Executing the Insane

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?

Comments

[LAK]

One of these days we'll figure out allowing any government to legally kill its citizens is a bad idea, is cruel and is very unusual. Then these grey areas and the legal minutiae involved in them will be moot. One only need to look at Saddam and what he did to his people, and then bizzare circumstances of his death penalty to see this is true.

Bad Idea Jeans. One of our nation's great shames.

[Garth]

It seems fair to ask have we become jaded to such things as executing an insane man in light of our President's embrace of torture, spying and suspension of habeus corpus in regards to American citizens.

In this case, it seems clear that no sense of justice will ever be imparted to the convicted.

Marshall's conclusion that execution lacks deterrent effect I am not sure has been adopted by a majority of justices.

I seem to recall cases involving whether an inmate on death row could be forced to take psych med's in order to make him fit to be executed.

Might have been TX too, I don't recall.

As we saw with Saddam, execution is just an ugly business and degrading to everyone involved.

[Jimbo]

With any luck the Justices will start undoing the silliness started by Ford v. Wainwright. There is nothing wrong with executing the insane, the young or the young and insane. To pretend there are some elaborate set of legal principles out there to protect us from "degrading" ourselves is silliness. We need to make our death machines more well oiled and well functioning. 30 days to appeal like Saddam had sounds about right.

[Sarah]

If I remember correctly, another rationale articulated in Ford was that a convict's incompetence might render him incapable of sharing information that would otherwise persuade the state not to kill him. In light of the moratoria imposed by an ever-increasing number of states, and the wrongful convictions and botched executions that precipitated them, this reasoning seems more compelling than ever.

[Joan A. Conway]

Are these arguments and claims persuasive? No! Politics is everything. Or, put differently, do they retain the persuasive force they might have had in earlier times? Many people got away with murder in earlier times. So, the comparison suffers. And, if they are, then what do they suggest about the "sanity standard" the Court ought to embrace in Panetti?

The Attorney General(s) in Texas as well as the Governor of Texas give short shrift to pleas for leniency with the death penalty. As a matter of fact politics overrides any standards of sanity in procedural justice jurisdiction. They execute blame it on unconstitutional state laws.

[Joan A. Conway]

Ford v. Wainwright, Florida: (1986), full scale adversary prcedures were not required byt that the prisoner must be afforded an opportunity to present with consideratin of experts' reports and any other written or oral submissions of the interested parties of evidence and argument before an impartial officer or board independent of the Executive Branch(1988).

How likely is this to occur when the impartial officers are paid by the State, and where will one find a board independent of the political opportunities that awaits it from the Executive Branch.

Texas is a Death State.

It is unimaginable when Bush viciously mocked, and imitated a woman sentenced to the death chamber's in Texas in a sing-song, high-pitched voice desperately begging for her life. The state's Attorney General must interpret its statutes, but for its terrible public policy.

It is not reasonable or feasible to adequately summarize the case to make artful, thoughtful recommendations of life and death issues in a 3-5 page memo and to deliver those memos to the governor of Texas on the same day that someone is scheduled for execution.

Fact-finding merges with glad-handling.

Let the Supreme Court decide if it is unconstitutional, said DanShelley, bush's legislative director in Austin, Texas, to Alberto Gonzales, then Attorney General of Texas. The President's Counselfor, Bill Minutaglio, the following are quoted for this book.

"That created a standard that you had to have evidence of absolute innoor incomplete access tothe courts - Gonzales had to be part of creating the standand."

"They are difining clemency so narrowly, in a way that is virtually impossibile to get clemency."

"Cursory outlines."

"Nugget-sized summaries ignores true purpose of clemency memo, which was primarly source of information in deciding whether someone would live or die."

"Hauntingly brief - No big picture legal or historical backdrop - some sweeping, contextual reference point that might help decide and be ready to be rubber stamped in the clemency memo."

"The Attorney General serves his client rather than to serve justice and humanity."

"There is no inclusion of any mitigating evidence or any of the legal problems or even issues of actual innocence, like ineffective counsel, failed to even indicate the basis for the clemency requested, can't waive fully and properly, not include reference to the fact."