Post by Anja on Jun 22, 2006 18:10:42 GMT -5
Executing the Mentally Ill and the Mentally Retarded: 3 Key Recent Cases
from Texas and Virginia Show How States Can Evade the Supreme Court's
Death Penalty Rulings
Since the Supreme Court lifted its ban on the death penalty in 1976, Texas
and Virginia have led the country in executions; Texas has executed 366
defendants; Virginia, 95. Both states' death penalty verdicts have been
subject to a high level of scrutiny in the past few years, by both state
and federal courts.
Over the past 2 months, three especially troubling cases played out in
these 2 states; 2 are from Virginia, and one from Texas. The defendants
whose lives hung in the balance were mentally ill or retarded and, in 1
case, both.
In spite of Supreme Court decisions that should have limited the men's
punishment to life in prison without the possibility of parole,
prosecutors in both states were dead-set on seeing the men die.
In this article, I will explain the current status of the law on executing
mentally ill and retarded persons, and argue that in states like Texas and
Virginia, the Supreme Court's mandate that these classes of persons be
spared the ultimate penalty has been reduced to mere wishful thinking.
The only good news here, as I will explain, is a conscientious decision by
Virginia Governor Timothy Kaine to reexamine one of these cases.
The Legal Standard for Not-Guilty-By-Reason-of-Insanity
The 1968 Supreme Court decision of Ford v. Wainwright was unequivocal: The
Eighth Amendment's prohibition against cruel and unusual punishment bars
the execution of a prisoner who is, by the applicable legal standard,
"insane."
Before considering the standard when execution is at issue, it's useful
first to consider the related, but distinct, standard to find a criminal
defendant not guilty by reason of "insanity" - of which readers may be
more likely to be aware.
For a jury to find a defendant not guilty by reason of insanity, it
generally must find that, by reason of mental defect or illness, the
defendant did not appreciate the wrongfulness of the criminal conduct, and
thus should not be held culpable under the law.
At the minimum, to meet this standard, a person must be diagnosed or
diagnosable with a mental disorder, personality disorder, or mental
retardation, pursuant to the criteria set out in the current edition of
the American Psychiatric Association's Diagnostic and Statistical Manual
of Mental Disorders (DSM), the standard psychiatric diagnostic handbook in
the United States.
Typically, at trial, a battle of experts is waged -- as prosecutor and
defense psychologists give their varying opinions of the defendant's
mental state at the time of the crime. Then jurors must decide who and
what to believe - and apply the legal standard.
As I wrote in a column explaining the 2002 verdict in the case of child
killer Andrea Yates, the legal standard, especially in states like Texas,
where Yates was prosecuted, and Virginia, often does not protect even very
sick people from being found culpable. That's often because the law does
not recognize that people suffering from delusions or psychosis can know
what they are doing, but not know that it is wrong. Yates, for instance
knew she was killing her children, but thought she was "saving" them by
doing so. She was suffering from depression with delusional episodes.
The Legal Standard for Not-Constitutional-to-Execute-Due-to-Insanity
As I mentioned above, the standard in the execution context - though
related - is different. As Justice Powell explained in his concurring
opinion in Ford, to be spared execution on grounds of insanity, defendants
must be "unaware of the punishment they are about to suffer and why they
are to suffer it." (Emphasis added.)
On this issue, too, a battle of experts is waged -- and the bottom line
remains that even a diagnosis of severe mental illness does not, by law,
render one incompetent to be executed. If a jury finds that a defendant's
single point of clarity in an otherwise hopelessly deranged mind is that
he knows the state wants to kill him to punish him for his crime, then
that is enough to send him to his death.
That brings us to the three recent Texas and Virginia cases.
The Case of Virginia's Daryl Atkins
The case of Daryl Atkins made it all the way to the Supreme Court - to
little effect.
In 2002, the Court held, in Atkins's case, that it was a violation of the
Eighth Amendment to execute persons suffering from mental retardation - as
defined by each state's law.
Most states have adopted laws that mirror the DSM criteria: To suffer from
mental retardation, a person must have an IQ below 70 and evidence of
maladaptive functioning in everyday life. In addition, because the DSM
defines mental retardation as a developmental disorder, it must have
arisen during childhood --either as a congenital "defect" or as the result
of trauma.
