The
Eighth Circuit Court of Appeals reversed the decision. Two Justices dissented from the
US Supreme Court’s decision to reject Laws’s appeal, saying that the trial lawyer’s
performance had been "plainly deficient", particularly in his failure to investigate the
evidence that Laws was suffering from PTSD.
Dalton Prejean Louisiana. Dalton Prejean was a black defendant convicted by an allwhite jury of the murder of a white police officer committed when Prejean was 17.
Before the murder, he had been confined in various institutions between 1972 and 1976,
during which time he was diagnosed as suffering from various mental conditions,
including schizophrenia and depression. At the age of 14 in 1974, he was convicted as a
juvenile for killing a taxi driver. Medical specialists at that time said that he would
require "long-term in-patient hospitalization" under strict supervision and that he would
benefit from a secure and controlled environment. However, he was released in 1976
without supervision because no state funding was available for further institutional care.
Tests carried out in 1984 revealed that he suffered from organic brain damage, which
impaired his abilities to control his impulses when under stress.
Thomas Baal ◘Nevada. Thomas Baal had been in and out of mental institutions as a
result of suicide attempts, depression, and drug abuse. He was diagnosed among other
things with having latent schizophrenia and organic brain syndrome. He attempted
suicide twice in the month before his execution for the 1988 murder of Frances Maves.
Baal’s parents expressed their opinion that Maves would not have been killed if their son
had received adequate psychiatric help. They said that "when the money ran out, they let
him sign out of a mental hospital". The parents said that their pleas for government
assistance in getting psychiatric help were ignored.
James Smith ◘Texas. James Smith had a long history of mental illness. In 1978 he was
found not guilty by reason of insanity in a Florida prosecution. In 1981, he attempted
suicide and was placed under psychiatric care. In 1985, a Texas court found him not
competent to handle his appeal. A psychiatrist concluded that he suffered from paranoid
schizophrenia, "marked by suicidal tendencies and religious delusions." Two US
Supreme Court Justices dissented from the decision to allow the execution to go ahead
"when serious doubts remain concerning his mental competence" to waive his appeals.
The dissent criticized the state’s procedures for determining competency, saying that the
hearing into this issue "seems to have been little more than a non-adversarial, ex parte
chat among the trial judge, the prosecutor and Smith".
Charles Coleman Oklahoma. Charles Coleman had a history of schizophrenia and brain
damage first diagnosed when he was 15 years old. He also suffered from epileptic
seizures throughout his life. The son of alcoholic parents, he was drinking alcohol
regularly by the age of 12. According to experts, his brain damage could have resulted
from foetal damage due to his mother’s heavy drinking during pregnancy and from early
neglect and malnutrition.
1992
Ricky Ray Rector Arkansas. Ricky Ray Rector was severely mentally impaired, as a

result of essentially a frontal lobotomy conducted after he shot himself in the head on
arrest. There was compelling evidence that was incompetent for execution under Ford v.
Wainwright.
Johnny Garrett Texas. Chronically psychotic and brain damaged, Johnny Garrett had a
long history of mental illness and was severely physically and sexually abused as a child,
which the jury never knew. He was described by a psychiatrist as "one of the most
psychiatrically impaired inmates" she had ever examined, and by a psychologist as
having "one of the most virulent histories of abuse and neglect... encountered in over 28
years of practice". Garrett was frequently beaten by his father and stepfathers. On one
occasion, when he would not stop crying, he was put on the burner of a hot stove, and
retained the burn scars until his death. He was raped by a stepfather who then hired him
to another man for sex. It was also reported that from the age of 14 he was forced to
perform bizarre sexual acts and participate in pornographic films. Introduced to alcohol
by his family when he was 10, he subsequently indulged in serious substance abuse
involving brain-damaging substances such as paint, thinner and amphetamines. The US
Court of Appeals for the Fifth Circuit upheld a state court finding that his belief that his
dead aunt would protect him from the chemicals used in the lethal injection did not
render him incompetent to be executed (for a murder committed when he was aged 17).
Donald Harding Arizona. Donald Harding was subjected to a childhood of abuse and
neglect, and also witnessed serious violence between his mother and stepfather. He tried
to commit suicide at the age of nine. Several neurological experts who examined Harding
agreed that he suffered from organic brain dysfunction which left him unable to control
aggressive impulses especially when under the influence of alcohol or other sedating
drugs. Another expert said that he suffered from untreated PTSD developed as a result of
brutal treatment and sexual assaults he received in an adult prison between the ages of 16
and 24.
Robert Harris California. Robert Harris was born two months prematurely after his
mother was kicked in the stomach by her husband. At the age of two, he was beaten
unconscious by his father and required hospital treatment. He was beaten throughout his
early childhood by his father and stepfather. When he was nine, his father was convicted
and imprisoned for sexually abusing his daughters. At the age of 14 he was abandoned by
his mother. When he was 15 he was caught with others driving a stolen car. The others
were claimed by their families, Harris was not, and was sentenced to four years in a
federal youth centre. There he was diagnosed as pre-psychotic, schizophrenic, suicidal
and self-destructive. At 19 he was released with a recommendation that he seek treatment
for his mental health problems. There was no evidence that he received treatment. After
he was sentenced to death, tests revealed frontal lobe damage of a severity likely to have
affected his ability to reflect on actions, weigh consequences, plan or organize, or reason
rationally. He was diagnosed with Fetal Alcohol Syndrome, and was known to have
sniffed gasoline, glue and paint fumes from the age of eight or nine. The jury did not
learn of the full extent of his childhood abuse or mental impairments.
Justin Lee May Texas. Justin Lee May suffered from brain damage and mental

impairments stemming from physical abuse he suffered as a child. He suffered multiple
illnesses as a child and endured regular, severe beatings from his father. On at least one
occasion he was beaten to unconsciousness. He suffered numerous head injuries in early
adulthood. In 1986 a medical examination revealed significant neurological brain damage
and psychological abnormalities.
Nollie Martin Florida. Nollie Martin suffered from severe mental impairment as a result
of several serious head injuries he received in childhood. He had a history of psychosis,
suicidal depression and self-mutilation and had been physically and sexually abused from
infancy.
Robert Black Texas. Robert Black was diagnosed with PTSD as a result of his
experiences in the Vietnam War. He was twice hospitalized in mental institutions.
1993
John Brewer ◘Arizona. John Brewer had a history of mental problems. As a young
child, he was an out-patient in a psychiatric clinic for about three years. His first of
several suicide attempts occurred at the age of seven, his last one less than six months
before his crime, the murder of his pregnant girlfriend in 1988. Brewer was sentenced by
a judge after waiving his right to a jury trial. The prosecutor had decided not to seek a
death sentence a few weeks before the sentencing hearing, but presented aggravating
evidence at the sentencing hearing in the mistaken belief that the law obliged him to. The
judge decided that the aggravating evidence outweighed the mitigating circumstances and
sentenced Brewer to death.
James Red Dog ◘Delaware. James Red Dog was a Native American who was raised in
poverty on a Sioux Indian Reservation in Montana. Exposed to alcohol and drugs from an
early age, and developed mental problems. He was diagnosed with bipolar disorder. He
suffered a number of head injuries throughout his life, including a fractured skull caused
by his father when he was a child.
Robert Sawyer Louisiana. Robert Sawyer had various mental impairments, and suffered
from schizophrenia. He had a long history of requiring medication, including
electroconvulsive therapy and anti-psychotic drugs. He was committed three times to
mental institutions. Although his severe mental impairments were documented from his
teenage years, his lawyer failed to obtain the evidence or present it to the jury. Sawyer
grew up in a violent environment. His mother was beaten by his father until she
committed suicide, apparently to escape the brutality. Robert Sawyer was then brought up
by his father, who subjected him to regular beatings. There was evidence that these
beatings caused head injuries. He was never educated.
James Clark Arizona. James Clark was represented at trial by a lawyer who had never
handled a capital case. He failed to carry out any investigation of mitigating evidence.
Had he done so, he would have discovered that James Clark was born to very young
alcoholic parents who subjected him to severe physical abuse throughout his childhood.
He tried to commit suicide at the age of 16. Sentenced to death for a crime committed in
1977 at the age of 19. In 1992, a clinical psychologist and expert in the treatment of adult

male victims of childhood abuse, concluded that Clark had been suffering from PTSD, as
a result of his childhood experiences, at the time of the crime.
Larry Johnson Florida. Larry Johnson was diagnosed with PTSD as a result of his
service in the Vietnam war.
Curtis Harris Texas. Curtis Harris had an IQ of 77 and significant brain damage. Suffered
serious head injuries as a child. One of nine children brought up by an alcoholic father
who beat the children regularly with electric cords, belts, a bullwhip and fists. On one
occasion, Curtis Harris was hit over the head by his father with a wooden board and his
cranium was permanently indented by the blow. Sentenced to death for a murder
committed at the age of 17.
David Mason ◘California. David Mason was subjected to severe physical,
psychological and verbal abuse by his strict fundamentalist Christian parents. He
attempted to kill himself at the age of five by swallowing a bottle of pills and setting his
clothes on fire, the first of at least 25 reported attempts in the next 20 years. His
behaviour from an early age was uncontrollable. He set fires, attacked other children, and
at the age of eight was found standing over his baby brother’s crib with a knife. His
parents reportedly resorted to locking him in a room called "the dungeon", a bedroom
with the windows nailed shut. When he was 11 and defecated in his clothes, his mother
pinned a baby’s soiled nappies on him and made him wear his own soiled underwear on
his head. On another occasion, his father allegedly strapped him to a workbench, gagged
him and beat him unconscious. Mason was diagnosed with PTSD.
Christopher Burger Georgia. Christopher Burger was mentally ill and brain damaged
from the severe physical abuse he suffered as a child. Was sentenced to death for a crime
committed when he was 17.
1994
Harold Barnard Texas. Numerous current (in 1994) and former prison doctors who had
evaluated and treated Harold Barnard over the previous decade all found that he was
incompetent for execution as a result of his mental illness, chronic paranoid
schizophrenia.
John Thanos ◘Maryland. John Thanos had a long history of mental illness, including
schizophrenia-like symptoms. He suffered severe physical and emotional abuse as a
child, sustained several serious head injuries over the years and abused alcohol and drugs.
He had a history of suicide attempts, the first at the age of 11. He first entered the adult
prison system when he was 15 years old, and was allegedly raped and physically
assaulted. He spent almost all his adult life in the prison system. In prison he attempted
suicide on a number of occasions, including by hanging himself, slashing his wrists and
cutting his throat. After his arrest for murder in September 1990, five months after being
released, he confessed to the crime and in an apparent intent to be executed as soon as
possible. While awaiting trial, he attempted suicide several more times. On one occasion,
he swallowed 14 sharpened pencils, 15 spoons, his eyeglasses and a plastic toothbrush
sharpened at both ends. He was sentenced to death by a trial judge after he waived his

right to trial by jury. Four medical experts concluded in 1994 that Thanos had been
mentally incompetent to stand trial or understand his legal options at the time of his trial,
and five experts considered that he was incompetent to waive his appeals.
David Lawson North Carolina. As a young child, David Lawson developed psychiatric
problems. He was diagnosed as suffering from depression and given medication. A
psychiatrist who treated Lawson on death row, stated that Lawson suffered from "severe
recurrent cyclical depression that has plagued his entire life... It is an illness which left
untreated, drastically alters David’s ability to think rationally and act in his own best
interests. No evidence relating to Lawson’s poor mental health or his history of abuse as a
child was presented to the jury.
1995
Varnell Weeks Alabama. Psychiatrists for both the state and the defence diagnosed
Varnell Weeks as suffering from paranoid schizophrenia, with symptoms including
hallucinations and delusions. No evidence of his mental condition was introduced at the
trial. Once he had been convicted, he waived the jury sentencing, and asked the (elected)
judge to sentence him to death. Prison records revealed that he would on occasion stand
in his cell naked and smeared with feces, making incomprehensible sounds. At a hearing
to determine his competency for execution, Varnell Weeks appeared with a domino tied
to a string on his shaved head. In response to the judge’s questions, he responded with a
rambling discourse on serpents, "cybernetics", albinos, Egyptians, the Bible and
reproduction. He believed he was God in various forms, that his execution was part of a
millennial religious scheme to destroy mankind, and that he would not die but that he
would be transformed into a tortoise and reign over the universe. The judge
acknowledged Weeks’ mental illness and delusions, and stated that he was "insane"
according to "the dictionary generic definition of insanity" and what "the average person
on the street would regard as insane". However, the judge ruled that the electrocution
could proceed.
Keith Zettlemoyer ◘Pennsylvania. Keith Zettlemoyer was reported to suffer from brain
damage, schizophrenia, depression and PTSD, and had made prior suicide attempts.
John Fearance Texas. A claim that John Fearance was incompetent for execution was
unsuccessful. There was evidence that he suffered from paranoid schizophrenia. His
claim that his rights were violated when he was forcibly medicated to render him
competent for execution was rejected on the basis that the claim should have been raised
earlier.
Phillip Ingle ◘North Carolina. Phillip Ingle was subjected to sexual and emotional
abuse as a child. Made several suicide attempts, beginning at age seven. As a young
adult, he reportedly shot himself and deliberately crashed his car into a building. He took
to alcohol and drug abuse as a teenager. Reported to suffer from schizoaffective disorder,
and medicated on death row for his mental illness. He was sentenced to death for the
murders of two elderly couples in separate crimes. He claimed that he hallucinated that
his victims were demons with red eyes.

Anthony Larette Missouri. Anthony Larette had a long history of mental illness going
back to his childhood when he sustained head injuries. Spent two years in a mental
hospital. Discharged from the army because of mental illness, and spent several years in
mental institutions or prison after that. He was assigned a trial lawyer with no capital
experience. The jury was left entirely unaware of LaRette’s history of mental illness, the
symptoms of which included blackouts and hallucinations, and after a sentencing phase
which lasted less than an hour, they voted for a death sentence.
1996
James Clark ◘Delaware. James Clark was reportedly born to a 15-year-old girl who
gave him up for adoption to an older couple. In 1994, after serving 22 years of a 30-year
prison sentence for kidnapping a 16-year-old girl, he was released against his wishes,
apparently telling the parole board that he could not cope with release and asking that his
parole be denied. Within a few weeks of his return to his adoptive parents, James Clark
had shot them both dead. At his 1994 trial, he asked for the death sentence. After
sentencing, he was placed in the psychiatric unit of the prison hospital, where he was
prescribed anti-depressant medication and force fed when he refused to eat. After being
transferred to the death watch cell in 1996, he attempted suicide. He was placed on "strip
suicide watch" in a "ram room" (a cell with a hole in the floor for a toilet, and with no
lighting, books, television, radio, or pen and paper where he was stripped naked 24 hours
a day). After 30 days in this cell, he was taken before a judge and asked if he wanted to
pursue his appeals. He replied that he did not, stating that he "couldn’t stand the pain any
more".
Robert South ◘South Carolina. Robert South was diagnosed with PTSD as a result of
severe childhood abuse.
Michael Torrence ◘South Carolina. A doctor diagnosed Michael Rorrence as suffering
from schizophrenia before a pre-trial competency hearing.
Larry Lonchar Georgia. Larry Lonchar reportedly had brain damage and suffered from
bipolar disorder with paranoid tendencies
1997
Pedro Medina Florida. Pedro Medina had a long history of serious mental illness. He
was released from a psychiatric hospital in Cuba immediately before leaving that country
and coming to the USA as part of the Mariel boatlift in 1980. The murder for which he
was sentenced to death occurred two years later. He was diagnosed with various illnesses,
including paranoid schizophrenic or major depressive disorder with psychosis. His appeal
lawyers raised a claim that he was incompetent to be executed, citing detailed reports of
two psychologists and one psychiatrist who concluded that Medina was insane. The
appeal was summarily dismissed without a hearing.
Scott Carpenter ◘Oklahoma. At his sentencing, an expert witness testified about head
injuries that Scott Carpenter had suffered, and speculated that he may have had a seizure
at the time of the killing. Scott Carpenter suffered a head injury when he was aged six,
when he was struck by a nail in the right temporal lobe. Carpenter suffered four other
severe head injuries, the last of which occurred two months before the murder. Numerous

witnesses described the defendant as quiet, respectful, cooperative, non-violent and a
good student. He had no prior arrests or convictions. He was 22 when executed, the
youngest person to be executed since 1977.
Robert Madden Texas. Robert Madden reportedly suffered from brain damage and
schizophrenia. A psychiatrist who examined Robert Madden 12 days before his execution
reported that he was incompetent for execution. He claimed innocence in his final
statement, and his last sentences before being put to death were recorded by the Texas
Department of Criminal Justice as "unintelligible".
Durlyn Eddmonds Illinois. Durlyn Eddmonds was executed for the rape and murder of a
young boy in 1977. He was not tried for two and a half years, during which time a
number of doctors had found him incompetent to stand trial. In 1973, he was in a
psychiatric hospital for three months. Within weeks of the crime, four doctors had
diagnosed Eddmonds as suffering from schizophrenia.
1998
Joseph Cannon Texas. Joseph Cannon was executed for a crime committed when he was
17. Post-conviction examination resulted in a diagnosis of organic brain syndrome. One
psychologist considered Cannon’s case history "exceptional" in the extent of the brutality
and abuse he had suffered as a child. At the age of four he had been hit by a pick-up truck
and suffered a fractured skull and other injuries. He was in hospital for 11 months and
unconscious for part of that time. His head injury left him hyperactive. He suffered from
a speech impediment and did not learn to speak clearly until he was six. He was expelled
from school in first grade, receiving no other formal education. He drank and sniffed
gasoline and at the age of 10 was diagnosed as suffering from organic brain damage as a
result of the solvent abuse. He was diagnosed as suffering from schizophrenia and treated
in mental and psychiatric hospitals from an early age. He was sexually abused by his
stepfather when he was seven and eight; and was regularly sexually assaulted by his
grandfather between the ages of 10 and 17.
Douglas Gretzler Arizona. A dissenting opinion on the Ninth Circuit Court of Appeals
noted that in Douglas Gretzler’s case, "the only real issue at trial was Gretzler’s mental
state at the time of the murders", and yet he had been denied psychiatric assistance to
prepare this defence. The dissent listed evidence discovered after Gretzler’s conviction,
including: "at age 13, Gretzler was diagnosed as suffering from anxiety and depression;
from age 13 until the time the murders were committed, Gretzler used amphetamines and
LSD as a means of self-medication; when Gretzler was 16, his older brother killed
himself; Gretzler suffered from a significant mental disorder – ‘schizophrenic reaction,
paranoid type’ - throughout most of his life; at the time of the offences, Gretzler was
taking intravenous doses of amphetamines, had gone without sleep for several days, and
likely suffered from amphetamine-induced psychosis; amphetamine-induced psychosis
can impair the ability to premeditate and lead to paranoia and hyper-suggestibility - a
condition which causes a person to follow commands or suggestions without any thought
as to whether the action is right, wrong, or even possible; the amphetamine-induced
psychosis may have permitted Gretzler's companion to control Gretzler's actions. A
psychiatrist had found before the trial, that at the time of the murders, Douglas Gretzler

