Document - USA: The execution of mentally ill offenders

UNITED STATES OF AMERICA USA: The execution of mentally ill offenders

UNITED STATES OF AMERICA

The execution of mentally ill offenders
(view this document as a PDF)

I cannot believe that capital punishment is a solution – to abolish murder by murdering, an endless chain of murdering. When I heard that my daughter’s murderer was not to be executed, my first reaction was immense relief from an additional torment: the usual catastrophe, breeding more catastrophe, was to be stopped – it might be possible to turn the bad into good. I felt with this man, the victim of a terrible sickness, of a demon over which he had no control, might even help to establish the reasons that caused his insanity and to find a cure for it...
Mother of 19-year-old murder victim, California, November 1960(1)
Today, at 6pm, the State of Florida is scheduled to kill my brother, Thomas Provenzano, despite clear evidence that he is mentally ill.... I have to wonder: Where is the justice in killing a sick human being?
Sister of death row inmate, June 2000(2)

I’ve got one thing to say, get your Warden off this gurney and shut up. I am from the island of Barbados. I am the Warden of this unit. People are seeing you do this.
Final statement of Monty Delk, mentally ill man executed in Texas on 28 February 2002
Overview: A gap in the ‘evolving standards of decency’
The underlying rationale for prohibiting executions of the mentally retarded is just as compelling for prohibiting executions of the seriously mentally ill, namely evolving standards of decency.
Indiana Supreme Court Justice, September 2002(3)
On 30 May 2002, a jury in Maryland sentenced Francis Zito to death. It had earlier convicted him of shooting two police officers at point-blank range in February 2001 after they came to his trailer home in response to a complaint that he was playing music too loud. The killings were as brutal as they were apparently motiveless. The crime is not the whole story, however. Francis Zito had long suffered from serious mental illness, including a combination of schizophrenia and bipolar disorder, for which he had been hospitalized some two dozen times in the previous decade, but for which he was not taking medication at the time of the crime.

Francis Zito’s pre-trial detention was spent in a psychiatric hospital. At a subsequent hearing, doctors for the defence said he was not competent to stand trial, while others for the prosecution said that he had regained competence after his treatment. The court decided that he was competent and the trial went forward. Interviewed on the opening day, the prosecutor summed up the state’s theory: "You can have a mental illness and still be capable of understanding your actions. That’s the case with Mr Zito. This isn’t going to be rocket science. He was right there on planet Earth in Centreville, Maryland. He knew they were police officers."(4) For the defence, the plea was one that Francis Zito was not criminally responsible by reason of insanity. At the trial, during which the defendant had difficulty focussing on the proceedings, and would repeatedly stand or speak out of turn, the jury rejected the plea and found him guilty of first-degree murder. At the sentencing, the defence lawyer appealed to the jury to reject execution: "The death penalty is reserved for the worst of the worst. Frank Zito is not the worst of the worst". For his part, the prosecutor urged the jury instead to recall the crime and the suffering of the relatives, saying "I can’t think of anything worse".(5) After six hours of deliberation, the jury sent Zito to join the large number, believed to be hundreds, of people on death rows in the United States of America (USA) with histories of serious mental illness.(6)

Ten years before Francis Zito was sent to death row, Ricky Ray Rector was taken off it and executed. His is one of the defining cases of the "modern" era of judicial killing in the USA. To this day, that such a severely brain-damaged man could be found competent to stand trial, and then competent to be executed, still defies belief. Once the courts had washed their hands of his fate, the politics of the death penalty ensured the execution of this African American man sentenced to death by an all-white jury for killing a white police officer in Arkansas in 1981.

Ricky Rector had shot himself in the head prior to his arrest. The bullet wound and subsequent surgery resulted in the loss of a large section of the front of his brain. As his execution approached, the death watch log maintained by prison personnel at the Cummins Unit in Varner revealed an inmate displaying clear signs that he was seriously mentally disabled. The log’s entry for 21 January 1992, for example, described Ricky Rector as "dancing in his cell.... Howling and barking while sitting on his bunk.... Walking back and forth in the Quiet Cell snapping his fingers on his right hand and began noises with his voice like a dog." Whether or not to proceed with his execution, a journalist later wrote, "became a test in Arkansas of the lengths to which a society would pursue the old urge to expiate one killing by performing another – and a test of the state’s highest temporal authority, the governor, who alone could stop it."(7)

The Arkansas governor, who at the time was seeking the highest office in the country, chose not to stop it. Breaking off from presidential campaigning, Governor Bill Clinton flew back from New Hampshire for Ricky Ray Rector’s execution. This calculated killing, when it came on 24 January 1992, had a final outrage in store. The execution team had to search for 50 minutes to find a suitable vein in which to insert the lethal injection needle. Rector, apparently not comprehending what was happening to him, helped them in their macabre task. Earlier, as was his daily habit, he had left the slice of pecan pie from his final meal "for later". And shortly before that, catching a glimpse of Governor Clinton on the television news, Ricky Rector told one of his lawyers, "I’m gonna vote for him for President".

Some people did get access to come into my brain against every law and make odvious scrabble word games and show me horrible gouls lunging at my face like every dam second of every dam day and knight now for 2 years…It’s torture. I can’t sleep hallucinating with all of these voices I hear. Medical help needed right away!
Thomas Provenzano, grievance form, 1 August 1995, death row Florida. Thomas Provenzano was executed in 2000. [Spelling as in original.]

In 1999, US Supreme Court Justice Anthony Kennedy wrote: “It must be remembered that for the person with severe mental illness who has no treatment the most dreaded of confinements can be the imprisonment inflicted by his own mind, which shuts reality out and subjects him to the torment of voices and images beyond out own powers to describe”. Olmstead v. L.C., 527 U.S. 581 (1999).

On 14 August 2000, President Clinton, approaching the end of his term in office, described his country as "the leading force for human rights in the world" and one that was "more decent, more humane" than it had been eight years earlier.(8) He made his claim in the same month that 10 more people died in his country’s death chambers, including at least four who had serious mental impairments,(9) and only a matter of weeks after an execution that echoed that of Ricky Ray Rector in 1992. This time it was Thomas Provenzano, a prisoner with a long history of mental illness, who was put to death in Florida. A judge ruled him competent for execution despite finding "clear and convincing evidence that Provenzano has a delusional belief that the real reason he is being executed is because he is Jesus Christ". On 20 June 2000, Thomas Provenzano was strapped to a gurney and had the lethal injection needles inserted in his arms. Eleven minutes before he was due to be killed, a federal court issued a stay of execution. The needles were withdrawn and he was taken back to his cell. A few hours later, the court lifted the stay, without comment, and Thomas Provenzano was put through the same procedure again. This time he was killed.

Terminology used in this report
Terminology used in discussing mental health is subject to wide variation both nationally and internationally. The most widely recognized sources of medical definitions in mental health are the Diagnostic and Statistical Manual of the American Psychiatric Association, Fourth Edition (DSM-IV) and the International Classification of Diseases, of the World Health Organization Edition of the World Health Organization (ICD-10).(10) These definitions can be technical and very detailed. Key concepts used in this report are defined below. Simplified explanations of particular mental disorders are given on pp.18-19.

Mental disorder: This term encompasses all types of problem with mental function including mental illness, arrested or incomplete development of mind (known as mental retardation), psychopathic disorder and any other disorder or disability of the mind.

Mental illness: This term refers to disorders of thought, mood or behaviour. They are unrelated to intelligence and many can be treated effectively. Examples include depression, anxiety, and psychosis.
Mental retardation: This refers to arrested or incomplete development of intellectual capacity. It starts in childhood and is irreversible. It is not curable, though education and training can improve the life skills of many of those with this disability.

Insanity: The definition of insanity is a legal rather than medical concept. The first concept of insanity was drawn from English common law (the M’Naghten Rule) and stated that accused persons were absolved of criminal responsibility if they were incapable of understanding their action or its wrongfulness. A finding of insanity could lead to acquittal on these grounds. More recently the concept of "volition" – the capacity of the person to ensure that their behaviour conforms to the law – was introduced in US jurisprudence. A person unable to conform to legal requirements may be ruled to have a diminished level of responsibility.

Competence: Like insanity, competence is a legal, rather than medical, term. In the USA and many countries, an accused or convicted person must have a capacity to understand the legal process they face and the possible consequences of that process in order to be liable to trial or punishment. Competence must be demonstrated to proceed with a trial, with sentencing the prisoner or with carrying out an execution.

President Clinton’s successor arrived in the White House with his record on the death penalty well known. George W. Bush’s five years as governor of Texas had seen 152 executions in that state, one in five of all executions nationwide in the previous quarter of a century. However, with national concern about the fairness and reliability of the capital justice system on the increase, a small sign that the death penalty was perhaps no longer the unadulterated vote-winner in the USA that it had been perceived to be in 1992 was that during the 2000 presidential campaign, Governor Bush was placed on the defensive about his support for executions. Campaigning in Iowa in January 2000, for example, Governor Bush came under pressure to stop the execution of Larry Robison, a man with paranoid schizophrenia who had been denied appropriate mental health care before his crime. The Dallas Morning News wrote that the governor "has a responsibility to step away from the campaign trail" to oppose Larry Robison’s killing, adding that "executing a criminal who suffered from mental illness before he murdered and who lacked the resources for psychiatric care serves no public purpose".(11) The grassroots advocacy organization, the National Alliance for the Mentally Ill (now NAMI), appealed to the Governor not to "compound the tragedy of [Robison’s] crimes and the failures of the mental health system with the cruelty of a criminal justice system that lacks compassion", a veiled reference to the governor’s campaigning platform of "compassionate conservatism". In the event, conservatism rather than compassion won the day, and the governor refused to intervene. His spokesman said that the governor had supported increased funding for mental health services in Texas, and was not responsible for any inadequacy in treatment afforded to Larry Robison years earlier.

In addition to the obvious suffering due to mental disorders, there exists a hidden burden of stigma and discrimination faced by those with mental disorders. In both low- and high-income countries, stigmatization of people with mental disorders has persisted throughout history, manifested by stereotyping, fear, embarrassment, anger and rejection or avoidance. Violations of basic human rights and freedoms and denial of civil, political, economic, social and cultural rights to those suffering from mental disorders are a common occurrence around the world, both within institutions and in the community. Physical, sexual and psychological abuse is an everyday experience for many with mental disorders. In addition, they face unfair denial of employment opportunities and discrimination in access to services, health insurance and housing policies.
World Health Organization, 2005 (WHO Resource Book on Mental Health, Human Rights and Legislation,)

More than 800 men and women have been put to death in the USA since Ricky Ray Rector was executed in 1992. Dozens of these people had histories of serious mental impairment, either from before the crimes for which they were sentenced to death, or at the time of their execution. Some had mental retardation(12), others suffered from mental illness, and some were diagnosed with both. For some, the diagnosis was of mental disorders caused by appalling childhood abuse, prison violence, or their experiences as soldiers sent into combat by their government. For others, mental illness appears to have been inherited. For some of those executed, years on death row had led to mental health problems or exacerbated existing ones. Mentally ill inmates are among the more than 100 people since 1977 to have dropped their appeals and "consented" to their own execution, a death wish made possible by a state all too willing to see freedom of choice for such individuals carried through to its lethal conclusion.

You know, we recognize that we are not perfect people, that we suffer from infirmities of the mind, and that’s all right. What’s important is that all our mistakes are made of the mind and not the heart, and if we can do these things, we can live with them.
White judge to an all-white jury which had just voted for the death penalty for Howard Gooden, a mentally ill African American man, 19 May 1999, Mississippi.

