“The Timeless Explosion of Fantasy’s Dream”: How State Courts Have Ignored the Supreme Court’s Decision in Panetti v. Quarterman

Abstract

Multiple states have enacted statutes to govern procedures when a state seeks to execute a person who may be incompetent to understand why s/he is being so punished, an area of the law that has always been riddled with confusion. The Supreme Court, in Panetti v. Quarterman, sought to clarify matters, ruling that a mentally ill defendant had a constitutional right to make a showing that his mental illness “obstruct[ed] a rational understanding of the State’s reason for his execution.”

However, the first empirical studies of how Panetti has been interpreted in federal courts painted a dismal picture. Only a handful of defendants have ever been successful in federal courts in seeking to enforce the Panetti ruling, and the authors of this abstract have characterized the relief ostensibly offered by that case as nothing more than an “illusion” or a “mirage” in a federal context. The issues of believability of experts, allegations of malingering, and “synthetic competency” dominate these decisions.

In this paper, we seek to expand this inquiry to determine (1) how defendants in state courts seeking to assert Panetti claims have fared, and (2) the extent to which state statutes have made any meaningful difference in the way such cases have been decided. We also investigate the significance of the fact that the caselaw in this area has totally ignored the teachings of the school of legal thought known as therapeutic jurisprudence and offer some conclusions and recommendations (based on therapeutic jurisprudence principles) that, if implemented, can (at least partially) ameliorate this situation.

I. Introduction

Whenever the Supreme Court decides a case that makes instant national headlines, it is assumed that “the law has changed,” and that, going forward, those changes will be reflected in both judicial and social behavior. The recent decision in Dobbs v. Jackson Women’s Health Organization, ¹ overruling Roe v Wade, ² is an obvious example; within weeks of the overturn, thirteen state legislatures successfully implemented bans on abortion that would have been deemed unconstitutional if Roe had still been the law. ³ And, of course, those who opposed the Dobbs decision began strategizing ways to avoid its draconian impacts. ⁴

But there are other areas of the law in which Supreme Court decisions have not had such an immediate impact. In many areas of law, Supreme Court decisions have turned out to be illusory. ⁵ A study of case law following such decisions in regulatory takings has demonstrated the tendency of lower federal courts and state courts to ignore or blunt Supreme Court’s decisions. ⁶ A Supreme Court decision by no means constitutes a promise to clarify subsequent judicial behavior.

One such area of law is forensic mental disability law. In 1972, in Jackson v. Indiana, ⁷ the Court ruled unanimously that a person charged by a State with a criminal offense who is civilly committed solely on account of his incapacity to proceed to trial cannot be held “more than the reasonable period of time necessary to determine whether there is a substantial probability that he will attain that capacity in the foreseeable future.” ⁸ Yet this decision continues to be ignored by about half the states despite extensive scholarly literature calling attention to this deficit. ⁹ Some defendants—situated like the appellant in Jackson—are still institutionalized “for what equates to a life sentence.” ¹⁰

There is another area of forensic mental disability law that has fallen far beneath the radar and requires much more attention than it has yet received. This is the extent to which the Supreme Court’s decision in Panetti v. Quarterman ¹¹ —ostensibly ruling that a mentally ill defendant had a constitutional right to make a showing that his mental illness “obstruct[ed] a rational understanding of the State’s reason for his execution” ¹²—has been implemented in “real life.” Panetti came down more than two decades after the Supreme Court’s earlier decision in Ford v. Wainwright, ¹³ which, for the first time, held unconstitutional the execution of an “insane” person. ¹⁴

Soon after Panetti was decided, Professor Peggy Tobolowsky noted that “[o]ver twenty years after the Ford decision, several states are still not in compliance with these minimum constitutional definitional and procedural requirements.” ¹⁵ In two prior articles, these authors examined the implementation (or lack thereof) of Panetti in federal decisions, ¹⁶ concluding that Panetti has virtually never served as a protection upon which defendants could rely ¹⁷ and that the concerns raised by Professor Tobolowsky were almost never addressed. ¹⁸

In this paper, we complete our trilogy of Panetti research ¹⁹ by examining the extent to which Panetti has been implemented in all state courts. ²⁰ Our findings reveal that fewer than a handful of defendants have raised or have been successful in Panetti applications. ²¹ There were two successful cases (Banks and Staley), two threshold successful cases (Overstreet and Druery), ²² and two statute successes (Greene and Ward in Arkansas). There was a total of sixteen failures: mentally ill, but rational (six cases), defense expert concessions (seven cases), defense experts not credible (seven cases) and malingering (two cases). ²³ First, we briefly discuss the Panetti case, ²⁴ and what our prior studies have revealed. ²⁵ Next, we examine how Panetti has been construed in those states which there is an active death penalty. ²⁶ The following section examines the implications of these statistics. Finally, we investigate why the caselaw in this area has totally ignored the teachings of therapeutic jurisprudence ²⁷ and offer some conclusions and recommendations based on therapeutic jurisprudence principles.