was probably in "an acute paranoid state and possibly paranoid schizophrenic".
Stephen Wood ◘Oklahoma. Stephen Wood was sentenced to death for the murder of a
fellow prisoner. At the time of the stabbing, Wood was serving a sentence of life
imprisonment without the possibility of parole for two other murders. Stephen Wood had
been diagnosed with paranoid schizophrenia combined with right brain hemisphere
dysfunction. At his trial, a mental health expert testified that as a result of his
schizophrenia, Wood had a delusion as an avenger, specifically of sexually abused
children. The murder victim, a minister, was serving a 40-year prison sentence for
molestation and sexual assault of young girls in his congregation.
Jeremy Sagastegui ◘Washington. In 1995, Jeremy Sagastegui raped and killed a threeyear-old whom he was baby-sitting, and shot and killed the boy’s mother and her friend
when they returned home. At his 1996 trial, Sagastegui acted as his own lawyer. He
rejected jurors less likely to favour the death penalty, and objected when the prosecution
rejected a juror who would have automatically returned a death sentence. Sagastegui
pleaded guilty, and offered no mitigating evidence. The jury was left unaware that he was
conceived as a result of a rape, rejected by his mother in infancy and childhood, and
subjected to severe abuse as a child, including repeated rape and sexual abuse by his
stepfather and other male relatives. Neither were they made aware that he had been
diagnosed with schizophrenia and bipolar disorder shortly before the crime and treated in
a psychiatric hospital as a suicide risk. Sagastegui urged the jurors to sentence him to
death, and then waived his appeals. In 1996, a prison doctor diagnosed him as suffering
from bipolar disorder with depressive episodes and post-traumatic stress disorder.
Tuan Anh Nguyen Oklahoma. The mental health of Tuan Anh Nguyen, a former child
refugee from Vietnam, had deteriorated during the seven years that he was held on death
row, with symptoms that included psychotic-like episodes in his cell where he would
scream for extended periods.
Andrew Smith South Carolina. Andrew Smith raised an insanity defence at his trial,
presenting the testimony of a clinical psychologist who testified that Smith suffered from
schizophrenia and a dissociative disorder at the time of the murders and could not
distinguish between right and wrong. He was on anti-psychotic medication prior to the
trial.
1999
Joseph Atkins South Carolina. Joseph Atkins was a veteran of the Vietnam war. After a
night of drinking on 27 October 1985, Joe Atkins dressed in military fatigues, armed
himself with a machete and shotgun and engaged in other behaviour possibly indicative
of a PTSD flashback, and killed his adoptive father and the 13-year-old daughter of his
neighbours.
Sean Sellers Oklahoma. Sean Sellers was sentenced to death for crimes committed when
he was 16 years old. He had a history of mental problems from early childhood. After his
trial, a mental health expert found him to be chronically psychotic, exhibiting symptoms
of paranoid schizophrenia and other major mood disorders. In 1992, six years after the

trial, three mental health professionals diagnosed Sellers with multiple personality
disorder (dissociative identity disorder). The 10th Circuit Court of Appeal, "although
troubled by the extent of the uncontroverted clinical evidence proving Petitioner suffers
from Multiple Personality Disorder... and that the offenses were committed by an ‘alter’
personality", denied relief.
Wilford Berry ◘Ohio. Wilford Berry suffered a childhood of extreme sexual and
physical abuse. His first attempt at suicide occurred when he was aged 11, the first of 11
such attempts. At 14 he was diagnosed as suffering from severe schizophrenia, but
received inadequate treatment. At 19 he was sentenced to six years in prison for car theft
in Texas. While incarcerated, he was raped by another inmate and attempted suicide. In
1995, Justice Craig Wright of the Ohio Supreme Court dissented against Berry’s death
sentence, saying "I cannot sanction the penalty of death for a person who appears to be
mentally ill".
James David Rich ◘North Carolina. James David Rich pleaded guilty and represented
himself at his sentencing. Reportedly had a history of mental illness, including
schizophrenia and depression, and suffered an abusive childhood. He reportedly had a
history of suicide attempts; when he was 12 years old, he stood in front of his elementary
school class and shot himself in the stomach.
Alvaro Calambro ◘Nevada. Alvaro Calambro, a national of the Philippines, reportedly
suffered mental illness, with schizophrenia-type symptoms.
Manuel Babbitt California. Manny Babbitt was a decorated Vietnam veteran whose
capital crime appears to have been linked to combat-induced PTSD. On his return to the
USA, he experienced severe difficulties adjusting to civilian life and slid into serious
alcohol and drug problems. He spent eight months in a mental hospital where conditions
at the time were described by a federal judge as "shocking" and "unconstitutional". His
declining mental health was diagnosed, but never treated. A leading expert on Vietnam
combat-related PTSD concluded that Babbitt was suffering from a combat-related
flashback, aggravated by hallucinogenic drugs, when he killed Leah Schendel in 1980,
and hid and tagged her body as soldiers had hidden and tagged their fallen comrades in
Vietnam.
Edward Harper ◘Kentucky. Defence lawyers argued that Edward Harper suffered from
delusions, had a history of suicidal tendencies within his family, and required a
psychiatric evaluation to assess his competency to drop his appeals. Reportedly suffered
from a form of schizophrenia.
Michael Poland Arizona. Michael Poland’s attorney was unsuccessful in having his
execution stopped on the grounds of mental incompetence. Two psychologists and a
psychiatrist agreed that Michael Poland suffered from a delusional disorder that rendered
him incompetent for execution, and all agreed that he was not faking this recognized
mental illness. He believed that he had superhuman powers that would keep death away
from him. However, a state court found Michael Poland competent for execution. In his

final statement before being put to death, Poland reportedly said: "I’d like to know if
they’re going to give me lunch afterwards".
Gary Heidnik ◘Pennsylvania. Gary Heidnik had a documented 30-year history of
paranoid schizophrenia. The jury, left unaware of this, failed to find that he was mentally
ill. Heidnik’s daughter successfully blocked his execution in 1997 on the grounds that his
paranoid delusions left him incompetent to waive his appeals. The courts permitted him
to be executed in 1999, despite there having been no material change in his mental
condition.
Marlon Williams Virginia. Marlon Williams was subjected to appalling physical abuse
as a child. For example, when he was 11 he was beaten with a broom handle so severely
by his mother that his two blackened eyes were 95 per cent swollen shut. She sent him to
school in this condition. He was immediately taken to hospital, where he was also found
to have a ring imprint on his forehead. He was diagnosed with major depression at 13,
and at 15 a psychological evaluation described him as "a very psychologically damaged
young man", who was having psychotic episodes. After living in various homes,
including his mother’s again, Williams was taken into the custody of Social Services until
he turned 18. Thirteen months later Helen Bedsole was shot dead, the crime for which
Williams was executed. The judge who sentenced him to death was left largely unaware
of the abuse and mental health problems.
D.H. Fleenor Indiana. DH Fleenor had long shown signs of mental illness, had refused to
see his lawyers in the weeks leading up to his execution because of his belief that they
were part of a conspiracy against him. Several priests in recent contact with DH Fleenor
had expressed concern that he was seriously delusional and did not understand his
punishment. The prison’s Catholic chaplain, who had signed an affidavit to this effect,
was banned by the prison authorities from visiting DH Fleenor and other condemned
inmates on the grounds of "philosophical differences", ie the chaplain’s opposition to the
death penalty. Two other priests, apparently intimidated by the prison authorities’
hardline approach, decided against signing affidavits about DH Fleenor’s mental health
because they did not want to risk losing their access to death row prisoners. Legal
attempts to have an independent psychiatric evaluation of DH Fleenor failed.
2000
Larry Robison Texas. Larry Robinson always claimed that his crime was the result of his
mental illness. He was diagnosed with paranoid schizophrenia three years before the
murders for which he was sentenced to die. His mother sought help, but was told that the
state had no resources unless he turned violent. None of the three doctors who diagnosed
Larry Robison as suffering from paranoid schizophrenia were called to testify at the trial.
Betty Lou Beets Texas. Betty Lou Beets had a lengthy history of well-documented head
injuries, including repeated blows at the hands of abusive men, as well as a near-fatal car
accident in 1980. Expert testimony in post-conviction proceedings established that she
suffered from post-traumatic stress disorder, battered women’s syndrome and organic
brain damage and that she was learning disabled and hearing-impaired. According to
defence experts, her multiple disabilities left her with gravely impaired judgement and

extremely dependent on others. At the time of the murder, she was abusing alcohol and
diet pills. Sentenced to death for killing her husband, her traumatic history of physical
and sexual abuse from an early age was not presented to the jury.
Robert Coe Tennessee. Robert Coe was diagnosed as suffering from brain damage and
paranoid schizophrenia. His childhood was marked by extreme poverty and his father’s
physical and sexual abuse. In 1975, at the age of 19, Coe was found incompetent to stand
trial due to mental illness. He was described as a "seriously disturbed young man" whose
disposition to violence and sexual aggression was "a lesson garnered from his father". His
illness included auditory hallucinations in which he would hear his father screaming at
him. He was sentenced to death for the abduction, rape and murder of an eight-year-old
girl in 1979.
Christina Riggs ◘Arkansas. Christina Riggs killed her two children in 1997, and
unsuccessfully attempted to kill herself on the same night. Her actions were apparently
the result of mental illness, including severe depression. She demanded the death penalty
at her trial and refused to appeal her death sentence.
Pernell Ford ◘Alabama. From the age of six, Pernell Ford spent extended periods in
mental health institutions, and by 13 was being prescribed powerful anti-psychotic and
anti-depressant drugs. During his adolescence he attempted suicide several times. He was
found competent to act as his own lawyer despite his youth, his borderline mental
retardation and mental illness. The only "defence" he offered was that God would
intervene at the trial and bring the victims back to life. At his sentencing, Pernell Ford
dressed himself in a white bed sheet, worn toga-style with a belt and shoulder strap made
from a white towel. In a long speech, he asked the judge to have the coffins of the
Griffiths brought into the courtroom so that God could raise them from the dead in front
of the jurors. On death row, he periodically gave up his appeals, but resumed them when
his mental health stabilized. He was diagnosed as suffering from schizophrenia and
depression and treated with a range of drugs. Pernell Ford claimed that he was able to
transport himself anywhere on earth, by a method he called "translation". He stated that
one of his first "translations" from his cell was to India, where he now had a number of
wives. He said that when he died he would become the Holy Spirit and sit on the left
hand of God, and that he had already visited heaven in an earlier "translation".
Roger Berget Oklahoma. Roger Berget suffered from bipolar disorder, and had
attempted suicide shortly before the sentencing hearing. His trial lawyer stated in a later
affidavit: "I simply did not understand the importance of mental health evidence to
present a full picture...this entire area was left uninvestigated." The lawyer also admitted
that he failed to investigate Roger Berget’s abusive childhood: "There were indicators of
serious childhood trauma that should have been investigated and explored by an expert".
At the age of 14, Roger Berget suffered a serious head injury in a car accident. At 15 he
was sent to adult prison to begin the first of a number of prison sentences for robbery.
Thomas Provenzano Florida. Thomas Provenzano had a history of serious mental illness,
including paranoid schizophrenia, dating back to before the crime. The judge who found

him competent for execution found "clear and convincing evidence that Provenzano has a
delusional belief that the real reason he is being executed is because he is Jesus Christ."
The judge noted that Thomas Provenzano had held this belief for over 20 years.
However, the judge stated that the present standard for competency is a "minimal
standard". He said that his ruling "should not be interpreted as a finding that Thomas
Provenzano is a normal human being without serious mental health problems, because he
most certainly is not".
Juan Soria Texas. Last-minute appeals to stay the execution on the grounds that Soria
was mentally incompetent for execution, were unsuccessful. Juan Soria had a history of
self-mutilation and suicide attempts, the most recent of which took place a few days
before the execution. On 25 July, the eve of the execution, a psychologist employed by
the defence to examine Juan Soria concluded that he was not competent for execution. A
judge rejected the claim. Local reports of the execution noted that as Juan Soria was
strapped to the gurney, he was "covered with sheets to conceal numerous self-inflicted
wounds." According to the reports, in his final statement Juan Soria compared his
execution to surgery: "They say I’m going to have surgery, so I guess I will see everyone
after the surgery is performed."
John Satterwhite Texas. At two competency hearings in 1989 prior to his retrial, juries
were twice unable to decide whether Satterwhite was mentally fit to stand trial. At the
1989 trial, a psychiatrist formerly employed by the state prison system, testified for the
defence that Satterwhite suffered from chronic paranoid schizophrenia, and had done so
since his teens. He also concluded that Satterwhite had mental retardation. A second
expert endorsed this view.
Dan Hauser ◘Florida. Dan Hauser was executed for the murder of Melanie Marie
Rodrigues on 1 January 1995. He had suffered from bipolar disorder since late
adolescence, and had been suicidal in the past. During manic phases he was irrational and
delusional. A psychiatrist stated that it was likely that he was suffering from a manic
episode at the time of the crime. He was also intoxicated with alcohol on the night of the
murder. He regularly abused alcohol and suffered from alcoholic blackouts. The courts
rejected an appeal against the execution filed on behalf of Hauser’s mother. The appeal
argued that Dan Hauser was not mentally competent to waive his appeals and that his
decision to do so was part of a plan to commit suicide. It argued that Hauser had made up
gruesome details of the crime to ensure that he would be sentenced to death. The details
given by Hauser, the appeal argued, were inconsistent with his initial confession and did
not fit with independent scientific evidence of the physical evidence. Hauser had also lied
to the trial court when he said that he had never been treated for mental illness, when in
fact he had received psychiatric treatment as both an inpatient and an outpatient at several
mental facilities.
2001
Dion Smallwood Oklahoma. Dion Smallwood was initially found incompetent to stand
trial. After nearly three months of treatment, the psychiatric hospital determined that he
could stand trial, although it noted that he remained "a danger to himself and others", the
standard in Oklahoma for commitment to a psychiatric facility. The jury never heard any

expert mental health testimony from the defence at either stage of the trial. Dion
Smallwood had sought psychiatric help shortly before the murder of Lois Fredericks
because his condition was deteriorating. On 10 January 1992 he went to a mental health
facility, stating that he was having "a crisis". The counsellor was busy and asked him to
come back in two hours. Although she noted that he was "obviously in relapse", she did
not follow up on his whereabouts when he did not return. A clinical psychologist who
assessed Smallwood after his conviction found that he suffered from bipolar disorder:
"This psychiatric disturbance when of the severity of that of Dion, disrupts all areas of
functioning, relationships, occupational, social, and often requires hospitalization to
prevent harm to self or others. Dion never had this necessary treatment". She said that
had he received such treatment, "it is unlikely that his situation would have created the
intense symptoms he experienced that culminated in the death of Mrs Fredericks".
Thomas Akers ◘Virginia. Thomas Akers was born to a 16-year-old mother into a life of
poverty, abuse and parental neglect. He engaged in solvent abuse from as early as 11. At
school he was placed in special education classes for pupils with learning disabilities. He
ran away from home and lived with a man who sexually abused him. Thomas Akers was
committed to a series of juvenile facilities for various property offences. At one of the
juvenile institutions, he attempted suicide by breaking a light bulb and cutting himself
over 100 times. Despite his mental problems, including brain damage, hallucinations and
extreme depression, he never received the appropriate long-term therapeutic care that was
recommended by mental health professionals at the time. In 1987, when he was 17, he
was arrested for stealing, tried and sentenced to adult prison. After a few months, he
wrote to the judge who had sentenced him, and asked to be put to death in Virginia’s
electric chair. After being paroled in August 1998, he began wearing a necklace with an
electric chair pendant. He told his family that he was going to be executed. In December
1998, he was arrested for the murder of Wesley Smith. Thomas Akers told his courtappointed lawyers not to bother with a defence, and demanded the death sentence from
the prosecutor and the judge. After he got his wish in November 1999, Thomas Akers
waived his right to appeal and was executed 15 months later.
Dennis Dowthitt Texas. Dennis Dowthitt had suffered from mental illness since he was a
teenager. His original trial lawyers did not investigate this issue, or the abuse he suffered
as a child, to present in mitigation. One of several mental health experts, who have
assessed Dowthitt since his conviction, concluded that his profile was "consistent with
paranoid and schizophrenic features". A second expert stated that the tapes of Dennis
Dowthitt’s interrogation showed his "severe mental problems".
Jay Scott Ohio. Jay Scott developed serious mental illness on death row. In December
2000 a prison doctor diagnosed him as suffering from schizophrenia. Prior to this, doctors
have variously described him as "delusional" and as having a "major depressive disorder,
chronic with psychotic features". Jay Scott was reported to have suffered from auditory
hallucinations - a symptom of schizophrenia - from as early as 1992. His disturbed
behaviour over the years included setting fire to his cell, banging his head against the
wall, screaming incoherently, and fouling his food and then eating it. During psychotic
episodes in 2000, he was taken out of his cell and placed on 24-hour suicide watch. He

