Different standards.

Photographer: Tom Pennington/Fort Worth Star-Telegram/MCT via Getty Images

Don't Execute Schizophrenic Killers

Sally L. Satel is a psychiatrist and a resident scholar at the American Enterprise Institute.
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Is someone who was diagnosed with schizophrenia years before committing murder sane enough to be sentenced to death?

The government thinks so in the case of Scott L. Panetti, 56, who will die on Wednesday by lethal injection in Texas unless Governor Rick Perry stays the execution.

On Sept. 8, 1992, Panetti shaved his head, dressed in military fatigues, grabbed a sawed-off shotgun, drove to the home of his in-laws and killed them.  Turning himself in, Panetti told the police he had been controlled by a personality called “Sarge.”

His bizarre explanation isn’t by itself proof of psychosis; people who commit crimes are known to say weird things to deflect blame. Yet Panetti’s long-standing history of mental illness is undisputed. First diagnosed with schizophrenia in 1978, he was hospitalized for hallucinations and delusions at least a dozen times from 1981 to 1993.

One of his fixations for years was that he would be put to death as part of a satanic conspiracy to prevent him from preaching the gospel. 

Yet at his 1995 trial, the judge somehow allowed Panetti to act as own lawyer. As he presented his insanity defense, Panetti wore a cowboy outfit, insisting he was the Ringo Kid from the 1939 movie "Stagecoach." He rambled incoherently, fell into a trance-like state and sought to subpoena witnesses including Pope John Paul II, Anne Bancroft, Jesus Christ and “Sarge.”  

This was evidence of Panetti’s mental defect, not a show he put on to appear irrational. In the end, the jury rejected his insanity plea and sentenced him to death. 

Nine years later, Panetti’s lawyers sought a stay of execution, claiming he was too incompetent to be executed. A federal judge denied the motion and the U.S. Court of Appeals for the Fifth Circuit upheld the judge’s ruling because Panetti was factually aware that the state planned to execute him for the murders.

Then in 2007, the U.S. Supreme Court ruled that factual awareness isn't sufficient. In Panetti v. Quarterman, the court overruled the Fifth Circuit, 5 to 4, and held that the determination of whether someone is competent to be executed must take into account the person’s rational understanding of why he is to be put to death.

Panetti seemed to lack a rational understanding of his execution: He believed the he was being put to death because Satan was working with the state of Texas to stop him from preaching. Unfortunately, the justices refused to set precise guidelines for determining whether someone is competent enough to be executed. Nor did they overturn his sentence.

Subsequent motions failed, and a request for a stay of execution filed last month by Panetti’s volunteer lawyers was denied.  

This is unjust. It is wrong to execute, even to punish, people who are so floridly psychotic when they commit their crimes that they are incapable of correcting the errors by logic or evidence.

Yet Texas, like many other states, considers a defendant sane as long as he knows, factually, that murder is wrong. Indeed, Panetti’s jury, which was instructed to apply this narrow standard, may have been legally correct to reject his insanity defense because he may have known that the murders were technically wrong.

One way to fix this is to broaden the definition of insanity to cover defendants whose crimes flowed directly from delusional thinking, extreme paranoia or command hallucinations. To be clear, it would not be enough for a murderer to point to a record of mental illness. Depression, anxiety or drug-induced paranoia, for example, should not be exculpatory. What’s key is the severe deficit in the ability to reason. Such defendants should be confined and treated in mental hospitals, not punished by the criminal justice system.

Even if states are unwilling to extend the insanity defense and insist on sending these defendants to prison, they should not be allowed to execute them. In these cases, the Supreme Court should hold that death is a cruel and unusual punishment prohibited by the Eighth Amendment. After all, the court provided protection for another class of cognitively compromised individuals in 2002, when it ruled in Atkins v. Virginia that executing mentally disabled individuals violates the Eighth Amendment

 A 2006 report from an American Bar Association panel proposed a sensible standard, urging that people “should not be executed or sentenced to death if, at the time of the crime, they had a severe mental disease that significantly impaired their capacity to (a) appreciate the nature, consequences and wrongfulness of their conduct, (b) exercise rational judgment in relation to conduct, or (c) conform their conduct to the requirements of the law.”  

By this standard, Governor Perry must stay Panetti's execution. The state would serve no civilized purpose in killing him.

This column does not necessarily reflect the opinion of Bloomberg View's editorial board or Bloomberg LP, its owners and investors.

To contact the author on this story:
Sally L Satel at ssatel@aei.org

To contact the editor on this story:
Katy Roberts at kroberts29@bloomberg.net