In some cases, there were serious doubts about the defendant’s competence to stand trial – whether they genuinely understood the nature and seriousness of the proceedings against them or had the capacity to assist in their defence. Some had been restored to competency in psychiatric hospitals after their crimes, including with anti-psychotic medication. Doubts existed also in some cases about the defendants’ competence to plead guilty or to waive trial counsel and to represent themselves – indeed, some mentally ill defendants have demanded the death penalty as part of an apparent suicide bid.(13) Some may even have committed murder in order to get a death sentence. In some cases, inadequate legal representation left juries unaware of the existence or extent of the mental impairment of the person they were being asked to sentence to death. In other cases, protecting their mentally ill clients from the death penalty proved an insurmountable challenge for under-resourced defence lawyers. Perhaps the defendant was medicated into a haze of non-cooperation, appearing to the jury as remorselessness – a highly aggravating factor in the life or death decisions of capital jurors. Or perhaps the defendant’s delusional illness rendered them unwilling to divulge information to a lawyer or doctor believed to be part of a conspiracy against them.

For some, a prosecutorial willingness to denigrate evidence of mental disability or even to portray such impairment as a sign of a person’s dangerousness and thus a reason against leniency, may have tipped their punishment towards a death sentence, rather than life imprisonment. In some cases, medical professionals joined in an unethical pact with the state to predict with absolute certainty the future threat posed by a defendant. In numerous instances, society’s decision to kill followed its own failure to heed warnings of a particular individual’s potential for violence and to ensure appropriate remedial assistance or care.

In an Appendix to this report, Amnesty International lists 100 of the men and women executed in the USA since the resumption of judicial killing there in 1977. Each of these individuals had suffered from some form of serious mental disorder other than mental retardation.(14) They represent one in 10 of the USA’s judicial death toll since that date. The list is illustrative only. Many others from among the remaining over 900 executed prisoners have raised mental health issues, either at trial or on appeal. However, it is not possible to know how many people who had serious mental impairments are on death row or have been executed. Defence lawyers may not have recognized that their clients had mental problems. Many inmates have not had thorough mental health examination because of lack of funds to allow such assessments.

The US Supreme Court halted executions in 1972, in Furman v. Georgia.(15) However, only two of the Justices found that the death penalty violated the US Constitution per se, in all cases violating the Eighth Amendment’s ban on "cruel and unusual punishments". The other three Justices who concurred in the judgment found only that it was unconstitutional in the arbitrary way in which it was being applied. Rather than lead their jurisdictions towards abolition, state legislators set about rewriting their capital statutes to take account of the Furman decision. In Gregg v. Georgia on 2 July 1976, having examined such statutes, the US Supreme Court accepted that the problem of arbitrariness could be fixed by a system under which the judge or jury would be provided "adequate information and guidance", preferably at a sentencing hearing separate from the guilt/innocence stage of the trial. It stated that the application of the punishment must be compatible "with the basic concept of human dignity at the core of the [Eighth] Amendment" and therefore must serve valid penological purposes, namely deterrence and retribution. It lifted the moratorium and executions resumed on 17 January 1977.(16)

The Eighth Amendment was added to the US Constitution in 1791. In 1910, the Supreme Court stated that the Amendment "is progressive and does not prohibit merely the cruel and unusual punishments known in 1689 and 1787, but may acquire wider meaning as public opinion becomes enlightened by humane justice".(17) The Court took up this theme half a century later when it said that the definition of "cruel and unusual punishments" was not permanently fixed, but instead must draw its meaning from "the evolving standards of decency that mark the progress of a maturing society".(18) The Gregg decision essentially took the view that the death penalty must be compatible with contemporary US values because of the number of states that had enacted new capital statutes after the Furman ruling.

Over the years since the Gregg decision, the Supreme Court has provided some constitutional protections for mentally impaired people facing the death penalty, although these protections have either come only recently, or have been somewhat limited in effect. In 1986, in Ford v Wainwright, the Supreme Court ruled that the execution of the insane violates the US Constitution’s Eighth Amendment ban on "cruel and unusual punishments". The Ford majority noted that the Eighth Amendment’s prohibitions "are not limited to those practices condemned by the common law in 1789", but also recognize the "evolving standards of decency that mark the progress of a maturing society". It continued: "In addition to considering the barbarous methods generally outlawed in the 18th century, therefore, this Court takes into account objective evidence of contemporary values before determining whether a particular punishment comports with the fundamental human dignity that the Amendment protects".(19)

However, the Ford majority neither defined competence for execution (although Justice Powell’s suggestion that the test should be whether the prisoner is aware of his or her impending execution and the reason for it has generally been adopted), nor did a majority mandate specific procedures that must be followed by the individual states to determine whether an inmate is legally insane. The result has been different standards in different states, judicial uncertainty, and minimal protection for seriously mentally ill inmates – as demonstrated by what happened to Thomas Provenzano.

Indeed, Thomas Provenzano’s experience was echoed a year later in Ohio. In mid-2001, a seriously mentally ill prisoner, Jay Scott, twice came minutes from execution – once, he had already had catheters inserted in his arms ready for the lethal injection when a court issued a stay. He was eventually put to death on 14 June 2001. Shortly before he was killed, he reportedly told relatives that he was "looking forward to the basketball game", apparently referring to a match to be played the following night. Protesting his colleagues’ refusal to stop the execution, Justice Paul Pfeifer of the state Supreme Court applied the "evolving standards of decency" theory to Ohio’s own constitutional ban on "cruel and unusual punishments":
    "When the Constitution of the United States was ratified, slavery was legal and women could not vote. At various times in our country’s past, states tortured prisoners and performed barbaric executions, including flogging, castration, drowning, pressing, and sawing-in-half. Over the years, our society evolved… When Ohioans consider the countries that still practice slavery, we call them uncivilized; when Ohioans consider the countries that do not permit women to vote, we call them repressive; when Ohioans consider the countries that commit state-sponsored torture, we call them barbaric.

    This court has a chance to take a step towards being a more civilized and humane society. This court could declare that in the interests of protecting human dignity, Section 9, Article I of the Ohio Constitution prohibits the execution of a convict with a severe mental illness. I believe that the ‘evolving standards of decency that mark the progress of’ Ohio call for such a judicial declaration.

    Jay D. Scott is in no other way a sympathetic man. He is a twice-convicted murderer who does not appear to express remorse for his crimes. But I cannot get past one simple irrefutable fact: he has chronic, undifferentiated schizophrenia, a severe mental illness… Executing Jay D. Scott says more about our society than it says about him."(20)

The state killing of people such as Thomas Provenzano and Jay Scott indicate that the Ford ruling is, at best, a minimal standard, and at worst a fig leaf for excusing one of the most indecent aspects of this cruel, inhuman and degrading punishment. In any event, the Ford decision never pretended to exempt those whose serious mental illness was found to fall short of a narrow definition of incompetence for execution. Two decades on, the time has surely come for judicial construction of a broader prohibition and greater protections for the seriously mentally ill in the capital justice process.

Justice Powell stated in his Ford concurrence that "the only question raised" by Alvin Ford’s claim was "not whether, but when, his execution may take place", and noted that "if petitioner is cured of his disease, the State is free to execute him". A reminder of this came in 2003, when the US Court of Appeals for the Eighth Circuit ruled by a narrow majority that Arkansas officials could forcibly medicate mentally ill death row prisoner Charles Singleton even if that made him competent for execution. In October 2003, by refusing to take Singleton’s appeal against this ruling, the US Supreme Court allowed it to stand and the State of Arkansas to set an execution date. Charles Singleton was put to death on 6 January 2004.

A landmark decision in June 2002 finally outlawed the death penalty for people with mental retardation. In Atkins v. Virginia, the Supreme Court held by six votes to three that the execution of such offenders is an excessive sanction, violating the Eighth Amendment ban on "cruel and unusual punishments".(21) The Court reasoned that mental retardation diminishes personal culpability, and renders the death penalty in the case of this category of offenders difficult to justify on deterrence and retribution grounds. The Atkins ruling overturned a 1989 decision, Penry v. Lynaugh, by finding that "standards of decency" in the USA had evolved in the intervening years to the point at which a "national consensus" had emerged against such executions – primarily reflected in state-level legislation banning the execution of the mentally retarded. From an international human rights perspective, an encouraging footnote attached to the Atkins opinion acknowledged that "within the world community, the imposition of the death penalty for crimes committed by mentally retarded offenders is overwhelmingly disapproved."

On 1 March 2005, the US Supreme Court removed another category of defendant from the reach of the death penalty, namely children. In Roper v. Simmons, a majority of five Justices to four brought the USA into compliance with "the overwhelming weight of international opinion against the juvenile death penalty".(22) The Court "affirmed the necessity of referring to the evolving standards of decency that mark the progress of a maturing society to determine which punishments are so disproportionate as to be cruel and unusual". In finding that the death penalty against offenders who were under 18 years old at the time of the crime was indeed excessive, the Roper majority quoted the Atkins decision: "Capital punishment must be limited to those offenders who commit a narrow category of the most serious crimes and whose extreme culpability makes them the most deserving of execution".

The Atkins and Roper decisions cannot but leave a question mark over another category of offender, namely the mentally ill. If the diminished culpability associated with youth and mental retardation render the death penalty an excessive punishment when used against offenders from those categories, what about people suffering from serious mental disorder other than retardation, such as serious brain damage, at the time of the crime? Should they not also be ineligible for execution?

Justice Stevens, writing for the Supreme Court majority in Atkins, concluded that:
    "Mentally retarded persons… have diminished capacities to understand and process information, to communicate, to abstract from mistakes and learn from experience, to engage in logical reasoning, to control impulses, and to understand the reactions of others. There is no evidence that they are more likely to engage in criminal conduct that others, but there is abundant evidence that they often act on impulse rather than pursuant to a premeditated plan…Their deficiencies do not warrant an exemption from criminal sanctions, but they do diminish their personal culpability."
While mental retardation and mental illness are not the same, the analysis given in the Atkins ruling nevertheless could be applied to the latter. For example, a mentally ill person’s delusional beliefs may cause them to engage in illogical reasoning and to act on impulse. A former President of the American Psychiatric Association wrote following the Atkins decision that:
    "… the mentally ill suffer from many of the same limitations that, in Justice Stevens’ words, ‘do not warrant an exemption from criminal sanctions, but they do diminish their personal culpability".(23)
Only a tiny percentage of murders in the USA result in execution. As the lawyer trying to defend Francis Zito from the death penalty in Maryland in 2002 argued, the death penalty is a punishment in the United States that is supposed to be reserved for the "worst of the worst" crimes and offenders. In a decision in 1980, for example, the US Supreme Court overturned a death sentence because the defendant’s murders had not shown "a consciousness materially more ‘depraved’ that that of any person guilty of murder".(24) The Atkins decision picked up on this and stated: "If the culpability of the average murderer is insufficient to justify the most extreme sanction available to the State, the lesser culpability of the mentally retarded offender surely does not merit that form of retribution."

Can someone with a serious mental impairment other than retardation at the time of the crime ever be said to possess the "extreme culpability" assumed by the death penalty? If society’s standards of decency have evolved to prohibit the state-sanctioned killing of child offenders and those with mental retardation, how can that same society still permit the likes of Ricky Ray Rector, Thomas Provenzano and Charles Singleton to be put to death?