has been given anti-psychotic drugs. Jay Scott’s background is one of poverty,
deprivation, and exposure to violence from an early age. At his 1984 trial, his lawyers
decided not to present any mitigating evidence to this effect because they feared it would
reveal details of his criminal history.
Miguel Richardson Texas. Miguel Richardson had a long history of bipolar disorder and
was medicated on death row.
Jim Lowery Indiana. At the clemency hearing, the Indiana Parole Board heard testimony
from a psychologist who had recently diagnosed Jim Lowery as still suffering from
PTSD as a result of his treatment in the mental institutions. The psychologist also
testified that Lowery should never have been placed in those facilities. Jim Lowery’s
childhood was marked by poverty and parental neglect. He first got into trouble as a
young teenager, after taking his father’s car for joyriding in. When he was 15 or 16, his
parents took him to court and a judge committed him to a state mental facility, even
though no evidence had been presented that he was mentally ill. The teenager ran away
from the institution several times, telling his brothers and sisters that he had witnessed
inmates being given electro-shock treatment and that he was afraid this would happen to
him. He was transferred to the maximum security unit of another institution, the Norman
Beatty Hospital, which has since been closed. There he was subjected to repeated gang
rapes by staff. He was released at the age of 18. He took to drugs, alcohol, and property
crime, and was in and out of the prison system until the crime for which he was sentenced
to die.
Terry Mincey Georgia. Two years earlier before the crime, Terry Mincey had had a near
fatal motorcycle accident. At the trial, although family members testified that he had
undergone a drastic personality change after the accident, with severe mood swings and
an impaired memory, the defence presented no expert mental health evidence about the
head injury and its possible effects. In a post-conviction affidavit, a psychologist opined
that the injury would have impaired Mincey’s judgment and impulse control: "Minceys
head injury was a significant factor in the case - a factor which when considered
establishes that Mr Mincey’s actions on the night of the offense were the irrational
impulsive actions of a brain damaged individual and not the actions of a cold, calculated,
and premeditated murderer". Eight years after the trial, Terry Mincey’s appeal lawyers
discovered notes that the prosecutor had taken during a pretrial meeting with the state’s
psychiatrist, who was a member of the state forensic team which had evaluated Mincey in
May 1982. The prosecutor’s notes included the following about Terry Mincey: "Brain
damage in auto accident. Reflexes more active on 1 side. This indicates motor muscle
power differential. It is possible he might now be more susceptible to irrational
behavior". The notes were not provided to the defence.
James Elledge ◘Washington. James Elledge was sentenced to death for the murder of a
woman in 1998. He turned himself in to the police, after allegedly twice attempting
suicide. He pleaded guilty to first degree murder and refused to allow any mitigating
evidence to be presented. The jury was unaware that he had pleaded insanity in a
previous case, his reported history of mental illness, and his childhood abuse. He refused

to appeal his death sentence.
Jose High Georgia. Jose High, black, was on death row for 23 years for the murder of
11-year-old Bonnie Bolloch, white, when High was a teenager. In post-conviction
affidavits, three mental health experts said that Jose High suffered from "a major mental
illness with psychotic features", "a seizure disorder", "significant brain damage" and
"borderline intellectual functioning". They concluded that he suffered from such
disorders at the time of the crime, as well as before and after it. The experts also reviewed
Jose Highs videotaped "confession" to the police. They state that it clearly shows his
mental illness, indicates that he was manipulated by the police during questioning, and
calls into question the extent of his role in the crime. The video was not disclosed to the
defence at the time of the trial and only came to light in 1991. In prison, Jose High was
diagnosed with schizoaffective and depressive disorders. His medical records over the
years revealed that, despite being given powerful medication, he suffered visual and
auditory hallucinations, as well as seizures and suicidal ideation. He was subjected to
severe physical abuse at the hands of his father. Jose High’s lawyer presented no expert
or other witnesses at the sentencing phase. In his final statement before being executed,
High said that it had not been he who had shot Bonnie Bulloch. His two co-defendants
had their death sentences overturned on appeal.
Jeffrey Tucker Texas. Jeffrey Tucker was a victim of childhood physical, sexual and
emotional abuse. In upholding his death sentence in 2001, the US Court of Appeals for
the Fifth Circuit stated that "we do not profess to be unmoved by the dreadful
circumstances of Tucker’s childhood, and we understand the relevance of such evidence
to the jury’s determination of Tucker’s moral culpability at the time he committed the
murder". In 1997, a psychiatrist had concluded that Tucker suffered from brain damage
and post-traumatic stress disorder. His trial lawyers did not present mental health
evidence at the trial, and presented minimal mitigating evidence about his childhood.
They later admitted that "it was certainly not due to any legal strategy, tactic or plan that
we neglected to pursue and introduce documents or testimony regarding Mr Tucker’s
mental illness at either phase of the trial. In fact, such evidence would have helped us
immeasurably. The idea of investigating a client’s childhood and mental health history
was new to us."
2002
James Johnson Missouri. At his trial for the murder of three police officers and the wife
of one of them, Jim Johnson pleaded "not guilty by reason of mental disease or defect".
The defence position was that he suffered PTSD as a result of his wartime experiences in
Vietnam, and that he had experienced Vietnam-related flashbacks on the night of the
murders which made him believe that he was confronted by the enemy and rendered him
incapable of appreciating the wrongfulness of his conduct. However, the lawyer’s failure
to prepare adequately allowed the state to discredit this defence. Although three experts
testified that Johnson suffered from PTSD, the jury convicted Johnson on four counts of
first-degree murder and sentenced him to death on all four counts. A state Supreme Court
judge, dissenting against his colleagues’ decision to uphold the death sentence, wrote:
"Defense counsel’s unprofessional failure to interview [the prosecution witnesses] led the
defense to make demonstrably false claims in its opening statement, claims that utterly

destroyed the credibility of the PTSD theory before the defense even presented any
evidence... I find it reasonably likely that a jury that had not seen the defense destroy its
own credibility on this issue would have been sufficiently receptive to the expert
diagnosis of a mental disease or defect to permit a reasonable likelihood of a different
result... While Mr Johnson may not, as the jury found, have met the legal definition of
insanity, whatever drove Mr Johnson to go from being a law-abiding citizen to being a
multiple killer was certainly something akin to madness. I am not convinced that the
performance of his counsel did not rob Mr Johnson of any opportunity he might have had
to convince the jury that he was not responsible for his actions".
Monty Delk Texas. Post-conviction, in 1990, the prison medical authorities diagnosed
Monty Delk with bipolar disorder with psychotic features, and also raised the possibility
that he was suffering from schizo-affective disorder. Monty Delk displayed a pattern of
disturbed behaviour over his years on death row, including covering himself in feces, and
incoherent jabbering. He has repeatedly expressed delusional beliefs, such as that he is a
submarine captain, a CIA or FBI agent, or a member of the military. At a court hearing in
1993, he responded to the judge in prolonged streams of unbroken gibberish. At another
hearing in 1997, Monty Delk was gagged and then removed from the courtroom after
repeatedly interrupting the court with nonsensical utterances. At the hearing, a former
chief mental health officer with the Texas prison system said that his review of the prison
records and his own contact with Monty Delk suggested that the prisoner suffered from a
severe mental illness. From time to time, the state contended that Delk was malingering
to avoid execution. About four hours before the scheduled execution, the Fifth Circuit
lifted a lower court stay. Strapped down for execution, Monty Delk shouted gibberish and
obscenities.
Rodolfo Hernandez Texas. Rodolfo Hernandez was diagnosed as suffering from paranoid
schizophrenia. See main report, in the section Unethical: Psychiatric testimony used to
kill.
Linroy Bottoson ◘Florida. A renowned mental health expert concluded, after examining
Linroy Bottoson and reviewing his records, that "Mr. Bottoson’s chronic mental illnesses
currently render him unable to rationally and factually understand and appreciate the
reason that the State of Florida is seeking his execution and unable to factually
comprehend that his death will in fact occur. This man cannot perceive any connection
between any crime and the punishment that is scheduled. Because of his fixed psychotic
delusions he has no current capacity to come to grips with his own conscience, with the
crime, with mortality, with his sentence, or with reality. He understands himself to be
locked in the middle of a battle between Jesus and Satan, a battle that he is certain, as one
of God’s prophets, Jesus will win. Mr. Bottoson believes that he will not be executed
because humankind needs him."
2003
James Colburn Texas. James Colburn was diagnosed with schizophrenia before the
crime. When he gave a statement to police on the day of the murder, after he handed
himself in, there were indications that he was struggling with his illness. During his 1995
trial, James Colburn received injections of Haldol, an anti-psychotic drug which can have

a powerful sedative effect. A lay observer, a nurse with experience of mentally ill
patients, has stated in an affidavit that Colburn appeared to fall asleep on frequent
occasions during the proceedings. A psychiatrist who conducted an assessment of James
Colburn in 1997, and reviewed the records in the case, concluded that there were "serious
questions and concerns regarding [Colburn’s] competency to stand trial at that time", and
that Colburn had been "seriously sedated during the time of his trial".
John Smith ◘Missouri. John Smith was diagnosed with mental illness, specifically
bipolar disorder with psychotic features, and was on medication in prison. He dropped his
appeals. According to his attorneys, he had previously made a suicide attempt while on
death row.
Louis Jones Federal. After serving in Operation Desert Storm/Desert Shield in Saudi
Arabia in 1990 and 1991, Louis Jones displayed significant behavioural and personality
changes. He lost his sense of humour, became dominating, possessive, rigid in his
thinking, and began drinking to excess. He suffered from daily headaches. At the trial a
psychologist testified that, in his opinion, Louis Jones’ experience had intensified the
PTSD that he had suffered as a result of his involvement in the US invasion of Grenada
in 1983, in which he had led his platoon in a dangerous parachute jump under hostile fire.
At the trial, a psychologist, a neurologist and a psychiatrist variously stated their opinion
that on the night of the crime, Louis Jones was suffering from various mental problems,
including a major depressive disorder, a dissociative disorder, PTSD, cognitive disorder
and alcohol intoxication. The neurologist testified that, in his opinion, Louis Jones had
suffered brain damage, which made it difficult for him to control impulses. His clemency
petition raised the claim that he suffered from brain damage as a result of Gulf War
Syndrome, evidence which had not been raised at the 1995 trial due to the lack of
scientific and medical knowledge on this subject at that time.
James Brown Georgia. James Willie Brown had a long history of mental illness,
including repeated diagnoses of schizophrenia. His trial for murder was delayed for six
years on the grounds of mental incompetence. He was eventually tried and sentenced to
death in 1981, but was granted a new trial by a federal court in 1988 due to doubts over
his competency to stand trial in 1981. He was retried in 1990, and again sentenced to
death. At the retrial, the defence presented two experts who testified that James Brown
suffered from chronic paranoid schizophrenia. The state’s position at the 1990 retrial,
however, was that James Brown was faking his mental illness. It presented a doctor who
stated that, in his opinion, the defendant did not have schizophrenia, but had suffered
drug-induced flashbacks. This doctor appears to have ignored James Brown’s long
history and repeated diagnoses of mental illness (over the years more than 25 mental
health experts employed by the state have found James Brown to be mentally ill and not
malingering). To bolster the state’s theory that the defendant was malingering, the
prosecution presented a former inmate, Anita Tucker, who said that James Brown had
confided in her that he was faking his illness. Anita Tucker later recanted that testimony,
and testified that her earlier testimony was part of a deal with the prosecution in exchange
for her early release on her own criminal charges.
2004

Charles Singleton Arkansas. Charles Singleton was sentenced to death in 1979 for the
murder of Mary Lou York. Charles Singleton’s mental condition worsened in the years
that he was on death row, and he has been diagnosed as likely suffering from
schizophrenia. By the late 1980’s he had begun to suffer delusions, including that his cell
was possessed by demons, that a prison doctor had implanted a device in his ear, and that
his thoughts were being stolen when he read the Bible. Over the years, he has described
himself as the Holy Ghost and "God and the Supreme Court", expressed the belief that he
had been freed by the Supreme Court, that execution is just a matter of stopping breathing
and that a judge could restart his breathing again, that Sylvester Stallone and Arnold
Schwarzenegger were between this universe and another and trying to save him, and, in a
letter to a federal court, that Mary Lou York "is somewhere on this earth waiting for me –
her groom". By the early 1990s Charles Singleton was regularly on anti-psychotic drugs.
When he did not take the medication, or he needed increased or different medication, his
symptoms would worsen. When his illness became severe, he was put on an involuntary
medication regime. His psychotic symptoms abated, and the state set an execution date.
Kevin Zimmerman Texas. Kevin Zimmerman was originally charged with murder, not
capital murder. He was appointed a succession of lawyers who all withdrew from the
case for various reasons, having done little or no work on the case. After a year,
Zimmerman wrote letters to the prosecutor and court, in effect daring them to charge him
with capital murder. He was recharged, this time with capital murder. A doctor who later
reviewed the case stated in an affidavit that the claims in Zimmerman’s letters were
"patently absurd" and that the records indicate that at the time he was "psychotic",
"potentially suicidal and required suicide prevention measures". His trial lawyers, who
had no capital trial experience, failed to have Zimmerman evaluated for his mental
competency to stand trial even though there was evidence that he might not be able to
assist in his own defence. They did not investigate his family background, and did not
learn that he had a history of mental problems beginning after a serious bicycle accident
at the age of 11, as a result of which he had a plate put in his head. There were numerous
relatives and neighbours who could have testified that his personality and behaviour
changed after the accident. The lawyers failed to present expert psychiatric evidence to
support the claim of self-defence or to present as mitigation evidence against the death
penalty. In 1997, an expert conducted an evaluation of Kevin Zimmermann, and found
that his childhood brain injury had "materially affected his behavioral control, both as an
adolescent and at the time of the stabbing". In 1995 another doctor had concluded that
Zimmerman showed signs of a mental disorder characterized by impaired impulse control
and judgment. In 2003, a psychologist concluded that Kevin Zimmerman had suffered a
"traumatic and serious frontal brain injury at the age of eleven which resulted in the
development of seizures, personality changes, explosive outbursts as well as postexplosive amnesia." She said that due to the mental impairments, the murder for which
Zimmerman was sentenced to death "should not be considered as a
predatory/premeditated crime." She also concluded that Kevin Zimmerman’s "behaviour
at the time of the crime and around the time of his trial raises the strong probability that
he was suffering from a separate mental illness or disorder" at those times.
Hung Thanh Le Oklahoma. The jury heard no expert evidence of the possible impact of

Hung Thanh Le’s traumatic refugee experiences on his actions. After the trial, a
Vietnamese psychologist concluded that Hung Le was suffering from post-traumatic
stress disorder at the time of the crime – the murder of a fellow Vietnamese refugee in
Oklahoma City in 1992. Hung Le had reportedly witnessed, and was subjected to,
violence and deprivation in the refugee camps in Cambodia and Thailand.
Kelsey Patterson Texas. After shooting Louis Oates and Dorothy Harris in 1992, Kelsey
Patterson put down the gun, undressed and was pacing up and down the street in his
socks, shouting incomprehensibly, when the police arrived. In 2000, a federal judge
wrote that "Patterson had no motive for the killings – he claims he commits acts
involuntarily and outside forces control him through implants in his brain and body.
Patterson has consistently maintained he is a victim of an elaborate conspiracy, and his
lawyers and his doctors are part of that conspiracy. He refuses to cooperate with either;
he has refused to be examined by mental health professionals since 1984, he refuses
dental treatment, and he refuses to acknowledge that his lawyers represent him. Because
of his lack of cooperation, it has been difficult for mental health professionals to
determine with certainty whether he is exaggerating the extent of his delusions, or to
determine whether he is incompetent or insane. All of the professionals who have tried to
examine him agree that he is mentally ill. The most common diagnosis is paranoid
schizophrenia." Patterson was first diagnosed with schizophrenia in 1981. A jury found
him competent to stand trial for the murders. Yet his behaviour at his competency
hearing, and at the trial itself – when he repeatedly interrupted proceedings to offer
rambling narrative about his implanted devices and other aspects of the conspiracy
against him – provided compelling evidence that his delusions did not allow him a
rational understanding of what was going on or the ability to consult with his lawyers.
After learning of his execution date, Patterson wrote rambling letters to various officials.
In the letters he referred to a permanent stay of execution that he said he had received on
grounds of innocence. Kelsey Patterson’s family had tried unsuccessfully to get treatment
for him prior to his crime.
Robert Bryan Oklahoma. Robert Bryan had been diagnosed with chronic paranoid
schizophrenia, and had a history of organic brain disease which may have been related to
his severe diabetes dating back decades. Despite serious concerns about his competence
to stand trial, and the fact that he had previously been found incompetent to stand trial,
Robert Bryan’s trial lawyer presented no mental health evidence at either stage of the
trial.
Stephen Vrabel ◘Ohio. Stephen Vrabel shot his girlfriend and their child in 1989, and
then put their bodies in the refrigerator. He was found incompetent to stand trial and he
was committed to a psychiatric hospital where he remained for the next five years, until
he was found competent to stand trial. He was diagnosed with serious mental illness,
including paranoid schizophrenia. Three Ohio Supreme Court Justices dissented against
his death sentence on the ground of Vrabel’s mental illness.
Kevin Hocker ◘Alabama. Kevin Hocker suffered from bipolar disorder. His trial for a
1998 murder lasted one day. The trial lawyer presented no witnesses, and Hocker refused

