Cruel and unusual — the case of schizophrenic death row inmate Scott Panetti

Scott Panetti was just hours from death on Nov. 29, 2014. Not because of some rare disease with an unpronounceable name but, sadly, because of a not-so-rare disease with a name that can strike terror in the heart of the patient’s loved ones: Paranoid schizophrenia.

Inmate No. 999164, the other label by which Panetti goes, received the sentence of death in 1995 after murdering his in-laws during a psychotic episode.

What makes his case newsworthy is not the heinousness of the killings, which they were, not the outlandish behavior of Panetti at trial, which it was, and not the multiple attempts to subpoena the pope, Jesus Christ and President John F. Kennedy, which he did, but the fact that his case progressed to within mere hours of his execution before the courts acknowledged that his consistently disturbing behaviors, over more than 19 years as a diagnosed schizophrenic, signaled that he may not have been competent to stand trial in the first place.

Virtually every country in the world prohibits pursuit of the death penalty against the mentally ill. The United States, however, has yet to uniformly abolish the practice. The U.S. Supreme Court in 1986 definitively ruled in Ford vs. Wainwright that the execution of the insane — by definition, someone who does not comprehend the reason for, the reality of, nor the gravity of his or her crime and the subsequent punishment — violates the United States Constitution.

While states were left to define what insane meant, too many bright-line cases — ones where it is clear to the judge and jury that the defendant is mentally unwell and unable to participate in his defense — have been allowed to progress beyond the finding and sentencing stages.

For example, until recently, Texas used what was commonly called “the Lenny test” — the state measured the accused’s state of mind against that of a fictional character in a John Steinbeck novel. Only in the rarest of cases were defendants found incompetent to stand trial.

Society’s right to punish, the social contract entered into to avoid chaos, provides for punishment of those found to be in violation of written laws. Before societies had constitutional governments, punishment was arbitrary and often dispensed on the whim of whomever possessed power at that moment. As society matured, so did the philosophical discussion defining the purpose of formalized punishment.

There is no argument that a mentally ill defendant, who clearly is responsible for the crime, such as Panetti, should be punished in some way. Punishment can prevent further crime by that individual, and it tells the victims that society condemns the harm visited on them and their families. However, the consequences and merits of punishment, particularly regarding the concepts of deterrence and incapacitation, have no utility with mentally ill defendants.

Mental Health America, a support and advocacy group, estimates that 20 percent of death row inmates suffer from a severe mental illness. Both the American Bar Association and the National Alliance for the Mentally Ill have joined the conversation pressing for the implementation of policies and procedures to exclude the death penalty for mentally ill individuals prior to trial precisely because these defendants’ vulnerabilities are what often fast-track them to death sentences.

The U.S. Constitution states that for a defendant to stand trial, he or she must possess a rational and factual understanding of the proceedings, as well as materially participate in the defense. Individuals experiencing severe delusions do not typically understand events unfolding around them and therefore are unable to coherently participate in the trial process. In addition to defendants choosing risky trials over plea bargains and representing themselves in court, prosecutors have pressed forward with capital cases for mentally disordered defendants despite deranged courtroom behavior that surpasses even the most rational person’s definition of “crazy.”

In the case of Panetti, the 5th Circuit Court of Appeals in New Orleans recently granted access to a new court-appointed attorney, funds with which he may retain an expert for extensive mental competency assessment, and an opportunity to have the findings reviewed by the lower court — all at taxpayer expense.

Ultimately, as a society, we must be honest with ourselves about what we seek to accomplish by putting mentally disordered defendants to death. If the impetus for punishment is simply retribution, certainly a case can be made to pursue the death penalty reflecting the basest of human motivations: revenge and vengeance.

To do this, however, requires a suspension of the collective bargain society made when we evolved from indiscriminate arbitrary punishment to a society promoting the use of punishment as deterrence, a philosophy involving cause, effect and rational consequences, which tragically remain beyond reach for too many mentally ill defendants.

Source: MySA, Shannon McShane, Ada Hernandez, Tracy Loftin and Ekaterina Mozzhurina, August 26, 2017. Shannon McShane, Ada Hernandez, Tracy Loftin and Ekaterina Mozzhurina are masters of social work students at Texas State University.

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"One is absolutely sickened, not by the crimes that the wicked have committed, but by the punishments that the good have inflicted." -- Oscar Wilde