Some judges in the USA have already recognized this fundamental inconsistency. In July 2003, for example, Judge Robert Henry on the US Court of Appeals for the 10th Circuit noted the Atkins ruling, and concluded that the imposition of the death penalty against Robert Bryan, a mentally ill Oklahoma death row inmate, "contributes nothing" to the goals of retribution and deterrence. Although Judge Henry was joined by three other judges on the court, it was not enough to stop Robert Bryan going to his execution in June 2004.(25) In similar vein in September 2002, Justice Robert Rucker of the Indiana Supreme Court dissented against the death sentence of Joseph Corcoran, an Indiana inmate suffering from mental illness including schizophrenia. Justice Rucker drew attention to the Atkins decision:
    "I respectfully dissent because I do not believe a sentence of death is appropriate for a person suffering a severe mental illness. Recently the Supreme Court held that the executions of mentally retarded criminals are ‘cruel and unusual punishments’ prohibited by the Eighth Amendment of the United States Constitution. There has been no argument in this case that Corcoran is mentally retarded. However, the underlying rationale for prohibiting executions of the mentally retarded is just as compelling for prohibiting executions of the seriously mentally ill, namely evolving standards of decency".(26)
The United Nations Safeguards Guaranteeing Protection of the Rights of Those Facing the Death Penalty, adopted in 1984 and endorsed by consensus by the UN General Assembly, prohibit the execution of “persons who have become insane”. A resolution adopted in 1989 on the implementation of the Safeguards recommended that UN member states eliminate “the death penalty for persons suffering from mental retardation or extremely limited mental competence, whether at the stage of sentence or execution”. In recent years, the UN Commission on Human Rights has repeatedly adopted resolutions calling for an end to the use of the death penalty against anyone suffering from any form of mental disorder.
    There are, of course, many judges in the USA who have not yet come to this view. For example, in upholding the death sentence against mentally ill inmate John Edward Weik on 3 September 2002, all five Justices on the South Carolina Supreme Court wrote: "while it violates the Eighth Amendment to impose a death sentence on a mentally retarded defendant, the imposition of such a sentence upon a mentally ill person is not disproportionate."(27) In November 2004, two federal judges upheld the death sentence of Indiana death row inmate Arthur Baird, noting that while the US Supreme Court had prohibited the execution of offenders with mental retardation in Atkins, "it has not yet ruled out the execution of persons who kill under an irresistible impulse" brought about by mental illness. The judges acknowledged that "as an original matter, we might think it inappropriate to sentence to death a man as seemingly insane as Baird at the time of the murders. But it is not our judgment to make".(28) Arthur Baird’s death sentence was commuted by Governor Mitch Daniels on 29 August 2005, just two days before Baird was due to be executed. While he based his decision on other factors involved in the case, Governor Daniels’ commutation order referred to court findings that Baird was suffering from mental illness at the time of the crime and noted: "it is difficult to find reasons not to agree" with the findings of an Indiana Supreme Court judge that Baird is "insane in the ordinary sense of the word."

    On the question of young offenders, the Supreme Court majority in Roper v. Simmons wrote that "the overwhelming weight of international opinion against the juvenile death penalty rest[s] in large part on the understanding that the instability and emotional imbalance of young people may often be a factor in the crime". So, too, surely, in the case of people with mental illness. A month after the Atkins ruling, Justice James Zazzali of the New Jersey Supreme Court wrote in the case of death row inmate Leslie Ann Nelson, who according to both defence and prosecution psychiatric testimony is "a seriously disturbed and depressed person who has suffered from serious mental illness throughout her life":
      "The State’s legitimate penological interests that purportedly are served by the death penalty are unconstitutionally diminished if the State executes such a mentally ill and psychologically disturbed person… Executions, our most extreme form of indignation, cannot be carried out on a defendant whose irrationalities were exacerbated at the time of her criminal acts to such an extent as to undermine our confidence that she is fully culpable. If capital punishment is constitutional, it must be reserved for those defendants whose capacities allow them to be fully culpable."(29)
    While the US Supreme Court majority in Atkins v. Virginia had given a nod to international standards, the majority in Roper v. Simmons gave an even firmer one: "It does not lessen fidelity to the Constitution or pride in its origins", they said, "to acknowledge that the express affirmation of certain fundamental rights by other nations and peoples underscores the centrality of those same rights within our heritage of freedom". Just as on the question of child offenders, in repeated resolutions in recent years the United Nations (UN) Commission on Human Rights has called on all countries to desist from using the death penalty against anyone suffering from a mental disorder.

    The USA should also end the use of the death penalty against anyone. The death penalty per se contravenes evolving international standards of decency, with a clear and growing majority of countries not executing anyone, let alone the mentally ill. In 1998, an Illinois Supreme Court Justice wrote in dissent in the case of a (mentally impaired) death row prisoner:
      "My colleagues turn aside defendant’s constitutional challenge with the observation that the American criminal justice system is one of the best in the world. The sentiment has a pleasant and reassuring tone, but it overlooks an important fact. The supposedly ‘inferior’ justice systems of other nations are abandoning capital punishment at an unprecedented rate."(30)
    In the seven years since Justice Harrison’s dissent, over 20 more countries have abolished the death penalty, bringing to 121 the number of countries which have abandoned this punishment in law or practice.(31) In those same six years, the USA has executed more than 500 prisoners, dozens of whom had serious mental impairments.

    Amnesty International opposes all executions, regardless of the nature of the crime, the characteristics of the offender, or the method used by the state to kill the prisoner. While this report is about people with mental illness facing the death penalty, their cases also illustrate the wider flaws of an outdated punishment. The state’s attempt to select the "worst of the worst" crimes and offenders out of the thousands of murders committed each year inevitably leads to inconsistencies and errors, inescapable flaws which are exacerbated by discrimination, prosecutorial misconduct and inadequate legal representation.

    In the cases of offenders with claims of mental retardation or mental illness, their fellow human beings will in the end be called upon to make subjective life-or-death decisions about which of these defendants or inmates should be included in these categories and which should not. In the 1986 Ford v. Wainwright decision, four US Supreme Court Justices acknowledged that although "the stakes are high", the evidence of whether a prisoner is incompetent for execution "will always be imprecise". A fifth Justice added that "unlike issues of historical fact, the question of [a] petitioner’s sanity calls for a basically subjective judgment." In a recent decision, in April 2005, the US Court of Appeals for the Fourth Circuit reiterated this when it said "undoubtedly, determining whether a person is competent to be executed is not an exact science".(32) In other words, there will always be errors and inconsistencies on the margins. Arbitrariness in the application of the death penalty is abhorrent as well as unlawful. In the end, there is only one solution – abolition.

    To oppose the death penalty is not to excuse or minimize the consequences of violent crime, whether it is committed by mentally impaired offenders or anyone else. If it were, then a majority of countries are currently apologists for violent crime, clearly a nonsensical suggestion. Instead, to end the death penalty is to recognize that it is a destructive, diversionary and divisive public policy that is not consistent with widely held values. It not only runs the risk of irrevocable error, it is also costly – to the public purse, as well as in social and psychological terms. It has not been shown to have a special deterrent effect. It tends to be applied discriminatorily on grounds of race and class. It denies the possibility of reconciliation and rehabilitation. It promotes simplistic responses to complex human problems, rather than pursuing explanations that could inform positive strategies. It prolongs the suffering of the murder victim’s family, and extends that suffering to the loved ones of the condemned prisoner. It diverts resources that could be better used to work against violent crime and assist those affected by it. It is a symptom of a culture of violence, not a solution to it. It is an affront to human dignity. It should be abolished.

    "Our Government", wrote a US Supreme Court Justice in 1928, "is the potent, the omni-present teacher. For good of for ill, it teaches the whole of our people by its example".(33) By its use of the death penalty, in the end, the state is peddling what amounts to a delusional theory: namely that by killing a selection of those it convicts of murder, it can offer a constructive solution to violent crime. In reality, the state is taking to refined, calculated heights what it seeks to condemn – the deliberate taking of human life. As French writer Albert Camus asked, what is capital punishment but the most premeditated of murders, to which no criminal act, however calculated it may be, can be compared? For there to be equivalence, the death penalty would have to punish criminals who had warned their victims of the date at which they would be killed and who, from that moment onward, had been confined at the captor’s mercy for years. "Such a monster", Camus suggested, "is not encountered in private life."(34)

    In 1972, US Supreme Court Justice William Brennan put it another way: "The calculated killing of a human being by the State involves, by its very nature, a denial of the executed person’s humanity… In comparison to all other punishments today, then, the deliberate extinguishment of human life by the State is uniquely degrading to human dignity."(35) In the 1995 decision outlawing the death penalty in South Africa, Justice Mahomed on that country’s highest court built on Justice Brennan’s conclusion: "It is not necessarily only the dignity of the person to be executed which is invaded. Very arguably the dignity of all of us, in a caring civilization, must be compromised, by the act of repeating, systematically and deliberately, albeit for a wholly different objective, what we find so repugnant in the conduct of the offender in the first place."(36)

    For the USA to be pursuing this premeditated ritualistic killing in the 21st century against offenders suffering from serious mental illness is particularly offensive to widely held standards of decency.

    Background information and scope of this report
    The stark realities are that many death row inmates were afflicted with serious mental impairments before they committed their crimes and that many more develop such impairments during the excruciating interval between sentencing and execution.
    US Supreme Court Justice, 24 June 1991(37)
    From the outset of a capital case, the mental condition of the defendant may have a bearing on the case. For example, the defendant’s mental state at the time of the crime may be reflected in the plea he or she enters in the trial court, such as "not guilty by reason of insanity".

    The modern legal definition of insanity derived from the 1843 English M’Naghten case.(38) Under this rule, the defendant is "insane", and therefore absolved from criminal responsibility, if, as a result of mental impairment, he or she did not know at the time of the otherwise criminal act that the act was wrong. This defence was subsequently broadened in the USA to include a "volitional" clause, exonerating defendants from criminal responsibility if they lacked the capacity to control their conduct to the requirement of the law.

    This relaxation of the insanity defence led to a backlash, particularly after the 1982 case of John Hinckley, who was sent to mental hospital after being found not guilty by reason of insanity for his attempted assassination of President Ronald Reagan. Several states and the federal government amended their insanity laws – such as by dropping the volitional criterion to make it a harder verdict to achieve – or even abolished the defence entirely. Indeed, the defence is successful in only a minority of cases. In 2002, a veteran California prosecutor suggested that "you can be crazy as a loon, but that does not mean you’re legally insane".(39) Contrary to what some prosecutors have hinted to jurors, a successful insanity plea does not mean release from detention, but involuntary commitment to a psychiatric facility.

    National attention was drawn to the insanity defence in 2002 by the case of Andrea Yates, against whom Texas prosecutors were seeking a death sentence for drowning her five young children. There was compelling evidence that she had been suffering from severe mental illness, namely undiagnosed schizophrenia and post-partum depression. The jury rejected the insanity defence, however, a decision that was inconsistent with current scientific knowledge relating to post-partum psychosis.(40) Debate about the issue continued after another Texas jury in 2004 found Deanna Laney not guilty by reason of insanity for killing two of her children.

