I. Introduction
Whenever the Supreme Court decides a case that makes instant national headlines, it is assumed that “the law has changed,” and that, going forward, those changes will be reflected in both judicial and social behavior. The recent decision in Dobbs v. Jackson Women’s Health Organization, Footnote 1 overruling Roe v Wade,Footnote 2 is an obvious example; within weeks of the overturn, thirteen state legislatures successfully implemented bans on abortion that would have been deemed unconstitutional if Roe had still been the law.Footnote 3 And, of course, those who opposed the Dobbs decision began strategizing ways to avoid its draconian impacts.Footnote 4
But there are other areas of the law in which Supreme Court decisions have not had such an immediate impact. In many areas of law, Supreme Court decisions have turned out to be illusory.Footnote 5 A study of case law following such decisions in regulatory takings has demonstrated the tendency of lower federal courts and state courts to ignore or blunt Supreme Court’s decisions.Footnote 6 A Supreme Court decision by no means constitutes a promise to clarify subsequent judicial behavior.
One such area of law is forensic mental disability law. In 1972, in Jackson v. Indiana, Footnote 7 the Court ruled unanimously that a person charged by a State with a criminal offense who is civilly committed solely on account of his incapacity to proceed to trial cannot be held “more than the reasonable period of time necessary to determine whether there is a substantial probability that he will attain that capacity in the foreseeable future.”Footnote 8 Yet this decision continues to be ignored by about half the states despite extensive scholarly literature calling attention to this deficit.Footnote 9 Some defendants—situated like the appellant in Jackson—are still institutionalized “for what equates to a life sentence.”Footnote 10
There is another area of forensic mental disability law that has fallen far beneath the radar and requires much more attention than it has yet received. This is the extent to which the Supreme Court’s decision in Panetti v. Quarterman Footnote 11 —ostensibly ruling that a mentally ill defendant had a constitutional right to make a showing that his mental illness “obstruct[ed] a rational understanding of the State’s reason for his execution”Footnote 12—has been implemented in “real life.” Panetti came down more than two decades after the Supreme Court’s earlier decision in Ford v. Wainwright, Footnote 13 which, for the first time, held unconstitutional the execution of an “insane” person.Footnote 14
Soon after Panetti was decided, Professor Peggy Tobolowsky noted that “[o]ver twenty years after the Ford decision, several states are still not in compliance with these minimum constitutional definitional and procedural requirements.”Footnote 15 In two prior articles, these authors examined the implementation (or lack thereof) of Panetti in federal decisions,Footnote 16 concluding that Panetti has virtually never served as a protection upon which defendants could relyFootnote 17 and that the concerns raised by Professor Tobolowsky were almost never addressed.Footnote 18
In this paper, we complete our trilogy of Panetti researchFootnote 19 by examining the extent to which Panetti has been implemented in all state courts.Footnote 20 Our findings reveal that fewer than a handful of defendants have raised or have been successful in Panetti applications. Footnote 21 There were two successful cases (Banks and Staley), two threshold successful cases (Overstreet and Druery),Footnote 22 and two statute successes (Greene and Ward in Arkansas). There was a total of sixteen failures: mentally ill, but rational (six cases), defense expert concessions (seven cases), defense experts not credible (seven cases) and malingering (two cases).Footnote 23 First, we briefly discuss the Panetti case,Footnote 24 and what our prior studies have revealed.Footnote 25 Next, we examine how Panetti has been construed in those states which there is an active death penalty.Footnote 26 The following section examines the implications of these statistics. Finally, we investigate why the caselaw in this area has totally ignored the teachings of therapeutic jurisprudenceFootnote 27 and offer some conclusions and recommendations based on therapeutic jurisprudence principles.
This article’s title comes from a truly obscure Bob Dylan song, Ballad in Plain D. The song, recorded in 1964 and never performed live, is not a political song, but is about Dylan’s relationship with his then-girlfriend, and his acrimonious relationship with her sister.Footnote 28 The full verse from which it comes is this: And so it did happen like it could have been foreseen / The timeless explosion of fantasy’s dream / At the peak of the night, the king and the queen / Tumbled all down into pieces.Footnote 29 Sadly, we now recognize that our hopes that the Panetti case would actually change practice, and that it would become less likely that profoundly mentally ill death row inmates would be executed was a “fantasy.” What we report in this final paper of our Panetti trilogy, unfortunately, “explo[des]” the fantasy for good.
II. Panetti and its aftermath
In 1995, Scott Panetti—who had been hospitalized numerous times for serious psychiatric disorders—was convicted of capital murder in the slayings of his estranged wife’s parents.Footnote 30 Notwithstanding his “bizarre,” “scary,” and “trance-like” behavior,Footnote 31 he was found competent to stand trial and competent to waive counsel.Footnote 32 The jury rejected his insanity defense, and he was sentenced to death.Footnote 33 Following the exhaustion of state remedies and the dismissal of an earlier habeas corpus petition, Panetti filed a subsequent petition alleging that he did not understand the reasons for his pending execution.Footnote 34 The Fifth Circuit affirmed the denial of the writ,Footnote 35 and the Supreme Court reversed,Footnote 36 finding that the defendant had a right to make a showing that his mental illness “obstruct[ed] a rational understanding of the State’s reason for his execution.”Footnote 37 It characterized the Fifth Circuit’s position below as “too restrictive to afford a prisoner the protections granted by the Eighth Amendment.”Footnote 38
Two of this Article’s co-authors (Michael Perlin (“MLP”) and Talia Harmon (“TRH”)) examined in two prior articles how the Fifth Circuit had construed Panetti casesFootnote 39 and how Panetti was construed in the other circuits.Footnote 40 The Fifth Circuit researchFootnote 41 revealed that there was not a single other case (other than in Panetti on remand) Footnote 42 during the fourteen-plus years since the Supreme Court decided Panetti in which the Fifth Circuit found that a defendant was incompetent to be executed, and only two such cases were decided by a district court within the Circuit.Footnote 43 And, when we expanded our search to the entire nation, we found only one case—later vacated—that found a Panetti violation in a federal circuit court decision.Footnote 44 In the Fifth Circuit article, MLP and TRH concluded that Panetti was “an illusion, little more than a paper victory for defendants with serious mental illness.”Footnote 45 In the article on the other circuits, MLP and TRH similarly concluded that “Panetti has been given virtually no life whatsoever by the federal courts of appeal.”Footnote 46 This paper turns to the “death penalty states” to check for similar findings.
