The United States Supreme Court has agreed to review a case, Panetti v. Quarterman, which presents a question about the constitutionally required standard for deciding when a convicted murderer is competent to be executed. More than 20 years ago, in Ford v. Wainwright, the Justices -- though splintered -- ruled that the Eighth Amendment, which prohibits "cruel and unusual" punishment, does not permit the government to execute a prisoner who is, at the time of his execution, insane. But what, exactly, does this requirement mean?
Panetti understands, apparently, that the state of Texas wants and plans to kill him. He believes, though, that this is not really because of his conviction for fatally shooting his in-laws in the presence of his estranged wife and their 3-year-old child, but is instead really part of a conspiracy among the state and others to prevent him from preaching the Gospel. So, is his awareness of what's coming enough to satisfy Ford? Should it satisfy us?
The answer depends, it appears, on why we think we ought not to execute -- or, why we think the Constitution does not permit us to execute -- an insane person. In the insanity-defense or death-penalty-for-juveniles context, our concerns have to do primarily with the defendant's culpability for the crime. Here, in contrast, we are assuming that the defendant was convicted of a crime for which he is legally responsible and for which the death penalty is legally authorized.
Justice Marshall, in Ford, discussed the common-law bar against executing a prisoner who had lost his sanity and concluded that "whether [the common-law bar's] aim [was] to protect the condemned from fear and pain without comfort of understanding, or to protect the dignity of society itself from the barbarity of exacting mindless vengeance, [it] finds enforcement in the Eighth Amendment." He suggested. among other things, that executing a person who is insane (a) has questionable retributive value because such a person "has no comprehension of why he has been singled out and stripped of his fundamental right to life" and (b) has no deterrence value because it does not serve as an example for others. What's more, he added, "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."
Are these arguments and claims persuasive? Or, put differently, do they retain the persuasive force they might have had in earlier times? And, if they are, then what do they suggest about the "sanity standard" the Court ought to embrace in Panetti?