Tennessee plans to kill Billy Ray Irick next month by lethal injection. If the execution goes through on August 9, a few weeks before his 60th birthday, he will be the 7th person put to death in the state since 2000, the year executions returned to Tennessee. On death row at Riverbend Maximum Security Institution, a short drive from downtown Nashville, Irick has faced at least 3 previous execution dates, most recently in the fall of 2014. But there is an urgency this time, his longtime attorney, Gene Shiles, says. "This one feels much more ominous."
Irick was convicted in 1986 of raping and murdering a 7-year-old girl named Paula Dyer in Knoxville. He was arrested and confessed soon after the crime. Irick had stayed with the child's family for 2 years prior to the murder, according to court filings; defense attorneys "attempted to create reasonable doubt about the identity of the perpetrator" during the guilt phase of the trial, yet called "no witnesses."
Like so many who end up on death row, Irick's background was fraught. In the Nashville Scene earlier this year, Steven Hale described Irick's harrowing upbringing - as a child, he said his mother tied him with a rope and beat him - along with compelling evidence that he suffered from severe mental illness. Irick "was just 6 years old the first time someone raised questions about his mental health," Hale writes. "His school's principal referred him to the Knoxville Mental Health Center, requesting a mental evaluation to determine, according to court documents, 'whether Billy's extreme behavioral problems and unmanageability in school were the result of emotional problems or whether Billy suffered from some form of 'organic brain damage.'" A psychologist said that he seemed to "fear his own impulses." At 13, after spending time in a home for troubled children, Irick had a series of disturbing outbursts during a visit home, where he bashed a TV with an axe and "used a razor to cut up the pajamas that his younger sister was wearing as she slept."
A fuller picture of Irick's profound mental problems did not come out until years after his conviction, Shiles explains, when an investigator working for his federal habeas attorneys went to Knoxville and "discovered some hugely important facts that came from the victim's family - that he was hallucinating and having psychotic episodes at the time that this occurred." In affidavits, members of the family described Irick "hearing voices" and "talking with the devil." The jury never heard this evidence. If they had, there's reason to believe that the outcome of the case could have been different. As Hale writes, the same psychologist who examined Irick before his trial "stated in an affidavit that he no longer had confidence in his initial evaluation, which had been used to argue against an insanity defense."
Barred by the procedural barriers imposed by the Antiterrorism and Effective Death Penalty Act, federal courts have declined to review the new evidence of Irick's mental illness. As his client's execution date approaches next month, Shiles says, "No one has ever looked at the issue of his mental competence with all the facts."
Mental illness is notoriously widespread on death row. As in the broader prison system, it often goes undiagnosed and untreated. In his memoir, "Life After Death," Damien Echols, who spent years on Arkansas' death row as one of the West Memphis 3, remembers a man who used to keep everyone awake by screaming and arguing with his own reflection for hours at a time. "The only thing they do is shoot them full of Thorazine if they start to get riled up," he writes. The conditions on death row - prolonged isolation in particular - make such symptoms worse. "For many people in prison the worst fear is going insane, because if you do all hope is lost. You will be locked up not only within these walls, but also within your own rapidly degenerating mind."
In 1986, the same year Irick went to death row, the U.S. Supreme Court handed down Ford v. Wainwright, involving a condemned Florida man with paranoid schizophrenia. The ruling barred the execution of the "insane" on 8th Amendment grounds, but left it up to the states to determine who was "competent" to be executed. In 2007, in the case of Scott Panetti, diagnosed as paranoid schizophrenic, the U.S. Supreme Court reaffirmed the Ford decision, ruling that condemned people must have a rational understanding of why a state intends to execute them. But this has done little to prevent states from killing people with serious mental illness, including those who were suffering symptoms at the time of their crimes. Last year, Virginia executed 35-year-old William Morva for the murder of 2 police officers, despite significant evidence that the killings were driven by delusions. In legal filings and interviews with The Intercept, old friends described how a once sensitive and eccentric young man became gripped by mental illness that led to a deadly downward spiral. Calls for clemency fell on deaf ears; Democratic Gov. Terry McAuliffe refused to intervene. Morva was executed on July 6, 2017.