In the course of our research, we excluded cases that cited Panetti but did not consider the issues that are at the heart of this paper: cases including issues of ripeness,Footnote 47 cases that involved issues of intellectual disabilities and interpretations of Atkins v. Virginia,Footnote 48 cases that were not death penalty cases,Footnote 49 and cases that dealt with procedural reasons and/or unrelated legal issues.Footnote 50 In the future, even more pressure will exist on defense counsel in representing this cohort of defendants in state court, following the Supreme Court’s recent (and virtually-totally unheralded)Footnote 51 opinion in Shinn v. Ramirez. Footnote 52 Shinn limited the scope of Strickland inquiries that could be made in cases involving federal habeas corpus filings following state court convictions, ruling that a federal habeas court may not conduct an evidentiary hearing or otherwise consider evidence beyond the state court record based on the ineffective assistance of state postconviction counsel.Footnote 53 This will make it far “more difficult for defendants to be successful in Strickland claims.”Footnote 54
As MLP and TRH discussed in a prior paper, “[t]he story of how the Fifth Circuit has dealt with Strickland appeals in cases involving defendants with mental disabilities facing the death penalty [on applications for writs of habeas corpus following state court convictions] is bizarre and frightening."Footnote 55 The track record of counsel in death penalty cases in many of the “death belt” statesFootnote 56 is appalling. As Professor Stephen Bright has famously and ruefully observed, “The death penalty will too often be punishment not for committing the worst crime, but for being assigned the worst lawyer.”Footnote 57
III. Our findings
In combining the state court findings discussed extensively in this paper with the findings reported on in the two prior papers about the federal courts (one solely on the Fifth CircuitFootnote 58 and one on the other federal circuitsFootnote 59), we are able to confront these appalling results: since the Supreme Court decided Panetti fifteen years ago, in the aggregate, only eight defendants have been found to be incompetent to be executed by any court (and one of those decisions was later vacated).Footnote 60 On the merits, Panetti was rejected as a basis for avoiding execution in sixteen state casesFootnote 61 and in twenty-eight federal cases.Footnote 62 Beyond this, the underlying question was not reached in 5480 cases in which the reported opinion cited the Panetti case.Footnote 63
To gather data for this Article, an extensive search of all substantive incompetency-to-be-executed claims based on the Supreme Court’s decision in Panetti v. Quarterman Footnote 64 in all state courts was conducted using the Westlaw database and the Nexis Uni database. After filtering the initial results of the key term “Panetti v. Quarterman” to only state case opinions, Westlaw and Nexis Uni provided a list of eighty-five case opinions that cited Panetti. Footnote 65 Additionally, another state case opinion citing Panetti Footnote 66 was found during the research of federal case opinions for the second paper of this trilogy and was added to this analysis.Footnote 67 Of the eighty-six case opinions found, twenty-eight of them included “valid”Footnote 68 Panetti-based claims, and one made an incompetency-to-be-executed claim but did not directly cite Panetti in the state case opinion.Footnote 69 Within this cohort, Panetti himself was the subject of one of the case opinions,Footnote 70 nine case opinions had repeat defendants,Footnote 71 and nineteen case opinions involved defendants (other than Panetti) who appeared in only one case.Footnote 72 In total, twenty-four defendants made valid Panetti-based claims in the twenty-nine case opinions.Footnote 73 Four from the remaining fifty-five case opinions were removed because, although they argued a competency-to-be-executed claim, they were not ripeFootnote 74 and thus there was no discussion of the substantive aspects of Panetti. Footnote 75 Seven case opinions were excluded due to involving claims related to Atkins v. Virginia Footnote 76 and lacked any substantive discussion of Panetti. Footnote 77 Ten case opinions were removed because they did not make incompetent-to-be executed claims and cited Panetti for procedural reasons,Footnote 78 such as for discussions on the state’s ability to execute an individual,Footnote 79 the extent of a defendant’s right to expert testimony,Footnote 80 successor petitions,Footnote 81 or when the narrower holding should control.Footnote 82 Of the remaining thirty-six case opinions, twenty-five were removed because they were not death penalty cases, and thus substantive Panetti claims could not be made.Footnote 83
The eleven remaining case opinions for eleven separate defendants do not have a standard incompetency-to-be-executed Panetti-based claim but rely on Panetti to argue for a categorical exemptionFootnote 84 from the death penalty for defendants whose serious mental illnesses make their execution unconstitutional on the grounds that such punishment is excessive and cruel and unusual.Footnote 85 Included in this analysis are seven of these eleven case opinions where the defendant relied on Panetti to argue for a categorical exemption for offenders who are either seriously mentally ill or were seriously mentally ill at the time of their scheduled execution. The defendants and concurring/dissenting judges support this claim either with reasons parallel to those articulated in Atkins or by arguing that a person who is “seriously mentally ill” has, by definition, an impaired comprehension rendering them ineligible for the death penalty under Panetti. Footnote 86 Two of the remaining four case opinions were removed because they argued for a categorical exemption different from the one that is the subject of this analysis, (e.g., a defendant who suffers from chronic PTSD but not a serious mental illnessFootnote 87 or a defendant whose age and mental illness -- in combination -- make the death penalty excessive in his case.Footnote 88 The last two case opinions were excluded because, although they argued for a categorical exemption for persons who are seriously mentally ill, their reliance on Panetti was deemed to be premature, and thus their argument was rejected on those grounds.Footnote 89
After all exclusions, this Article analyzes twenty-nine case opinions for twenty-four defendants who made valid incompetency-to-be-executed claims and seven case opinions for seven defendants who do not make incompetent-to-be-executed claims under Panetti but argue for a categorical exclusion for defendants who are seriously mentally ill.