    In the 1970s and 80s, some US states created a new verdict between "not guilty by reason of insanity" and "guilty", namely "guilty but mentally ill". In theory, defendants found guilty but mentally ill were supposed to be guaranteed mental health care during their incarceration. However this has largely proved illusory and the "guilty but mentally ill" verdict has been widely criticized. It appears to have been a legislative response aimed at assuaging public outrage following particular high-profile cases, rather than a more preventive and treatment approach to people with mental illness who commit serious crimes.(41)

    Evidence relating to the mental health of the defendant may also be introduced in mitigation against a death sentence. In the USA, death penalty trials are split into two stages. First there is the guilt/innocence phase. If the defendant is found guilty of the capital charge, the trial will move into a sentencing phase. At this second stage of the trial, the defence can present any mitigating evidence in an attempt to persuade the jury to vote for life rather than death, while the prosecution will make the case for execution by presenting the "aggravating" factors relating to the crime and offender.

    Aside from the defence plea and the mitigating evidence, the question of an individual’s mental "competence" may also be raised at any one of a number of points in the capital process, including:
    o Competence to waive interrogation rights, e.g. the right to a lawyer or to remain silent
    o Competence to stand trial
    o Competence to waive their right to counsel and to act as their own lawyer
    o Competence to plead guilty
    o Competence to drop appeals against conviction and death sentence
    o Competence to be executed

    These issues will be illustrated with cases later in the report, showing that the procedures used to assess "competence" have frequently failed to protect people suffering from serious mental illness.

    ● Mental illnesses cannot be overcome through “will power” and are not related to a person’s “character” or intelligence.

    ● Mental disorders fall along a continuum of severity. The most serious and disabling conditions affect five to 10 million adults (2.6 – 5.4%) and three to five million children ages five to 17 (5 – 9%) in the USA.

    ● Without treatment the consequences of mental illness for the individual and society are staggering: unnecessary disability, unemployment, substance abuse, homelessness, inappropriate incarceration, suicide and wasted lives; The economic cost of untreated mental illness is more than 100 billion dollars each year in the United States.

    ● The best treatments for serious mental illnesses today are highly effective; between 70 and 90 percent of individuals have significant reduction of symptoms and improved quality of life with a combination of pharmacological and psychosocial treatments and supports;

    ● Stigma erodes confidence that mental disorders are real, treatable health conditions. We have allowed stigma and a now unwarranted sense of hopelessness to erect attitudinal, structural and financial barriers to effective treatment and recovery.

    From: About mental illness. www.nami.org


    In the June 2002 Atkins decision prohibiting the execution of people with mental retardation, the US Supreme Court noted that "[n]ot all people who claim to be mentally retarded will be so impaired as to fall within the range of mentally retarded offenders about whom there is a national consensus". As in the Ford v. Wainwright decision in 1986 ruling that it is unconstitutional to execute prisoners who have become incompetent for execution, the Court left it up to the individual states to decide how to comply with the decision.(42) While the Ford ruling – as will be shown below – has offered minimal protection for people with serious mental illness at the time of their execution and needs to be revisited by the Court as a matter of urgency, the extent of the protection provided by the Atkins decision remains to be seen.(43) This matter is beyond the scope of this current report.

    Neither does this report attempt to answer the complex question of precisely which defendants should be exempt from the death penalty on the grounds of mental illness at the time of the crime. At the time of writing, US experts on mental health and law, led by a Task Force of the American Bar Association Section of Individual Rights and Responsibilities (ABA-IRR), were continuing to discuss this matter with the aim of achieving common agreement amongst legal and mental health professionals and advocates as to precisely what the term "mental illness" should mean when seeking to extend the "Atkins" protection to people with mental illness.(44) Obviously, mental illness can incorporate a wide range of conditions, some more serious than others. In addition, mental illness is not necessarily present all of the time in a sufferer, whether because of treatment or remission. Mental retardation on the other hand is a permanent developmental disability.(45)

    Nevertheless, it may be helpful to the reader to have a brief description of the mental illnesses that are most frequently mentioned in this report. This information is adapted from that provided by NAMI, a grassroots advocacy organization in the USA (formerly known as the National Alliance for the Mentally Ill). This and further information can be accessed at www.nami.org. Information can also be accessed on the website of the National Institute of Mental Health, at www.nimh.nih.gov.

    Schizophrenia. Schizophrenia is a serious brain disorder that affects approximately 2.2 million adults in the USA. It interferes with a person’s ability to think clearly, to distinguish reality from fantasy, to manage emotions, to make decisions and to relate to others. The first signs of schizophrenia typically emerge in the teenage years or early 20s. Most people with schizophrenia suffer chronically or episodically throughout their lives, and are often stigmatized by a lack of public understanding about the disease. A person with schizophrenia does not have a "split personality", and almost all people with schizophrenia are not dangerous or violent towards others when they are receiving treatment. The World Health Organization has identified schizophrenia as one of the 10 most debilitating diseases affecting humans. Symptoms of schizophrenia include hallucinations – hearing voices when no one has spoken or seeing things that are not there – and delusions such as believing that people are reading their mind, controlling their thoughts or plotting against them.
      • Bipolar disorder. Bipolar disorder, or manic depressive illness, is a serious brain disorder that causes extreme shifts in mood, energy, and functioning. It affects 2.3 million adults in the USA, and is characterized by episodes of mania and depression that can last from days to months. It can run in families. Bipolar disorder is a chronic and generally lifelong condition with recurring episodes that often begin in adolescence or early adulthood, and occasionally even in children. It generally requires lifelong treatment, and recovery between episodes is often poor.
      • Major depression. Major depression is a serious medical illness affecting nearly 10 million people in the USA in any given year. It causes lowering of mood, reduction of energy, and tiredness. Left untreated, depression may lead to suicide.
      • Schizoaffective disorder. This illness is characterized by a combination of symptoms of schizophrenia and an affective (mood) disorder. Today, most clinicians and researchers agree that it is primarily a form of schizophrenia. For a diagnosis of schizoaffective disorder, a person must have primary symptoms of schizophrenia (such as delusions, hallucinations or disorganized speech or behaviour) as well as prolonged symptoms of major depression or a manic episode.
      • Dissociative disorders. These are so called because they are marked by a loss of the normal integration between memories of the past, awareness of identity and immediate sensations, and control of bodily movements. There are many forms, the best known of which is dissociative identity disorder (formerly known as multiple personality disorder) where an individual has one or more distinct identities or personalities that surface on a recurring basis. All of the dissociative disorders are thought to stem from trauma experienced by the sufferer.
      • Post traumatic stress disorder (PTSD). PTSD is an anxiety disorder that can occur after someone experiences a traumatic event that caused intense fear, helplessness, or horror. The traumatic events can include war, childhood abuse, rape, natural disasters, accidents and captivity. Symptoms include re-experiencing (e.g. nightmares, flashbacks, hallucinations); avoidance (e.g. lack of recall of the traumatic event, limited range of emotion, feelings of detachment from others, feelings of hopelessness about the future); and increased arousal (e.g. inability to sleep, irritability, outbursts of anger, inability to concentrate, watchfulness, jumpiness).
      • Brain damage. Also of relevance to this report is the issue of serious brain damage that may be equivalent to mental retardation, but which would not be defined as such because it occurred not as a lifelong developmental disability, but as the result of an accident or other traumatic event.(46)
      • Organic brain syndrome (also known as organic mental disorder, chronic organic brain syndrome). Organic brain syndrome is a general term referring to physical disorders of the brain arising from disease or trauma that cause decreased mental function such as problems with attention, concentration and memory, confusion, anxiety and depression.(47)
    There are currently around 3,400 people on death row in the USA. It is not known how many of them suffer from mental disorders of the sort listed above. The National Mental Health Association has estimated that five to 10 per cent of the US death row population have serious mental illness.(48) This would be consistent, for example, with a recent study which investigated 2,005 people convicted of homicide in Sweden over a 14-year period. The researchers believe that it is the largest study to date of mental disorders in homicide offenders. It found that one in five suffered from a psychotic illness. Specifically, 8.9 per cent of the individuals had been diagnosed with schizophrenia, 2.5 per cent with bipolar disorder, and 6.5 per cent with other psychotic disorders. The study pointed out that the homicide rate in Sweden was about three times lower than in the USA and suggested that "in countries with more liberal gun laws, the proportion of mentally disordered homicide offenders may be different". The study pointed out that earlier research in the United Kingdom and Finland had each found that six per cent of homicide offenders suffered from schizophrenia. (49)

    In any event, the primary purpose of this report is to illustrate that people with serious mental illness continue to be sentenced to death and executed in the United States of America, that existing safeguards are clearly inadequate to prevent this from happening, and that there is a profound inconsistency in exempting people with mental retardation from the death penalty while those with serious mental illness remain exposed to it.

    Amnesty International is an abolitionist organization which campaigns to end the death penalty in all cases everywhere. While pursuing this aim, which may take many decades in some countries, it also seeks to narrow the scope of capital punishment, in line with international standards, and to promote moratoriums on executions. Therefore, as it did previously on the issue of child offenders and those with mental retardation, Amnesty International will join with others seeking to protect people with mental illness from the death penalty in the USA. It recognizes that some individuals or organizations may support such an exemption from the less-than-abolitionist position that the death penalty is acceptable as long as it is more narrowly and reliably applied. Indeed, some may even see a narrower death penalty as easier to defend against the abolitionist tide. For its part, Amnesty International supports narrowing the scope of the death penalty insofar as it represents progress towards abolition. Thus, even while it supports such measures, the organization will continue to seek to persuade all proponents of the death penalty, whether they are politicians, prosecutors, or members of the public, to change their minds and drop their support for any judicial killing at all.

    Reality check 1 – Existing protections are clearly not enough
    He did a terrible thing, but he was sick. Where is the compassion? Is this the best our society can do?
    Yvonne Panetti, mother of Scott Panetti, Texas death row inmate, 2003(50)
    Pro-death penalty officials, whether they be prosecutors, legislators, governors or judges, may claim that existing safeguards in US federal and state law protect the seriously mentally impaired from execution. For example, in August 2000, the then Attorney General of Texas, the state which accounts for a third of all executions in the USA since 1977, claimed that the Texas justice system "offers no less than five separate procedural protections for capital murder defendants who may have any form of mental incapacity". He said the "five-layered system of safeguards ensur[ing] due process for all mentally impaired defendants" consists of the following protections:
      • No person may be put to trial unless he is mentally competent to understand the charges against him and to assist his attorneys at trial;
      • No person may be convicted of a crime unless the state proves beyond a reasonable doubt to the jury that the defendant intended to commit the criminal act;
      • It is a defense to prosecution for a crime if a defendant shows he was mentally unable to know that his conduct was wrong;
      • In the punishment phase of a capital murder case, a defendant may present to the jury any and all evidence of mental impairment in mitigation against a death sentence;
      • A death row inmate cannot actually be executed unless he is mentally competent, which means that he understands that he is going to be executed and the reasons why.(51)
    Do the Attorney General’s assurances remain credible when set against the reality on the ground? A case in point is that of Scott Panetti, who was sentenced to death in Texas in 1995 for killing his parents-in-law in 1992. He has a long history of mental illness, including schizophrenia. He was hospitalized more than a dozen times in numerous facilities before the crime, which he claimed was committed under the control of an auditory hallucination. He also claimed that divine intervention had meant that his victims did not suffer, and that demons had been laughing at him as he left the scene of the crime.

