Law & Psychiatry

Death Row Delusions: When Is a
Prisoner Competent to Be Executed?
Paul S. Appelbaum, M.D.

This column examines a recent
U.S. Supreme Court decision in
Panetti v. Quarterman, which embraced a broader view of what
makes death row prisoners incompetent to be executed. Although the defendant understood
that he was to be executed and
the state’s purported reason for
seeking his death—two criteria
suggested by the Court’s 1986 decision in Ford v. Wainwright—he
suffered from a fixed delusion
about the actual reason for his
death. The Court indicated that
competent prisoners must have a
“rational understanding” of the
reason that a death penalty is being imposed but declined to define a clear standard. (Psychiatric
Services 58:1258–1260, 2007)

W

hen the U.S. Supreme Court
decided in 1986 that executing
a person who is “insane” violates the
Eighth Amendment’s proscription of
cruel and unusual punishment, the
justices did not define the standard by
which to determine whether a death
row prisoner could be executed (1).
Now more than 20 years later, faced
with the case of yet another condemned prisoner suffering from psychosis, the Court has come back to
the question—and, despite some
progress, again displayed its reticence
about providing a clear answer (2).
This column examines a June 2007
Dr. Appelbaum, who is editor of this column, is the Elizabeth K. Dollard Professor
of Psychiatry, Medicine and Law, Department of Psychiatry, Columbia University.
Send correspondence to him at New York
State Psychiatric Institute, 1051 Riverside
Dr., Unit 122, New York, NY 10032
(email: psa21@columbia.edu).
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U.S. Supreme Court decision in the
case of Panetti v. Quarterman and its
implications for prisoners on death
row who are mentally ill.
The Court’s second chance at
defining a standard of competence
for execution came when the justices
agreed to hear the appeal of Scott
Panetti, who had been convicted in
Texas for a 1992 double murder.
Panetti, who had a history of multiple
hospitalizations for psychosis, arose
before dawn, dressed in combat fatigues, broke into his in-laws’ house,
and, in front of his estranged wife and
daughter, shot and killed his wife’s
parents. After holding his wife and
child hostage for several hours, he
surrendered to the police. Three
years later, despite his unmedicated
delusions and hallucinations, Panetti
was permitted to dispense with an attorney and represent himself at trial.
An attorney who observed Panetti’s
bizarre performance characterized it
as “a mockery of self-representation”;
the jury brought back a verdict of
guilty and ultimately sentenced him
to death.
Just two months later, a state appellate court found Panetti incompetent
to waive the appointment of counsel
for the purpose of pursuing an appeal
of his conviction and sentence. Because Panetti now had legal representation, a series of appeals ensued. As
is typical in death penalty cases, the
legal path was tortuous, ping-ponging
between state and federal tribunals.
When objections to procedures at
Panetti’s trial were rebuffed by the
Texas courts, his attorney sought review by the federal district court. But
his many challenges to the constitutionality of the criminal proceedings
were rejected, a conclusion affirmed
by the U.S. Fifth Circuit Court of ApPSYCHIATRIC SERVICES

peals. At that point, the U.S. Supreme
Court declined to hear the case.
With Panetti seemingly at the end
of the legal road, a date of February 5,
2004, was set for his execution. Two
months before the sentence was to be
carried out, his lawyer alleged for the
first time that Panetti was incompetent to be executed. Although the
state court denied this motion without a hearing, the federal district
court stayed his execution and indicated that Texas should take a closer
look at Panetti’s mental state. The
state trial court appointed two mental
health experts—a psychiatrist and a
clinical psychologist—to evaluate
him. When they concluded that he
was competent to be executed under
Texas law, the court dismissed his
claim, again without holding a hearing. Panetti’s attorney then went back
to the federal district court to object
to how Texas had dealt with his assertion of incompetence (3).
Siding with Panetti on the question
of whether he was entitled to an adversarial proceeding regarding his
claim, the federal court authorized
funds for his attorney to hire experts
and held a two-day evidentiary hearing. All the experts who testified,
whether for the defense or prosecution, agreed that Panetti was mentally ill, although the prosecution experts maintained that he exaggerated
his symptoms. The real question,
though, was whether he was sufficiently impaired to be considered incompetent for execution. And to understand how the court dealt with
that issue, we need to return to the
U.S. Supreme Court’s 1986 decision
in Ford v. Wainwright that first gave
a constitutional footing to the requirement that a prisoner be competent to be executed (1).