A. Findings
Of the cohort of “valid” Panetti claims (meaning the court considered the substantive issue decided by the Supreme Court in Panetti in the case before it in a published opinion)—an n of 24Footnote 90(one of which was Panetti himself)Footnote 91—there were five cases that could be considered “successes,” meaning that the defendant was found incompetent to be executed under Panetti. Footnote 92 In two of these cases,Footnote 93 the defendant was successful in the state court systems in a published opinion.Footnote 94 In two, the reported court opinion ordered further proceedings, and in both cases, in unreported opinions the defendant was found incompetent to be executed.Footnote 95 In one, the defendant was successful at the trial court level in an unpublished opinion, but the fact of that success was subsequently noted in a federal case dealing with that defendant.Footnote 96 As a result, we were only able to analyze and code for the following number of cases where published state court opinions were available.
B. Examining individual cases
This section examines the two cases that were successes, two cases that were threshold successes, and then considers cases in which there were strong dissents and/or concurring opinions urging Panetti-based relief and cases holding state laws governing Panetti determinations unconstitutional. It then discusses Panetti failures.
1. Successes
In two cases, courts found that the planned execution violated the Panetti standards. In Staley v. State, Footnote 97 after the defendant had initially been found incompetent to be executed, he was then involuntarily medicated;Footnote 98 as a result of the medication, he was subsequently classified as competent to be executed.Footnote 99 After this, however, the court found that such “involuntary medication of [Staley] was not permitted under the competency-to-be executed statute,” and that the “evidence conclusively shows that [Staley] is incompetent to be executed.”Footnote 100 It concluded: “We hold that the evidence conclusively shows that appellant’s competency to be executed was achieved solely through the involuntary medication which the trial court had no authority to order under the [Texas] competency-to-be-executed statute.”Footnote 101
In Commonwealth v. Banks, Footnote 102 the state’s witnesses had agreed with the defense witnesses as to the defendant’s psychosis.Footnote 103 Banks suffered from fixed delusions that he was “being poisoned in prison as part of a Department of Corrections conspiracy, that he was currently incarcerated as part of a government conspiracy and that his sentences of death had been vacated by God, Jesus, the Governor, George Bush or some combination of the same.”Footnote 104 In finding that the defendant was incompetent to be executed under the rule established in Panetti, Footnote 105 the court specifically pointed out the similarities between the Banks case and the Panetti case itself: “Banks does not have a rational understanding of the death penalty or the reasons for it, as required by Panetti.” Footnote 106 It concluded in this manner: “WHAT IS INESCAPABLE, is that experts generally agreed that Banks had a significant number of fixed delusions relating to his crime and punishment and five of the six experts agreed that his delusions extended to his penalty.”Footnote 107
a. Threshold successesFootnote 108 and other cases with “Pro-Panetti” opinions
In two cases, defendants who were unsuccessful at their initial Panetti hearings were ultimately found incompetent to be executed. In one,Footnote 109 the defendant was found incompetent at a subsequent Panetti hearing three years after the published decision,Footnote 110 but there are no other details available. The other,Footnote 111 a subsequent unreported decision, granted the defendant’s petition as noted in a subsequent case.Footnote 112
There were, in addition to the cases referenced above, cases in which: concurring/dissenting judges conclude—in cases in which Panetti was unsuccessfully argued—that there should be categorical exemptions from execution for defendants with serious mental illness;Footnote 113 cases in which there were concurring or dissenting opinions concluding that, under Panetti, the defendant was incompetent to be executed, and cases assessing the constitutionality of state laws governing potential execution incompetence.
(1) Arguing for categorical exemptionFootnote 114
The most thorough of these opinions was Part VIB of Justice Rucker’s opinion in Overstreet v. State. Footnote 115 There, in an otherwise-unanimous opinion in which the Court rejected the defendant’s Strickland v. Washington adequacy-of-counsel claimsFootnote 116 (at the pretrial, trial, penalty and appellate levels)Footnote 117 as well as multiple evidentiary claims,Footnote 118 Justice Rucker relied on the state constitution’s “cruel and unusual” punishment clause, noting that the “underlying rationale for prohibiting executions of the mentally retarded is just as compelling for prohibiting executions of the seriously mentally ill.”Footnote 119 He cited U.S. Supreme Court decisions finding that a state is free as a matter of its own constitutional law to confer rights above the floor of constitutional safeguards found in the United States Constitution.Footnote 120 He concluded:
Because I see no principled distinction between the diminished capacities exhibited by Overstreet and the diminished capacities that exempt the mentally retarded from execution, I would declare that executing Overstreet constitutes purposeless and needless imposition of pain and suffering thereby violating the Cruel and Unusual Punishment provision of the Indiana Constitution.Footnote 121
In at least three other cases, concurring and dissenting judges articulated a strong “categorical exemption” rationale in support of reversing convictions and sentences.Footnote 122 In State v. Lang,Footnote 123 a case in which the death penalty was upheld, a three-justice concurrence discussed Atkins and Roper v. Simmons, Footnote 124 and then made this argument:
Although it is unconstitutional to execute someone who is incompetent at the time of his or her execution, see Ford v. Wainwright … and the United States Supreme Court has not yet decided whether it is unconstitutional to execute someone who suffered from a serious mental illness at the time of the crime. If executing persons with mental retardation/developmental disabilities or executing juveniles offends “evolving standards of decency,” Roper, 543 U.S. at 563, …, then I simply cannot comprehend why these same standards of decency have not yet evolved to also prohibit execution of persons with severe mental illness at the time of their crimes.Footnote 125
Similarly, dissenting in State v. Kahler,Footnote 126 Justice Johnson concluded on this point:
Atkins spoke about mentally retarded offenders being less morally culpable because of their “diminished ability to understand and process information, to learn from experience, to engage in logical reasoning, or to control impulses,” as well as not being amenable to deterrence. 536 U.S. at 320… I fail to grasp how a severely mentally ill person possessing those same characteristics is not in the same less-morally-culpable category as the mentally retarded offender. If a person is incapable of understanding the nature and quality of their murderous act and/or did not know that the act was wrong, does it matter whether the cause of the cognitive deficiency is labeled mental retardation or chronic mental illness? The point is that, when executing a severely mentally ill person will not “measurably advance the deterrent or the retributive purpose of the death penalty,” it becomes “nothing more than the purposeless and needless imposition of pain and suffering.” 536 U.S. at 319, 321…Footnote 127