More recently, the 5th Circuit Court of Appeals held oral arguments last month in the case of Andre Thomas, a Texas man commonly described in headlines as the "murderer who ate his own eye." Rather than reconsidering whether crimes rooted in mental illness should be punishable by death, states have sought to medicate the condemned until they are fit to be killed. In 2012, Steven Staley faced execution in Texas despite a history of schizophrenia. Like Irick, his life was marked by a disturbing history of trauma and abuse. "Doctors who have examined Staley on death row have said that he talks in a robot-like monotone yet has 'grandiose and paranoid' delusions, including the beliefs that he invented the first car and marketed a character from Star Trek," Emily Bazelon wrote in Slate. "He has given himself black eyes and self-inflicted lacerations and has been found spreading feces and covered with urine." After the Tarrant County District Attorney requested that Staley be forcibly medicated, a judge dutifully found that "medicating Staley was the only way to ensure his competency to be executed." Although his execution was stayed, Staley remains on death row.
Daniel Gwynn, a condemned man in Pennsylvania, has illustrated states' callous approach in his artwork. In a pen and ink drawing titled, "Mental illness on death row will not stop the machine," a condemned man is haunted by the Grim Reaper, burying his head in his hands. In the next frame, a nurse informs a huddle of eager state officials, "OK, he's ready for the needle."
Tennessee's last execution took place in 2009, just as death penalty states began to face problems obtaining drugs for lethal injection. In 2014, amid a lawsuit challenging the state's execution protocol, legislators passed a law to bring back the electric chair as an alternative. After the U.S. Supreme Court handed down Glossip v. Gross, giving the green light for a controversial sedative, midazolam, to be used in executions, Tennessee moved quickly to adopt it. The state Supreme Court upheld the new protocol and, in January, set 3 execution dates, including Irick's. The attorney general then requested eight more. Most of those are unlikely to go through, since appeals are still pending. With a trial now underway over the newest challenge to the Tennessee's lethal injection protocol, Irick's is the likeliest exception.
Meanwhile, a burgeoning movement has risen to address the problem of mental illness and the death penalty. In Tennessee, a coalition called the Tennessee Alliance for the Severe Mental Illness Exclusion, or TASMIE, spent much of the past couple years pushing for an exception to be made among capital defendants, to spare those suffering from severe mental illnesses from death penalty prosecutions. On its website, it defines Severe Mental Illness, or SMI, according to definitions provided in the American Psychiatric Association Diagnostic and Statistical Manual, identifying 5 of the most severe diagnoses: "schizophrenia, schizoaffective disorder, bipolar disorder, major depression with psychosis and/or delusional disorder."
The move to exclude severe mental illness from the death penalty is rooted partly in the 2002 Supreme Court case Atkins v. Virginia, which barred the death penalty for the people with mental disabilities - or mental "retardation" in the language of the ruling - in light of their "diminished capacities to understand and process information ... to engage in logical reasoning, to control impulses, and to understand the reactions of others." Recognizing that these same factors apply to people with severe mental illnesses, the American Bar Association convened a Task Force on Disability and the Death Penalty, bringing together lawyers and mental health practitioners to study the issue. In 2006, the group proposed a resolution to categorically oppose the death penalty for defendants who were suffering from severe mental illness or disabilities at the times of their crimes. The resolution was adopted by the ABA, along with much of the mental health community. But it would take 10 years to spur new legislation across the states. In a December 2016 report, the ABA called on advocates to turn its policy into "a meaningful tool to help states pass laws that will establish clear standards and processes to prevent the execution of those with severe mental illness." Today, some dozen states have taken up the task.
In Tennessee, the bill was carefully designed to be as narrow as possible. "It is not a repeal bill, at all," says Sarah McGee, TASMIE's educational coordinator. "It is a mental illness bill." Where the death penalty remains popular among the state's deeply conservative lawmakers, awareness has grown about mental illness. In the Senate, Republican Richard Briggs, a veteran and trauma surgeon, introduced SB0378, which "prohibits the death penalty as a punishment for defendants suffering from severe mental illness at the time of the offense." Witnesses at a Senate judiciary hearing in March of 2017 included Anthony Fox, CEO of the Tennessee Mental Health Consumers' Association, who described how living with depression and bipolar disorder had driven him to poverty and bouts of homelessness. "These are examples of what can drive people over the edge," he said. The bill does not ask that people go unpunished for their crimes, he added - only that they not be sentenced to die.
Christopher Slobogin, head of the criminal justice program at Vanderbilt Law School and an expert on mental health law, also testified, explaining the Supreme Court precedent provided both by Atkins, as well as the 2005 decision in Roper v. Simmons, which banned the death penalty for people who committed their crimes as juveniles on the basis that the brains of young people are not fully developed. "In both cases, the court emphasized that the death penalty is reserved for the worst as the worst," Slobogin explained, a category that cannot apply to defendants whose neurological impairments make them less culpable or deterrable as adults. Mental illness is even further impairing, he said, since it brings "delusions, hallucinations, and disorganized thinking."