to allow any mitigating evidence to be presented, so the jury was left unaware of the
abuse he was subjected to as a child, his history of mental illness, or the fact that his
father had also suffered from bipolar disorder and had committed suicide when Hocker
was eight years old. Kevin Hocker then refused to appeal his sentence. He mutilated
himself on death row, including cutting off his testicles. His mother and sister said that he
had been suicidal for years. His sister said that her brother had told her that he committed
the crime in order to get the death penalty.
Mark Bailey Virginia. Lawyers for Mark Bailey, a former Navy submariner, appealed
for clemency from the Governor of Virginia on the grounds that Bailey suffered from
bipolar disorder, and had faced "a continuous struggle with his mental illness", a factor
which was not considered by the jury when it sentenced him to death for killing his wife
and child in 1998.
2005
Donald Beardslee California. Donald Beardslee’s clemency lawyers revealed evidence
of his mental impairment. An expert conducted an assessment of Beardslee and
concluded that he suffered from severe brain damage, and that the right hemisphere of his
brain was virtually non-functioning. The expert concluded that in all likelihood he had
suffered from this impairment since birth and it was exacerbated by serious head injuries
he sustained when a teenager and in his early 20s. The expert concluded that the brain
damage likely affected his behaviour at the time of the crime, and also that the severity of
the impairment would likely have left jurors interpreting his flat demeanour as indicating
a callous individual. The prosecutor repeatedly depicted Beardslee as a remorseless killer,
and told the jury that they could evaluate him from his demeanour in the courtroom. The
jury was not presented with the evidence of brain damage, allowing the prosecutor to
argue that the defendant was "not suffering from any mental disorder".
Troy Kunkle Texas. At the time of the crime, Troy Kunkle was just over 18 years old,
with no criminal record, and emerging from a childhood of deprivation and abuse. At
times, his parents had suffered from mental illness.When Troy Kunkle was 12, his
father’s mental condition deteriorated, resulting in severe mood swings during which he
would subject Troy Kunkle to severe physical abuse. It was during this time that the
boy’s problems at school escalated, conduct which would later be used by the state in its
effort to persuade the jury to vote for his execution. In post-conviction evaluations, a
psychologist concluded that Troy Kunkle was suffering from schizophrenia, a diagnosis
he said was backed up by prison records. He stated that much of Troy Kunkle’s early
adolescent behaviour problems could be "linked to his father’s aggressive and psychotic
behaviour" towards him throughout his childhood, as well as to the lack of nurturing
when his mother was herself suffering from serious mental illness. The psychologist
concluded that an expert evaluation at the time of the trial would likely have shown Troy
Kunkle’s emerging mental disorder, and the exacerbating effect of substance abuse on
this. The jury heard no expert testimony, however.
Appendix 2 – Recommendations of an ABA Task Force
Recommendations of the American Bar Association Section of Individual Rights

and Responsibilities Task Force on Mental Disability and the Death Penalty
1. Defendants should not be executed or sentenced to death if, at the time of the offense,
they had significant limitations in both their intellectual functioning and adaptive
behaviour, as expressed in conceptual, social, and practical adaptive skills, resulting from
mental retardation, dementia, or a traumatic brain injury.
2. Defendants should not be executed or sentenced to death if, at the time of the offense,
they had a severe mental disorder or disability that significantly impaired their capacity
(a) to appreciate the nature, consequences, or wrongfulness of their conduct; (b) to
exercise rational judgment in relation to conduct; or (c) to conform their conduct to the
requirements of the law. A disorder manifested primarily by repeated criminal conduct or
attributable solely to the acute effects of voluntary use of alcohol or other drugs does not,
standing alone, constitute a mental disorder or disability for the purposes of this
provision.
3. Mental Disorder or Disability after Sentencing
(a) Grounds for Precluding Execution. A sentence of death should not be
carried out if the prisoner has a mental disorder or disability that
significantly impairs his or her capacity (i) to make a rational decision to
forgo or terminate post-conviction proceedings available to challenge the
validity of the conviction or sentence; (ii) to understand or communicate
pertinent information, or otherwise assist counsel, in relation to specific
claims bearing on the validity of the conviction or sentence that cannto be
fairly resolved without the prisoner’s participation; or (iii) to understand
the nature and purpose of the punishment, or to appreciate the reason for
its imposition in the prisoner’s own case. Procedures to be followed in
each of these categories of cases are specified in (b) through (d) below.
(b) Procedure in Cases Involving Prisoners Seeking to Forgo or
Terminate Post-Conviction Proceedings. If a court finds that a prisoner
under sentence of death who wishes to forgo or terminate post-conviction
proceedings has a mental disorder or disability that significantly impairs
his or her capacity to make a rational decision, the court should permit
next friend acting on the prisoner’s behalf to initiate or pursue available
remedies to set aside the conviction or death sentence.
(c) Procedure in Cases Involving Prisoners Unable to Assist Counsel in
Post-Conviction Proceedings. If a court finds at any time that a prisoner
under sentence of death has a mental disorder or disability that
significantly impairs his or her capacity to understand or communicate
pertinent information, or otherwise to assist counsel, in connection with
post-conviction proceedings, and that the prisoner’s participation is
necessary for a fair resolution of specific claims bearing on the validity of
the conviction or death sentence, the court should suspend the
proceedings. If the court finds that there is no significant likelihood of
restoring the prisoner’s capacity to participate in post-conviction
proceedings in the foreseeable future, it should reduce the prisoner’s

sentence to a lesser punishment.
(d) Procedure in Cases Involving Prisoners Unable to Understand the
Punishment or its Purpose. If, after challenges to the validity of the
conviction and death sentence have been exhausted and execution has
been scheduled, a court finds that a prisoner 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 sentence of death should be
reduced to a lesser punishment.
2005
For further information and analysis of the Task Force’s proposals, see the Catholic
University Law Review, Volume 54 (2004-2005).
********
(1) Quoted in Hanged by the neck. Arthur Koestler and C.H. Rolph, Penguin Books,
1961. The letter continued: "My daughter was against capital punishment. When she was
eight years old she came home from school one day and told me a little boy had thrown a
glass of water over her. ‘And what did you do?’ I asked her. ‘At first’, she said, ‘I wanted
to do the same to him, but I suddenly saw myself doing what he did... He would have
won’."
(2) Death penalty at dinnertime. By Catherine Forbes. Orlando Sun Sentinel, 20 June
2000.
(3) Corcoran v State, 774 N.E.2d 495, 502 (2002), Justice Rucker dissenting.
(4) Mental state likely to be key in Zito trial. Baltimore Sun, 13 May 2002.
(5) Zito sentenced to death. Associated Press, 30 May 2002.
(6) Francis Zito died of lung cancer six months after his trial.
(7) Death in Arkansas. By Marshall Frady. The New Yorker, 22 February 1993.
(8) Remarks to the Democratic National Convention, Los Angeles, 14 August 2000.
(9) Juan Soria (Texas), John Satterwhite (Texas), and Dan Hauser (Florida) had histories
of serious mental illness (see Appendix). Oliver Cruz (Texas) had mental retardation.
(10) American Psychiatric Association. Diagnostic and Statistical Manual of Mental
Disorders. Fourth Edition, Text Revision, Washington DC: APA, 2000; World Health
Organization. International Statistical Classification of Diseases and Related Health
Problems, Tenth Revision – ICD-10. Second edition. Geneva: WHO, 2005.

(11) Mentally ill inmate should remain incarcerated. Dallas Morning News, 20 January
2000.
(12) This report uses the term mental retardation, rather than learning disability, as it is
the term used in the USA.
(13) See, for example, the case of Jeremy Sagastegui , pp.110-113 below.
(14) For a list of 40 cases of people with claims of mental retardation who were executed
in the USA between 1984 and 2001, see pp 100-101, USA: Indecent and internationally
illegal – The death penalty against child offenders, September 2002,
http://web.amnesty.org/library/Index/ENGAMR511432002.
(15) Furman v. Georgia, 408 U.S. 238 (1972). The defendant in this case, William
Furman, had been diagnosed with "Mental Deficiency, Mild to Moderate, with Psychotic
Episodes associated with Convulsive Disorder".
(16) Gregg v. Georgia, 428 U.S. 153 (1976).
(17) Weems v. United States, 217 U.S. 349 (1910).
(18) Trop v. Dulles, 356 U.S. 86 (1958).
(19) Ford v. Wainwright, 477 U.S. 399 (1986).
(20) State v. Scott, 748 N.E.2d 11, 19 (2001), Justice Pfeifer dissenting.
(21) Atkins v. Virginia, 536 U.S. 304 (2002).
(22) Roper v. Simmons, 125 S.Ct. 1183 (2005).
(23) Alan A. Stone, M.D., Supreme Court decision raises ethical questions for psychiatry.
Psychiatric Times, Vol. XIX; Issue 9, September 2002.
(24) Godfrey v. Georgia, 446 U.S. 420 (1980).
(25) Bryan v. Mullin, 335 F.3d 1207 (10th Cir. 2003), Judge Henry, concurring in part
and dissenting in part. Joined by Judges Seymour, Ebel and Lucero.
(26) Corcoran v State, 774 N.E.2d 495 (In. 2002), Justice Rucker dissenting.
(27) State v. Weik, 587 S.E.2d 683.
(28) Baird v. Davis, 388 F.3d 110 (7th Cir. 2004).
(29) State v. Nelson, 173 N.J. 417, 30 July 2002, Justice Zazzali concurring.

(30) People v. Bull, 705 N.E.2d 824 (Il. 1998), Justice Harrison concurring in part,
dissenting in part. Donald Bull had mental impairment, and an IQ ranked in the bottom
two per cent of the population. He died on death row on 18 September 2002, a few
months before the then Governor of Illinois commuted the death sentences of all those on
death row in his state because of his doubts about the reliability and fairness of the capital
justice system.
(31) See http://web.amnesty.org/pages/deathpenalty-countries-eng.
(32) Walton v. Johnson, 407 F.2d 285 (4th Cir. 2005).
(33) Olmstead v. United States, 277 U.S. 438 (1928), Justice Brandeis dissenting.
(34) Réflexions sur la peine Capitale, 1957.
(35) Furman v. Georgia, 408 U.S. 238 (1972), Justice Brennan concurring.
(36) The State v. T Makwanyane and M Mchunu, Constitutional Court of the Republic of
South Africa, 6 June 1995, Mahomed, J., concurring. Justice Mahomed went on to
become Chief Justice.
(37) Rector v. Bryant, 501 U.S. 1239 (1991). Justice Marshall, dissenting.
(38) Daniel M’Naghten shot the secretary to the Prime Minister. He was apparently
suffering from symptoms of paranoid schizophrenia at the time, and the jury returned a
verdict of not guilty by reason of insanity. The House of Lords in response to public
concern devised what would become known as the M’Naghten Rules: "To establish a
defence on the ground of insanity, it must be clearly proved that, at the time of the
committing of the act, the party accused was labouring under such a defect of reason,
from disease of the mind, as not to know the nature and quality of the act he was doing;
or if he did know it, that he did not know he was doing what was wrong".
(39) ‘Odds against insanity defense: Stayner strategy rarely succeeds.’ San Jose Mercury
News, 3 September 2002.
(40) "Whereas England’s Infanticide Law provides probation and mandates psychiatric
treatment for mothers with mental illness who commit infanticide, ‘killer mothers’ may
face the death penalty in the United States. Contemporary neuroscientific findings
support the position that a woman with postpartum psychosis who commits infanticide
needs treatment rather than punishment and that appropriate treatment will deter her from
killing again. Psychiatrists have a vital role in recognizing the signs and symptoms of
peripartum psychiatric disorders, particularly postpartum psychosis, and in early
identification of and intervention with at-risk mothers." Margaret G. Spinelli, M.D.,
‘Maternal infanticide associated with mental illness: Prevention and the promise of saved
lives.’ Am. J. Psychiatry 2004; 161: 1548-1557. See also, Deborah W. Denno, ‘Who is

Andrea Yates? A short story about insanity’, 10 Duke J. Gender L. & Pol’y 1, 2003. In
2005, Andrea Yates’s conviction was vacated and she was remanded for retrial.
(41) The first "guilty but mentally ill" (GBMI) statute was enacted in 1975 in Michigan
and followed public outrage at the case of two people who had been found not guilty by
reason of insanity, but were subsequently released and committed further violent crimes.
In 1981, Indiana became the second state to enact a GBMI statute in response to a violent
crime in which an insanity defence was offered. Following the Hinkley case in 1982, 10
more states enacted GBMI statutes and some rewrote their insanity defence laws to
exclude the volitional prong. From: Killing the non-willing: Atkins, the volitionally
incapacitated, and the death penalty, by John Blume and Sheri Lynn Johnson, 55 South
Carolina Law Review 93, 2003.
(42) In a footnote to the Atkins decision, the Supreme Court pointed to definitions of
mental retardation used by the American Association of Mental Retardation and the
American Psychiatric Association. In the Ford decision, only a concurring opinion by a
single Justice attempted to define competence for execution.
(43) There are already concerns in this regard. While a number of people with mental
retardation have been removed from death rows by the courts or acts of executive
clemency since Atkins, there are fears that some people with strong claims of mental
retardation may yet be executed. Indeed, three years after the Atkins ruling, a number of
states have not passed legislation on the issue. For example, in Alabama and Mississippi,
there are still no clear procedures as to how trial courts should proceed on cases of people
with mental retardation claims facing capital charges or for determining who on death
row should have their death sentence reversed as a result of Atkins. With different states
adopting different postures on this issue, yet more inconsistency in US capital case
outcomes looms.
(44) Since this report was written in mid-2005, an overview and analysis of the proposals
of the ABA’s Task Force has been published in the Catholic University Law Review,
Volume 54, in 2005 (see also Appendix 2 of this report).
(45) In its Atkins v. Virginia decision, the US Supreme Court pointed to the definitions of
mental retardation used by the American Association of Mental Retardation (AAMR) and
the American Psychiatric Association (APA). AAMR: "Mental retardation refers to
substantial limitations in present functioning. It is characterized by significantly
subaverage intellectual functioning, existing concurrently with related limitations in two
or more of the following applicable adaptive skill areas: communication, self-care, home
living, social skills, community use, self-direction, health and safety, functional
academics, leisure, and work. Mental retardation manifests before age 18." APA: "The
essential feature of Mental Retardation is significantly subaverage general intellectual
functioning (Criterion A) that is accompanied by significant limitations in adaptive
functioning in at least two of the following skill areas: communication, self-care, home
living, social/interpersonal skills, use of community resources, self-direction, functional
academic skills, work, leisure, health, and safety (Criterion B). The onset must occur

before age 18 years (Criterion C). Mental Retardation has many different etiologies and
may be seen as a final common pathway of various pathological processes that affect the
functioning of the central nervous system."
(46) This concept, the definition of which is not taken from NAMI, is illustrated by the
case of Nicholas Hardy in Florida. In February 1993, 18-year-old Hardy shot himself in
the head after he had shot and killed James Hunt, a police officer who had stopped Hardy
and three other youths. The suicide attempt left Nicholas Hardy in a coma for several
weeks, after which he slowly regained the ability to speak and walk. A competency
hearing was held in August 1993 to determine if he could stand trial. He was found to be
incompetent due to his self-inflicted brain damage, and he was sent to the Mentally
Retarded Defendant Program at Florida State Hospital. There he received training in an
effort to restore him to competency. In February 1995, he was found competent to stand
trial, and on 14 February 1996, he was sentenced to death. In June 1998, the Florida
Supreme Court re-evaluated the aggravating factors in the crime and found that they were
outweighed by the mitigating circumstances. The Court noted that the neurological
experts who had examined Hardy concluded that his brain damage meant that he "was no
longer the same person who killed Sergeant Hunt." It commuted the death sentence to life
imprisonment without parole. See: Hardy v. State, 11 June 1998.
(47) This information is adapted from that provided by the US National Library of
Medicine and the National Institutes of Health, and MedicineNet.com
(48) NMHA. Death Penalty and People with Mental Illness. Available at www.nmha.org.
(49) Seena Fazel and Martin Grann, Psychiatric morbidity among homicide offenders: A
Swedish population study. Am J Psychiatry 2004; 161: 2129-2131. The study also found
that 92 per cent of the homicide offenders had some psychiatric diagnosis.
(50) For a full report on Scott Panetti’s case, see USA:‘Where is the compassion?’ The
imminent execution of Scott Panetti, mentally ill offender, AI Index: AMR 51/011/2004,
January 2004. http://web.amnesty.org/library/Index/ENGAMR510112004.
(51) Texas guards rights of the mentally impaired. John Cornyn, Attorney General of
Texas. Letters to the Editor, St Louis Post-Dispatch, 18 August 2000.
(52) Panetti v. Dretke, US District Court for the Western District of Texas, 29 September
2004.
(53) Panetti v Dretke, In the US Court of Appeals for the Fifth Circuit, opening brief of
petitioner-appellant, 2005.
(54) Unless otherwise stated, the details of Harold Barnard’s case are provided by his
former appellate attorneys, including from conversations with Amnesty International in
2002 and 2005 and from their comprehensive January 1994 Petition for Writ of Habeas
Corpus and Motion for Stay of Execution and for Evidentiary Hearing in federal court