    In July 1994, a hearing to determine if he was competent to stand trial was declared a mistrial when a jury could not reach a verdict. Two months later a second hearing was held. His lawyer testified that in the previous two years, he had had no useful communication with Scott Panetti because of his delusional thinking. A psychiatrist for the defence concluded that Panetti was not competent to stand trial. A psychiatrist who testified for the prosecution agreed with the previous diagnoses of schizophrenia, and that Scott Panetti’s delusional thinking could interfere with his communications with his legal counsel, particularly under situations of stress as in a courtroom. However, he concluded that the defendant was competent to stand trial. The jury agreed.

    Scott Panetti then waived his right to counsel, and the case went to trial in September 1995 with the defendant acting as his own lawyer. He pleaded not guilty by reason of insanity (at the time of the crime), a notoriously difficult plea on which to be successful, even for an experienced trial lawyer. Scott Panetti dressed as a cowboy during the proceedings, and gave a rambling presentation in his defence. Numerous people who attended the trial as witnesses have variously described the trial as a "farce", a "joke", a "circus", and a "mockery". In post-conviction affidavits they concluded, from their prior knowledge of Panetti and their observations of him during the proceedings, that he was incompetent to stand trial. For example, a doctor who had previously treated Scott Panetti for schizophrenia in 1986 concluded that Panetti was "acting out a role of an attorney as a facet of his mental illness, not a rational decision to represent himself". An attorney called by Scott Panetti as a witness later stated: "The courtroom had the atmosphere of a circus. The judge just seemed to let Scott run free with his irrational questions and courtroom antics."

    Another lawyer, who was appointed as Panetti’s stand-by counsel, wrote in an affidavit: "This was not a case for the death penalty. Scott’s life history and long term mental problems made an excellent case for mitigating evidence. Scott did not present any mitigating evidence because he could not understand the proceeding". He recalled that "His trial was truly a judicial farce, and a mockery of self-representation. It should never have been allowed to happen." The lawyer said that he spoke to two jurors who "told me that Scott probably would not have received the death penalty if the case had been handled differently". Another lawyer spoke to two other jurors. They "said that if Scott had been represented by attorneys that he would not have received the death penalty". One of them said that the jurors had voted for death out of their fear of his irrational behaviour at the trial.

    Another witness at the trial, a reporter familiar with courtroom procedures, has recalled: "I watched as Scott questioned some of the jurors. The jurors would look scared." One of the doctors who was at the trial has said: "In my opinion, Scott’s mental illness had an effect on the jury that was visible. It was obvious from the appearance of the jury that Scott antagonized them by his verbal rambling and antics. Scott was completely unaware of the effect of his words and actions. Members of the jury had hostile stares and looked at Scott in disbelief while he rambled and made no sense."

    A psychiatrist who evaluated Scott Panetti in 1997 concluded that he suffers from schizoaffective disorder, a combination of schizophrenia and bipolar disorder. This expert added that Panetti’s decision to waive his own counsel was under the influence of persecutory delusions, and his ability to represent himself in court was substantially impaired by disturbances in his thought processes". The psychiatrist further concluded that Panetti had not been competent to stand trial.

    However, the state successfully continued to defend the death sentence on appeal. In 2002, the US Court of Appeals for the Fifth Circuit wrote: "During trial, Panetti proceeded while dressed in a cowboy suit, gave the appearance of hallucinating, and carried on rambling dialogues. He did, however, formulate a trial strategy, improved his performance over time, and was able to effectively examine and cross-examine witnesses". In its subsequent brief to the US Supreme Court in 2003, the Texas Attorney General’s Office argued that "Panetti’s apparent inability to consult with his court appointed attorney was the result of his conscious choice not to cooperate rather than a by-product of his mental illness". On 1 December 2003, the Supreme Court announced that it was refusing to consider the case.

    The state set a date for Scott Panetti’s execution of 5 February 2004. The Texas Board of Pardons and Paroles rejected clemency by 15 votes to one. Then, on the eve of the execution, a federal judge issued a stay of execution in order that Panetti’s competency for execution could be determined.

    At state-level, two court-appointed mental health experts concluded that Scott Panetti knew that he was to be executed, and had the ability to understand why. The defence objected to their methods and conclusions and sought funds to do their own investigation and requested that the state court hold an evidentiary hearing. Their efforts were unsuccessful; on 26 May 2004, the state court concluded that Scott Panetti had "failed to show by a preponderance of the evidence that he is incompetent to be executed". His lawyers appealed to the federal District Court, which granted resources to the defence and ordered a hearing on the competency issue.

    The hearing was held on 7 and 8 September 2004. The defence presented four mental health experts. The state presented the two experts appointed by the state court in the earlier proceedings, and two correctional staff from death row (who, in essence, testified that Panetti appeared to know that he is going to be executed, but they did not know if he understood why).

    The defence experts, including a forensic psychologist who had worked for the Federal Bureau of Prisons for 20 years, testified that Scott Panetti suffers from either schizophrenia or schizoaffective disorder. They testified that Panetti knows that he is on death row, and that he is to be executed. However, they had also concluded that Panetti believes that the official reason for his execution is "a sham" and that the real reason is to stop him from preaching the gospel. Far from being grounded in reality, they said, Scott Panetti’s delusional and grandiose belief is that his execution is part of a conspiracy against him, involving "the forces of evil, demons, and devils". The experts testified that they did not believe that Scott Panetti was faking his illness, and also noted that his condition had worsened on death row because he had stopped taking his medication after he had a "revelation" in April 1995.

    For the prosecution, the two state court-appointed experts testified that Panetti had refused to co-operate with their evaluation because they would not answer questions about their religious preferences, although they acknowledged that he had told them that he believed he was to be executed to stop him from preaching. The psychiatrist admitted that Scott Panetti had "serious psychological problems", but that simply because Panetti "is preoccupied with religion and may even, at some level, genuinely believe that he is being executed for preaching the gospel" did not "render him incapable of understanding why the authorities have ordered his execution". He and the other state expert said that Panetti was capable of understanding why he was going to be executed, but admitted that they did not know if he actually did understand.

    On 29 September 2004, the federal judge ruled that because Scott Panetti "knows he has committed two murders, he knows he is to be executed, and he knows the reason the State has given for his execution is his commission of those murders, he is competent to be executed".(52) The defence appealed, and the federal judge, clearly of the opinion that the standard for competency for execution is a minimal standard and the law on the issue "less than clear", granted leave to appeal to the US Court of Appeals for the Fifth Circuit. In their opening brief, Scott Panetti’s lawyers wrote:
      "Mr Panetti holds a Kafkaesque belief that the State of Texas, in league with demonic forces, wants to execute him to prevent him from preaching God’s word. His belief is genuine. His belief is not grounded in reality. His belief is the product of his delusions brought on by severe mental illness… Although he appears to have a factual awareness of the State’s professed reason for his impending execution, the nature of his mental illness causes him to misperceive the logical connection between his murder of his parents-in-law and his penalty of death. He does not have a rational understanding of the reason for his execution."(53)

    At the time of writing, the case was still in the Fifth Circuit. Previous cases raised doubts that the outcome would be a just one.

    Reality check 2 – Insane in most people’s books yet executed
    [A]ll of his understanding about his legal situation was delusional: in his view, and he truly believed this, his only ‘offense’ was knowing the mafia’s secrets, and his punishment, which was death, was being exacted by the mafia to keep him from telling their secrets.
    Former Chief Psychiatrist, Texas death row, on Harold Barnard(54)
    The Texas Department of Criminal Justice records Harold Barnard’s final statement before being executed on 2 February 1994 as ending in "a couple of sentences garbled". What Harold Barnard was trying to say before the state killed him will never be known. Perhaps there was some reference to the "Japanese Duck Mafia", the people he had long believed were going to kill him. In any event, what is clear is that the system failed to heed overwhelming evidence that he was insane and stop his execution. It is staggering that, more than a decade later, the problem has still not been addressed. People as ill as Harold Barnard can be, and have been, executed in the USA.

    Harold Barnard was sentenced to death in 1981 for the killing the previous year of 16-year-old Tuan Nguyen during the robbery of a convenience store in Galveston, Texas. At the sentencing his defence lawyers presented some evidence about his troubled childhood and the large amount of alcohol and drugs he had consumed shortly before the crime. The jury also heard that, several months before the murder, Harold Barnard had been beaten on the head with a tyre lever by his son-in-law. He had sustained severe head injuries which apparently went largely untreated. His mother testified how his personality and ability to function changed after this incident. For example, he had been a successful carpenter, roofer and construction worker prior to the injury, but was unable to work after it. However, the defence did not present any expert testimony relating to possible brain damage or psychological disorder, including incipient schizophrenia.(55)

    On death row, Harold Barnard’s serious mental illness became more and more pronounced. By the time his execution date was set in early 1994, all the mental health professionals, including prison doctors, who had examined, diagnosed and treated him over the years were in agreement – he could not understand the reason for or reality of his execution, rendering his execution unlawful under Ford v. Wainwright. However, one doctor, after having conducted a brief interview with Barnard, testified that he was competent for execution. The fact that Harold Barnard was executed, in effect, on the opinion of a single doctor in the face of overwhelming expert opinion to the contrary speaks volumes of the state’s willingness to kill on the basis of unreliable evidence.