Testifying against the bill was Jerry Estes, head of the Tennessee District Attorneys General Conference, and previously the longtime elected district attorney general in Tennessee's 10th Judicial District. Estes prosecuted four death penalty cases over the course of his 24-year career. He argued that the bill would undermine juries, drag out the process for victims, and add a financial burden on the state. What's more, he said, Tennessee already has mechanisms in place to consider mental illness. Defense attorneys can bring it up at the sentencing phase, as mitigating evidence, for example. "All they have to do is find a witness," he said.
Legislators seemed reassured by Estes's suggestion that Tennessee juries are already positioned to hear evidence of severe mental illness before sending someone to death row. One lawmaker asked if he could think of any cases in which legislation like SB0378 might have changed the outcome - "Are there any cases you can think of?" Estes said he was not aware of any. "I can tell you of the 4 cases that I personally was involved in. ... I can't say that it would ever make any difference."
At a time when death penalty prosecutions are increasingly rare across the country, it is true that carving out a narrow exception in Tennessee would have a limited effect. By Slobogin's estimation, only 3 % of capital cases nationwide involve severe mental illness as defined in the bill. But even a cursory look at Tennessee's death penalty history reveals numerous cases infected by mental illness - cases in which the state spent considerable time and money pushing death sentences that were never carried out.
One dramatic case in point was handled by Estes himself. Ricky Thompson had been in and out of mental hospitals for years before he was convicted and sentenced to die in 1991 for killing his wife. Court records reveal a decadeslong odyssey through Tennessee's death penalty system - 2 trials, 2 overturned death sentences, a slew of evaluations, hearings, and appeals - throughout which his severe mental impairments, including multiple diagnoses of schizophrenia, were dismissed by prosecutors. After the Tennessee Court of Criminal Appeals overturned his conviction, ruling that his trial judge had wrongly denied Thompson's lawyers to bring testimony regarding his mental state at the time of the crime, Estes vowed immediately to seek the death penalty again, upon learning about the reversal from reporters, according to the Jackson Sun.
In a rare move, Thompson's trial judge "modified the jury's verdict to 'not guilty by reason of insanity,'" according to court records, which could have avoided a retrial. But the state Supreme Court overturned the ruling. In 1998, Thompson was found incompetent to be tried again by the McMinn County Circuit Court after evaluations by 2 state mental health experts. But the next year, "a different trial judge determined that the Defendant had become competent." After a 2003 retrial, Thompson was once more sentenced to die.
In 2007, the Court of Criminal Appeals at Knoxville reduced Thompson's sentence to life. "It is rare that a capital case contains the volume of documented history of mental disease or defects found in this case," the majority wrote, detailing his many diagnoses of schizophrenia and hospitalizations dating back to childhood. At Thompson's retrial, "2 mental health experts testified that the Defendant suffered from an impairment to the frontal lobe of his brain which would have affected his reasoning and judgment. One of the experts ... testified that the Defendant suffered from a chronic psychiatric disorder called schizo-affective schizophrenia which causes a loss of touch with reality. ... No expert testimony has ever been offered to contradict these findings, and none was presented by the State at the Defendant's trial." The majority made clear that its decision was "not meant to minimize the brutality of the Defendant's crime or to justify his conduct," but to give meaningful consideration to Thompson's severe mental illness as a mitigating factor, which his trial utterly failed to do.
Thompson did not live long after leaving death row. Just 6 months after the court reduced his sentence to life, he died of "natural causes," according to the Tennessee Department of Corrections. He was 57 years old.
There are no statistics tracking severe mental illness on Tennessee's death row. But there are many more examples. Gregory Thompson (no relation) was sentenced to die in 1985. Represented by attorneys who presented no evidence during the guilt stage of his trial, his prison records showed that psychiatrists who treated him diagnosed Thompson as having "either a bipolar affective disorder, cyclic mood disorder, schizo-affective disorder or schizophrenia," according to court documents. All of them described his "agitated behavior, hostility, inappropriate affect, auditory and visual hallucinations, delusions, paranoia, and thoughts of persecution." Thompson's case attracted national media attention, including a 2007 "60 Minutes" special that described his heavy medication regimen - 10 pills a day - and his recollections of trying to kill guards who were "turning into insects." Thompson died before the state could execute him, in 2014.
