In 1986, the U.S. Supreme Court held that it is unconstitutional to execute somebody who is clear­ly insane. But the court has never actually said what constitutes insanity for the purpose of determining whether somebody is competent to be executed.

Until now. The court will hear arguments Wednesday over whether a mentally ill Texas death row inmate should be executed for gunning down his in-laws in 1992 in front of his estranged wife and their 3-year-old daughter. Panetti v. Quarterman, No. 06-6407.

The inmate, 48-year-old Scott Panetti, apparently understands on some level that the state intends to execute him for the murder of his wife's parents, according to mental health experts who evaluated him. But he al­so apparently suffers from the delusional belief that he's being executed as part of a grand conspiracy by the "forces of evil" to prevent him from preaching the gos­pel.

Experts say the case could help clarify the criteria to be used for assessing whether a mentally ill death row inmate is competent for execution.

But observers on either side of the issue say it also raises the possibility that the court could go too far in one direction. If the court holds that a defendant need only be aware that he or she is about to be executed and why the state says it wants the execution, even a profoundly mentally ill death row inmate might not be spared the ultimate punishment.

On the other hand, if the court holds that any defendant who could be classified as mentally ill should never be put to death, hardly anybody on death row would qualify for execution.

"Mental illness is a fluid concept that could mean any­thing from being somewhat under par mentally through stark raving mad," says Georgetown Universi­ty law professor Paul Rothstein. "This case should help clarify where on the spectrum it becomes constitutionally impermissible to execute and what kind of mental illness will render a defendant unexecutable."

The court, in the 1986 case Ford v. Wainwright, 477 U.S. 399, held that the Eighth Amendment ban on cruel and unusual punishment bars the execution of the in­sane. But it didn't say what it meant by insane. Over the years, however, lower courts have adopted the language of a concurring opinion in Ford by Justice Lewis Powell Jr., who said the "retributive goal" of the death penalty is satisfied as long as the defendant "perceives the connection between his crime and his punishment."

"Accordingly, 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," he wrote.

(Alyin Bernard Ford was a Florida death row inmate whose competency was not in question at the time of his 1974 trial. After several years in prison, however, he came to believe he was the target of a vast conspiracy designed to drive him to commit suicide. He knew he had been sentenced to death, but he didn't believe he would be executed because he thought he owned the prison and could control the governor through mind waves.)


THE FACT PATTERN

In the decade leading up to the crime for which he is awaiting execution, Panetti was hospitalized more than a dozen times with schizophrenia and other mental illnesses. He spoke incoherently and actively hallucinated. He once nailed the curtains on his windows shut and buried some of his furniture in the backyard because he believed it was possessed by the devil.

On the morning of the murders, Panetti got up, shaved his head, armed himself with a rifle and a sawed-off shotgun, and drove to the home of his wife's parents in Fred­er­icksburg, Texas, near Austin. His wife and daughter had gone there to take refuge from him and his increasingly abusive and erratic behavior. He broke into the house, cornered his in-laws in the kitch­en and shot them to death at close range while his wife and daughter looked on in horror. Later that day, he put on a suit and surrendered to the police.

Panetti was not only found competent to stand trial, he was also allowed to represent himself. He pleaded not guilty by reason of insanity. And he went about trying to prove it at his trial, where he wore a purple cowboy outfit; rambled incoherently; peppered his remarks with phrases such as "pardner," "buckaroo" and "hosses"; badgered the judge and the prosecutor; asked incomprehensible questions of the witnesses; made bizarre comments to the jury; and tried to subpoena Jesus, the pope and John F. Kennedy, among others.

Panetti was convicted and sentenced to death. His appeals, including to the New Orleans-based 5th U.S. Circuit Court of Ap­peals, were turned down.

In a ruling last year affirming Panetti's competency to be executed, the 5th Circuit held that "awareness," as the word is used in Ford, does not necessarily mean that a defendant must have a "rational understanding" of the reason for his execution in order to be executed, as Panetti's lawyers had argued. Panetti v. Dretke, 448 F.3d 815.


TOUGH INSANITY CRITERIA

In Panetti's appeal to the Supreme Court, his lawyers contend the 5th Circuit interpreted Ford so narrowly that the Eighth Amendment offers no bar to the execution of the insane. They also point out that in the two decades since Ford, a period during which Texas alone has executed nearly 370 people, the 5th Circuit has never found a death row inmate incompetent for execution.

Austin attorney Keith Hampton, one of Panetti's court-appointed lawyers, says if Panetti doesn't meet the criteria for incompetence, he doesn't know who would.

"If we as a society are willing to tolerate the execution of somebody like Panetti, show me the person whose execution would offend our sense of humanity," he says.

Lawyers for the Texas attorney general's office refused to comment. But in court papers, they say the 5th Cir­cuit was correct because the evidence clearly showed Panetti was able to perceive the connection between his crime and his punishment. "Panetti's delusional belief that there is a deeper, hidden meaning behind his execution ... does not change the fact that Panetti nonetheless understands that the state is executing him because he killed his wife's parents," they wrote.

The state also contends that Panetti's lawyers are read­ing too much into Powell's opinion when they suggest it requires that a defendant have a rational understanding of the reason for his or her execution. None of the five circuits that have addressed the question has adopted such a requirement, they say.

Kent Scheidegger, legal director of the Criminal Jus­tice Legal Foun­dation, a Sacramento, Calif.-based victims' rights organization, says he would welcome a clarification of the criteria to determine a defendant's competence for execution. But he says there is a danger the court will paint with too broad a brush.

Scheidegger says the term mental illness could apply to anyone with a diagnosable condition listed in the Amer­ican Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders. That, he adds, includes convicted criminals diagnosed with antisocial personality disorder, which means that they have no remorse for their crimes.

"Not only should persons qual­ifying for this 'diagnosis' not be exempt from punishment; they should be moved to the head of the line," Scheideg­ger says.


THE ABA'S TAKE

In an amicus brief filed Feb. 26 on Panetti's behalf, the ABA asserts that to be competent for execution an offender must not only be aware of the nature and purpose of his pun­ishment, but also must appreciate its personal application in the offender's own case.

"If the offender simply cannot understand the true reason a capital sentence is to be carried out against him, his execution would be inconsistent with the constitutional prin­ciples established in Ford," wrote New York City lawyer and brief co-author Ronald J. Tabak, a member of the ABA Task Force on Mental Disability and the Death Penalty.

Other organizations, including Am­­nesty International and the National Al­liance for the Mentally Ill, say the "mere awareness" test the 5th Cir­cuit applied is not a meaningful requirement for determining whether to ex­ecute somebody who is severely mentally ill. "The mere-awareness test makes no sense when applied to a prisoner who is plagued by delusions of grand persecution, as severely mentally ill, schizophrenic individuals like Mr. Ford and Mr. Panetti very often are," the alliance said in a brief urging the court to hear Panetti's appeal.

Georgetown's Rothstein hopes the court sides with Panetti, although he concedes that such an outcome could lead to further complications. For example, what about the case of a defendant who believes his death isn't permanent? What if a defendant is aware he will be executed but thinks he will come back to earth?

"It could be the first step down a potentially slippery slope," he says.


©2007 ABA Journal