The Inhumanity Of The Death Penalty

A Growing Plea for Mercy for the Mentally Ill on Death Row

Former governor, and now felon, George Ryan of Illinois, has called for a permanent moratorium on the death penalty because, as governor of Illinois, he saw that far too many people were being sentenced to death that had not done the crime, had not been fairly represented, or had otherwise been denied justice. Even after being convicted for corruption during his term in office, he spoke to a large crowd at De Pauw University on the matter.

But in places like Texas, Arizona, New Mexico and a few other states, the entire apporach to handling convicted persons is to either lock them up and throw away the key, or to sentence them to death no matter what cognitive, developmental or mental health status they might be experiencing.

Texas has executed 277 convicted felons in the last ten years (1996-current) with another 9 death row inmates awaiting execution in 2007. Out of 389 executions, 269 have been either African-American, Hispanic or another minority. Additionally, only 10 have been women. Out of the last 71 persons executed in Texas, only 16 graduated from high school and only 2 had any post-secondary education. The level of violence involved in these crimes indicates patterns of escalation, rage, loss of control and quite possibly pre-existing mental health issues (c.f. Texas DCJ Executions Statistics Pages) USA-Amnesty International reports that since the re-introduction of the death penalty in Texas there has been "a litany of grossly inadequate legal procedures fail to meet minimum international standards for the protection of human rights." Texas has also gone on record to indicate that even if there was new evidence that demonstrated innocence after a conviction and death sentence, it would be right and lawful to still put the convicted felon to death.

Arizona, home of Sheriff Joe Arpaio and the "Tent City" approach to county incarceration, there are 126 people awaiting execution as we speak. A review of those cases demonstrates similar dynamics regarding the pattern of escalation, rage, loss of control and the possibility of pre-existing mental health issues.

The point of illustrating these statistics is not to "gross out" or frighten the readers of such information, but to demonstrate that something is seriously amiss with our approach to criminal justice, especially in regard to the death penalty. The number of people wrongfully convicted, in part due to an inequitable process, and in part due to the over-vigilance of prosecutors in many states, is on the rise. Those persons not able to afford the "dream team" of defense lawyers that were prent in the O.J. Simpson and the Robert Blake cases, are often not represented in a full and fair manner. The psycho-social, educational, cognitive and developmental functioning of those convicted seems to represent a pattern of putting to death those that might be suffering some form of mental imbalance.

The death penalty needs to be abolished solely on the basis of the wrongs we are using to implement it. But further, the death penalty needs to be abolished because it serves no moral purpose outside of vengeance. It does not establish justice in accordance with the Preamble of the Constitution, it does not demonstrate our spiritual nature, and it does not indicate the compassion that we are called to have toward those that have harmed us.

For those of us that are Christian, which is the majority of our nation, we are taught that Jesus said to forgive our enemies. Even one of the most often recited prayers, the Lord's Prayer, cites that we should "forgive those that trespass against us..." The act of putting someone to death is an inherently inhumane act. We claim to be one of the most humane nations in the world, yet we not only execute people, but some states do so with a passion for the execution. As Amnesty International has stated, we do not want to dismiss the violent nature of the crimes, nor do we want to excuse the crime on the basis of mental health alone, but when we look at all the wrongs that go into our death penalty process--unfair representation, lack of due process, execution of the uneducated/mentally ill, pursuit of vengeance rather than justice, wrongful convictions, etc.--we cannot justify keeping the death penalty as an option.

Scott Louis Panetti says he was drowned and electrocuted as a child and that he was recently stabbed in the eye in his death row cell by the devil. Mr. Panetti says he has wounds that were inflicted by demons and healed by President John F. Kennedy.

“The devil has been trying to rub me out to keep me from preaching,” Mr. Panetti, explaining why he faces execution, said in an interview from behind thick glass in the Polunsky Unit here in East Texas, where condemned prisoners are held before transfer to the death house 45 miles west in Huntsville.

Despite Mr. Panetti’s obvious mental illness — he was a mental patient long before he gunned down his in-laws in 1992 — he served as his own lawyer at his murder trial, throwing the courtroom into chaos with frequent gibberish. Now the hyperactive and gangling Mr. Panetti, 48, has become an illustration of the growing quandary over the application of a 1986 Supreme Court decision barring execution of the insane.

The ruling appears to be limited to those without the capacity to understand that they are about to be put to death and why. Whether Mr. Panetti fits that definition is a matter of dispute.

In an appeal to the Supreme Court that could affect the cases of other mentally ill prisoners awaiting execution, Mr. Panetti’s lawyers argue that while he has a “factual awareness” of his execution, he has a “delusional belief” that it is unconnected to his crime, and that he should therefore be spared lethal injection.

The case of another mentally ill death row inmate, Guy T. LeGrande, who represented himself and is scheduled to die Dec. 1 in Raleigh, N.C., is going through its final state appeals, with his lawyers arguing that he, too, is delusional, and that he hastened his execution by abandoning his defense.

Charged in the contract killing of a woman whose husband pleaded guilty to plotting the murder and is serving life, Mr. LeGrande, 47, says he is innocent and was framed. He appeared in court in 1996 in a Superman T-shirt, cursed the jurors as “Antichrists” and taunted them, “Pull the switch and let the good times roll.” They took less than an hour to sentence him to death.