And, finally in Commonwealth v. Bauhammers, Footnote 128 Justice Todd concurred, specifically endorsing the Lang concurrence:
[A]s with mentally retarded defendants, it is not clear that either purpose of capital punishment—retribution or deterrence—is served by imposing that punishment on defendants who are severely mentally ill at the time of their crimes…An individual with a serious mental illness may be just as seriously impaired in his ability to “understand and process information” as an individual with a diminished IQ or an individual who has not yet reached the age of legal majority.Footnote 129
(2) Other cases with Panetti-focused dissents
The most complex case in this array is that of State v. Haugen,Footnote 130 in which the defendant at one point sought to discharge his attorneys and waive future appeals.Footnote 131 The majority here rejected the argument that Panetti was violated by the trial court’s determination that due process was not violated by allowing the execution to proceed,Footnote 132 in the face of two dissents. In one, per Justice Walters,Footnote 133 the dissenters relied on Panetti in focusing on the trial judge’s failure to consider a report by a neuropsychologist who had concluded that Haugen was incompetent to be put to death.Footnote 134 In the other, per Justice De Muniz,Footnote 135 the dissenters concluded that “the trial court, however, was not authorized to simply ignore evidence relevant to Haugen’s competence to be executed, whether that was Haugen’s wish or not.”Footnote 136 There were other cases in which dissents relied, at least in part, on Panetti, to support the position that the defendant was entitled to a new hearing at which he can demonstrate his incompetency to be executed.Footnote 137 In one of these cases,Footnote 138 the dissent took sharp issue with the majority’s holding on what process was due in a Panetti hearing:
Rather, the majority concludes it simply can take the evidence Mr. Cole presents to this Court to support his threshold showing and use that evidence to make credibility determinations as to whom to believe and whose reports are entitled to more weight in the first instance and then itself decide the ultimate factual issue of whether Mr. Cole is incompetent.Footnote 139
(3) Cases declaring state statutes unconstitutional under Panetti Footnote 140
In Ward v. Hutchinson, Footnote 141 the Arkansas Supreme Court – relying in significant part on Panetti – found the state statute governing determinations of incompetency to be executed to be unconstitutional as not “comport[ing] with the fundamental principles of due process.”Footnote 142 That statute – which had authorized the state corrections director to initiate a determination of competency when he was satisfied that “there were reasonable grounds for believing that death-row inmate was not competent to understand nature and reasons for punishment of death”Footnote 143 was found to be “devoid of any procedure by which death-row inmate had opportunity to make initial substantial threshold showing of insanity to trigger hearing process,”Footnote 144 and further failed to provide for an appropriate evidentiary hearing.Footnote 145
(a) Statutory developments elsewhere
The developments in Panetti-based litigation in state courts must be considered in the context of the state statutes that govern Panetti proceedings in those venues. As noted above, the Arkansas Supreme Court has found a state statute governing such proceedings to be unconstitutional.Footnote 146 What, though, about other jurisdictions? Research reveals that at least two other jurisdictions (TexasFootnote 147 and OklahomaFootnote 148) have changed their statutes since Panetti was decided, and that two states (KentuckyFootnote 149 and OhioFootnote 150) prohibit the death penalty in cases involving defendants with serious mental illnesses.Footnote 151 In addition, legislation has also been introduced in at least seven states arguing for a categorical exemption from the death penalty for offenders who are seriously mentally ill.Footnote 152 On the other hand, two states fail to expressly authorize or require the decision-makers to allow the offender to be heard and share their evidence or argument.Footnote 153 Lastly, six states do not require decision-makers to consider testimony from independent experts.Footnote 154
C. Rejections of defendants’ claims
(1) Introduction
The vast majority of Panetti cases in state courts rejected defendants’ claims. These cases can be categorized into these groupings: cases where the court believed the defense expert had conceded that the Panetti standard was not met, cases where the court found the defense expert(s) to be less credible than the state expert, cases where the court believed the defendant was malingering,Footnote 155 cases where the court found the defendant to be severely mentally ill, but still had a rational understanding of linking the crime and impending execution, and cases in which the defendant sought a categorical exemption from the death penalty because of serious mental illness.Footnote 156
(2) Concessions by defense experts
In seven of the sixteen cases in this grouping, the court determined that there were such concessions.Footnote 157 In Mays v. State, Footnote 158 defense expert Dr. George WoodsFootnote 159 had concluded that the defendant was incompetent for execution because he lacked “a rational understanding of the connection between his crime and punishment.”Footnote 160 Yet, the court focused on what it perceived as a concession by Woods: he “acknowledged at the competency hearing that Mays did not articulate that particular belief [regarding the state executing him regarding his delusional belief related to his energy invention] to anyone until this legal issue came up.”Footnote 161 The other defense expert, Dr. Bhushan S. Agharkar, concluded that Mays was not competent to be executed, noting that, although he understood he was to be executed, he lacked a “rational understanding of the reason he is being executed.”Footnote 162 However, Agharkar had noted that he solely “conducted screenings and he admitted he would never diagnose someone based on his screenings.”Footnote 163 When placed in the context of Mays’ other statements to defense experts,Footnote 164 it defies credulity to conclude that those experts’ opinions are invalidated by these alleged concessions.Footnote 165
In Battaglia v. State, Footnote 166 three of the four experts who testified had concluded that the defendant was incompetent to be executed; however, the Court privileged the testimony of the one expert whose opinion was contrary. In this case, Dr. Diane Mosnik, Dr. Timothy Proctor, and Dr. Thomas Allen agreed that Battaglia “suffer[ed] from Delusional Disorder” and as a result, was incompetent to be executed because he lacked a rational understanding of the reason for his execution.Footnote 167 Nonetheless, the court rejected the defendant’s Panetti application, accepting the testimony of the fourth witness, Dr. James Womack (court appointed), who concluded that he had a personality disorder and not a mental illness, and was a “malingerer, not credible.”Footnote 168 Significantly, the court put great weight on the fact that Dr. Womack had worked for the Federal Bureau of Prisons for 21 years.Footnote 169