Though the Court accepted Atkins's Eighth Amendment argument, it did not
spare his life. Instead, it sent his case back to the Virginia trial court
for resentencing. This time, the sentencing jury would consider whether
Atkins suffered from mental retardation, and thus could not be executed.
Resentencing was a debacle. The judge ruled -- over the strenuous
objections of Atkins' defense counsel -- that the prosecutor could tell
the new jury that Atkins had previously been sentenced to die by another
jury, but that the Supreme Court had reversed the sentence.
On June 8, the Virginia Supreme Court correctly held that this ruling
could have biased the jury - and sent the case back down for yet a 3rd
sentencing proceeding.
Will this proceeding be fair? Don't count on it.
At the 2nd proceeding, the court rejected a defense-offered witness, a
pediatrician, who would have testified as to indicators that Atkins was
retarded before reaching the age of 18. The court may well do the same
once again.
Moreover, for the Atkins prosecution, the third time may be the charm -
for it's been shown that the more a defendant is subject to IQ tests, the
higher his score will be. Indeed, in the Atkins case itself, that
phenomenon has been well illustrated: With respect to the 2nd sentencing
proceeding, after the Supreme Court decision, the prosecution's expert
gave the test to Atkins 2 days after a defense expert had done so.
Unsurprisingly, Atkins's score was not only higher than his score on the
defense's test, but also higher than his score the first time the
prosecution tested him! Is Atkins gradually getting smarter? Of course
not. He's just getting better at an increasingly familiar test.
More generally, it is extremely - and unfairly - difficult for defendants
to meet the Supreme Court's standard to show retardation. Remember, they
must show that the condition was manifest in childhood. But demographics
guarantee this will be extremely difficult, if not impossible.
Death row inmates are typically poorly educated and impoverished. School
and medical records may be hard to find - or simply nonexistent. And while
wealthy children with mental retardation may receive special attention
from teachers and doctors, poor children may receive just the opposite:
They may be ignored.
The upshot is that when prosecutors, and their experts, argue that a death
row inmate's reduced cognitive capabilities developed not in early
childhood, but much later --- perhaps even in prison - the inmate may not
have proof to rebut that contention, even if false.
The Case of Texas' Scott Panetti
It turns out that inmates whose attorneys try to prove mental illness,
rather than mental retardation, fare no better. On May 9, a 3-member panel
of the U.S. Court of Appeals for the Fifth Circuit found that Scott
Panetti - though schizophrenic-- was sane enough to be executed by the
State of Texas. A petition for a rehearing by the full panel of judges on
the Court is pending.
As a child, Panetti almost drowned, and was nearly electrocuted by a power
line. Since then, he has been addicted to drugs and alcohol, and in and
out of mental institutions a staggering 14 times.
Nevertheless, Panetti was allowed to represent himself in his 1994 trial
for killing his wife's parents. According to a recent New York Times
article, Panetti wore cowboy costumes to court, delivered rambling
monologues, put himself on the witness stand and sought to subpoena the
Pope, Jesus, and John F. Kennedy. The jury convicted him nonetheless.
All those years in prison have only worsened Panetti's mental state. Yet,
at a competency hearing, a Texas judge found him "sane enough" to die -
claiming that Panetti met the Supreme Court's minimum standard, as set out
in Ford: He knew what punishment he was about to suffer, execution, and
why. Given Panettit's history, this finding seems absurd.
The Case of Virginia's Percy Walton
Perry L. Walton is both mentally ill and mentally retarded. Thus, he ought
to be exempt from execution based not only on the Supreme Court's decision
in Ford, but also on its later decision in Atkins. But the law was no help
to him, not in state or federal court.
In the course of several appeals, Walton's mental status has been the
subject of analysis by numerous mental health experts. None deny that he
is suffering from schizophrenia. And a neutral expert appointed by a
federal court said Walton was "totally crazy."
On the mental retardation issue, experts say his IQ is 66. Yet prosecution
experts say that Walton does not fit the DSM "early childhood genesis"
requirement for mental retardation, for, they claim, his low IQ is a
result of being incarcerated.
Fortunately - and rightly -- on June 8, Virginia Governor Timothy Kaine
stayed Walton's scheduled execution for 6 months to consider a clemency
grant. Kaine -- a devout Catholic and former missionary to Central America
-- took a strong stand against the death penalty which almost cost him the
campaign in 2005.