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Competence considerations
and standards
Writing in Ford for the four-justice
plurality that found executing incompetent persons unconstitutional, Justice Marshall did not directly address
the standard to be applied when competence was in question. The closest
he came was in noting “[W]e 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.” In his concurrence, however, Justice Powell defined the standard that he thought
should be invoked: “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.”
Perhaps for want of other guidance,
most U.S. Circuit Courts of Appeals
have embraced Justice Powell’s formulation, and the Fifth Circuit,
which includes Texas, is no exception.
However, the Fifth Circuit’s interpretation of the Powell standard has
been quite narrow and not directly
linked to his retributive rationale. So
long as a prisoner knows that he or
she is facing execution and that the
stated reason for that execution is the
crime of which the person has been
convicted, under Fifth Circuit law the
prisoner is competent to be put to
death (4). However, Panetti’s situation demonstrates the limits of that
approach.
As described by his mental health
experts, Panetti understood that he
was to be executed and the state’s
purported reason for seeking his
death. However, he suffered from a
fixed delusion that the actual reason
for his death was the state’s desire to
prevent him from preaching the
Gospel. One expert portrayed Panetti’s characterization of the situation as
“part of the spiritual warfare . . . between the demons and the forces of
the darkness and God and the angels
PSYCHIATRIC SERVICES

and the forces of light.” Thus, although he understood why the state
claimed it was acting, his grasp of the
situation was sufficiently distorted by
his delusion that he failed to appreciate that his crime was actually the basis for his execution.
An analogous situation can arise in
clinical settings. Patients with schizophrenia or bipolar disorder may understand that their physicians believe
they have a mental disorder. However, some patients reject this conclusion, often on a delusional basis—despite an extensive history that would
support the diagnosis—and decline to
accept treatment. Such patients
would be said to have an understanding of the information they have been
given but to lack appreciation of its
implications for their situation (5).
Courts in almost every jurisdiction
would consider such persons incompetent to make treatment choices (6).
Under the Fifth Circuit’s approach
to competence to be executed, however, as long as a death row prisoner
understands why the state says that it
is acting, the prisoner’s beliefs—however delusional—about the reason
that the state is seeking death are irrelevant. Justice Powell’s concern that
there is no retributive value in putting
to death a person who does not recognize why the state is depriving him
or her of life is given no weight in the
Fifth Circuit’s calculus. Compelled to
apply this approach, the federal district court concluded, “Because the
Court finds that Panetti knows he
committed two murders, he knows he
is to be executed, and he knows the
reason the State has given for his execution is this commission of those
murders, he is competent to be executed.” In a brief opinion that reiterated its previous approach, the Fifth
Circuit affirmed the district court’s
decision.

The Supreme Court’s decision
Thus when the U.S. Supreme Court
granted certiorari, the stage was set
for it to reconsider what capacities a
condemned prisoner must exhibit to
be competent for execution. But first
there was a procedural argument offered by the State of Texas that had to
be overcome. In 1996 Congress
passed the Antiterrorism and Effec-