In this case, the court saw as a concession the fact that Dr. Mosnik “admitted” that [Battaglia was] aware of his execution date and of the fact that he had committed the murders for which he was convicted,Footnote 170 notwithstanding the fact that he “lack[ed] a rational understanding of the connection between the crime and impending execution,”Footnote 171 along with Dr. Proctor having “admitted …that it is possible for an intelligent person to feign delusions.”Footnote 172 A blistering dissent criticized the majority for its “overly restrictive view of the standard for evaluating a defendant’s competency to be executed that imposes a more onerous burden on the defense in order to establish incompetency,”Footnote 173 concluding:
This Court should not permit the execution of a person who may be categorically exempt from the death penalty due to his severe mental illness in the name of deference to the lower court’s ruling, where that ruling appears to have been based on a flawed interpretation of the law. Under these circumstances, I cannot agree with the majority opinion’s decision to uphold the trial court’s ruling without first giving the trial judge the opportunity to clarify his findings and conclusions in light of the proper standard.Footnote 174
In minimizing the value of Dr. Mosnik’s testimony, the court noted that she had “never testified in support of the State’s position regarding execution competency.”Footnote 175 How can this observation be reconciled with the Court privileging Dr. Womack’ status as a long-time employee of the state department of corrections?Footnote 176
In State ex rel. Barton v. Stange, Footnote 177 a case in which the defense expert testified that the defendant was unable to “provide rational assistance to counsel and … engage in consistent, logical, and rational decision making,”Footnote 178 the Court found that the witness’s focus on the brain injuries (causing a major neurocognitive disorder)Footnote 179—rather than on mental illness—made Panetti inapplicable.Footnote 180 Further, although the Court concluded that the witness “admits this [his brain injury impairment does] not meet the standard set out in Ford,”Footnote 181 this ignores the witness’s testimony that “Barton was incompetent under the standard set forth in …Justice Marshall’s plurality opinion in Ford.” Footnote 182 And, in State ex rel Clayton v. Griffith, Footnote 183 a case in which a defense expert testified that Clayton was incompetent to be executed as a result of the defendant’s expressed feeling that he “is called to preach the gospel and will be released from prison by a miraculous act of God…,” Footnote 184 the value and weight of that testimony was minimized as “the witness had conceded Clayton seemed aware of his current prison status.”Footnote 185
(3) Defense witness credibility
In seven of the cases in this cohort,Footnote 186 the court’s decision rejected Panetti applications relying, at least in part, on what it perceived as a lack of credibility on the part of defense witnesses.Footnote 187 Of interest is the fact that three of the cases involved the same witness – Dr. William Logan – whose testimony was at the heart of three Eighth Circuit cases that had come to the same conclusion.Footnote 188 In our prior paper that considered those cases, we came to this conclusion, to which we adhere today:
The trilogy of cases just discussed can only be interpreted in one way: that the Circuit’s intuitive feeling that Dr. Logan was not a credible witness in spite of the thoughtful dissents [in the cases in question] overcame all evidence that was offered on behalf of the defendants. It is, to us, otherwise inexplicable.Footnote 189
What we will characterize as the “Dr. Logan cases” in state court followed the same pattern as those in federal court. By way of example, in State ex rel. Middleton v. Russell, Footnote 190 Dr. Logan testified that the defendant “believe[ed] his conviction was the result of a conspiracy which included his associates, law enforcement, the courts, prosecutors and his defense attorneys” and he that “he [would] not die while incarcerated but [would] be cleared on charges and return to the community,”Footnote 191 and that Middleton “lack[ed] a rational understanding of the reason for his execution and is therefore not competent to be executed” because of his delusional disorder, a psychotic mental illness.Footnote 192 Yet here, the court found Dr. Logan to not be credible because, apparently, he did not find Middleton to be as delusional as Scott Panetti, the defendant in the Panetti case.Footnote 193 There is nothing in the Panetti cases – or elsewhere in any of the cases – that finds that, to meet the threshold of the Panetti decision, the defendant need to be as mentally ill as was Panetti himself.Footnote 194
Similarly, in State ex. rel Cole v. Griffith,Footnote 195 the court found Logan to not be a credible witness, in part, because he had not interviewed his ex-wife (a victim of an assault at the time of the murder for which Cole was convicted) or “her family of their description of the marital discord.”Footnote 196 The court came to this conclusion notwithstanding the fact that Logan had diagnosed the defendant as evidencing “symptoms of psychosis with gross delusions” that prevent[ed] him from “comprehending or forming a rational understanding of the reason for the execution.”Footnote 197 The majority found the witness to not be credible because he testified for the defense in two other Missouri death penalty cases.Footnote 198 This allegation was rebutted firmly in Justice Stith’s dissent:
Finding experts willing to get involved in death penalty litigation is exceedingly difficult, and it will be all the more so if experts must be “one and done”—if they can testify only in a single case before being discounted as just a defense shill. This is particularly true here where defense counsel indicate that Dr. Logan, in fact, testifies for both the prosecution and the defense—but if this is in question, then it could be explored in cross-examination at the hearing that the majority refuses to permit.Footnote 199
In the final case of the Dr. Logan trilogy, the court, in State ex rel. Clayton v. Griffith, Footnote 200 again rejected the witness’s testimony as not credible.Footnote 201 There, Dr. Logan testified that the defendant ‘firmly believe[d that] God [would] intervene and his execution [would] not occur,”Footnote 202 and that these delusions “are fixed and unchangeable,” as a result of his head trauma (that had been documented by MRI tests).Footnote 203 But the court ruled that his opinions about Clayton “are not credible” for the same reasons that it refused to “credit the substantially similar opinions he offered in Middleton.”Footnote 204 Again, Justice Stith dissented, arguing that this testimony (as well as that by Dr. Foster, another defense expert) provided a threshold showing that Clayton “should be allowed the opportunity to convince the special masterFootnote 205 that he “does not have a rational understanding of the reasons for his execution.”Footnote 206
