The following editorial was first published on line Sunday morning by USA TODAY and appears in the newspaper’s print edition today, 12-2-2014.
DON’T EXECUTE THE PURPLE COWBOY
Texas Case Highlights The Perverse Legal Definition of ‘Mental Competency.
By Pete Earley in USA TODAY
On Dec. 3, Texas plans to administer a lethal injection to Scott Panetti, a mentally ill inmate who attempted to call former president John F. Kennedy, the pope and Jesus Christ as witnesses while representing himself at his murder trial wearing a cowboy costume with a purple bandana.
Panetti’s 22-two year odyssey through our U.S. legal system for killing his in-laws should never have gotten this far and while his case is especially egregious, up to 10% of the 3,035 inmates currently awaiting execution are thought to have a diagnosable mental disorder, such a schizophrenia, and a June study found that of the last 100 people executed in the U.S., 54% had a mental illness.
The state had to hold two jury trials — not to prove him guilty — but to prove that he was sane enough to prosecute him. At his trial, Panetti announced God had cured him, fired his attorneys and called “Sarge” as a witness, questioning himself on the stand using different voices.
‘Cruel and unusual’
In 1986, the U.S. Supreme Court ruled in Ford v. Wainwright that executing the mentally ill violated the Eighth Amendment that prohibits cruel and unusual punishment. But the court never defined mental “competency.” Without that guidance, pro-death states adopted a low bar written by Justice Lewis Powell that allows an execution if mentally ill defendants are aware of “the punishment they are about to suffer and why they are to suffer it” — regardless of how psychotic they might be.
Panetti’s case eventually reached the Supreme Court but rather than clarifying its 1986 ruling, the justices ordered the 5th Circuit Court of Appeals to determine if Panetti realized he was about to be executed and why.
That three-judge panel oversees the busy “death belt” states of Texas, Louisiana and Mississippi and has never found a mentally ill defendant who it thought should be spared. Based on Panetti’s medical records and expert testimony, a federal district judge in Texas already had ruled that Panetti wasn’t sane enough but the appellate court bent over backwards to prove he had a “rational understanding” of what was happening to him. They cited secret tape recordings by prison officials who overheard Panetti discussing his case with visiting family members, ignoring the fact that he was largely regurgitating details his attorneys had told him.
Before the murders happened, before Panetti became entangled in the court system, he was already a sick man who’d been hospitalized for “homicidal tendencies” yet always had been discharged. Today, he believes the Devil is about to kill him for preaching the Gospel, not Texas for the murders.
Sentence him to life
Panetti’s attorneys are not asking he be freed. They want Texas Gov. Rick Perry to commute his death sentence to life in prison — as does former Texas governor Mark White, who called Panetti’s trial a “sham”; former congressman Ron Paul, the American Bar Association, the American Psychiatric Association, the National Alliance on Mental Illness, 10 Texas state legislators, 33 former prosecutors and U.S. attorneys general and 55 evangelical leaders.
Panetti’s life also could be spared if the courts intervened. Based on Panetti’s lengthy history, he should have never been allowed to represent himself at trial and the 5th Circuit judges should not have allowed their fear of a possible malingerer avoiding execution to override their obligation to protect the truly insane.
For a penny in 16th century England, curiosity seekers were admitted into the Bedlam asylum to torment the insane by poking them with sticks. If neither Gov. Perry nor the courts stop this execution, it could be argued that the officials we have entrusted to ensure justice and mercy are the ones jabbing those sticks today.
An online petition calling on Governor Perry to intervene can be signed here.
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