(Barnard v. Collins).
(55) Barnard v. Collins, 958 F.2d 634 (5th Cir. 1992).
(56) Affidavit of Dr Joseph Leggett, Central Regional Psychiatrist, Texas Department of
Corrections; Former Chief Psychiatrist, Ellis 1 Unit and primary treating psychiatrist for
Harold Barnard. 1993.
(57) Affidavit of Dr C. Yates Morgan, Current Chief Psychologist, Texarkana Federal
Correctional Institute, Former Supervising Psychologist, Ellis II Unit of TDC, Psychiatric
Services Supervisor, Ellis I Unit, and primary treating psychologist for Harold Barnard.
1993.
(58) Psychiatric evaluation of Dr Santiago Caberto, M.D., Current Psychiatrist, Riverside
Correctional Facility, Ionia, Michigan, Former Psychiatrist, TDC Ellis 1 Unit.
(59) Letter of Dr Howard Blevins, Former Central Region Psychiatric Services
Supervisor, TDC, 1994.
(60) Letter of Dr Dickerson, Ph.D,
(61) Report of Dr Allen Childs, M.D., Practicing Psychiatrist and part-time Psychiatrist
for Vernon State Mental Hospital, Vernon, Texas. Date?Vernon State Hospital at that
time was the state facility in Texas which performed competency and sanity evaluations
in criminal cases for courts throughout Texas.
(62) Report of Dr Philip J. Murphy, Ph.D., Practicing Clinical Psychologist in Oklahoma
City, Oklahoma. 1993.
(63) Affidavit of Joseph Leggett, M.D., in response to letter of Dr Gripon.
(64) Report of Aaron Fink, M.D.
(65) Barnard v. Collins, 13 F.3d 871 (5th Cir. 1994).
(66) See, for example, Tennard v. Dretke, 542 U.S. 274 (2004), and Miller-El v. Dretke,
73 U.S.L.W. 4479 (2005).
(67) It’s Wrong to Kill the Mentally Ill. The Atlanta Journal and Constitution. 14 May
1989.
(68) James Wilson told a psychiatrist after the crime that he had identified with Laurie
Dann, who in May 1988 had shot several children at a school in Winnetka, Illinois,
killing an eight-year-old boy. Dann, who had a history of mental problems, then killed
herself. In subsequent years there were shootings in numerous schools across the USA,
including in Alaska, Arkansas, California, Colorado, Florida, Kentucky, Mississippi,

New Mexico, Oklahoma, Oregon, Pennsylvania, South Carolina, Tennessee, Virginia,
and Washington State.
(69) Expert evidence has revealed that "Wilson’s father had abused him severely, beating
him at various points with a belt, a can, and a shoe and, on occasion, threatening him with
a gun". Wilson v. Ozmint, 352 F. 3d 847 (4th Cir. 2003).
(70) Mental illness exacts heavy toll, beginning in youth. National Institute of Mental
Health, press release, 6 June 2005.
(71) Dorothy Otnow Lewis et al, Ethics questions raised by the neuropsychiatric,
neuropsychological, educational, developmental, and family characteristics of 18
juveniles awaiting execution in Texas. Journal of the American Academy of Psychiatry
and Law 2004; 32: 408-29.
(72) There were two "aggravating" factors in the crime either of which meant that the
prosecution could seek the death penalty under state law: 1) two people were murdered,
and 2) they were under 11 years old. Judge Moore affirmed the aggravating factors.
(73) Wilson v. Maynard and Condon. Petitioner’s traverse, memorandum of law in
opposition to motion for summary judgment, and request for and evidentiary hearing on
selected claims. In the United States District Court for the District of South Carolina,
August 2002.
(74) Wilson v. Evatt, Applicant’s post-hearing memorandum of law in support of the
amended application for post-conviction relief. In the Greenwood County Court of
Common Pleas, 25 November 1996.
(75) The statutory mitigating factors found by the judge were: 1) defendant has no
significant history of prior violent crime conviction; 2) the murder was committed under
the influence of mental or emotional disturbance; 3) capacity of the defendant to
appreciate the criminality of his conduct or to conform his conduct to the requirements of
the law was substantially impaired; and 4) the age or mentality of the defendant at the
time of the crime.
(76) ‘Wilson case raises legal, ethical questions.’ 14 May 1989.
(77) ‘Wilson sentence a travesty.’ 12 May 1989.
(78) ‘It’s wrong to kill the mentally ill.’ 14 May 1989.
(79) The lawyers had evidently believed that the original judge assigned to the case –
Judge Thomas L. Hughston, a former public defender – would not hand down a death
sentence against someone who was found to be guilty but mentally ill. However, after the
prosecution delayed the trial date, Judge Moore was assigned to the case. He was the
prosecutor’s former law partner and said to be more prosecution-oriented than Judge

Hughston. Wilson v. Evatt, Applicant’s post-hearing memorandum of law in support of
the amended application for post-conviction relief. In the Greenwood County Court of
Common Pleas, 25 November 1996.
(80) State v Wilson, 413 S.E.2d 19 (S.C. 1992).
(81) Wilson v Ozmint, 352 F.3d 847 (4th Cir. 2003).
(82) State v Wilson, 413 S.E.2d 19, (S.C. 1992).
(83) Article 6: "No one shall be arbitrarily deprived of his life". Article 9: "No one shall
be subjected to arbitrary arrest".
(84) UN Doc. CCPR/C/39/D/305/1988, 15 August 1990.
(85) As, arguably, would the execution of any person with serious mental illness unless
there was a demonstrable reason why that person was more culpable or deterrable than a
person with mental retardation. For a discussion of this issue under US constitutional law,
see Christopher Slobogin, ‘What Atkins could mean for people with mental illness’, 33
N.M. L. Rev. 293, 2003.
(86) Bell v. Thompson, US Supreme Court, 27 June 2005, Justice Breyer dissenting.
(87) Poland v. Don, Petition for Special Action and Motion for a Stay of Execution, In
the Supreme Court of Arizona, 13 June 1999.
(88) In the case of Michael Poland above, the state relied on lay witnesses who had had
passing contact with the prisoner to defeat the unanimous expert opinion that he was
legally insane. In effect, the state was able to argue that because Michael Poland appeared
"normal" to lay people, he did not have the mental illness that the expert opinion
unanimously concluded that did have.
(89) For a list of rulings and further discussion, see, Stephen B. Bright, Is fairness
relevant? The evisceration of federal habeas corpus review and limits on the ability of
state courts to protect fundamental rights. John Randolph Tucker Lecture, College of
Law, Washington and Lee University, 1997. Published in Volume 54, Washington and
Lee Law Review, page 1 (Winter 1997). http://www.schr.org/reports/docs/washlee.pdf.
(90) Last rights. LA Weekly, 3-9 April 1998.
(91) Calderon v. Kelly, US Court of Appeals for the Ninth Circuit, 18 September 1997.
(92) Sacramento Bee, 24 July 1998.
(93) Calderon v. Kelly, US Court of Appeals for the Ninth Circuit, 8 December 1998.

(94) Conner v. Epps, US Court of Appeals for the Fifth Circuit, 18 November 1992. In a
post-conviction affidavit, the lawyer admitted that he had not prepared for sentencing,
explaining that he had been convinced (and remained convinced) of Conner’s innocence,
and so concentrated on the guilt/innocence stage of the trial.
(95) Strickland v. Washington, 466 U.S. 668 (1984).
(96) Conner v. State, 632 So.2d 1239 (Miss. 1993).
(97) Conner v. Epps, US Court of Appeals for the Fifth Circuit, 18 November 2002.
(98) In June 2005, Ronnie Conner’s appeal lawyer told Amnesty International that she
was hopeful that his death sentence might be overturned on the claim that Conner has
mental retardation and that his execution would violate Atkins v. Virginia. The issue was
pending in the courts at the time of writing.
(99) Bell v. Thompson, 27 June 2005.
(100) Bell v. Thompson, US Supreme Court, 27 June 2005, Justice Breyer, dissenting.
(101) Given the assertion that this sentence reflects the judgment of the citizens of
Tennessee, it is worth noting that Gregory Thompson, an African American, was
sentenced to death by an all-white jury for the murder of a white woman. The only
prospective African American juror had been peremptorily dismissed by the prosecution,
purportedly because he was not pro-death penalty enough (see Reality Check 4, above).
Not only was no one of the defendant’s race represented on the jury, none of the many
citizens of Tennessee who opposed the death penalty were represented either.
(102) "The court shall not impose the sentence of death on the defendant if the jury or, if
there is no jury, the court finds… that at the time of the offense (1) the defendant was
under the age of eighteen years, or (2) the defendant was a person with mental
retardation… or (3) the defendant’s mental capacity was significantly impaired or the
defendant’s ability to conform the defendant’s conduct to the requirements of law was
significantly impaired but not so impaired in either case as to constitute a defense to
prosecution" (emphasis added). Connecticut Penal Code. Chapter 952, Section 53a-46a
(h)(3), available at http://www.cga.ct.gov/2005/pub/Chap952.htm#Sec53a-46a.htm.
(103) USA: Indecent and internationally illegal – The death penalty against child
offenders, September 2002, http://web.amnesty.org/library/Index/ENGAMR511432002.
(104) Furman v. Georgia, 408 U.S. 238 (1972), Justice Brennan, concurring.
(105) UN Economic and Social Council (ECOSOC) Resolution 1989/64, adopted 24 May
1989.
(106) Coker v. Georgia, 433 U.S. 584 (1977).

(107) Enmund v. Florida, 458 U.S. 782 (1982) (finding the death penalty disproportionate
for person who aids and abets in commission of a murder, but does not kill, attempt to
kill or intend to kill the victim).
(108) In 1972, the California Supreme Court found that the death penalty violated the
state constitution. Chief Justice Wright wrote: "Public acceptance of capital punishment
is a relevant but not controlling factor in assessing whether it is consonant with
contemporary standards of decency. But public acceptance cannot be measured by the
existence of death penalty statutes or by the fact that some juries impose death on
criminal defendants. Nor are public opinion polls about a process which is far removed
from the experience of those responding helpful in determining whether capital
punishment would be acceptable to an informed public were it even-handedly applied to
a substantial proportion of the persons potentially subject to execution". People v.
Anderson, 493 P.2d 880 (Cal. 1972).
(109) The states are: Alaska; Hawaii; Iowa; Maine; Massachusetts; Michigan; Minnesota;
North Dakota; Rhode Island; Vermont; West Virginia; Wisconsin.
(110) The states are: Alabama; Arizona; Arkansas; California; Colorado; Florida;
Indiana; Kansas; Kentucky; Maryland; Mississippi; Missouri; Montana; Nebraska; New
Hampshire; New Jersey; New Mexico; North Carolina; Ohio; Pennsylvania; South
Carolina; Tennessee; Utah; Virginia; Washington; Wyoming. Provided by Mark Warren,
Human Rights Research, Canada. See also, Ellen Fels Berkman, ‘Mental illness as an
aggravating circumstance in capital sentencing’, 89 Colum. L. Rev. 291, 296-98 (1989).
(111) Cases cited in Wilson v. Maynard and Condon, Memorandum of law in support of
motion for partial summary judgment, In the United States District Court for the District
of South Carolina, 15 July 2002. Proportionality review – in those states with this
provision, before the appeal court affirms it, the death sentence is compared to other
cases to see if it is proportionate. The Nevada Supreme Court has since ruled out actual
proportionality review, although it does conduct a form of ad hoc review with similar
impact.
(112) The states are: Delaware, Illinois, Indiana and South Carolina.
(113) The states are: Arkansas, Connecticut, Georgia, Hawaii, Kentucky, Maryland,
Massachusetts, Michigan, New Hampshire, New Mexico, Oregon, Rhode Island,
Vermont, Virginia, West Virginia, Wisconsin, and Wyoming. As the lawyers argued, if
any of the seven non-death penalty states were to reinstate the death penalty, defendants
found to have been unable to conform their conduct to the law, would be ineligible for
the death penalty in the same way as the 10 other states.
(114) Montana and New York. The latter’s death penalty law has since been found
unconstitutional and New York therefore currently has a de facto moratorium on the
death penalty in place.

(115) Wilson v Ozmint, 352 F.3d 847 (4th Cir. 2003).
(116) Ari Fleischer, White House press briefing, 14 March 2002.
(117) Fort Worth Star-Telegram, 14 April 1999.
(118) The US Supreme Court announced that it would revisit the mental retardation issue
in March 2001, eventually leading to the Atkins ruling. On the presidential campaign trail
in 2000, Governor Bush denied that Texas executed prisoners with mental retardation, a
few hours before just such an execution was carried out (when a reporter pointed out that
several US states ban the execution of the mentally retarded, Governor Bush replied, "So
do we, in Texas"). Despite records, Bush denies mentally retarded executed, Houston
Chronicle, 10 August 2000. Oliver Cruz, a prisoner with mental retardation, was executed
in Texas on 9 August 2000.
(119) Diminished responsibility in capital sentencing: Position statement. The American
Psychiatric Association, Approved by the Assembly, November 2004, and by the Board
of Trustees, December 2004.
(120) Phoebe C. Ellsworth et al. The death-qualified jury and the defense of insanity. 8
Law & Hum. Behav. 81 (1984).
(121) ‘Cases show big difference in self-representation.’ Nashville City Paper, 27
October 2003.
(122) ‘In 3-hour span, Taylor convicted, condemned.’ The Tennessean, 17 October 2003.
The Williamson County District Attorney was quoted as saying after the trial: "I think
justice has been served".
(123) ‘No death penalty for persons with severe mental illnesses.’ Statement by Laurie
Flynn, Executive Director, National Alliance for the Mentally Ill, 12 January 1998.
(124) The criminalization of people with mental illness. NAMI position paper.
(125) Death penalty and people with mental illness. National Mental Health Association,
Policy Position: P-44.
(126) The American Psychological Association earlier adopted the language of an earlier
Task Force proposal, and is expected to incorporate the refinements to prongs one and
three (it already has adopted the current language of prong two). Ronald J. Tabak,
‘Overview of Task Force proposal on mental disability and the death penalty’, 54
Catholic U. L. Rev, 1123 (2004-2005).
(127) Commonwealth v. Ryan and Harris. 5 S.W.3d 113 (Ky. 1999).

(128) The state appealed to the Kentucky Supreme Court and the sentencing was
postponed. On 26 August 1999, referring to Judge Ryan’s "lofty list of reasons" for
excluding the death penalty, it ruled that he had not had the authority to bar the
punishment when he did. Kimberly Harris was convicted after a jury trial in February
2001.The jury rejected her insanity defence, but also rejected the death penalty and
sentenced her to life without parole for 25 years. There have been cases in Kentucky in
which guilty but mentally ill pleas have been negotiated in return for a promise that the
prosecution would not seek death, but there is no Kentucky law prohibiting the death
penalty in such cases.
(129) Affidavit, Dr Mark Mills, March 1997. The case concerned Calvin Swann.
(130) ‘An insane system.’ Editorial. Washington Post, 30 July 2001.
(131) In January 2000, then US Attorney General Janet Reno said: "I have inquired for
most of my adult life about studies that might show that the death penalty is a deterrent,
and I have not seen any research that would substantiate that point". Weekly media
briefing, US Justice Department, 20 January 2000. Two years later, a US Supreme Court
Justice said much the same thing, writing: "I note the continued difficulty of justifying
capital punishment in terms of its ability to deter crime… Studies of deterrence are, at
most, inconclusive." Ring v. Arizona, 536 U.S. 584 (2002), Justice Breyer, concurring in
the judgment.
(132) Melinda S. Campbell. Sell, Singleton, and forcible medication – running roughshod
over liberty. University of Toledo Law Review, Vol. 35, Spring 2004, page 718.
(133) Among the US politicians who say they base their support of the death penalty on
deterrence is President George W. Bush. In January 2005, in his written responses to
Senators at the time of his nomination to the post of Attorney General, the then White
House Counsel Alberto Gonzales repeatedly noted that: "The President believes the death
penalty deters crime and saves lives".
(134) Execution date nears for killer of 13. Associated Press, 23 November 2004.
(135) George E. Banks, mental health history and competency. Richard G. Dudley, 16
November 2004.
(136) In Roper, the Supreme Court also found that "the same characteristics that render
juveniles less culpable than adults suggest as well that juveniles will be less susceptible to
deterrence". Such characteristics, the Court noted, include impulsiveness and
vulnerability to outside pressures, and "render suspect any conclusion that a juvenile falls
among the worst offenders". So, too, surely, in the case of people with serious mental
illness.
(137) Other examples include that of Robert Brecheen who attempted suicide a few hours
before his execution in Oklahoma in August 1995. He was rushed to hospital to have his

stomach pumped, then taken to the execution chamber and killed. In Texas in April 1997,
David Lee Herman slashed his wrists before his execution. He was treated and then put to
death.
(138) ‘Man who tried suicide executed.’ Dallas Morning News, 9 December 1999.
(139) Trop v. Dulles, 356 U.S. 86 (1958).
(140) Ford v. Wainwright, op. cit.
(141) State v. Perry, 610 So.2d 746 (Louis. 1992), Justice Cole dissenting.
(142) Ake v. Oklahoma, 470 U.S. 68 (1985)
(143) ‘Hatch denied clemency.’ Tulsa World, 25 July 1996. Drew Edmondson was
elected Attorney General of Oklahoma in 1994, re-elected in 1998, and elected for a third
term in 2002.
(144) An execution, of course, cannot guarantee emotional "closure" for the bereaved,
and can promote vengeful sentiments. After Dion Smallwood was executed in Oklahoma
in 2001, the victim’s daughter said: "I am sad at the way he went, because it was very
easy" (‘Oklahoma City killer is put to death after apology.’ Tulsa World, 19 January
2001). After Roger Berget was executed in Oklahoma in 2000, a relative of the murder
victim complained that the execution was "easy – way too easy" for Berget. Earlier the
victim’s family members had said that their hoped for "closure" could not be total
because Berget’s co-defendant had received a life sentence (‘Teacher’s murderer
executed.’ The Shawnee News-Star, 9 June 2000). Does this mean that the families of the
99 per cent of victims whose murders result in a sentence of less than death are being
denied "closure" by the state? Both Roger Berget and Dion Smallwood had been
diagnosed with bipolar disorder.
(145) A study published in 1999 found that families of the condemned can suffer serious
stigmatization, social isolation, depression and "chronic grief". However, the study noted
that while murder victims’ relatives are allowed to testify at the trial about the impact of
the crime on their lives, and may also receive state-funded psychotherapy, costs for
attending trials, and other assistance, the relatives of the condemned receive no such
support. ‘What about our families? Using the impact on death row defendants’ family
members as a mitigating factor in death penalty sentencing hearings’ by Rachel King and
Katherine Norgard. Florida State University Law Review, Vol 26:1119, 1999. See also,
Rachel King, Capital consequences: Families of the condemned tell their stories (2005).
(146) Medina v. State, 690 So.2d 1241 (1997), Justice Anstead, concurring in part,
dissenting in part.
(147) ‘Condemned man’s mask bursts into flame during execution.’ New York Times, 26
March 1997.