As we have previously noted, the court – in Mays and in Battaglia – found defense witnesses to not be credible (focusing in Mays on what it saw as the witness improperly passing notes to defense counsel,Footnote 207 and in Battaglia, to a significant extent, because the witness had heretofore only testified on behalf of defendants in death penalty cases).Footnote 208 The courts also found defense witnesses to not be credible in Green v. State. Footnote 209 In Green, where the defense expert concluded that the defendant was “not aware…that he is responsible for a crime for which he’s being executed,”Footnote 210 the Court was instead persuaded by the testimony of the state’s expert witness who found that the defendant “exhibited signs of symptom magnification, the intentional exaggeration of symptoms in an effort to achieve secondary gain.”Footnote 211 Because the defendant “[knew he was] to be executed by the State, [knew he was] convicted of killing the victim … [knew] the execution date, and then … proclaimed [his] innocence which shows a rational understanding of [the] imminent date and … the charges … against [him],” the trial court thus accepted the state witness’s testimony and found the defendant competent to be executed. However, as we (MLP & TRH) noted in our earlier article about the federal court aspects of the Green case:
Nothing here, however, goes to a critical prong of Panetti: did the defendant have a “rational understanding of the State’s reason for his execution”? Although the issue of “rational understanding” was addressed, it appeared only to be considered in the context of the fact that the defendant was able to proclaim his innocence, a far cry from what is demanded by Panetti. Footnote 212
(4) Malingering
Given the extent to which allegations of malingering dominated many of the federal post-Panetti cases,Footnote 213 it is rather surprising that this issue was raised in only two of the state cases: Battaglia Footnote 214 and Gore. Footnote 215 One of these cases – Battaglia Footnote 216 – is a clear example of what we have previously discussed as the confirmation heuristic: the court (through its flawed “ordinary common sense”)Footnote 217 believed that Battaglia was malingering, so it chose to privilege the testimony of the one expert who disagreed, notwithstanding the subsequent rebuttal of this testimony by one of the defense experts.Footnote 218
In this case, three witnesses – a defense expert, a state’s expert and an expert appointed by the courtFootnote 219 -- agreed that the defendant “suffer[ed] from Delusional Disorder” and as a result, was incompetent to be executed because he lacked a rational understanding of the reason for his execution.Footnote 220 Importantly, all three experts also agreed that they “found no evidence of malingering.”Footnote 221 Moreover, in response to the state’s witness’s testimony that the defendant was malingering,Footnote 222 one of the defense witnesses testified in rebuttal that the tests she administered showed “no indication of malingering or feigning [on the part of the defendant],”Footnote 223 and that his “beliefs appear[ed] to be the product of a vast and complicated delusional system.”Footnote 224
In choosing to endorse the conclusions of the one expert who found the defendant to be malingering, the court accepted the finding of the trial court that had relied heavily on the fact that that expert—Dr. James Womack – had worked for the Federal Bureau of Prisons, thus making him the “most qualified” of all the experts in the case.Footnote 225 There is no evidence that this conclusion was supported by any valid or reliable research.
There was also no indication that the court ever considered such research on the question of the validity of malingering findings in general. It is well known to those who study this field of thought and practice that even “clinicians working in forensic settings, who are familiar with malingering, have a high misidentification rate.”Footnote 226 By way of examples, one well-known study reports that only 8% of defendants studied actually malingered,Footnote 227 whereas another study tells us that only 1.5% met the criteria for malingering.Footnote 228
(5) Mentally ill but rational
Multiple cases in the cohort concluded that the defendant was mentally ill but nonetheless rational enough to understand the reason for his execution, thus bringing them out of the scope of the Panetti case. This finding did not appear in any of the federal cases researched for these authors’ prior Panetti articles. In these cases,Footnote 229 patterns emerge. Although the courts concede that the defendants are delusional, they nonetheless find them rational enough to take them out of the category of defendants who cannot be executed under the Panetti case. Thus, in what had been characterized as paranoid schizophrenia,Footnote 230 individuals will adhere to persistent false beliefs and will generally not change their mind even when faced with strong evidence to the contrary.Footnote 231 By way of example, where the defendant believed he was the “Prince of God,”Footnote 232 and the court conceded that there was evidence of mental illness,Footnote 233 the court rejected his Panetti argument on the grounds that he was “aware that the State is executing him for the murders he committed and that he will physically die as a result of the execution.”Footnote 234 Elsewhere, the Tennessee Supreme Court found the defendant competent to be executed in spite of testimony that the “capacity of his brain to work in forming a rational understanding is in that of a pre-adolescent child.”Footnote 235 Notwithstanding this testimony, it concluded he had “a rational understanding of his pending execution.”Footnote 236 And, in yet another case, the court found that the defendant’s delusions did “not prevent him from rationally understanding the connection between the underlying conviction and his sentence of execution”Footnote 237
Finally, in State ex rel. Cole v. Griffith (discussed previously in the context of concessions made by defense experts),Footnote 238 the court paid no attention to testimony that the defendant had “symptoms of psychosis with gross delusions” that prevented him from “comprehending or forming a rational understanding of the reason for the execution.”Footnote 239
(6) Seeking a categorical exemption
Courts reject claims by defendants that there should be categorical exemptions in cases in which the defendant is seriously mentally ill at the time set for execution. In ten cases, courts rejected arguments that there should be a categorical exemption making the death penalty inapplicable to defendants with serious mental illnesses. In our previous article on Panetti cases in all federal circuits but the Fifth, two of the co-authors (MLP & TRH) concluded that “the theoretical protections of Atkins v. Virginia—prohibiting execution of persons with intellectual disabilities – needs to be extended to persons with major mental illnesses, thus obviating many of the problems inherent in most post-Panetti decisions.”Footnote 240 Although we noted that academic interest in this position “has diminished significantly in recent years,”Footnote 241 these arguments continue to be made – albeit to this point, unsuccessfully—in state courts.