    Five different prison doctors, all psychiatrists and psychologists employed by the Texas Department of Corrections (TDC), agreed that Harold Barnard was not competent to be executed. These were not doctors employed by the defence or the prosecution as part of the litigation on Harold Barnard’s case. They were experts who had observed, examined, evaluated and treated Barnard over the course of the previous decade that he had spent on death row. They had come to their respective decisions before the issue had been raised in the courts.
      • Dr Joseph Leggett, one of Harold Barnard’s former treating psychiatrists, testified that Barnard was "a severely mentally ill man with a fixed, deeply ingrained delusional system. He was very psychotic throughout the time I saw him as my patient. He also experienced auditory hallucinations. He was diagnosed as paranoid schizophrenic. Mr Barnard is not one of those people whose psychosis is periodic or cyclical, coming and going at times. Rather, he was always psychotic…The primary theme in his delusion, which remained constant throughout the time I treated Mr Barnard, was one of conspiracy: that the mafia and its agents were involved in an elaborate conspiratorial plot to have him put to death…because he knew all of their secrets, about the terrible things they were doing…. He had no appreciation or understanding that there was a connection between the crime for which he was convicted and his being on death row. This was because all of his understanding about his legal situation was delusional: in his view, and he truly believed this, his only ‘offense’ was knowing the mafia’s secrets, and his punishment, which was death, was being exacted by the mafia to keep him from telling their secrets… I have no doubt that Mr Barnard’s severe mental disorder is real, and that he is in no way malingering"(56)
      • Dr Yates Morgan, one of Harold Barnard’s former treating psychologists, testified that Barnard was "incapable of having a rational or cogent understanding or appreciation about his legal status or his reason for being on death row. Mr Barnard’s delusional thinking contaminated his entire understanding of the world around him… I cannot imagine that he could appreciate in any way the actual purpose of his punishment… For example, I remember Mr Barnard telling me that the oriental mafia was practicing germ warfare around the perimeter of his cell."(57)
      • Dr Santiago Caberto, who was one of Harold Barnard’s treating psychiatrists at TDC from 1982 to 1991, stated that during his treatment of Barnard, "he was psychotic as evidenced by his formal thought disorder with auditory hallucinations, paranoid delusional system and lack of insight and defective judgment. I firmly believe that he was not able to understand in a rational manner the reason for impending execution".(58)
      • Dr Howard Blevins evaluated Harold Barnard in 1987 on behalf of the Texas Attorney General’s Office. In that evaluation, Barnard had "launched into a rather confusing diatribe in which he mentioned the ‘Mafia’, ‘Japanese hit men’, ‘Three D Ducks’, ‘Italians’, and ‘Greeks’, in which he and his father ‘did not commit any crimes but fought them in self defense’… Mr Barnard reiterated that he had allowed his wife to hypnotize him and that she was able to ‘blank out my memory of the Mafia killings and the memory of hypnosis’." Dr Blevins concluded that Barnard was not legally insane at that time, but predicted that his condition was likely to deteriorate. By 1994, he believed that his prediction had come to pass: "In my professional opinion, the results of the [current] evaluations… appear to be consistent with the results, conclusions and prognosis I rendered in my evaluation of September 21, 1987. At that time I concluded that there was a distinct probability that he could become substantially dysfunctional in his cognitive and reasoning abilities."(59)
      • Dr Windel Dickerson, former chief psychologist for the TDC, concluded that Harold Barnard was incompetent for execution.(60)
    In addition, Harold Barnard’s appeal lawyers hired other experts to assess their client on the question of his competency for execution. They, too, concluded that he was incompetent.
      • Dr Allen Childs, a psychiatrist, reviewed Barnard’s records, interviewed prison guards and inmates and examined Barnard. He concluded that: "Mr Barnard is profoundly psychotic, is unquestionably not feigning this psychosis and is likely to remain in this state of delusion indefinitely. He thoroughly believes the Mafia is behind his impending execution. Mr Barnard does not suspect this to be true, he knows it. His delusional system which dominates his thinking renders him incapable of any rational understanding why he is being put to death."(61)
      • Dr Philip Murphy, a clinical psychologist, reviewed Harold Barnard’s records, interviewed prison mental health personnel, guards and inmates and examined the prisoner himself. He concluded that "Mr Barnard is presently psychotic, due to a long-standing schizophrenic illness. This illness is marked especially by a bizarre delusional system whereby a plot by an ‘oriental’ arm of the Mafia was going to assassinate him… Mr Barnard believes, based on his delusional psychosis, that he is to be executed by members of the mafia (or ‘Japanese Duck Mafia’, or the ‘Cosa Nostra’, or the Gambino crime family, etc.) as a vendetta against him and his family".(62)
    Harold Barnard denied that he had any mental illness. For example, he told Dr Childs that the prison personnel were "lying" when they related his bizarre behaviour such as rolling around in the exercise area "shouting at or batting away imaginary persecutors". Dr Childs also revealed that TDC records on Harold Barnard over the years variously diagnosed him as "schizophrenic", "psychotic", or "paranoia delusional". Dr Murphy also stated that the TDC records reflected Harold Barnard’s long-standing history of auditory hallucinations, most commonly of members of the mafia who were trying to have him killed. As early as 1985, a nurse in the Ellis 1 Unit noted that Harold Barnard "states that his food and medicine are poisoned. Wants to make the streets of Houston safe – children being stolen by the mafia – old women being raped by organized crime. Wants the federal marshals called in, so that he can explain what is going on – his life and his family’s lives are endangered by the mafia."

    At an evidentiary hearing in state court in July 1993, a federal magistrate judge for the Western District of Texas, Austin Division, testified on Harold Barnard’s behalf. Prior to becoming a federal magistrate judge in 1992, Judge Alan D. Albright had been Harold Barnard’s former volunteer appellate lawyer. Judge Albright unequivocally stated that, in his opinion, Harold Barnard had no rational understanding of his legal situation. He stated that he and Barnard "did not have an attorney/client relationship that is anything – that is like anything that has been in my experience before. I wasn’t able to go to Harold to get any help on the case. I wasn’t able to explain to him why I was raising the defense I was raising… In fact, during our conversations when I was there [on death row], sometimes he would stop and basically ask me who I was and why I was there." A lawyer, who was involved in challenging Harold Barnard’s competency for execution, wrote to Amnesty International in June 2005:
      "Harold did not believe the young victim he shot actually died. He believed with maniacal certainty that his impending execution was not punishment for his crime, but was simply another of many examples of the omnipresence and malevolence of the Japanese Ducks, controlling the courts, police, all authorities. Harold wrote his schizophrenic mother long letters almost every other day, telling her to buy a gun to protect herself from the Japanese Ducks, and that he would be out of prison and home soon to protect her. When Harold’s attorneys visited him, he frequently spent some time warning them personally to beware of the Ducks, out of what appeared to be a very genuine concern for their own families…

      No one could have observed Harold in the courtroom for his execution competency hearing, with his pyjama-like prison outfit hanging off him and his shackles rattling due to his constant shaking, without perceiving that this gentle, anxious, diminutive man was, at the same time, utterly harmless and mentally destroyed".

    With this extent of evidence, one would imagine that Harold Barnard would have been removed from the reach of the executioner. It was not to be. The state produced one doctor, Dr Edward Gripon, who concluded that Barnard, although mentally ill, was competent for execution. Dr Joseph Leggett, the TDC psychiatrist described Dr Gripon’s assessment as "a woefully inadequate determination of Harold Barnard’s present sanity. He appears to have made numerous diagnostic decisions based upon a very cursory and conclusory examination". Dr Leggett emphasised that "unlike Dr Gripon" he had observed Harold Barnard over a prolonged period and had personally conducted "thorough psychiatric examinations of Harold Barnard on many occasions, and I have had access to and have read Harold Barnard’s full medical history".(63) Dr Childs responded that "frankly, I am astonished at Dr Gripon’s conclusions. There are a number of factual inaccuracies in his evaluation which could not possibly be there had he reviewed all of the records as he says he did." Dr Murphy likewise criticized Dr Gripon’s conclusions. Yet another psychiatrist who treated Harold Barnard on death row also disagreed with the state’s expert, stating that "I am not clear how Dr Gripon came to such a vastly different conclusion", except that he "appears to have done only a cursory and superficial evaluation of Mr Barnard."(64)

    Dr Gripon said that Barnard had explained to him "the circumstances of his conviction and the fact that he had been found guilty", that he was on "Death Row", and that he faced the process of lethal injection. However, Dr Gripon had apparently not asked Barnard why he was on death row or was to be executed. The fact that Barnard knew he was on death row and was going to be killed and that he had been convicted was not the point. The point was that he thought it was all part of a conspiracy by the mafia to assassinate him. Dr Leggett continued: "Though I do not hold any opinion about the ultimate correctness of the death penalty, I do firmly believe that no one should be executed on the basis of conclusions drawn from questions never asked, or from a critical line of inquiry inadequately pursued."

    Not only did Dr Gripon’s report contradict all the other experts, he also contradicted himself on a number of issues during his live testimony at the evidentiary hearing in July 1993. For example, in his report, unlike every other doctor, Dr Gripon had denied that Harold Barnard experienced auditory hallucinations. In his testimony, he conceded that Barnard did experience hallucinations, thereby undermining his own conclusion that Barnard was not suffering from schizophrenia.

    In September 1993, the state court recommended denial of relief. It took the position of Dr Gripon, finding that Harold Barnard knew that he was going to be executed by lethal injection and that he had been convicted of murder. It found that the defence had established only that "his perception of the reason for his conviction and pending execution is at times distorted by a delusional system in which he attributes anything that happens to him to a conspiracy…" The Texas Court of Criminal Appeals adopted the lower court’s findings. An execution date was set. The federal courts refused to stop the execution. The US Court of Appeals for the Fifth Circuit noted the defence’s assertion that seven experts had been ignored in favour of a single court-appointed witness, but held that "an unexpected outcome does not automatically render the state procedure unfair" and that "a state court’s finding of competency to be executed is entitled to a presumption of correctness".(65) Ten years later, in 2004, a federal judge would cite the Fifth Circuit’s decision in Harold Barnard’s case in ruling that Scott Panetti (above) was competent for execution – despite Panetti’s delusional belief that his execution was part of a conspiracy between the state and satanic forces to have him killed for preaching the gospel.

    The Fifth Circuit Court of Appeals has recently and repeatedly come in for sharp criticism from the US Supreme Court for its findings in death penalty cases.(66) The Barnard case suggests that it should have stepped in much earlier. The Supreme Court should intervene at the earliest opportunity to prohibit the execution of inmates with serious mental illness.

    Reality check 3 – ‘Guilty but mentally ill’ and sentenced to die
    James Wilson could not control his own worst impulses. Sometimes our judicial system has the same problem.
    Editorial, Georgia, 14 May 1989(67)
    If doubts still remain that a person with serious mental illness can be condemned to death in the USA, the case of James Wilson should dispel them. While his case may be unique in the post-1977 era of judicial killing in the United States – a judge sentenced him to death despite finding that Wilson’s mental illness rendered him unable to control his conduct at the time of the crime – it demonstrates how a person with mental illness can end up on death row and how the appeal system may fail to remedy a manifest injustice.

    On 26 September 1988, 19-year-old James William Wilson walked into the cafeteria of Oakland Elementary School in Greenwood, South Carolina, and opened fire with a gun he had earlier taken from his grandmother’s house and ammunition he had bought from a shop. When the .22 nine-shot revolver was empty, he reloaded, walked into a classroom down the hall and began shooting again. He ran out of ammunition for a second time and climbed out of a window. Outside, Wilson surrendered to the school’s head teacher who told him to put his hands up. He did so until the police arrived and took the teenager into custody. As a result of the shooting rampage, eight-year-old Shequila Bradley was dead and 10 other people - eight children and two teachers - had bullet wounds. A second eight-year-old girl, Tequila Thomas, died of her injuries three days later, having never regained consciousness. It was a crime, among the first of a number of school shootings that would occur across the USA over subsequent years, which traumatized the small city of Greenwood, and reverberated across the nation.(68) It was also to set a legal precedent in the state for the treatment of the mentally ill by the criminal justice system.

    James Wilson comes from a family with a history of mental illness going back at least four generations and he himself began displaying mental problems from an early age, as well as becoming the target of emotional and physical abuse within his home environment.(69) By the age of 13, when he showed symptoms of mental illness, family members gave him prescription drugs meant for other relatives. He began to self-medicate with illicitly obtained medication, including sedatives, pain-killers, anti-depressants and anti-psychotic drugs. He was an inpatient in psychiatric hospital at least six times during his teens. However, the family failed to ensure that he attended follow-up appointments or other treatment programs. In April 1988, when he turned 19, his father’s health insurance ceased to cover him, and he was denied readmission to hospital. His mental condition deteriorated over the months leading up to the shooting. He was placed under psychiatric evaluation the day after his arrest. He was evaluated as suffering from borderline personality disorder. In its onset period, schizophrenia is commonly misdiagnosed as borderline personality disorder. James Wilson’s illness would indeed later be diagnosed as schizophrenia.

    Recent research supported by the National Institute of Mental Health, an agency of the US Department of Health, has found that half of all lifetime case of mental illness begin by the age of 14, and that there are often long delays – sometimes decades – between the onset of symptoms and when the sufferers seek and obtain help.(70) A recent study of 18 young offenders on death row in Texas found that all but one came from extremely violent and/or abusive families in which mental illness was prevalent in multiple generations. Fifteen (83 per cent) of the inmates had signs and symptoms of early-onset mental illness in the bipolar, schizoaffective or hypomanic range of disorders.(71)

    The prosecution decided to seek the death penalty against James Wilson for the murder of the two girls.(72) The defendant had a number of possible pleas, including not guilty by reason of insanity. Under the latter defence, if successful, he would have been found not criminally responsible if at the time of the crime he was unable to tell right from wrong. He would have been committed to secure confinement in a psychiatric hospital.