But Kaine promised to sign death warrants if justified under the law and
the facts. He has already rejected one clemency plea. We can hope that his
judgment in Walton's case will be different.
Do the Supreme Court Decisions Matter? Probably Not in Texas or Virginia.
Obviously, psychological diagnoses and psychological experts are not the
key to carrying out the mandate of the Supreme Court decisions that have
rightly held that it is cruel and unusual to execute the mentally retarded
and the mentally ill.
With standards that are too technical, and practical realities that hurt
defendants' ability to prove they meet the standards, even when they do,
the hope occasioned by these decisions has not been realized in the
courts.
The fact is that in America, the mentally ill and mentally retarded are
still executed - as the tenuous situations of these 3 defendants attest.
To paraphrase one of Percy Walton's attorneys -- as quoted in a June 9
Washington Post article -- the question here is this:
Do we, as a society, want to execute people in the throes of florid
schizophrenic delusions, or with the cognitive capacity of a child? The
answer should be a clear no. We ought to be better than that.
In the words of Justice Marshall who wrote the majority opinion in Ford v.
Wainwright, sparing the mentally ill from execution not only protects the
condemned from "pain without comfort of understanding," but protects "the
dignity of society itself from the barbarity of exacting mindless
vengeance."
Maybe someday, the tide will turn in Texas and Virginia and prosecutors
will find better things to do than to insist on death for the most
vulnerable, no matter how unseemly, no matter the cost.
Alternatively, perhaps the Supreme Court will someday realize the need to
match legal principles to reality, and make the Eighth Amendment's
protection not a theoretical principle, but a promise.
(source: FindLaw --Elaine Cassel practices law in Virginia and the
District of Columbia and teaches law and psychology. Her textbook,
Criminal Behavior (2nd ed., in press, Erlbaum), explores crime and
violence from a developmental perspective. Her book, The War on Civil
Liberties: How Bush and Ashcroft Dismantled the Bill of Rights, was
published by Lawrence Hill in 2004. Her website, Civil Liberties Watch, is
published under the auspices of Minneapolis, Minnesota's City Pages)
*****************
from Texas and Virginia Show How States Can Evade the Supreme Court's
Death Penalty Rulings
Since the Supreme Court lifted its ban on the death penalty in 1976, Texas
and Virginia have led the country in executions; Texas has executed 366
defendants; Virginia, 95. Both states' death penalty verdicts have been
subject to a high level of scrutiny in the past few years, by both state
and federal courts.
Over the past 2 months, three especially troubling cases played out in
these 2 states; 2 are from Virginia, and one from Texas. The defendants
whose lives hung in the balance were mentally ill or retarded and, in 1
case, both.
In spite of Supreme Court decisions that should have limited the men's
punishment to life in prison without the possibility of parole,
prosecutors in both states were dead-set on seeing the men die.
In this article, I will explain the current status of the law on executing
mentally ill and retarded persons, and argue that in states like Texas and
Virginia, the Supreme Court's mandate that these classes of persons be
spared the ultimate penalty has been reduced to mere wishful thinking.
The only good news here, as I will explain, is a conscientious decision by
Virginia Governor Timothy Kaine to reexamine one of these cases.
The Legal Standard for Not-Guilty-By-Reason-of-Insanity
The 1968 Supreme Court decision of Ford v. Wainwright was unequivocal: The
Eighth Amendment's prohibition against cruel and unusual punishment bars
the execution of a prisoner who is, by the applicable legal standard,
"insane."
Before considering the standard when execution is at issue, it's useful
first to consider the related, but distinct, standard to find a criminal
defendant not guilty by reason of "insanity" - of which readers may be
more likely to be aware.
For a jury to find a defendant not guilty by reason of insanity, it
generally must find that, by reason of mental defect or illness, the
defendant did not appreciate the wrongfulness of the criminal conduct, and
thus should not be held culpable under the law.
At the minimum, to meet this standard, a person must be diagnosed or
diagnosable with a mental disorder, personality disorder, or mental
retardation, pursuant to the criteria set out in the current edition of
the American Psychiatric Association's Diagnostic and Statistical Manual
of Mental Disorders (DSM), the standard psychiatric diagnostic handbook in
the United States.