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tive Death Penalty Act (AEDPA), one
purpose of which was to limit access
to the federal courts of state prisoners
who have been sentenced to death.
Under the law, persons convicted of a
capital offense have one opportunity
to raise claims that their federal constitutional rights were violated. This is
typically accomplished by filing a
habeas corpus petition with the federal courts. However, “second or successive” federal habeas applications
are precluded, except in a small number of circumstances (for example,
previously undiscoverable evidence
has come to light that would clearly
exculpate the prisoner). Texas argued
that since Panetti’s claim regarding
his incompetence to be executed was
made in a second petition to the federal courts—well after his initial challenges to the legitimacy of his trial
had been dismissed—the Supreme
Court lacked jurisdiction even to hear
his case.
Justice Kennedy’s majority opinion
rejected this argument, although a
four-justice minority, led by Justice
Thomas, adopted it in its dissent.
Notwithstanding the plain language
of the statute, Kennedy argued that it
made little sense to apply the “second
or successive” rule to claims of incompetence to be executed. Because
many years elapse between a prisoner’s initial appeal of a death sentence
and the date of execution, prisoners
who were competent at the time of
their first habeas petition could become incompetent in the interim. To
preclude such a person from filing a
claim of incompetence would be unfair, and to encourage the filing of incompetence claims while the prisoner was still competent—so as not to
foreclose raising the issue later—
would not serve the interests of judicial economy and finality, which the
AEDPA was meant to promote.
With their right to hear the case established, the majority moved to
Panetti’s substantive claims. First,
they determined that because the
Texas court had failed to grant him a
hearing—which was required by
Ford v. Wainwright—its decision
that he was competent to be executed was due no particular deference.
Hence, the justices would consider
the merits of Panetti’s claim directly
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themselves. As for the standard to be
applied, the majority found that “the
approach taken by the Court of Appeals is inconsistent with Ford.”
Whether one applies the implicit
standard of the plurality in Ford
(comprehension of why he has been
sentenced to death) or the standard
suggested in Justice Powell’s concurrence (awareness of the punishment
and why he is to suffer it), the Court
concluded, “A prisoner’s awareness
of the State’s rationale for an execution is not the same as a rational understanding of it.” And the Court
found that a rational understanding is
required. The lower courts’ failure to
consider the impact of Panetti’s delusions on his grasp of the situation
therefore constituted reversible error. Thus the case was remanded to
the federal district court for a hearing
that will take Panetti’s delusions into
account in determining whether he is
competent to be executed.
Despite the majority’s indication
that a prisoner must have a rational
understanding—roughly equivalent
to what clinicians know as “appreciation”—of the reason the death penalty is being imposed, the court somewhat mysteriously declined to define
a specific standard to be followed.

Justice Kennedy claimed that the factual record in the case was insufficiently developed, but the dissent
properly chided him about this on
the grounds that whatever the facts
in Panetti’s case, they were unlikely
to affect a determination of the correct standard, which would turn on
more general considerations. It may
be that Kennedy’s preference for incrementalism was the operative factor, but it is also possible that his fivejustice majority would not have held
together had they needed to agree on
a standard.
Even without inscribing a specific
standard, the Court gave enough
hints of its inclinations that lower
courts that have not already done so
will likely move toward an approach
that embraces rational understanding. This echoes the joint recommendation of the American Psychiatric
Association, American Psychological
Association, National Alliance on
Mental Illness, and American Bar Association that a prisoner should be
considered incompetent to be executed (and have the sentence commuted
to life imprisonment) if a mental disorder or disability “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 (7).” That five justices recognized the impact that delusions can
have on persons’ assessment of their
situation is reassuring with regard to
the Court’s own appreciation of the
impact of mental illness. But there
seems little question that in the future the issue of when a prisoner is incompetent to be executed will again
make its way to the Supreme Court
for a definitive ruling.
References
1. Ford v Wainwright, 477 US 399 (1986)
2. Panetti v Quarterman, 127 S Ct 2842
(2007)
3. Panetti v Dretke, 401 F Supp 2d 702 (WD
Tex 1004)
4. Barnard v Collins, 13 F 3d 871 (5th Cir
1994)
5. Grisso T, Appelbaum PS: Assessing Competence to Consent to Treatment: A Guide
for Physicians and Other Health Professionals. New York, Oxford University Press,
1998
6. In re Guardianship of Roe, 421 NE 2d 40
(Mass 1981)
7. Brief Amicus Curiae of American Psychological Association, American Psychiatric
Association, and National Alliance on Mental Illness, Panetti v Quarterman, 127 S Ct
2842 (2007)

Psychiatric Services Invites Short
Descriptions of Novel Programs
Psychiatric Services invites contributions for Frontline Reports, a column featuring short descriptions of novel approaches to mental health problems or creative
applications of established concepts in different settings.
Text should be 350 to 750 words. A maximum of three authors, including the
contact person, can be listed; one author is preferred. References, tables, and figures are not used. Any statements about program effectiveness must be accompanied by supporting data within the text.
Material to be considered for Frontline Reports should be sent to one of the column editors: Francine Cournos, M.D., New York State Psychiatric Institute, 1051
Riverside Dr., Unit 112, New York, NY 10032 (e-mail: fc15@columbia.edu), or
Stephen M. Goldfinger, M.D., Department of Psychiatry, SUNY Downstate Medical Center, Box 1203, 450 Clarkson Ave., Brooklyn, NY 11203 (e-mail:
steve007ny@aol.com).

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