(148) ‘Fire during execution renews debate on death.’ Palm Beach Post, 26 March 1997.
(149) Ibid.
(150) ‘Electric chair defended.’ Gainesville Sun, 29 March 1997.
(151) Medina v. State, 690 So.2d 1241 (1997), Justice Anstead, concurring in part,
dissenting in part.
(152) ‘A barbarous attitude.’ Editorial, St Petersburg Times, 13 October 1999.
(153) By then, Florida had hastily switched to lethal injection after the US Supreme
Court had announced in October 1999 that it would examine the constitutionality of
executions in Florida’s electric chair. Fearful that the subsequent ruling could lead to the
reversal of Florida’s death sentences, the legislature held a special session in January
2000 in which it adopted lethal injection. The US Supreme Court dropped its case and on
23 February 2000, Florida carried out its first execution by lethal injection.
(154) ‘Dinner Time on Tuesday.’ Pre-publication copy of letter written to media, by
Catherine Forbes, 20 June 2000.
(155) Ellis v. Mullin, 312 F.3d 1201 (10th Cir. 2002).
(156) For further information on the case, including testimony from Lois Robison, see
USA: Time for humanitarian intervention: The imminent execution of Larry Robison
(AMR 51/107/99, July 1999),
http://web.amnesty.org/library/Index/ENGAMR511071999.
(157) ‘Genuine justice calls for sparing severely mentally ill.’ Houston Chronicle, 6
November 2002.
(158) ‘Prison sentence may be the first official attention for mentally ill.’ Houston
Chronicle, 23 July 2004.
(159) Strauder v. West Virginia, 100 U.S. 303 (1880).
(160) The State v. T Makwanyane and M Mchunu, Constitutional Court of the Republic
of South Africa, 6 June 2005, Chaskalson P delivering judgment of the court (finding the
death penalty unconstitutional).
(161) A major study released in June 2000, concluded that death sentences in the USA
are "persistently and systematically fraught with error". The most common errors, the
study found, were "1) egregiously incompetent defense lawyers who didn’t even look for
– and demonstrably missed – important evidence that the defendant was innocent or did
not deserve to die; and 2) police or prosecutors who did discover that kind of evidence

but suppressed it, again keeping it from the jury." A Broken System: Error Rates in
Capital Cases, 1973-1995, James S. Liebman, Jeffrey Fagan and Valerie West, Columbia
Law School, New York.
(162) ‘Jurors hear arguments on mental state of shooter.’ The Tennessean, 16 June 2005.
The jury rejected the prosecutor’s pursuit of a capital murder conviction and returned a
verdict of second-degree murder, thus removing the death penalty as a sentencing option.
(163) The US Court of Appeals for the Fifth Circuit expressed sympathy for the federal
judge’s "frustration of the length of the appeals process", but said that "the answer is not
to eviscerate… constitutional protections". It sent the case back down to another federal
district judge for further proceedings. Mata v. Johnson, 210 F.3d. 324 (5th Cir. 2000).
Ramon Mata died a few months after this opinion.
(164) Baird v. State, 688 N.E.2d. 911 (Ind. 1997).
(165) Baird v. Davis, No. 388 F3d 1110 (7th Cir. 2004). Arthur Baird’s sentence of death
was commuted by Governor Mitch Daniels on 29 August 2005 (see page 12 for details).
(166) ‘Killing joke.’ LA Weekly, 20 May 1998.
(167) ‘Killer found sane enough for execution.’ San Francisco Chronicle, 15 May 1998.
(168) McWee v. Weldon, 283 F.3d 179 (4th Cir. 2002).
(169) Augusta Chronicle, 14 July 1999.
(170) ‘Insanity defense being misused in effort to avoid death penalty’, by Joe Briley,
former District Attorney of the Ocmulgee Judicial Circuit. Atlanta Journal-Constitution,
25 February 2002.
(171) Dallas Morning News, 9 August 1999.
(172) At the time he joined the army, James Willie Brown was emerging from a
childhood of deprivation and abuse – like many on death row. According to a 1994
affidavit given by a clinical psychologist, James Brown was born in 1948 to a 15-yearold mother and an alcoholic father. Theirs was one of the poorest families in a lowincome neighbourhood. The children were subjected to routine physical abuse,
principally by the father. According to the psychologist: "Instruments of abuse included
belts, boards, branches, cords, and fists, and the children were also kicked. In addition to
beatings of the children, the father also often brutally beat the mother with his fists in
front of the children. When [James Brown] attempted to aid his mother while she was
being beaten, he only earned himself yet another beating from his father... According to
[Brown], his brothers and his mother, the father’s beatings were extremely severe,
leaving welts, drawing blood, and even, in [his] case, causing unconsciousness. The
father not only beat [him] at home but also did so in public, in front of friends and family,

and [James Brown] reports that the father appeared to take great pride and pleasure in
humiliating him like this."
(173) Sellers v. Ward, 135 F.3d 1333 (10th Cir. 1998).
(174) Interview by Edward Stourton. Dead Kid Walking, BBC TV, broadcast ABC, 16
August 1999. Bob Macy and other Oklahoma County prosecutors have repeatedly been
criticized by appeal courts for prosecutorial misconduct. See USA: Old habits die hard –
The death penalty in Oklahoma, AMR 51/055/2001, April 2001,
http://web.amnesty.org/library/Index/ENGAMR510552001. For more on Sean Sellers’
case, see USA: Killing hope: The imminent execution of Sean Sellers, AMR 51/108/98,
December 1998, http://web.amnesty.org/library/Index/ENGAMR511081998.
(175) State v. Scott, 92 Ohio St.3d 1(2001), Justice Pfeifer, dissenting.
(176) Atkins v. Virginia, 536 U.S. 304, 320 (2002).
(177) E.g., A Broken System: Error Rates in Capital Cases, 1973-1995, op.cit.
(178) Whitmore v. Arkansas, 495 U.S. 149 (1990), Justice Marshall, joined by Justice
Brennan, dissenting.
(179) Lehnard v. Wolff, 444 U.S. 807 (1979), Justice Marshall, dissenting from the
denial of a stay of execution.
(180) Penry v. Lynaugh, 492 U.S. 302 (1989).
(181) See USA: Beyond reason: The imminent execution of John Paul Penry, AMR
51/195/1999, 1 December 1999,
http://web.amnesty.org/library/index/ENGAMR511951999.
(182) Streetman v. Lynaugh, 484 U.S 992 (1988).
(183) For example, Lawrence T White, ‘The mental illness defense in the capital murder
hearing.’ Behavioral Sciences and the Law 1987; 5: 411-21 (Suggests that the available
research indicates that a mental illness defense at a capital penalty phase will be
ineffective because 1) death qualified jurors do not respond favorably to psychological
explanations of criminal behavior, and 2) such a defense may mislead jurors into
believing the defendant has a high probability of future dangerousness. Factors associated
with successful mental illness defenses are outlined). Joshua N. Sondheimer, A
continuing source of aggravation: The improper consideration of factors in death penalty
sentencing, 41 Hastings L.J. 409, 420 (1990); Garvey, Stephen P. ‘The emotional
economy of capital sentencing’, 75 New York University Law Review 26 (2000).
(184) Scott E. Sundby, ‘The jury as critic: An empirical look at how capital juries
perceive expert and lay testimony’, 83 Va. L. Rev. 1109, 1165-66 (1997)

(185) Zant v. Stephens, 462 U.S. 862 (1983).
(186) At that time in Texas, the maximum prison sentence before parole could be
considered was 40 years. On 16 June 2005, Governor Rick Perry signed into law a bill
adding life imprisonment without the possibility of parole as a sentencing option for
juries in Texas.
(187) Medina v. State, 573 So. 2d. 293, (Fla. 1990).
(188) Medina v. State, 690 So.2d 1241 (1997), Justice Anstead, concurring in part,
dissenting in part.
(189) Bryan v. Mullin, 335 F.3d 1207 (10th Cir. 2003).
(190) Christopher Slobogin, ‘Mental disorder as an exemption from the death penalty:
The ABA-IRR Task Force recommendations.’ 54 Catholic U. L. Rev. 1133 (2004-2005).
(191) Arthur Baird’s sentence was commuted by the Governor of Indiana on 29 August
2005. (See p. 12).
(192) ‘The case against an execution.’ San Jose Mercury News, 14 January 2005.
(193) Patterson v. Johnson. Magistrate Judge’s proposed findings and recommended
disposition. US District Court for the Eastern District of Texas, Sherman Division, 27
October 2000.
(194) Shortly before his execution, Stephen Vrabel said that "part of the reason" that he
had put the bodies into the refrigerator "was a belief that they would come back to life".
Family prepares for execution of killer. Associated Press, 11 July 2004.
(195) State v. Vrabel, 790 N.E.2d 303, 320 (Oh. 2003).
(196) In re: Stephen Allen Vrabel A313-033. State of Ohio Adult Parole Authority,
Columbus, Ohio. Published 2 July 2004. The board unanimously concluded that "the
inmate does not want clemency and no mercy appears warranted. There is no manifest
injustice in denying Executive Clemency… Mental illness did not preclude imposition of
the death sentence…"
(197) For example, USA: Arbitrary, discriminatory, and cruel: an aide-mémoire to 25
years of judicial killing, AI Index: AMR 51/003/2002, January 2002,
http://web.amnesty.org/library/Index/ENGAMR510032002.
(198) In 2005, James Bigby’s death sentence was overturned on the grounds that, because
evidence presented at the trial indicated that his mental illness was severe and
unresponsive to treatment, the jury may have been unable to give it mitigating effect

under the sentencing instructions they were given. Bigby v. Dretke, 402 F.3d 551 (5th
Cir. 2005).
(199) Background psychiatric information taken from documents filed in USA v.
Weston, US District Court for the District of Columbia, unless otherwise stated.
(200) A living hell or a life saved? Washington Post, 23 January 2001.
(201) See United States v. Weston, US Court of Appeals, District of Columbia Circuit,
255 F.3d. 873, 27 July 2001. "Because antipsychotic medication is medically appropriate
and is necessary to accomplish an essential state policy, the district court’s order
permitting the government to forcibly medicate Weston is affirmed".
(202) For example, in 1999, after an evidentiary hearing on the issue of Provenzano’s
competence for execution, a judge found "clear and convincing evidence that Provenzano
has a delusional belief that he is Jesus Christ which predates the murder by several
years". Provenzano v. State, In the Circuit Court of the Eighth Judicial Circuit, Bradford
County, Florida, 8 December 1999.
(203) Provenzano v. State, 497 So.2d 1177, 1185 (Fla.1986), Chief Justice Parker,
dissenting.
(204) Eddmonds v. Peters, 93 F.3d 1307 (7th Cir. 1996). Judges Flaum and Rovner,
concurring.
(205) Eddmonds v. Peters, 93 F.3d 1307 (7th Cir. 1996).
(206) Gall v. Parker, 231 F.3d 265 (6th Cir. 2000). In 1970, aged 22, Gall had been
arrested in Ohio for rape. He was found incompetent to stand trial and was placed in a
mental hospital for over a year. After being discharged, he pleaded guilty to the rape
charges and was imprisoned for five years. He was released on parole in 1977 without
any treatment plan. The murder of Lisa Jansen occurred the following year, as Gall’s
mental condition deteriorated. He was found competent to stand trial, but during the
proceedings, his lawyers informed the judge that they believed their client was
incompetent. The defence psychiatrist, who was the only expert involved who had
evaluated Gall’s mental condition over an extended period of time, testified that Gall’s
schizophrenia had reasserted itself, that he was delusional, and that he had become
incapable of assisting in his defence. The defendant then announced that he wanted to
represent himself, and did not want the insanity defence presented. On the order of the
court, another psychiatrist examined Gall for 45 minutes, and concluded that he was
"normal". The trial resumed with Gall acting as his own lawyer. The defence psychiatrist
said that his behaviour "effectively destroyed any chance that he had of a defence of not
guilty by reason of insanity and in fact if he should die as a result of his verdict, in effect,
Eugene Gall killed himself". A second psychiatrist testified that Eugene Gall was
suffering from chronic paranoid schizophrenia, was insane at the time of the crime, and
was incompetent to stand trial. During his cross-examination of the police officer who

had found Lisa Jansen’s body, Eugene Gall accused him of having shot the girl with
Gall’s gun. When he cross-examined the state pathologist, Gall asked him whether a
photograph taken of a victim’s eye could reveal what the dead person last saw. People in
the courtroom laughed out loud during Gall’s cross-examination of one of the arresting
officers.
(207) The jury had rejected Gall’s insanity defence and found him guilty of murder. On 2
October 1978 they recommended a death sentence, after finding no mitigating evidence,
including finding that the defendant "was not suffering from a mental disease or defect."
One of the jurors later testified that he had not considered mental illness at the
sentencing. He said that he had thought that the issue had been settled when they had
rejected the insanity defence.
(208) Gall v Commonwealth, 607 S.W.2d 97 (1980).
(209) Gall v. Parker, US Court of Appeals for the Sixth Circuit, 30 October 2000.
Quoting Judge Cranch in United States v. Bollman, 1807.
(210) For example, Jay Jackman, a forensic psychiatrist who examined seriously
mentally ill California death row inmate Horace Kelly in 1998 reported that Kelly
"confabulated impossible or absurd answers to questions about his personal history and
he lost track of earlier answers when questions were repeated." Declaration of Jay M.
Jackman, M.D., 12 June 1998. After his arrest in 1984, Kelly had been held for six days
and questioned without a lawyer. He repeatedly maintained his innocence. The police
turned off the tape recorder which was recording the police interview with Kelly. Forty
minutes later, the police turned the recorder back on, and Kelly, his voice breaking into
sobs, made a confession. See ‘Last Rights’, LA Weekly, 3-9 April 1998.
(211) "One can have eyewitness testimonial evidence, circumstantial evidence, scientific
evidence, and even videotaped evidence; but a confession explicitly admitting guilt
signed by the defendant is the most powerful piece of evidence that can ever be
introduced against him and will surely serve as the key that will lock the jail-house door
and provide the juice to power the electric chair; and in these more civilized times, the
juice for the needle." Ex parte Fierro, 934 W.W.2d 370, 388 (Tx. Ct. Crim. App 1996),
Judge Overstreet dissenting.
(212) State of Missouri v. Raymond Wood, 128 S.W.3d 913 (Mo. Ct. App. 2004).
(213) State of Utah v Todd Rettenberger, 984 P.d2 1009 (1999).
(214) Ibid.
(215) Ibid.
(216) For more on the case, see Actual Innocence, by Barry Scheck, Peter Neufeld and
Jim Dwyer. Doubleday, New York, 2000.

