Executing the Mentally Ill and the Mentally Retarded:
Three Key Recent Cases from Texas and Virginia Show How States Can Evade the Supreme Court's Death Penalty Rulings

By ELAINE CASSEL
Thursday, Jun. 22, 2006

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 two months, three especially troubling cases played out in these two states; two are from Virginia, and one from Texas. The defendants whose lives hung in the balance were mentally ill or retarded and, in one 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.

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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 third sentencing proceeding.

Will this proceeding be fair? Don't count on it.

At the second 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 second sentencing proceeding, after the Supreme Court decision, the prosecution's expert gave the test to Atkins two 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 three-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 fourteen 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 six 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 three defendants attest.

To paraphrase one of Percy Walton's attorneys -- as quoted in a June 10 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.


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.

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