By way of example, in State ex rel. Strong v. Griffith, Footnote 242 the defendant asked the court to extend the logic and holdings of Roper v. Simmons Footnote 243 and Atkins v. Virginia Footnote 244 (barring the imposition of the death penalty on individuals who were juveniles at the time of the crime or who were intellectually disabled), arguing that such a person “is similar to a person [in these groups whom the Supreme Court has determined not to] possess the capability … require[d] in order to impose the death penalty.”Footnote 245 He noted that such severely mentally ill persons “risk an unjust death sentence” because they are less able to assist counsel, may be poor witnesses, and may “create an unwarranted impression of lack of remorse for their crimes” by their demeanor.Footnote 246 The Court rejected this argument, concluding that “because Mr. Strong fails to present a cognizable claim for habeas corpus relief,” his arguments and supporting evidence need not be considered.Footnote 247 Dissenting, Judge Teitelman disagreed, applying Ford, Atkins and Roper to Mr. Strong and other severely mentally ill individuals.Footnote 248 Elsewhere, in State v. Jenkins, Footnote 249 the defendant argued that “the same rationale for exempting the intellectually disabled from the death penalty should apply to exempt defendants who are seriously mentally ill from that punishment.”Footnote 250 The Court dismissed the argument tersely: “We decline to vary from the principle articulated in Panetti.”Footnote 251
The court in State v. Kleypas Footnote 252 gave the issue more attention. It rejected the defendant’s argument that “[t]he culpability of the severely mentally ill is diminished in the same manner as juveniles and the mentally retarded,” by distinguishing the classification of mental illness from that of (as then referred to) mental retardation or age:
Mental illnesses present less discernable common characteristics than age or mental retardation. Caselaw relating to the implementation of Ford v. Wainwright, 477 U.S. 399 (1986), and Panetti v. Quarterman, 551 U.S. 930 (2007), illustrates the difficulty in defining a discernable standard relating to mental illness. See Panetti v. Quarterman, 2008 WL 2338498 (W.D. Tex. 2008). As the [American Bar Association] standardFootnote 253 recognizes, case-by-case evaluations would be necessary; it follows that the level of culpability will vary on a case-by-case basis. While we recognize that some mental illnesses may make a defendant less culpable and less likely to be deterred by the death penalty, often such illnesses can be treated and may not manifest in criminal behavior.Footnote 254
And, in yet another case, the court tasked the state legislature with the duty to classify: “We leave it to the Legislature, if it chooses, to determine exactly the type and level of mental impairment that must be shown to warrant a categorical exemption from the death penalty.”Footnote 255
In addition to Strong, other putative categorical exemption cases exist, containing extensive concurring or dissenting opinions.Footnote 256 In Overstreet v. State, Footnote 257 the Court rejected the defendant’s argument (endorsed in that portion of Justice Rucker’s majority opinion that had support from no other members of the court) that the Indiana state constitution should be read to create a categorical exemption:
Although I can certainly understand why the legislature might choose to prohibit the execution of all persons suffering from severe mental illness, that has not occurred in this state, and I cannot read Article I, Section 16 more expansively than the Eighth Amendment.Footnote 258
(7) Conclusion
There have been perilously few cases in which courts have taken seriously the teachings of Panetti. What appears to be overwhelming testimony of defendants’ serious mental illness – prohibiting them from rationally understanding the reasons for their impending executions – is regularly minimized or outright rejected. Most, although not all, of the state courts hearing these cases take Panetti no more seriously than do federal courts.Footnote 259
IV. Therapeutic jurisprudenceFootnote 260
Therapeutic jurisprudence (“TJ”) recognizes that the law is potentially a therapeutic agent, with either therapeutic or anti-therapeutic consequences; it considers whether legal rules, procedures, and lawyer roles can or should be reshaped to enhance their therapeutic potential while not subordinating due process principles.Footnote 261 It asks how the law “actually impacts” people’s lives,Footnote 262 by supporting “an ethic of care.”Footnote 263 It seeks “to bring about healing and wellness,”Footnote 264 and values psychological health.Footnote 265 Further, adherence to the principles and tenets of therapeutic jurisprudence “maximiz[es] the likelihood that voice, validation and voluntarinessFootnote 266 will be enhanced.”Footnote 267
Its guiding principles are commitments to dignityFootnote 268 and to compassion.Footnote 269 It believes that people “possess an intrinsic worth that should be recognized and respected, and that they should not be subjected to treatment by the state that is inconsistent with their intrinsic worth.”Footnote 270 The dignity-enhancing principles of TJ “enhance the likelihood that shame and humiliation will diminish and that greater dignity will be provided.”Footnote 271 And, on compassion, consider the words of Professors Anthony Hopkins and Lorana Bartels:
The argument we make here is that TJ is founded upon the psychology of compassion, understood as a sensitivity to and concern for the suffering of others and a commitment to alleviating and preventing it. The “other” in the context of TJ is any person upon whom the law acts or any actor within the legal process.Footnote 272
On the same point, Professor Nigel Stobbs has added;
Compassion is a virtue, value, or disposition to act which can be held by individuals or groups …. Compassion is generally defined as having two elements. First is empathy--the capacity to sense that another is suffering, and to know what it might feel like to be subjected to that kind of suffering …. The second element of compassion is a felt need to try and alleviate that sensed suffering of other.Footnote 273
These authors’ previous articles about interpretations of Panetti in federal cases carefully examined the TJ implications of relevant decisions, focusing on issues related to expert believability,Footnote 274 expert funding,Footnote 275 malingering,Footnote 276 and synthetic competency.Footnote 277 Analysis of these cases in the Fifth Circuit concluded that;
These decisions reflect an abject level of stereotyping on the part of the court, and this stereotyping starkly reflects how this bias, coupled with judges’ use of false “ordinary common sense,”Footnote 278 has a significant impact on their decision-making processes. On the other hand, if the court had embraced TJ principles, each of these decision-making “pressure points” could have been invigorated with new options and individualized decision-making.Footnote 279