(217) A twist to this case is the involvement of another death row inmate, Scott Lee
Moore. Scotty Moore’s trial lawyer was denied the resources to investigate mitigating
evidence of Moore’s long history of mental health problems. While on death row, Moore
educated himself about the law and about mental illness, including his own clinical
depression which had fuelled his earlier abuse of alcohol and drugs. He helped other
prisoners with legal or other matters when they were unable to help themselves, because
of illiteracy, lack of education or deteriorating mental health. One such prisoner was
Ronald Williamson, whose serious and untreated mental illness Moore documented and
drew to the attention of Williamson’s lawyers. Scotty Moore was executed six weeks
after Ronald Williamson was released.
(218) Gardner v. Florida, 430 U.S. 349 (1977).
(219) State v. Hall, 955 S.W.2d 198, 208 (Mo. 1997).
(220) Hall v. Luebbers, 341 F.3d 706, 716 (8th Cir. 2003).
(221) See AI Urgent Action, http://web.amnesty.org/library/Index/ENGAMR510542005
(222) For example, in the trial of Oliver Cruz, the defence lawyers argued that his mental
retardation – his IQ had been assessed as low as 64 – should mitigate against a death
sentence. The state did not dispute the evidence. Instead, the prosecutor argued that the
fact that Cruz "may not be very smart" made him more dangerous and therefore
deserving of the death penalty. Oliver Cruz was executed in Texas in 2000. His codefendant, charged with the same crime, avoided the death penalty in a plea arrangement.
(223) Ellis v. Mullin, 312 F.3d 1201 (10th Cir. 2002).
(224) Sources: ‘Mother finds she can accept son’s date with executioner.’ Birmingham
News, 29 September 2004; ‘Mentally ill man executed for 1998 killing.’ Birmingham
News, 1 October 2004; and Equal Justice Initiative, Montgomery, Alabama. Hocker v.
State, 840 So.2d 197 (Ala. Crim. App. 2002).
(225) Lockett v. Ohio, 438 U.S. 586 (1978).
(226) ‘Capital cases: Mitigation investigations’ by Lee Norton. The Champion, May
1992.
(227) See USA: Another Texas injustice. The case of Kelsey Patterson, mentally ill man
facing execution, AI Index: AMR 51/047/2004, March 2004,
http://web.amnesty.org/library/Index/ENGAMR510472004.
(228) Dr George Parker, quoted in Justice Rucker’s dissenting opinion in Corcoran v.
State, 820 N.E. 2d. 655, Supreme Court of Indiana, 11 January 2005. This echoes other
research. For example, a seminal study of 15 death row inmates, published in 1986, found

that all had suffered head injuries in childhood and six were chronically psychotic. All
but one had minimized or denied their psychiatric disorders, suggesting that they
preferred to be perceived as "bad" rather than mentally impaired. Lewis, Dorothy Otnow,
Jonathan H. Pincus, Marilyn Feldman, Lori Jackson, and Barbara Bard. Psychiatric,
neurological, and psychoeducational characteristics of 15 death row inmates in the United
States. American Journal of Psychiatry 1986; 143 : 838-45.
(229) Jones v. Delo, 258 F.3d 893, 902 (8th Cir. 2001).
(230) Valdez v. State, 46 P.2d 703, 710 (Ok. 2002).
(231) Dr Stanton Samenow featured also in the case of Daryl Atkins, the Virginia death
row prisoner whose case led to the Atkins v. Virginia decision in June 2002. At his
sentencing, a forensic psychologist had testified that Atkins had mental retardation and an
IQ of 59. Dr Samenow testified for the state that, in his view, Atkins was of "average
intelligence, at least". When the Supreme Court of Virginia upheld his death sentence in
2000, two of the Justices dissented, describing Dr Samenow’s opinion as "incredulous as
a matter of law".
(232) Wright v. Angelone, 151 F.3d 151, 161 (4th Cir. 1998).
(233) For example, Theodore Eisenberg et al., ‘But was he sorry? The role of remorse in
capital sentencing.’ 83 Cornell L. Rev. 1599 (1998). ("We also confirm the widespread
conviction that remorse makes a difference to the sentence a defendant receives –
provided jurors do not think the crime is too vicious".)
(234) Riggins v. Nevada, 504 U.S. 127 (1992), Justice Kennedy, concurring in the
judgment.
(235) "James Blake Colburn clearly experienced temporary losses of awareness while his
trial was in progress and witnesses were testifying. James Colburn’s lapses into what
appeared to be a sleep state were not rare. The lapses were frequent in their occurrence.
At intervals approximately ten minutes to fifteen minutes apart, James would begin to
lean forward to the point that his chin rested on his chest and James was directly facing
the table top before him. James would remain in this position until one or the other of his
attorneys prodded him awake. When James did awaken he seemed confused...".
(236) For example, see Stephen P. Garvey, Aggravation and mitigation in capital cases:
‘What do jurors think?’ 98 Colum. Law Rev. 1538, 1563 (1998).
(237) Riggins v. Nevada, 504 U.S. 127, 18 May 1992.
(238) Taylor v. Cain, In the Supreme Court of the United States. Petition for a writ of
certiorari.
(239) Death isn’t fair. Texas Monthly, December 2002.

(240) Willis v. Cockrell, 2004 WL 1812698 United States District Court for the Western
District of Texas, 9 August 2004.
(241) Inmate Freed After 17 Years on Death Row. Los Angeles Times, 7 October 2004.
(242) Affidavit of Mark J. Mills, J.D., M.D., March 1997. By this stage, Dr Mills had
"evaluated 3,500 individuals, and supervised 10,000 evaluations, about a thousand of
whom I saw in a forensic context". Among other things, Dr Mills at that time was serving
as a consultant with the US Department of Justice.
(243) Calvin Swann’s death sentence was commuted in 1999 by Governor James
Gilmore. Swann died in prison in 2004.
(244) See USA: Death by discrimination – the continuing role of race in capital cases, AI
Index: AMR 51/046/2003, April 2003,
http://web.amnesty.org/library/Index/ENGAMR510462003.
(245) Page 40, USA: Death by discrimination, op. cit.
(246) See, for example, Miller-El v. Dretke, 73 U.S.L.W. 4479 (June 13, 2005). The US
Supreme Court said "It blinks reality" to deny that jurors were dismissed because they
were black. Yet Thomas Miller-El’s death sentence had survived 20 years of state and
federal appeals. See USA: Death by discrimination, supra, op.cit., pages 53-54.
(247) For example, Ricky Ray Rector, an African American man accused of killing a
white police officer, was tried by an all-white jury. Rector was seriously impaired having
shot himself in the head at the time of his arrest. He was executed in Arkansas in 1992.
Manuel Babbitt, a black Vietnam War veteran suffering from post-traumatic stress
disorder, was tried in front of 12 white jurors in California for killing a white woman. He
was executed in 1999. Pernell Ford was put to death a year later in Alabama. This
seriously mentally ill African American man represented himself in front of an all-white
jury for killing two white people. Linroy Bottoson was tried by an all-white jury in
Florida and executed in 2002 after being allowed to give up his appeals despite being
found to suffer from chronic mental illness. Charles Singleton, forcibly medicated for his
paranoid schizophrenia while on death row, was executed in Arkansas in 2004. He had
been tried for killing a white woman by an all-white jury which had heard no mitigating
evidence from the defence. His defence lawyer’s entire closing argument for a life
sentence consisted of nine short sentences telling the jury that he did not "envy you
having to make the decision", but trusted that the jurors would reach the decision "you
feel is proper in this case".
(248) See Thompson v. State, 958 S.W.2d 156 (Ct.Crim.App. 1997).
(249) In court documents, his name is variously spelt as Goodin and Gooden.

(250) Affidavit of Stacy Prewitt, 30 April 2002.
(251) Affidavit of Stacy Prewitt, 30 April 2002.
(252) The trial lawyer also did not bother to investigate evidence that Gooden has mental
retardation. In a post-conviction affidavit, the lawyer explained that just prior to
Gooden’s trial he had represented another capital defendant. In that case he had presented
evidence of his client’s mental retardation, but because that defendant was sentenced to
death even with such evidence, "I felt presenting such evidence [in Howard Gooden’s
case] was futile". The earlier client was Mack Wells, who has since been taken off death
row on the grounds of his mental retardation, following the Atkins decision. At the time
of writing, Wells was the only Mississippi inmate to have been successful on this issue,
although there a preliminary order had been signed to this effect in the case of Jimmie
Mack. (Two other inmates who had raised mental retardation claims, David Blue and
Ronald Foster, were removed from death row because they were under 18 at the time of
the crime, following the Roper v. Simmons decision.) Three years after the Atkins ruling,
the procedures for determining the mental retardation issue in Mississippi remained
unclear. The legislature had not passed a law, and the state Supreme Court had handed
down a number of rulings which left trial courts without a clear set of rules as to how to
adjudicate mental retardation claims. After the Mississippi Supreme Court sent Gooden’s
case back to the trial court in 2003 on the questions of mental retardation and inadequate
defence representation on the mental illness issue, the trial court denied relief on the basis
that the state’s expert had said that he did not have mental retardation. The defence was
provided no expert, and questions have been raised about the expertise of the state’s
evaluator. In dismissing the mental retardation claim, the trial judge threw out the
ineffective assistance of counsel claim also. At the time of writing, the matter was on
appeal.
(253) Report of Dr Michael Whelan, May 1998.
(254) Of course, this was an argument unlikely to register with jurors who have been
selected because they can pass a death sentence. Indeed, the prosecutor noted to the jury
that "the people who indicated they were opposed to capital punishment were excused…
Now, the time has come for you to put into action what you said you believed in."
(255) Gooden v. State, 787 S.2d 639, 653 (Miss. 2001). The District Attorney
subsequently responded to the state Supreme Court criticism of the prosecutors, written
by Justice Mills, as "nothing more than a personal slam by someone who is throwing his
weight around simply because he is in a position to do so." Letter to Mississippi Attorney
General Sonny White from District Attorney Ken Turner, dated 7 June 2001.
(256) Truesdale v. Moore, 142 F.3d 749 (4th Cir. 1998).
(257) In some trials, the atmosphere in the juryroom is alleged to have become quite
threatening. At the Oklahoma trial of Walanzo Robinson, black, the jury consisted of 11
whites and one African American. Post-conviction investigations by the defence revealed

that the sole black juror had not wanted to vote for the death penalty. The juror told an
investigator that she had been subjected to mental and physical intimidation by fellow
jurors, who "yelled and screamed" at her, and "slammed down papers and their hands or
fists on the table" because she was the only person to fail to vote for death. She said that
fellow jurors had said that she was just "one nigger helping out another" and that the
"jury was not leaving the room without a death sentence". After eight hours of such
pressure, she said that she relented and voted for death because she was "tired of the
hostility and cruelty of the other jurors". In 1999, a federal district judge acknowledged
that the allegations made by the juror, "if proven true, are egregious and intolerable".
Walanzo Robinson was executed in March 2003.
(258) William J. Bowers, Benjamin D. Steiner, Marla Sandys. ‘Death sentencing in black
and white: An empirical analysis of the role of jurors’ race and jury racial composition.’
University of Pennsyvlania, Journal of Constitutional Law, Volume 3, Number 1,
February 2001.
(259) Hance v. Zant, Petition for Writ of Certiorari to the United States Court of Appeals
for the Eleventh Circuit, 1994.
(260) Hance v. Zant, 511 U.S. 1013, 31 March 1994, Justice Blackmun, dissenting.
(261) In 1990, after leaving his post as District Attorney to become a judge, the
prosecutor testified about his criteria for deciding whether to pursue the death penalty
when he was District Attorney. As well as looking at the aggravating evidence, he said: "I
talked with, in most cases, the families of the victims". During his term in office, he
obtained eight death sentences. In one case, the murder victim was black. This was the
victim in the William Hance case. In that case, he said he did not talk to the family of the
murder victim, because "there really was not family to talk with". This was untrue.
Indeed, Hance’s appeal lawyers obtained an affidavit from the victim’s brother that he
did not support Hance’s execution, and that neither would their mother have done.
(262) After his arrest, the police had made no effort to obtain an interpreter, despite Hung
Le’s limited command of English. He waived his right to have a lawyer present, yet
towards the end of the interview, Hung Le said: "Too many things confusing me right
now. I still don’t know what to do and what to say. I don’t have an attorney". Asked
whether he wanted a lawyer, he replied "No what is it? Like what for is it?" At a later
hearing, Hung Le explained that he had had no prior contact with law enforcement in the
USA, apart from a speeding ticket, and that he had feared that he might face torture if he
did not cooperate with the police, as he said had been police practice in Vietnam. His
statement to police was admitted at the trial despite the questionable circumstances under
which it had been given. Indeed, a different judge had allowed Hung Le to withdraw his
guilty plea on the grounds that, even with an interpreter, he had not understood the
proceedings, including that he could be sentenced to death.
(263) Governor Brad Henry rejected a unanimous recommendation by the state Pardon
and Parole Board that the death sentence should be commuted to life imprisonment. On

26 February 2004, seven minutes before Hung Le was to be put to death, Governor Henry
had stopped the execution after the Vietnamese embassy in Washington DC asked for a
delay. On 19 March 2004, the embassy faxed a letter to Governor Henry expressing
appreciation for the reprieve, and saying that it had received information on such issues
as "Mr Le’s inadequate command of the English language for legal and procedural
purposes; the prosecutorial misconduct…; the absence of prior-to-trial psychological
evaluations; and Mr Le’s Post-Traumatic Stress Disorder." The letter also noted the
recommendation from the Pardon and Parole Board. However, the letter did not expressly
ask for clemency.
(264) Killer dad not ‘evil person’. The Arizona Republic, 10 September 2000.
(265) This report covers only the USA’s use of its death penalty in its ordinary criminal
justice system. It should be noted, however, that in the context of the "war on terror", the
US administration is proposing to try selected foreign nationals in front of military
commissions set up under a Military Order signed by President George W. Bush on 13
November 2001. The military commissions will have the power to hand down death
sentences. In the event that such trials do take place, the defendants are likely to have
been held for years in indefinite detention in virtually incommunicado detention. Such
conditions in the US Naval Base in Guantánamo Bay, for example, have long since been
reported by the International Committee of the Red Cross to have caused a serious
deterioration in the psychological well-being of large numbers of the detainees held in the
base. The question of such individuals’ competency to stand trial must be raised. Trials
by military commissions – executive bodies, not independent and impartial courts – will
violate international fair trial standards. Amnesty International continues to oppose their
use and call for the Military Order to be revoked. See, for example, USA: Guantánamo
and beyond: The continuing pursuit of unchecked executive power, AI Index: AMR
51/063/2005, May 2005, http://web.amnesty.org/library/Index/ENGAMR510632005.
(266) Dusky v. United States, 362 U.S. 402 (1960).
(267) Pate v. Robinson, 383 U.S. 375 (1966).
(268) Drope v. Missouri, 420 U.S. 162 (1975).
(269) ‘It’s important to remember victims as convicted killer’s appeal nears’ by Attorney
General Drew Edmondson. The Oklahoma Gazette, 27 December 1995. Drew
Edmondson was still Attorney General in 2005.
(270) State v. McKnight. Transcript of competency hearing, Cumberland County
Superior Court, 31 August 2000.
(271) State v. McKnight. Order. Cumberland County Superior Court, 25 September 2000.
For four years, the state intended to seek the death penalty. Amnesty International
organized a worldwide campaign to persuade the prosecutors to drop the death penalty,
because of McKnight’s age at the time of the crime and his mental impairments. Shortly,

before the trial was due to begin in September 2001, the defence was informed that the
prosecution had changed its mind and decided not to seek a death sentence. The defence
then again raised the question of McKnight’s competency. Another hearing was held, in
front of a different judge. That judge ruled that McKnight was incompetent to stand trial.
The defendant was involuntarily committed to state psychiatric hospital, where he was
put in a "competency restoration program".
(272) Godinez v. Moran, 509 U.S. 389 (1993), Justice Blackmun, joined by Justice
Stevens, dissenting.
(273) Godinez v. Moran, 509 U.S. 389 (1993).
(274) Godinez v. Moran, 509 U.S. 389 (1993), Justice Blackmun, joined by Justice
Stevens, dissenting.
(275) For example: "Very determined to commit suicide" (3 July 1989); "History of
discontinuing medications…, frequently states that he is going to commit suicide" (27
October 1989); "…says he wants to commit suicide and will ‘work through the
Legislature’ to change the laws so that people who wish to kill themselves may do so
without fear of punishment" (21 October 1991);
(276) A psychiatric report from April 1993 states: "The threat in 1992, was that he
threatened to kill a human, such that he would get the electric chair. He wanted to kill
himself in that manner." A report later that year recalls Colwell’s "statement to a
counsellor that he wishes he had murdered someone so that he could be executed by the
state." A 1995 psychiatric report written a year before the crime for which he is now on
death row states: "Daniel Colwell is a 34-year-old, single, black male from Sumter
County who presents after being discharged from the Prison System around two months
ago. The patient was in prison because [he] had threatened to kill [an] official. He was
doing this because he wanted to be executed, and he thought that if he killed someone
important they would kill him. He had around three suicide attempts in the past… He at
times will hear voices telling him to kill himself."
(277) Americus killer changes his mind, wants to live. Atlanta Journal-Constitution, 14
July 1999.
(278) Rumbaugh v. McCotter, denial of certiorari, Justices Marshall and Brennan
dissenting.
(279) As of the end of 2005, at least 118 of the 1,004 (12 per cent) prisoners executed in
the USA since 1977 had dropped their appeals and "consented" to their execution. See
also USA: The Illusion of Control, AI Index: AMR 51/053/2001, April 2001,
http://web.amnesty.org/library/Index/ENGAMR510532001.
(280) Rees v. Peyton, 384 U.S. 312 (1966). For a detailed discussion of this case, see
Phyllis L. Crocker, Not to decide is to decide: The US Supreme Court’s thirty-year

struggle with one case about competency to waive death penalty appeals. 49 Wayne L.
Rev. 885, Winter 2004.
(281) See Whitmore v. Arkansas, 495 U.S. 149 (1990).
(282) Demosthenes v. Baal, 495 U.S. 731 (1990).
(283) Not to decide is to decide, op.cit. The cases identified by this research were those
of John Cockrum (Texas); Michael O’Rourke (Arkansas); Colin Clark (Louisiana); Kevin
Scudder (Ohio); Kenneth Stewart (Virginia); Thomas Hays (Oklahoma); Donney Council
(South Carolina).
(284) The information on Joseph Corcoran’s competency hearing is taken from Corcoran
v. State, 820 N.E.2d 655, Supreme Court of Indiana, 11 January 2005.
(285) See also: Killing the willing: ‘volunteers’, suicide and competency, by John H.
Blume, Cornell Law School, Legal Studies Research Paper Series, No. 04-022. This
paper can be obtained at: http://ssrn.com/abstract=591263.
(286) In re Gary Heidnik and White v. Horn, 112 F.3d 105,109 (3rd Cir. 1997).
(287) Ibid.
(288) Judge McKee noted that the state had presented another witness at the state
hearing. Dr Sadoff had supported the state’s theory that Heidnik’s choice to waive his
appeals was rooted in his attempt to derive social meaning from his death (i.e. his belief
that outrage at his execution would end capital punishment), and was therefore a rational
choice. However, Judge McKee also noted that Dr O’Brien had previously asserted this,
and the Third Circuit had rejected that position in its 1997 decision.
(289) White v. Horn, US Court of Appeals for the Third Circuit, 6 July 1999, Judge
McKee, dissenting.
(290) Solesbee v. Balkom, 339 U.S. 9 (1950), Justice Frankfurter, dissenting.
(291) Ford v. Wainwright, 477 U.S. 399 (1986).
(292) The Supreme Court majority said the same thing in 2002 in the Atkins v. Virginia
decision outlawing the death penalty for offenders with mental retardation. The only
difference was that it added a pointer towards acceptable definitions of mental retardation
for states to follow: "The statutory definitions of mental retardation [in individual states]
are not identical, but generally conform to the clinical definitions [of the American
Association of Mental Retardation and the American Psychiatric Association]."
(293) Amaya-Ruiz v. Stewart et al. Order for stay of execution. In the United States
District Court for the District of Arizona. 5 January 2001.