    In the event, James Wilson pleaded "guilty but mentally ill" under a law enacted by the South Carolina legislature in 1984. Under this law, a defendant is guilty but mentally ill if, at the time of the crime, he or she could tell right from wrong but was unable to conform his or her conduct to the requirements of the law "because of mental disease or defect". The burden is on the defendant to prove this. After a three-day hearing at which he heard testimony from various experts, Circuit Judge James E. Moore determined that James Wilson’s mental state at the time of the crime met the statutory definition of "guilty but mentally ill". James Wilson’s plea was accepted and he became the 92nd person to be found guilty but mentally ill under the 1984 statute. Two weeks later, on 9 May 1989, James Wilson became the first of them to be sentenced to death.

    The mental health professionals who had evaluated Wilson after the crime had considered the question of whether James Wilson was legally insane or guilty but mentally ill as "debatable" and "more than a close question". During the plea hearing, Dr Donald Morgan, then Associate Director of a division of the South Carolina Department of Health, who had been ordered by the court to evaluate James Wilson, testified that Wilson fitted the category of guilty but mentally ill. After his testimony, Dr Morgan stayed in the courtroom. During a break in proceedings, he informed one of the defence lawyers that he had altered his opinion having heard further testimony about Wilson’s behaviour at the time of the crime. Dr Morgan now believed that the defendant had been legally insane at the time of the offence. However, the lawyer neither told the defendant of this development nor requested a recess to consider the matter further.(73)

    Perhaps the lawyer failed to inform James Wilson that there was now professional support for an insanity defence because the mentally ill teenager was showing signs of being incapable of assisting in his defence or deciding how to plead. It only emerged after the trial that he had told his lawyers that he was scared of being seen by a jury, suggesting that fear may have motivated his decision to waive trial by jury, enter a guilty plea, and face sentencing by a judge. Shortly before the plea, James Wilson had shaved off all his head and body hair, telling his attorneys that this was so that he could receive "special thoughts". For post-conviction proceedings, Dr Seymour L. Halleck, an eminent forensic psychiatrist who conducted an exhaustive review of the case, concluded that James Wilson was suffering from schizophrenia at the time, had not been competent to evaluate his legal options and make the guilty plea, and was probably not competent to stand trial at that time either.

    His trial lawyers presented no mitigation evidence or witnesses at the sentencing. Nor did they present evidence that was available of James Wilson’s remorse about the shooting. Nor did they seek to explain that the powerful anti-psychotic medication their client was taking during his trial proceedings was causing him to appear unemotional and detached. His lawyers, experts and other observers variously described the defendant as having "a flat facial expression", "a very flat affect", or displaying a "disinterested", "totally flat", or "zombie-like" demeanour. James Wilson’s lack of visible emotion was even noted in the media reporting of the case.(74) The theme of the prosecutor’s argument for execution was that James Wilson, a mentally ill teenager from an abusive background, "chose to live the way that he did". The prosecutor argued that despite "a tendency today to put the blame on society, or to put the blame on circumstances, we can never as a civilized society abandon individual responsibility for actions". The judge agreed, despite finding four statutory mitigating factors in addition to his earlier finding that Wilson had not, due to mental impairment, been able to control his conduct at the time of the crime.(75)

    There was widespread criticism of the judge’s decision, from lawyers, advocates for the mentally ill, and newspaper editorials. A few days after the sentence, for example, the South Carolina paper, The State, wrote, "[I]f Wilson were a cold-blooded killer in control of his mental faculties, we would applaud the death sentence. But is there any justice in electrocuting a young man who desperately needed help and did not get it, whose mind was so diseased that he could not resist his murderous impulses? We think not."(76) In neighbouring North Carolina, The Charlotte Observer posed a similar question: "Why impose on this pathetic man the maximum penalty a sane, calculating murderer would get? ...A humane society does not compound its fear and ignorance of mental illness by treating the mentally ill as common criminals. That’s what South Carolina has done in the case of James William Wilson."(77) In similar vein, the Atlanta Journal-Constitution in Georgia said:
      "While Wilson’s crime was inarguably ghastly, his disordered mental state makes his rampage more a hideous tragedy than unmitigated outrage. What purpose would his execution serve? At best, Wilson’s execution would be no more than a hopeless gesture of protest against a crime that defies understanding. At worst, it would be an act of unspeakable meanness. James Wilson could not control his own worst impulses. Sometimes our judicial system has the same problem."(78)

    At a post-conviction hearing, one of James Wilson’s trial lawyers testified that he and his co-counsel had "felt confident that [the judge] would decide that [Wilson] shouldn’t receive the death penalty" because of the defendant’s mental illness.(79) The lawyer testified to their belief that even if their client was sentenced to death, the acceptance of the plea of guilty but mentally ill "would have some power on appeal" which would lead to the death sentence being overturned. The other trial lawyer testified that he had believed that the court’s acceptance of the plea meant that "Wilson would not get the death penalty or if he did, it would never be upheld [on appeal]." The two lawyers were wrong. The death sentence has survived the appeals process intact.

    On 6 January 1992, James Wilson’s case set a legal precedent in South Carolina when the state Supreme Court confirmed the death sentence. The court ruled that it was not unconstitutional to execute a person found guilty but mentally ill for actions over which, due to that illness, they had no control. It further ruled that the execution of such a defendant does not violate the constitutional ban on cruel and unusual punishment.(80) In a dissenting opinion, Justice Finney wrote:
      "When considered in light of [Wilson’s] personal culpability, it becomes obvious that the penalty of death in this case is excessive; both in an absolute sense and when compared with other death sentences confirmed by this Court. This may be the only instance in South Carolina and indeed, according to my research, in the entire nation where the death penalty has been imposed after a factual determination that mental illness deprived the offender of sufficient capacity to conform his conduct to the standard required by law.... I would find that under these circumstances, a death sentence amounts to cruel and unusual punishment in violation of the eighth amendment."

    The case went to the federal courts. In January 2003, a federal judge on the District Court for the District of South Carolina overturned the death sentence, finding various constitutional errors in the guilty plea proceedings and the sentencing hearing. The state appealed to the US Court of Appeals for the Fourth Circuit to overturn the District Judge’s ruling. The defence also appealed, arguing that to impose a death sentence on someone who was unable to conform his conduct to the requirements of the law violates the US Constitution.

    On 17 December 2003, the Fourth Circuit Court of Appeals vacated the District Court’s ruling, applying the substantial deference that federal courts must apply to state court rulings in the USA.(81) It rejected the defence lawyer’s claim that there was a national consensus against such executions (see Waiting for the Evolution, below). In June 2004, the US Supreme Court refused to take the case. The following month the South Carolina Supreme Court ordered a hearing into the question of whether James Wilson is competent to be executed. At the time of writing, that hearing was still pending.

    James Wilson remains on death row. His schizophrenia has become more pronounced over the years. Due to the lack of stimulation and lack of treatment, he has become more withdrawn and isolated. He rarely leaves his cell and has difficulty carrying on even rudimentary conversation. He has gone through periods where he refuses to wash; prison guards have sometimes dressed him in nothing but plastic rubbish sacks because he defecates and urinates in his clothes; he has lost all but one of his teeth because he let them rot.

    Regardless of whether James Wilson meets the (minimal) standard of competency to be executed under Ford v. Wainwright, Amnesty International believes that his execution would violate the international prohibition on the arbitrary deprivation of life. The Atkins v. Virginia ruling in 2002 found that the execution of people with mental retardation was unconstitutional on the grounds that their impairments, while "not warrant[ing] an exemption from criminal sanctions… diminish their personal culpability" and render execution an excessive punishment. While no claim has been made that James Wilson has mental retardation, it is an "unreviewable fact" that James Wilson is facing execution for a crime over which he "was unable to control his behaviour".(82) In other words his personal culpability was diminished as a result of his mental illness.

    Arbitrariness, whether in relation to the deprivation of liberty or of life, violates international law, including the International Covenant on Civil and Political Rights (ICCPR), which the USA ratified in 1992.(83) The Human Rights Committee, the expert body established by the ICCPR to oversee its implementation, has stated, regarding the right to liberty, that "arbitrariness" is not to be equated simply with "against the law", but should be interpreted more broadly to include elements of inappropriateness, injustice and lack of predictability.(84)

    The fact that James Wilson is facing execution, while a person with mental retardation will not, is neither appropriate, nor just, nor consistent. His execution would be arbitrary.(85)

    Reality check 4 – Finality at the expense of fairness?
    A legal system is based on rules; it also seeks justice in the individual case. Sometimes these ends conflict.
    US Supreme Court Justice, June 2005(86)
    At a hearing in Arizona on 9 June 1999, all three mental health experts who had examined, observed and interviewed death row inmate Michael Poland said that his mental illness – a delusional disorder that made him believe that he had superhuman powers that would keep death at bay – rendered him incompetent for execution. This included the psychiatrist chosen and appointed at the state’s request, who testified that the prisoner’s "full psychological awareness is that he’s not to be executed". However, the state Attorney General argued that it was time for Michael Poland to "pay the price that he deserves for killing these two men twenty-one years ago".(87) The state got its way, and Michael Poland was put to death a week later.

    Punishments do not come more final or irreversible than the death penalty. An error discovered after execution cannot be rectified. An inequity revealed post-mortem cannot be redressed. If this were the only reason to abolish the death penalty, it would be reason enough. This is a punishment that denies the possibility of human error. Yet no system can eradicate error and the inevitability of inconsistency in sentencing outcomes. This is as true in cases involving defendants with mental illness as with any other. Perhaps more so, given that our knowledge of the ailments of the human mind remains an inexact science, and people with mental impairments are generally less able to assist in their defence than others.(88)

    From the executing state’s perspective, however, the death penalty brings with it an interest in achieving "finality". Once the state obtains a death sentence, finality becomes the aim rather than the problem. State prosecutors urge judges to reject appeals. Legislators respond to what they perceive as unnecessarily long or "frivolous" appeals with laws aimed at speeding up the process of getting the condemned inmate to the execution chamber. Judges elected or appointed in part in the belief that they will not oppose the death penalty may also adopt a conservative position on motions and appeals brought on behalf of condemned prisoners challenging aspects of the capital process. In a federated system of government, it may be that "states’ rights" demand deference for state court rulings by the federal judiciary.

    This has been the case in the USA. Since 1977, for example, the US Supreme Court has handed down rulings creating strict rules of procedural default (whereby an issue is lost for appeal if it was not raised in the lower courts); raising the hurdle over which condemned inmates must step to win evidentiary hearings; limiting the retroactivity of constitutional decisions; facilitating state claims that a constitutional violation amounted to "harmless error"; and erecting barriers to the filing of successive petitions.(89) In 1995, Congress eliminated federal funding for post-conviction defender organizations which had provided lawyers for indigent death row inmates for their appeals and had a high success rate in uncovering violations. Then, in 1996, President Bill Clinton signed the Anti-Terrorism and Effective Death Penalty Act (AEDPA) into law. "From now on", he said at the signing, "criminals sentenced to death for their vicious crimes will no longer be able to use endless appeals to delay their sentences."(90) The Act placed new, unprecedented restrictions on prisoners raising claims of constitutional violations. It imposed severe time limits on the raising of constitutional claims, restricted the federal courts’ ability to review state court decisions, placed limits on federal courts granting and conducting evidentiary hearings, and prohibited "successive" appeals except in very narrow circumstances.