Typically, at trial, a battle of experts is waged -- as prosecutor and
defense psychologists give their varying opinions of the defendant's
mental state at the time of the crime. Then jurors must decide who and
what to believe - and apply the legal standard.
As I wrote in a column explaining the 2002 verdict in the case of child
killer Andrea Yates, the legal standard, especially in states like Texas,
where Yates was prosecuted, and Virginia, often does not protect even very
sick people from being found culpable. That's often because the law does
not recognize that people suffering from delusions or psychosis can know
what they are doing, but not know that it is wrong. Yates, for instance
knew she was killing her children, but thought she was "saving" them by
doing so. She was suffering from depression with delusional episodes.
The Legal Standard for Not-Constitutional-to-Execute-Due-to-Insanity
As I mentioned above, the standard in the execution context - though
related - is different. As Justice Powell explained in his concurring
opinion in Ford, to be spared execution on grounds of insanity, defendants
must be "unaware of the punishment they are about to suffer and why they
are to suffer it." (Emphasis added.)
On this issue, too, a battle of experts is waged -- and the bottom line
remains that even a diagnosis of severe mental illness does not, by law,
render one incompetent to be executed. If a jury finds that a defendant's
single point of clarity in an otherwise hopelessly deranged mind is that
he knows the state wants to kill him to punish him for his crime, then
that is enough to send him to his death.
That brings us to the three recent Texas and Virginia cases.
The Case of Virginia's Daryl Atkins
The case of Daryl Atkins made it all the way to the Supreme Court - to
little effect.
In 2002, the Court held, in Atkins's case, that it was a violation of the
Eighth Amendment to execute persons suffering from mental retardation - as
defined by each state's law.
Most states have adopted laws that mirror the DSM criteria: To suffer from
mental retardation, a person must have an IQ below 70 and evidence of
maladaptive functioning in everyday life. In addition, because the DSM
defines mental retardation as a developmental disorder, it must have
arisen during childhood --either as a congenital "defect" or as the result
of trauma.
Though the Court accepted Atkins's Eighth Amendment argument, it did not
spare his life. Instead, it sent his case back to the Virginia trial court
for resentencing. This time, the sentencing jury would consider whether
Atkins suffered from mental retardation, and thus could not be executed.
Resentencing was a debacle. The judge ruled -- over the strenuous
objections of Atkins' defense counsel -- that the prosecutor could tell
the new jury that Atkins had previously been sentenced to die by another
jury, but that the Supreme Court had reversed the sentence.
On June 8, the Virginia Supreme Court correctly held that this ruling
could have biased the jury - and sent the case back down for yet a 3rd
sentencing proceeding.
Will this proceeding be fair? Don't count on it.
At the 2nd proceeding, the court rejected a defense-offered witness, a
pediatrician, who would have testified as to indicators that Atkins was
retarded before reaching the age of 18. The court may well do the same
once again.
Moreover, for the Atkins prosecution, the third time may be the charm -
for it's been shown that the more a defendant is subject to IQ tests, the
higher his score will be. Indeed, in the Atkins case itself, that
phenomenon has been well illustrated: With respect to the 2nd sentencing
proceeding, after the Supreme Court decision, the prosecution's expert
gave the test to Atkins 2 days after a defense expert had done so.
Unsurprisingly, Atkins's score was not only higher than his score on the
defense's test, but also higher than his score the first time the
prosecution tested him! Is Atkins gradually getting smarter? Of course
not. He's just getting better at an increasingly familiar test.
More generally, it is extremely - and unfairly - difficult for defendants
to meet the Supreme Court's standard to show retardation. Remember, they
must show that the condition was manifest in childhood. But demographics
guarantee this will be extremely difficult, if not impossible.
Death row inmates are typically poorly educated and impoverished. School
and medical records may be hard to find - or simply nonexistent. And while
wealthy children with mental retardation may receive special attention
from teachers and doctors, poor children may receive just the opposite:
They may be ignored.
The upshot is that when prosecutors, and their experts, argue that a death
row inmate's reduced cognitive capabilities developed not in early
childhood, but much later --- perhaps even in prison - the inmate may not
have proof to rebut that contention, even if false.