Experts and advocates in the field say the issue of executing the mentally ill is the next frontier in death penalty law.

“This is an emerging issue,” said Richard C. Dieter, executive director of the Death Penalty Information Center, a research institute in Washington that opposes capital punishment.

Mr. Dieter cited the Panetti and LeGrande cases as gray areas in which “the death penalty may be extreme punishment given their reduced culpability.”

Franklin E. Zimring, a professor of law at the University of California, Berkeley, and author of “The Contradictions of American Capital Punishment” (Oxford University Press, 2003), said there was something “indigestible” about these cases.

“We assume people don’t want to die,” Mr. Zimring said. “But these are defendants that call the legal system’s bluff.”

Concern over execution of the mentally disabled prompted the American Bar Association last August to join a widening chorus of professionals calling for a halt to death sentences and executions for defendants with severe mental disorders that “significantly impaired” their rational judgment or capacity to appreciate the wrongfulness of their conduct. The moratorium was endorsed earlier by the American Psychiatric Association, the American Psychological Association and the National Alliance on Mental Illness.

The groups also opposed death sentences for prisoners with mental disorders that impaired their ability to assist their lawyers and make rational decisions on their appeals. The Supreme Court has already barred execution for the mentally retarded and for juveniles.

“An increasing percentage of people executed are people giving up their appeals,” said Ronald J. Tabak, a lawyer at the firm Skadden, Arps, Slate, Meagher & Flom in Manhattan and a specialist in capital cases who led the bar association’s death penalty task force. “And of these, a significant percentage have serious mental illness.”

The Supreme Court’s 1986 ruling, on a Florida case, Ford v. Wainwright, left much unclear. Although no state permitted execution of the insane, the justices affirmed that the Eighth Amendment against cruel and unusual punishment prohibited it. But they did not provide a standard for determining when someone was competent enough to be executed.

In a concurring opinion later adopted as law by lower courts, Justice Lewis F. Powell Jr. said it was enough “if the defendant perceives the connection between his crime and the punishment.” Justice Powell also said that the Constitution “forbids the execution only of those who are unaware of the punishment they are about to suffer and why they are to suffer it.”

The United States Court of Appeals for the Fifth Circuit found that Mr. Panetti had the requisite legal awareness. And the Texas attorney general, Greg Abbott, has argued that the execution, as yet unscheduled after having been postponed in 2004, should proceed.

There is no dispute that Mr. Panetti is “profoundly mentally ill,” his lawyers Gregory W. Wiercioch, Keith S. Hampton and Michael C. Gross said in a petition seeking to overturn the Fifth Circuit ruling. In the decade before the murders, they said, he was hospitalized 14 times in six institutions for schizophrenia, manic depression, auditory hallucinations and delusions of persecution. Believing the devil was in his furniture, he buried it in the backyard, and thinking the devil was in the walls, he hallucinated that they were running with blood.

On Sept. 8, 1992, Mr. Panetti, dressed in military fatigues and carrying a sawed-off shotgun, a rifle and knives, invaded the Fredericksburg home where his estranged wife, Sonja Alvarado, had taken refuge with her parents, Joe and Amanda Alvarado. In front of his wife and their 3-year-old daughter, known as Birdie, he shot the Alvarados to death and took his wife and daughter captive before releasing them unharmed and surrendering.

In 1994, a first jury deadlocked on his mental competency, but a second found him able to stand trial.

Waiving legal counsel, Mr. Panetti represented himself, appearing in court in cowboy garb and seeking to subpoena Jesus before deciding “he doesn’t need a subpoena — he’s right here with me.” He attributed the killings to an alter ego named Sarge Ironhorse and, testifying in Sarge’s voice after calling himself as a witness, recounted the killings:

“Sarge is gone. No more Sarge. Sonja and Birdie. Birdie and Sonja. Joe, Amanda lying kitchen, here, there blood. No, leave. Scott, remember exactly what Sarge did. Shot the lock. Walked in the kitchen. Sonja, where’s Birdie? Sonja here. Joe, bayonet, door, Amanda. Boom, boom, blood, blood. Demons. Ha, ha, ha, ha, oh, lord, oh, you.”

When Judge Stephen B. Ables tried to cut him off, Mr. Panetti said, “You puppet.”

Mr. Panetti does appear to have moments of lucidity, and these disconcerted the juries at his competency hearing and trial, planting suspicions that he might have been faking.

“Not to make excuses,” he said in the death row interview, “but when someone’s insane, they’re insane.”

Psychiatrists testified that schizophrenic patients often spoke intelligently.

Asked in the interview if he understood he was on death row for crimes he committed, Mr. Panetti said: “Certainly not. They are in a strong delusionment. They’ll be undeceived by delusionment.”

In a related matter, the Kentucky Supreme Court has made a ruling that is somewhat counter-intuitive and creates cognitive dissonance when considering the prohibition against cruel and unusual punishment:

While conceding that the chemicals used to execute death row inmates in Kentucky might cause needless pain, the state’s Supreme Court ruled yesterday that using them did not violate the Constitution’s prohibition on cruel and unusual punishment.