    The cases of Horace Kelly, Ronnie Conner and Gregory Thompson – each of whom has been diagnosed as suffering from serious mental illness, including schizophrenia – illustrate how the state’s pursuit of finality can run into conflict with fairness – and how execution threatens to cement injustice into such cases.

    In the years since being sent to death row in California in 1986, prison doctors have described Horace Kelly as "psychotic", "gravely disabled" and suffering from chronic schizophrenia. In 1995, a court-appointed psychiatrist found that Kelly was "suffering from a psychotic mental disorder of such severity that it precludes his capacity to appreciate his current legal position and make rational choices". In September 1997, a three-judge panel of the US Court of Appeals for the Ninth Circuit ruled that Horace Kelly had lost the right to federal judicial review because he had missed the one-year deadline, imposed by the AEDPA, for filing federal appeals after a state death sentence becomes final. "The Act will not have been very effective at all", the panel majority said, if it failed to stop delays in cases such as Kelly’s, which it described as a "saga" and an attempt at "semipiternal [everlasting] delay". The decision overturned a District Court decision that the AEDPA did not apply to the case. One of the three Ninth Circuit judges, Judge Wallace Tashima, dissented against what he called a "Draconian result – precluding Kelly from ever filing a first federal petition", pointing out that much of the delay had been caused by the District Court’s "attempts to grapple with Kelly’s mental problems", including the question of the prisoner’s competence to proceed with appeals.(91)

    The Ninth Circuit agreed to rehear the case in front of 11 judges who, at a hearing in July 1998, were urged by California’s Deputy Attorney General to dismiss the appeal on the grounds that "this case is about finality."(92) The state’s appeal was rejected by the full court, who decided that the AEDPA did not apply to the case. This time, Judge Tashima wrote the majority opinion, stating that "it would be inappropriate for us to prevent [federal judicial review] merely to accommodate the state’s desire for a quick execution".(93) Given that a jury had earlier found Kelly competent for execution despite compelling evidence that he was insane (see below), if the original Ninth Circuit panel decision that the AEDPA governed had been allowed to stand, Horace Kelly would have been put to death. As it is, he remains on death row, hopefully providing an opportunity for an appropriate outcome to prevail.

    In November 2002, the US Court of Appeals for the Fifth Circuit noted that the AEDPA did control the appeal filed on behalf of Ronnie Conner, a death row inmate in Mississippi. Conner had first been diagnosed with schizophrenia in the 1980s. He was sentenced to death in 1990 for the murder in January of that year of an elderly woman who was abducted and died after having her throat slit. At the capital trial, Ronnie Conner’s lawyer did "nothing whatsoever" to prepare for the sentencing phase of the trial, despite knowing of his client’s mental illness and despite this evidence being "readily available".(94) After the jury voted to convict Ronnie Conner, the lawyer "frantically" tried to locate a doctor or other expert witness to testify at the sentencing stage which was due to begin the next day. He failed to find anyone, and instead put the defendant’s sister on the stand, much of whose testimony was excluded as hearsay. She said that her brother had been treated for mental illness for about a decade and that she thought that he sometimes did not take his medication. Conner himself gave contradictory testimony on whether or not he had taken his medication on the day of the crime. The Fifth Circuit conceded that the mental health evidence presented in mitigation was "skeletal" and "presented to the jury in an abbreviated form with no elaboration".

    Under the 1984 US Supreme Court decision Strickland v. Washington, to win an appeal on the grounds of inadequate legal representation at trial, a condemned inmate must show not only that the trial lawyer’s performance was deficient, but also that this deficiency had altered the outcome of the trial. The appeal courts are required to be "highly deferential" to a defence lawyer’s performance, "indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance", and avoid "the distorting effects of hindsight".(95) The AEDPA made a successful claim on this issue even harder to achieve. It prohibits a federal court from granting relief unless the state appeal court’s decision in the case "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States".

    On appeal, a number of experts signed affidavits relating to the question of Ronnie Conner’s mental health. A doctor who had treated Conner in the two years before the crime, for example, said that he could have told the jury about Conner’s schizophrenia, that its symptoms included auditory hallucinations, that Conner had once jumped from a moving train as a result of voices telling him to, that he did not always take his medication, and that he had impaired control over his conduct because of his mental illness. A social worker testified that she would have told the jury that Conner was in all likelihood off his medication at the time of the crime. A psychiatrist signed an affidavit that, in his opinion, Conner was mentally ill at the time of the crime and unable to control his conduct to the requirements of the law.

    Nevertheless, applying the Strickland test, the Mississippi Supreme Court decided that although the trial lawyer’s performance had been deficient, it had not altered the trial’s outcome.(96) The US Court of Appeals for the Fifth Circuit agreed. The trial lawyer’s performance had been deficient – he "had an obligation at least to investigate and perhaps present this potentially mitigating evidence because it could reasonably have been expected to augment [Conner’s] case", it said, but added that "deficiency is not enough". The federal court noted that it was bound by the AEDPA, and ruled that the Mississippi Supreme Court’s finding had not "unreasonably" applied the Strickland test, in fact had "faithfully" applied it despite acknowledging that "it might be tempting to argue that Conner was prejudiced by his attorney’s lack of foresight."(97)

    At the time of writing, Ronnie Conner remained on death row. In 2002, his lawyers informed Amnesty International that he would often refuse to come out of his cell, convinced of a conspiracy against him and that any conversation would be bugged. He frequently refused to take his medication because of his paranoia.(98) In 2003, a federal judge described the mental health care on Mississippi’s death row as "grossly inadequate" (see below).

    Gregory Thompson, who has been diagnosed as suffering from schizophrenia, has been on Tennessee’s death row for two decades. In June 2005, the US Supreme Court was split on his case. Four Justices suggested that Thompson’s execution would amount to "a serious miscarriage of justice". The five others, citing the state’s interest in "finality", gave the State of Tennessee the green light to put Thompson to death for the murder of Brenda Lane 20 years earlier.(99)

    Arrested the day after the 1 January 1985 murder, Gregory Thompson had quickly confessed to the crime and helped police to find Brenda Lane’s body. Prior to the trial, his lawyers asked for funds so that they could hire a psychiatrist to examine Thompson. Their request was granted by the trial court. However, they did not hire a psychiatrist, but rather an industrial psychologist. At Thompson’s subsequent trial the defence submitted no evidence at the guilt/innocence stage and he was convicted of first degree murder. At the sentencing phase, the defence psychologist testified that he did not think that Thompson had any serious mental illness, but that he was very remorseful. The prosecution presented a psychologist, who testified that Thompson was not mentally ill, and in fact had shown signs of faking mental illness. The jury sentenced Gregory Thompson to death.

    For state post-conviction proceedings in 1991 and 1992, Gregory Thompson’s appeal lawyers sought funding for further mental health evaluations. They submitted testimony from a psychologist who stated that a review of Thompson’s prison records revealed that he had been variously diagnosed with bipolar disorder, schizoaffective disorder and paranoid schizophrenia, that he had displayed symptoms such as hallucinations, delusions, paranoia, suicide attempts, that he was considered not to be malingering, and that he had been prescribed anti-psychotic medication. She stated that a full evaluation was needed to establish if it was likely that such impairment had existed at the time of the crime. The request for funds was denied, as was the claim that Thompson had been denied adequate legal representation at his trial. The state courts affirmed the death sentence and the case moved into the federal courts.

    In January 2003, a three-judge panel of the US Court of Appeals for the Sixth Circuit ruled by two votes to one against Thompson. Applying the AEDPA, Judge Suhrheinrich deferred to the state courts and said that under the limitations imposed by the AEDPA on inmates obtaining evidentiary hearings in federal court, the US District Court had not erred in dismissing his petition in 2000 without holding such a hearing. Judge Moore concurred in the result. Judge Clay dissented, saying that the performance of the trial lawyers had been "well below an objective standard of reasonableness" in failing to hire an experienced psychiatrist rather than an industrial psychologist with no experience in capital cases to assist on the mental health question. Even under the stringent requirements of the AEDPA, he said, the death sentence should not stand. Judge Clay concluded that it was likely that a thorough psychiatric evaluation would have revealed evidence of Thompson’s mental illness and could have been used to portray a "far more sympathetic figure" to the jury, with the reasonably probable outcome that the jurors would not have voted for the death penalty. Judge Clay may well have been right. As will be shown later in this report, in many cases jurors left unaware of a defendant’s mental impairment at the trial have later signed affidavits indicating that they would have voted for life if such evidence had been presented.

    The Sixth Circuit’s rejection of Gregory Thompson’s appeal was not its final word on the matter, however. On 23 June 2004, after the US Supreme Court had said that it would not review the case and the state had set an execution date, the three judges on the Sixth Circuit issued a new opinion, reversing their January 2003 ruling. A medical report by a forensic psychologist retained by Thompson’s federal appeal lawyers had come to Judge Suhrheinrich’s attention – for some reason it had been missing from the documents filed in the original appeal. The psychologist, Dr Faye Sultan, had investigated Thompson’s "horrendous childhood, his family history of mental illness his self-destructive schizophrenic behaviour (including auditory hallucinations) as a child, his mood swings and bizarre behaviour as a young adult, and a worsening of that behaviour after a serious beating to the head that he suffered while in the Navy."(100) She concluded that Thompson had already suffered from episodes of schizophrenia at the time of the crime. This, the Sixth Circuit said, "was extremely probative testimony" which demanded the evidentiary hearing denied by the District Court in 2000. It also issued a stay of execution.

    The state appealed, and on 27 June 2005, the US Supreme Court, by five votes to four, reversed the Sixth Circuit’s ruling. It found that the Sixth Circuit panel had abused its discretion in the way it had revisited Thompson’s case. The majority wrote:
      "a dedicated judge discovered what he believed to have been an error, and we are respectful of the Court of Appeals’ willingness to correct a decision that it perceived to have been mistaken. A court’s discretion… must be exercised, however, in a way that is consistent with the State’s interest in the finality of convictions that have survived direct review within the state court system. Tennessee expended considerable time and resources in seeking to enforce a capital sentence rendered 20 years ago, a sentence that reflects the judgment of the citizens of Tennessee that Thompson’s crimes merit the ultimate punishment…[T]he Court of Appeals did not accord the appropriate level of respect to that judgment".(101)

    Writing for the four Justices in the minority, Justice Breyer said:
      "I believe we should encourage, rather than discourage, an appellate panel, when it learns that it has made a serious mistake, to take advantage of an opportunity to correct it, rather than ignore the problem… When we tell the Court of Appeals that it cannot exercise its discretion to correct the serious error it discovered here, we tell courts they are not to act to cure serious injustice in similar cases. The consequence is to divorce the rule-based result from the just result. The American judicial system has long sought to avoid that divorce. Today’s decision takes an unfortunate step in the wrong direction".

    Gregory Thompson was scheduled to be executed on 7 February 2006, despite the fact that seven of the last 12 judges to review his case had concluded that he should have been granted relief. Indeed, Thompson’s prison file contains over 4,000 pages documenting his serious mental illness. On 5 January 2006, the execution was stayed by the US District Court for the Eastern District of Tennessee in order for it to consider whether Thompson is competent to be executed. In the name of fairness and decency, the state should use the opportunity afforded by this stay to abandon its bid for lethal finality.

    Waiting for the evolution: state law as a measure of ‘decency’