In at least three upcoming cases, Texas will once again square off with the United States Supreme Court over its adjudication and application of capital punishment - a hotly debated and deeply divisive issue. With almost 400 death row inmates awaiting execution in Texas, and national support for the death penalty declining, it will be interesting to see how the highest arbiter of the law will rule.

Thirty-eight states, the federal government, and the U.S. military retain the death penalty, but in the past six years, as recently reported by the Death Penalty Information Center, its use has significantly declined. In 2006, 53 individuals were executed nationwide as compared with 60 in 2005. The decline can be attributed to national reports depicting capital punishment systems as "broken," unprecedented exonerations, challenges to lethal injections, arbitrariness of its imposition, the advent of DNA testing, and whole host of other endemic problems.

In 2000, Illinois's Governor Ryan imposed a moratorium, and in 2006 New Jersey's legislature overwhelmingly supported a moratorium on all executions pending a comprehensive review. In 2004, Kansas and New York declared their death penalty statutes unconstitutional, and a number of states have begun legislative studies of their capital punishment systems.

But in Texas, despite an overall drop in executions, the machinery of death appears to march undeterred. From 2005 to 2006, the number of executions increased from 19 to 24, respectively - a disgraceful rise given the events of 2005. That year, scrutiny of the notorious Houston crime lab heightened when a former inspector general for the U.S. Department of Justice was appointed to investigate its troubles. The costly investigation identified problems in three death row cases, and confirmed what was already known - the existence of prevalent shoddy practices, blatant incompetence, and the outright mishandling of evidence. But the deplorable state of the crime lab was only one of a myriad of problems revealed through credible Texas studies within the last six years. The problems include inadequate funding for defense counsel, ineffective assistance of counsel, discriminatory practices in the jury selection process, racial disparities, prosecutorial misconduct, and sham appeals.

While push for a moratorium has fallen on deaf ears, high level officials are not unaware of the problems. In 2005, Governor Rick Perry appointed a Criminal Justice Advisory Commission to review the issues. But to date, executions have not halted; Texas has already executed 11 individuals this year, and 10 more executions are scheduled through August. However, the events of the past few years have caused some prominent officials with an ax to grind in the future of Texas capital punishment to question its validity. In a recent article, Judge Carolyn Dineen King of the U.S. Court of Appeals for the Fifth Circuit, the court with jurisdiction over federal courts sitting in Texas, stated:

Also profoundly troubling is the risk that an innocent man will be executed. I must say that from my experience with capital cases, there is usually a great deal of evidence that the defendant is, in fact, guilty. But the lengthy investigation of the Houston crime lab, which exposed evidence of serious problems such as falsified test results, including DNA test results, and the tailoring of report to fit police theories certainly suggests that even scientific evidence, to which we normally attach considerable confidence, can be flawed. Only God's justice is perfect justice. The assessment of the death penalty, however well designed the system for doing so, remains a human endeavor with a consequent risk of error that may not be remediable." (South Texas Catholic News, Oct. 20, 2006 - as reported in the Death Penalty Information Center Year End Report 2006).

Texas has staunchly faced and defeated a number of challenges to its application of capital punishment, and is now once again poised to face another challenge to the execution of the mentally ill. The Supreme Court recently granted certiorari in Panetti v. Quarterman to hear whether a death row inmate may be competent to be executed.

Panetti, who was sentenced to death for murdering his wife's parents, petitioned the state court for a determination of his competency. Based on the report of two psychiatrists, but without holding a competency hearing, the state habeas court held that Panetti was competent to be executed. Panetti petitioned for a writ of habeas corpus in federal court, and the federal district court held an evidentiary hearing finding that Panetti suffers from "some...form of mental illness, which some of the doctors diagnosed as schizoaffective disorder," and that although he had the "cognitive functionality to communicate coherently much of the time," he suffers from "grandiosity and a delusional belief system in which he believes himself to be persecuted for his religious activities and beliefs." Based on the experts' testimony, the district court held that Panetti knows he committed the murders, that he will be executed, and that the reason the state has given for the execution is the commission of the murders.

Panetti believes that although the state is purportedly executing him for his crime, its real motivation is to punish him for preaching the Gospel. The Fifth Circuit affirmed the district court, holding that the Eighth Amendment does not require Panetti to have a "rational understanding," only to have an "awareness." The two standards, the court held, are not synonymous and the district court's findings are sufficient to establish his competence to be executed.

The reference to "awareness" comes from Justice Powells' concurrence in the 1986 Supreme Court case of Ford v. Wainwright, which Panetti cited, where the court banned the execution of the insane. In Ford, the standard was whether the defendant "had the mental capacity to understand the nature of the death penalty and the reasons why it was imposed on him." Justice Powell clarified the standard by stating: "…I would hold that the Eighth Amendment forbids the execution only of those who are unaware of the punishment they are about to suffer and why they are to suffer it."

The question to the high court as posed in Panetti's brief is: "[d]oes the Eighth Amendment permit the execution of a death row inmate who has a factual awareness of the reason for his execution but who, because of severe mental illness, has a delusional belief as to why the State is executing him, and thus does not understand that his execution is intended to seek retribution for his capital crime.?"

In their Amici Curiae Brief in Panetti, the American Psychological Association, the American Psychiatric Association, and the National Alliance on Mental Illness make a cogent plea: "Scientific knowledge about schizophrenia and schizoaffective disorder supports the conclusion that persons in Panetti's condition cannot rationally understand the reasons for their execution. Convinced of the reality of their delusions, they simply cannot grasp the essential truth: that their impending execution is retribution for their crimes."

As compelling as Panetti's history of mental illness may be and despite ample corroboration from the expert witnesses, it is plausible that the Supreme Court may not intervene on his behalf, just as it did not intervene in the case of James Blake Colburn, a man with an undisputed history of chronic paranoid schizophrenia, who sat through his trial heavily sedated by Haldol, often dozing off, and in at least one instance snoring loudly, and whose condition obviously prevented him from actively participating in the case. As a result, Texas executed Colburn in 2003.

Although the grant of certiorari may be optimistically viewed as a gleam of hope, two Supreme Court cases decided in 2006 may be prophetic of the court's ruling in Panetti. In a 5-4 decision in Kansas v. Marsh, the high court reversed the Kansas Supreme Court, holding that the Kansas capital sentencing statute is constitutional. In Ayers v. Belmontes, another 5-4 decision, the court upheld a death penalty conviction from California. Not surprisingly, the dissenters in both opinions were Stevens, Souter, Breyer, and Ginsburg. In Marsh, the dissenters, called for greater scrutiny of capital cases alluding to "repeated exonerations of convicts under death sentences, in numbers never imagined before the development of DNA." Scalia's vitriolic concurrence in Marsh - a transparent disdain for abolitionists and a defiant dismissal of the dissenters' passionate appeal - may be an ominous foreboding of what the new alliance of Kennedy, Scalia, Thomas, Alito, and Roberts might do.

If the democratic process is to survive the legal wrangling in the courts, the future of the death penalty must stand on the shoulders of the individual states to legislate as to its constitutionality. At least in Texas, until the death penalty is abolished, the state will continue with a revolving door to the execution chamber.