Investigations into such cases have revealed not only how ill-equipped courts and prisons are to deal with people suffering from severe mental illness, but the sadism it can unleash among those given control over their lives. In 2008, the American Civil Liberties Union of Tennessee won a victory in the case of Richard Taylor, whose 1981 death sentence for killing a prison guard was reduced to life in prison. Taylor had insisted on representing himself at trial. After 4 different findings that he was not competent, he finally did so, wearing his prison uniform and sunglasses. According to the ACLU, "Taylor called no witnesses, introduced no evidence, and presented no defense. The few cross-examination questions he posed during the guilt-innocence phase of his trial were delusional, and he was completely silent during the sentencing phase of the proceedings. The jury was never presented with compelling evidence of Taylor's difficult childhood, suicide attempts, psychiatric hospitalizations, or severe mental illness. Jurors deliberated for less than an hour before imposing the death sentence."
Upon arriving on death row, prison guards unleashed vicious and sustained abuse at Taylor, ostensibly in retaliation for his crime. In a disturbing sworn statement given to the ACLU, one former guard said he first realized Taylor had problems when he saw him drink his own urine and smear his feces on the wall. Yet, rather than trying to handle his mental illness, he said, guards put him "through pure hell." They denied him food and showers, refused to let him out of his cell, and goaded him into lashing out at them in order to beat him. Sometimes they spoke through the air chamber behind his prison cell, with messages like "Jesus Christ is coming to see you." At one point, the former guard admitted, Thompson set his clothes on fire, and the officers adjusted the vents to his cell to help the fire along.
For those tasked with representing people with severe mental illness, the already difficult work of death penalty defense becomes immeasurably harder. After Assistant Post-Conviction Defender Kelly Gleason was assigned to represent the late serial killer Paul Reid in 2004, she went to see him at the Brushy Mountain Correctional Complex in East Tennessee. In a lengthy affidavit, she described how "Paul informed me that he knew that I was working with the military government and that he could not believe a single word I said or anything I wrote."
The most recent hearing on SB0378 took place this past March at the Tennessee State Capitol. The bill had been amended - no longer was depression among the included severe mental illnesses listed, and language had been tweaked to make clear that a defendant's "documented history" of mental illness had to be a "documented medical history." Speaking again on behalf of his bill, Briggs took pains to explain the ways in which it is limited in scope and not aimed at ending capital punishment altogether. "Personally I believe in the death penalty," he said.
Briggs has attracted more conservative support since first introducing the bill. Op-eds have run in newspapers across Tennessee; in January, former U.S. Attorney Tom Dillard wrote in support of SB0378, drawing from his own experience representing mentally ill defendants who were sent to death row and whose conditions were not seriously considered at trial. The "good news," he wrote, was that both clients had their sentences reduced to life. "The bad news: The cost to taxpayers in Tennessee was enormous and ultimately neither received adequate mental health treatment."
This time, the voice of opposition at the hearing came from Craig Northcott, elected district attorney general in Coffee County. He called the legislation a "solution looking for a problem." Tennessee's death penalty works just fine, he said, adding, "I've asked repeatedly from the sponsors to give me 1 example where our system has failed." He said that they could not provide a single one. "Why are we even considering it?" The Senate Judiciary Committee voted down the legislation, 5 to 4.
With Irick's execution date looming, last month the ABA published a new study on the costs of mental illness in Tennessee's death penalty system. Its findings were the opposite of Estes's claim that excluding defendants with severe mental illnesses from death penalty prosecutions would be more costly. "If a severe mental illness exclusion were to be implemented in Tennessee, it would lead to a saving of $1.4 million to $1.9 million a year," the report concluded. "According to our estimate, the state of Tennessee would have saved between $57 and $78 million if this exclusion had been implemented in 1977, when the death penalty was reinstated in the state."
The ABA's fiscal assessment will be useful as TASMIE gears up to bring forward its legislation again next spring. When it does, the legislature would do well to consider Tennessee's ugly treatment of defendants with severe mental illness, rather than relying on reassurances from prosecutors. After all, some of the most compelling moments at the state capitol were the brief reminders that mental illness affects people across party lines - and that such people might be worthy of compassion. At one hearing, Republican Sen. Janice Bowling recalled a neighbor she had known as a child who had murdered her own children while living with what would now be acknowledged as severe mental illness. "I hadn't thought about it in years," she said. Another legislator, Art Swann, addressed Northcott. "I happen to know a particular person that is schizophrenic," he said. Swann did not say who he was talking about, describing him as a fine young man. But from "time to time," he said, he "loses his ability to know the difference between right and wrong."
Source: theintercept.com, Liliana Segura, July 15, 2018
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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
but by the punishments that the good have inflicted." -- Oscar Wilde