(294) Ex parte Jeffrey Henry Caldwell, 58 S.W.3d 127 (Tx Ct. Crim. App. 2000), Judge
Johnson, dissenting from order dismissing application for a writ of habeas corpus.
(295) Walton v. Johnson, 407 F.3d 285 (4th Cir. 2005).
(296) "A. Convicts who have been sentenced to death should not be executed if they are
currently mentally incompetent. If it is determined that the condemned convict is
currently mentally incompetent, execution should be stayed. B. A convict is incompetent
to be executed if, as a result of mental illness or mental retardation, the convict cannot
understand the nature of the pending proceeding, what he or she was tried for, the reason
for the punishment or the nature of the punishment. A convict is also incompetent if, as a
result of mental illness or retardation, the convict lacks sufficient capacity to recognize or
understand any fact which may exist which would make the punishment unjust or
unlawful, or lacks the ability to convey such information to counsel or the court."
Standard 7.5-6, American Bar Association Criminal Justice Mental Health Standards.
(297) State v. Weeks. In the Circuit Court of Macon County, Alabama. Case No. CC-82042. Order denying petition for relief from sentence of death on grounds of mental
incompetency to be executed, 21 April 1995. Circuit Judge Dale Segrest.
(298) Weeks v. Jones, 52 F.3d 1559, 1574 (11th Cir. 1995), Judge Kravitch dissenting.
(299) Circuit Judge Kenneth F. Ripple. US Court of Appeals for the Seventh Circuit.
(300) Provenzano v. State, In the Circuit Court of the Eighth Judicial Circuit, Bradford
County, Florida, 8 December 1999.
(301) Provenzano v. State, 760 So. 2d 137, 143 (Fla. 2000). Justice Anstead, dissenting.
(302) The details of the competency hearings and findings are taken from Walton v.
Johnson, 407 F.3d 285 (4th Cir. 2005), unless otherwise stated.
(303) For example – Attorney: If you have an execution date, does that mean that you
have been sentenced to death? Walton: Umm, nah. I don’t think – I don’t think so.
Attorney: What does it mean? Walton: I believe – I believe – I believe so, but I don’t
know. You know what I’m saying? I don’t know. Attorney: You believe it does mean
you’ve been sentenced to death? Walton: No.
(304) Walton v. Johnson, 306 F. Supp. 2d 597, United States District Court for the
Western District of Virginia, 2004.
(305) In the earlier decision, the Fourth Circuit panel had also sent the case back to the
District Court to hold a hearing on the question of whether Percy Walton has mental
retardation.

(306) Rees v. Peyton, 384 U.S. 312 (1966).
(307) Godinez v. Moran, 509 U.S. 389 (1993).
(308) Walton v. Johnson, US Court of Appeals for the Fourth Circuit, 28 April 2005.
(309) USA: Crying out for clemency: The case of Alexander Williams mentally ill child
offender facing execution, AI Index: AMR 51/139/00, September 2000,
http://web.amnesty.org/library/Index/ENGAMR511392000.
(310) Alexander Williams was 17 at the time of the crime. His death sentence violated
the international ban on the use of the death penalty against child offenders. His sentence
of life imprisonment without the possibility of parole also violated international law
because he was under 18 years old at the time of the crime (Article 37 of the UN
Convention on the Rights of the Child).
(311) Washington v. Harper, 494 U.S. 210 (1990).
(312) Singleton v. Norris, 267 F.3d 859 (8th Cir. 2001).
(313) Singleton v. Norris, 319 F.3d 1018, 1030 (8th Cir. 2003).
(314) Arkansas executes mentally ill man. CNN.com, 7 January 2004.
(315) Dallas Morning News, 9 August 1999.
(316) National Law Journal, 24 January 2000.
(317) State v. Perry, 610 So.2d 746 (Louis. 1992).
(318) Singleton v. South Carolina, South Carolina Supreme Court, 1993.
(319) "The first prong is the cognitive prong which can be defined as: whether a
convicted defendant can understand the nature of the proceedings, what he or she was
tried for, the reason for the punishment, or the nature of the punishment. The second
prong is the assistance prong which can be defined as: whether the convicted defendant
possesses sufficient capacity or ability to rationally communicate with counsel".
(320) For information on Gary Alvord’s case, see Chapter 10 of Executing the mentally
ill: The criminal justice system and the case of Alvin Ford, by Kent S. Miller and Michael
L. Radelet, Sage Publications, 1993; and Page 83, USA – The death penalty, Amnesty
International Publications, AI Index: AMR 51/01/87, 1987.
(321) Death row dean shows how justice system fails. St Petersburg Times, 5 December
1999.

(322) Barefoot v Estelle, 463 U.S. 880 (1983), Justice Blackmun dissenting.
(323) In the case of Randall Dale Adams, released from a decade on death row after
being proved innocent, Dr Grigson continued to maintain that the prediction of future
dangerousness that he had made at Randall’s trial was accurate. Kerry Max Cook spent
two decades on death row in Texas for a crime he did not commit, and once came 11
days from execution. In 1999, DNA evidence excluded Cook and implicated another
man. At Cook’s trial, Dr Grigson had testified that he was "absolutely 100 per cent
certain that he is and will continue to be a threat no matter where he is".
(324) Bennett v. State, 766 SW. 2d 227 (Tx. Crim.App. 1989), Judge Teague dissenting.
Baby Ray Bennett, the defendant in that case, had his sentence commuted to life
imprisonment after he had spent 10 years on death row. He has earned trustee status in
prison, and has only had minor disciplinary incidents, including possessing lottery tickets.
See Deadly Speculation, noted below in this section.
(325) Flawed trials lead to death chamber. Chicago Tribune, 11 June 2000. The Chicago
Tribune found that in at least 29 of the 131 cases of people executed in Texas between
January 1995 and June 2000, "the prosecution presented damaging testimony from a
psychiatrist who, based upon a hypothetical question describing the defendant’s past,
predicted the defendant would commit future violence. In most of these cases, the
psychiatrist offered this opinion without ever examining the defendant."
(326) Estelle v Smith, 451 U.S. 454 (1981).
(327) See Texas Defender Service, Deadly Speculation, noted below in this section.
(328) Satterwhite v Texas, 486, U.S. 249 (1988)
(329) Hernandez v. Johnson, 248 F.3d 344 (5th Circ. 2001).
(330) Deadly Speculation: Misleading Texas capital juries with false predictions of future
dangerousness. Texas Defender Service, 2004,
http://www.texasdefender.org/DEADLYSP.PDF.
(331) Daubert v. Merrell Dow Pharm., Inc, 509 U.S. 579 (1993).
(332) Flores v Johnson, 210 F.3d 456 (5th Cir. 2000), concurring opinion.
(333) Dying twice: Conditions on New York’s death row. The Association of the Bar of
the City of New York, August 2001,
http://www.abcny.org/Publications/reports/show_html.php?rid=51. UCP stands for Unit
for Condemned Persons, i.e. death row.
(334) USA: Conditions for death row prisoners in H-Unit, Oklahoma State Penitentiary,
AI Index: AMR 51/34/94. A Human Rights Watch (HRW) delegate visited H-Unit in

1999. In a letter to Oklahoma’s Director of Corrections, dated 19 June 2000, the
organization wrote: "Human Rights Watch concurs with and fully endorses the findings
of Amnesty International in its 1994 report... We find it deeply troubling that Amnesty’s
findings are as valid today as several years ago when the report was written; that is, there
have been no significant changes in the conditions under which prisoners in the H-Unit
live".
(335) Thomas Hays had been on death row for 20 years, having been the first person
sentenced to death under its current death penalty laws. He had been found incompetent
for execution in the mid-1980s, but had remained on death row for another decade and a
half.
(336) In a lawsuit filed on behalf of Ronald Williamson, a mentally ill man who was
released in 1999 after he was proved to be innocent, the state was accused of "malicious
and sadistic action" towards Williamson during his incarceration in H-Unit. The lawsuit
charged that on occasion, Williamson was placed in one of the unit’s double-doored
solitary confinement punishment cells, "not because of any discipline problem, but as an
alternative to providing any meaningful treatment for Ron Williamson's mental disorder."
It alleged that prison employees "instituted restrictions and took actions calculated to
sadistically cause Ron Williamson even more mental anguish than he already was
experiencing". It accused officials of acting "with deliberate indifference" to
Williamson’s mental illness, and of operating "a regular practice of employing unreliable
and/or underqualified persons in mental health positions and maintained a staffing level –
particularly in relation to death row – that was clearly inadequate to meet the mental
health needs." In Williamson’s case, the lawsuit alleged, this denial of adequate care
resulted in "the extreme mental and physical suffering of Ron Williamson, to the point
that on many occasions he screamed in agony practically all day, and became painfully
emaciated."
(337) Letter from James L. Saffle, Director, Oklahoma Director of Corrections, 26
September 2000.
(338) Supermax prisons and the Constitution: Liability concerns in the Extended Control
Unit. By William C. Collins. Funded and published by the National Institute of
Corrections, US Department of Justice, November 2004.
(339) Committee against Torture: UN Doc. A/55/44 (1999-2000), para. 179(f) (2000).
Human Rights Committee: UN Doc. CCPR/C/79/Add.50 (1995).
(340) For example, UK prisoners held in conditions similar to those in US supermax
facilities have suffered disorders including impaired eyesight, weight loss, muscle
wastage, memory loss and anaemia. See UK: Special Security Units – Cruel, Inhuman
and Degrading Treatment, AI Index: EUR 45/06/97, 1997.
(341) Terry Kupers, M.D. Prison madness: The mental health crisis behind bars and what
we must do about it, Jossey-Bass Publishers, San Francisco, 1999.

(342) Madrid v. Gomez, 889 F. Supp. 1146 (N.D.Cal. 1995) and Jones’El v. Berge, 164
F. Supp. 2d. 1096 (W.D.Wisc. 2001). Cited in Supermax prisons and the Constitution,
op.cit.
(343) The lawsuit was filed by the National Prison Project of the American Civil
Liberties Union.
(344) Russell v. Johnson, US District Court for the Northern District of Mississippi, 21
May 2003.
(345) There is concern, for example, that this could have contributed to the death of
Emile Duhamel, who was found dead in his death row cell in Ellis Unit in Texas on 9
July 1998. Duhamel suffered from paranoid schizophrenia and was anti-psychotic
medication.
(346) A leading psychiatrist in the field of detention conditions and mental health care in
prisons, Terry Kupers, reported to the judge that "[t]he presence of severely psychotic
prisoners who foul their cells, stop up their toilets, flood the tiers with excrement and
keep other prisoners awake all night with their incessant screams and shouts [is] virtually
certain to cause medical illnesses and a destruction of mental stability and functioning."
Terry Kupers, M.D., quoted in: Mississippi told to fix conditions on death row, Los
Angeles Times, 24 May 2003.
(347) Russell v. Johnson, US Court of Appeals for the Fifth Circuit, 28 June 2004.
(348) Tucker v. Johnson, 242 F.3d 617, 622 (5th Cir. 2001).
(349) Affidavits of Mike A. Smiddy and John D. Moore, 24 October 1997.
(350) Psychogical evaluation. Jeffrey Eugene Tucker, Counseling, Testing & Psychiatric
Services, Tyler, Texas. Date of report: 19 September 1997.
(351) Tucker v. Johnson, 242 F.3d 617, 622 (5th Cir. 2001).
(352) "America is killing the economically deprived, those of the lower socioeconomic
strata, killing the insane, killing the retarded, killing illiterates, killing the emotionally
crippled, killing the socially disenfranchised and the politically powerless of our society,
killing those so criminally abused as children that they never had a chance to develop
normally to a well-balanced human being." Welcome to Hell: Letters and writings from
death row. Compiled and Edited by Jan Arriens, Northeastern University Press, 1997. It
was said that Ronald Spivey may have had the highest IQ of any death row prisoner in
the USA (around IQ 170).
(353) Much has been written about the backgrounds of US death row prisoners. Randolph
Loney, a farmer and pastor who has been visiting prisoners on Georgia’s death row

weekly since 1985, stressed to an Amnesty International delegate in Atlanta in 2002 the
importance, when considering the subject of mental health and the death penalty, of
recognizing the abuse to which many on death row were subjected as children.
Separately, he has written "Born of impotence, [rage] is a feeling that so many of the men
I have visited have experienced throughout their lives, beginning with their mistreatment
as children. It is an emotion that led many of them to murder… Reflecting on my own
rage, I have been able to imagine how this feeling can lead people who have been
consistently abused or neglected to commit terrifying acts of violence." Randolph Loney,
‘A dream of the tattered man. Stories from Georgia’s death row’. William B. Eerdmans
Publishing Company (2001), p. 26.
(354) As already noted, a recent study of 18 young offenders on death row in Texas
found that all but one came from extremely violent and/or abusive families in which
mental illness was prevalent in multiple generations. Dorothy Otnow Lewis et al, Ethics
questions raised by the neuropsychiatric, neuropsychological, educational,
developmental, and family characteristics of 18 juveniles awaiting execution in Texas.
Journal of the American Academy of Psychiatry and Law 2004; 32: 408-29.
(355) Lisak, D. and Miller, P.M. (2003). Childhood abuse, PTSD, substance abuse and
violence. In P.C. Ouimette and P. Brown (Eds.), PTSD and substance abuse comorbidity.
Washington DC: American Psychological Association. Pre-publication copy of article on
file at Amnesty International.
(356) His co-defendant avoided the death penalty by testifying against Abdur’Rahman.
Such testimony is notoriously unreliable.
(357) For more information on this case, see USA: Not in the jury’s name. The imminent
execution of Abu-Ali Abdur’Rahman, AI Index: AMR 51/075/2003, June 2003,
http://web.amnesty.org/library/Index/ENGAMR510752003.
(358) Application for reprieve from and/or commutation of a sentence of death. May
2001.
(359) Brannan v. State, In the Supreme Court of the United States. On petition for writ of
certiorari to the Supreme Court of Georgia
(360) Jonathan Shay, M.D., Ph.D., Achilles in Vietnam: Combat trauma and the undoing
of character. New York: Touchstone, 1995.
(361) Kulka, R.A. et al., National Vietnam Veterans Readjustment Study (New York:
Brunner/Mazel, 1992), as cited in Achilles in Vietnam, op.cit.
(362) See Appendix for details. This list does not claim to be exhaustive. For example,
Samuel McDonald was executed in Missouri in 1997. In post-conviction evidence not
heard by the jury, Dr John Waite testified that Samuel McDonald suffered from PTSD as
a result of his experiences in the Vietnam War. According to an appeal brief based on this

testimony, this had caused McDonald "to act in an impulsive manner, impaired or
extinguished his ability to deliberate, and rendered him incapable of reflection". Others
Vietnam War veterans have been sentenced to death. For example, Michael Taylor was
sentenced to death in Ohio in 1993 for a bar shooting. He had enlisted in the US Army at
the age of 17, and was sent to Vietnam where he witnessed numerous killings of soldiers
on both sides, as well as civilians. According to the Ohio Public Defender, Michael
Taylor suffered from PTSD, for which he never had assistance after he returned from the
war. His death sentence was overturned by a federal court in 2003. He died of cancer the
following year. In the case of Dennis Orbe, it was his father who served in the Vietnam
War. When the father returned home from the war, he became very abusive to his three
sons, and physically and emotionally abused Dennis. Dennis Orbe was executed in
Virginia in 2004. Prior to his capital crime, he had been suffering from severe depression
and was showing suicidal tendencies. See also the case of Hung Thanh Le, a refugee
from Vietnam, diagnosed with PTSD, and executed in Oklahoma in 2004 (see section on
Racial, cross-cultural and cumulative aspects in a broken system, above).
(363) Charles Hoge et al. Combat duty in Iraq and Afghanistan, Mental health problems,
and barriers to care. New England Journal of Medicine, Vol. 351, No. 1 (1 July 2004).
(364) Fourth Annual Report of the Department of Veterans Affairs. Under Secretary for
Health’s Special Committee on Post-traumatic Stress Disorder: 2004. October 2004.
(365) Stephen Robinson, Hidden toll of the war in Iraq. Center for American Progress,
September 2004.
(366) Letter to Governor Mark R. Warner, re Mark Wesley Bailey, from Stephen
Robinson, executive director, National Gulf War Resource Center, 13 July 2004.
(367) Matthew J. Friedman, Veterans’ mental health in the wake of war. New England
Journal of Medicine, 352; 13. 31 March 2005.
(368) Fourth Annual Report of the Department of Veterans Affairs. Under Secretary for
Health’s Special Committee on Post-traumatic Stress Disorder: 2004. October 2004.
(369) Another planned killing by the US Government - The imminent federal execution
of Louis Jones, AI Index: AMR 51/020/2003, February 2003,
http://web.amnesty.org/library/Index/ENGAMR510202003.
(370) National Sanctity of Human Life Day, 2003, by the President of the United States
of America. A
Proclamation, 14 January 2003.
(371) The Federalist Papers, Number 14.
(372) Letter to Samuel Kercheval, 12 July 1816, 15. The Writings of Thomas Jefferson

40-42 (Memorial ed. 1904). Quoted in Furman v. Georgia.
(373) Weems v. United States, 217 U.S. 349 (1910).
(374) Trop v. Dulles, 356 U.S. 86 (1958).
(375) Gregg v. Georgia, 428 U.S. 153 (1976), internal quote marks omitted.