These articles further consider the TJ implications of courts’ failures to acknowledge the severity of defendants’ mental illnessesFootnote 280 and of the pervasive inadequacy of counsel,Footnote 281 and concluded here that judges treat evidence of mental illness in criminal cases “so as to conform to the judges’ pre-existing positions,”Footnote 282 in teleological ways that utterly violate TJ principles.Footnote 283 Here, courts fall prey to the allure of the confirmation bias heuristic through which we focus on information that confirms our preconceptions,Footnote 284 especially over disconfirming information. Footnote 285 Valid and reliable evidence shows that judges thus focus on information that confirms their preconceptions (i.e., confirmation bias), to recall vivid and emotionally charged aspects of cases (i.e., the availability heuristic), and to interpret information that reinforces the status quo as legitimate (i.e., system justification biases).Footnote 286 A judicial proceeding cannot be “fair” if the judge decides cases in such teleological manners.Footnote 287
The vast majority of the state cases considered in this article replicate these failings that we found in the federal cases. As discussed below, with a very small handful of important exceptions, this case cohort ignores all therapeutic jurisprudence principles and is rife with examples of the confirmation bias. Judges “believe” a case should be decided in a certain way, and thus “teleologically privilege evidence of mental illness” (where that privileging serves what they perceive as a socially beneficial value) and “subordinate [such evidence]” (where that subordination serves what they perceive as a similar value).Footnote 288 Per Professor David Faigman, “[s]ome commentators suggest that the court’s use of science is disingenuous; these critics believe that the court cites empirical research when it fits the court’s particular needs but eschews it when it does not.”Footnote 289
A stark example of this is the Mays case. There, the court chose to ignore the testimony by the two defense experts that the defendant lacked “a rational understanding of the connection between his crime and punishment” Footnote 290 and that he lacked a “rational understanding of the reason he is being executed,” Footnote 291 in large part, it appeared, because one of the defense witnesses passed notes to counsel during the hearing. Footnote 292 Additionally, consider Battaglia where the three experts who found him to be incompetent to be executed were discredited one by one and the fourth expert was the victor because the court really seemed to believe he was malingering. Footnote 293 Again, this appears to perfectly reflect the meretricious use of the conformation bias heuristic.
Related is the way that the courts ignore the significance of the impact of traumatic brain injury on defendants’ behavior.Footnote 294 Generally, courts have not been sympathetic to Panetti claims made by defendants with traumatic brain injuries,Footnote 295 and most courts have been “unresponsive to TBI claims at this juncture of the proceedings.”Footnote 296 In one case, a federal court specifically rejected a death-row defendant’s argument that the Florida Supreme Court denied a death row petitioner’s claim that the Eighth Amendment categorically exempted him from execution because he suffered from severe traumatic brain injury and severe mental illness.Footnote 297
In the cohort of the cases discussed here, the results are similar. In State ex rel. Barton v. Stange, Footnote 298 the Court found that the witness’s focus on the defendant’s TBI (causing a major neurocognitive disorder) – rather than on mental illness – made Panetti inapplicable.Footnote 299 In State ex rel. Clayton v. Griffith, Footnote 300 where a traumatic brain injury caused the loss of “nearly eight percent of Clayton’s brain and 20 percent of his frontal lobe,”Footnote 301 the court gave this evidence no value in coming to its conclusion that the defendant was competent to be executed.
These authors believe that, using the principles of therapeutic jurisprudence, “introduction of a defendant’s TBI could prove to be an effective tool during mitigation, in order to provide a clue as to why he may have performed the crime with which he was charged.”Footnote 302 “[R]ecognition of a physical component of the defendant’s] disability could help to comport with therapeutic jurisprudence principles of dignity, voice and validation,”Footnote 303 but this has not happened.
Many of the cases discussed here that reflect conformation bias shroud a deep-seeded bias against the defendants before the court. Professor Colleen Berryessa has urged that the therapeutic jurisprudence literature “may also be instrumental in crafting ‘therapeutic interventions’ that promote judges’ cognitive awareness related to … biases and how such biases in cases involving mental disorders may result in anti-therapeutic outcomes by hindering an offender’s potential treatment opportunities.”Footnote 304 That “the entire body of scholarship [on neuroimaging evidence and TJ] has fallen on deaf ears in the contexts of criminal sentencing,”Footnote 305 in no arena more so than in death penalty cases.Footnote 306 There are, of course, exceptions. As noted above, Justice Rucker’s opinion in Overstreet Footnote 307 is a stand-alone example of how therapeutic jurisprudence (although he never refers to it by name) can animate a thoughtful, validating dignity-granting decision. Both Staley and Banks fall into this category as well. But such cases are, sadly, few and far between.
V. Conclusion
Although the “track record” of the state courts is not quite as woeful as that of the federal courts, it remains dispiriting. Depending on the categorization of cases, either only two defendants or five defendants were successful in their Panetti arguments,Footnote 308 and many of the Panetti losses involved profoundly mentally ill defendants. The continued reliance on cognitive-simplifying heuristics and false “ordinary common sense” – along with a failure to recognize the significance of TJ principles – taint this entire area of law.Footnote 309 In the Fifth Circuit, not a single decision for a defendant exists on Panetti grounds at the circuit level;Footnote 310 in all other federal circuits, there was but one Panetti victory for a defendant, and that was subsequently vacated.Footnote 311 This pattern has been replicated in the state courts.
When considering the results from these authors’ trilogy of papers, the minute number of Panetti claims deemed to be valid by the courts, coupled with the fact that this current paper discussed many cases in which defendants were found severely mentally ill, but not irrational (under the Panetti standard), it underscores that it is time to reconsider the propriety of a categorical exemption of persons who are severely mentally ill from the death penalty. This opinion – currently the law in a few states and under consideration in others – is the most favorable solution to this otherwise intractable problem.
This paper concludes by returning to the Bob Dylan song which gives it its title. The couplet that begins with the line “the timeless explosion of fantasy’s dream” ends with “… the king and queen/ tumbled all down into pieces.”Footnote 312 This area of forensic mental disability law has so tumbled.