The Case of Texas' Scott Panetti
It turns out that inmates whose attorneys try to prove mental illness,
rather than mental retardation, fare no better. On May 9, a 3-member panel
of the U.S. Court of Appeals for the Fifth Circuit found that Scott
Panetti - though schizophrenic-- was sane enough to be executed by the
State of Texas. A petition for a rehearing by the full panel of judges on
the Court is pending.
As a child, Panetti almost drowned, and was nearly electrocuted by a power
line. Since then, he has been addicted to drugs and alcohol, and in and
out of mental institutions a staggering 14 times.
Nevertheless, Panetti was allowed to represent himself in his 1994 trial
for killing his wife's parents. According to a recent New York Times
article, Panetti wore cowboy costumes to court, delivered rambling
monologues, put himself on the witness stand and sought to subpoena the
Pope, Jesus, and John F. Kennedy. The jury convicted him nonetheless.
All those years in prison have only worsened Panetti's mental state. Yet,
at a competency hearing, a Texas judge found him "sane enough" to die -
claiming that Panetti met the Supreme Court's minimum standard, as set out
in Ford: He knew what punishment he was about to suffer, execution, and
why. Given Panettit's history, this finding seems absurd.
The Case of Virginia's Percy Walton
Perry L. Walton is both mentally ill and mentally retarded. Thus, he ought
to be exempt from execution based not only on the Supreme Court's decision
in Ford, but also on its later decision in Atkins. But the law was no help
to him, not in state or federal court.
In the course of several appeals, Walton's mental status has been the
subject of analysis by numerous mental health experts. None deny that he
is suffering from schizophrenia. And a neutral expert appointed by a
federal court said Walton was "totally crazy."
On the mental retardation issue, experts say his IQ is 66. Yet prosecution
experts say that Walton does not fit the DSM "early childhood genesis"
requirement for mental retardation, for, they claim, his low IQ is a
result of being incarcerated.
Fortunately - and rightly -- on June 8, Virginia Governor Timothy Kaine
stayed Walton's scheduled execution for 6 months to consider a clemency
grant. Kaine -- a devout Catholic and former missionary to Central America
-- took a strong stand against the death penalty which almost cost him the
campaign in 2005.
But Kaine promised to sign death warrants if justified under the law and
the facts. He has already rejected one clemency plea. We can hope that his
judgment in Walton's case will be different.
Do the Supreme Court Decisions Matter? Probably Not in Texas or Virginia.
Obviously, psychological diagnoses and psychological experts are not the
key to carrying out the mandate of the Supreme Court decisions that have
rightly held that it is cruel and unusual to execute the mentally retarded
and the mentally ill.
With standards that are too technical, and practical realities that hurt
defendants' ability to prove they meet the standards, even when they do,
the hope occasioned by these decisions has not been realized in the
courts.
The fact is that in America, the mentally ill and mentally retarded are
still executed - as the tenuous situations of these 3 defendants attest.
To paraphrase one of Percy Walton's attorneys -- as quoted in a June 9
Washington Post article -- the question here is this:
Do we, as a society, want to execute people in the throes of florid
schizophrenic delusions, or with the cognitive capacity of a child? The
answer should be a clear no. We ought to be better than that.
In the words of Justice Marshall who wrote the majority opinion in Ford v.
Wainwright, sparing the mentally ill from execution not only protects the
condemned from "pain without comfort of understanding," but protects "the
dignity of society itself from the barbarity of exacting mindless
vengeance."
Maybe someday, the tide will turn in Texas and Virginia and prosecutors
will find better things to do than to insist on death for the most
vulnerable, no matter how unseemly, no matter the cost.
Alternatively, perhaps the Supreme Court will someday realize the need to
match legal principles to reality, and make the Eighth Amendment's
protection not a theoretical principle, but a promise.
(source: FindLaw --Elaine Cassel practices law in Virginia and the
District of Columbia and teaches law and psychology. Her textbook,
Criminal Behavior (2nd ed., in press, Erlbaum), explores crime and
violence from a developmental perspective. Her book, The War on Civil
Liberties: How Bush and Ashcroft Dismantled the Bill of Rights, was
published by Lawrence Hill in 2004. Her website, Civil Liberties Watch, is
published under the auspices of Minneapolis, Minnesota's City Pages)
*****************