This article’s title comes from a truly obscure Bob Dylan song, Ballad in Plain D. The song, recorded in 1964 and never performed live, is not a political song, but is about Dylan’s relationship with his then-girlfriend, and his acrimonious relationship with her sister. ²⁸ The full verse from which it comes is this: And so it did happen like it could have been foreseen / The timeless explosion of fantasy’s dream / At the peak of the night, the king and the queen / Tumbled all down into pieces. ²⁹ Sadly, we now recognize that our hopes that the Panetti case would actually change practice, and that it would become less likely that profoundly mentally ill death row inmates would be executed was a “fantasy.” What we report in this final paper of our Panetti trilogy, unfortunately, “explo[des]” the fantasy for good.

II. Panetti and its aftermath

In 1995, Scott Panetti—who had been hospitalized numerous times for serious psychiatric disorders—was convicted of capital murder in the slayings of his estranged wife’s parents. ³⁰ Notwithstanding his “bizarre,” “scary,” and “trance-like” behavior, ³¹ he was found competent to stand trial and competent to waive counsel. ³² The jury rejected his insanity defense, and he was sentenced to death. ³³ Following the exhaustion of state remedies and the dismissal of an earlier habeas corpus petition, Panetti filed a subsequent petition alleging that he did not understand the reasons for his pending execution. ³⁴ The Fifth Circuit affirmed the denial of the writ, ³⁵ and the Supreme Court reversed, ³⁶ finding that the defendant had a right to make a showing that his mental illness “obstruct[ed] a rational understanding of the State’s reason for his execution.” ³⁷ It characterized the Fifth Circuit’s position below as “too restrictive to afford a prisoner the protections granted by the Eighth Amendment.” ³⁸

Two of this Article’s co-authors (Michael Perlin (“MLP”) and Talia Harmon (“TRH”)) examined in two prior articles how the Fifth Circuit had construed Panetti cases ³⁹ and how Panetti was construed in the other circuits. ⁴⁰ The Fifth Circuit research ⁴¹ revealed that there was not a single other case (other than in Panetti on remand) ⁴² during the fourteen-plus years since the Supreme Court decided Panetti in which the Fifth Circuit found that a defendant was incompetent to be executed, and only two such cases were decided by a district court within the Circuit. ⁴³ And, when we expanded our search to the entire nation, we found only one case—later vacated—that found a Panetti violation in a federal circuit court decision. ⁴⁴ In the Fifth Circuit article, MLP and TRH concluded that Panetti was “an illusion, little more than a paper victory for defendants with serious mental illness.” ⁴⁵ In the article on the other circuits, MLP and TRH similarly concluded that “Panetti has been given virtually no life whatsoever by the federal courts of appeal.” ⁴⁶ This paper turns to the “death penalty states” to check for similar findings.

In the course of our research, we excluded cases that cited Panetti but did not consider the issues that are at the heart of this paper: cases including issues of ripeness, ⁴⁷ cases that involved issues of intellectual disabilities and interpretations of Atkins v. Virginia, ⁴⁸ cases that were not death penalty cases, ⁴⁹ and cases that dealt with procedural reasons and/or unrelated legal issues. ⁵⁰ In the future, even more pressure will exist on defense counsel in representing this cohort of defendants in state court, following the Supreme Court’s recent (and virtually-totally unheralded) ⁵¹ opinion in Shinn v. Ramirez. ⁵² Shinn limited the scope of Strickland inquiries that could be made in cases involving federal habeas corpus filings following state court convictions, ruling that a federal habeas court may not conduct an evidentiary hearing or otherwise consider evidence beyond the state court record based on the ineffective assistance of state postconviction counsel. ⁵³ This will make it far “more difficult for defendants to be successful in Strickland claims.” ⁵⁴

As MLP and TRH discussed in a prior paper, “[t]he story of how the Fifth Circuit has dealt with Strickland appeals in cases involving defendants with mental disabilities facing the death penalty [on applications for writs of habeas corpus following state court convictions] is bizarre and frightening." ⁵⁵ The track record of counsel in death penalty cases in many of the “death belt” states ⁵⁶ is appalling. As Professor Stephen Bright has famously and ruefully observed, “The death penalty will too often be punishment not for committing the worst crime, but for being assigned the worst lawyer.” ⁵⁷

III. Our findings

In combining the state court findings discussed extensively in this paper with the findings reported on in the two prior papers about the federal courts (one solely on the Fifth Circuit ⁵⁸ and one on the other federal circuits ⁵⁹), we are able to confront these appalling results: since the Supreme Court decided Panetti fifteen years ago, in the aggregate, only eight defendants have been found to be incompetent to be executed by any court (and one of those decisions was later vacated). ⁶⁰ On the merits, Panetti was rejected as a basis for avoiding execution in sixteen state cases ⁶¹ and in twenty-eight federal cases. ⁶² Beyond this, the underlying question was not reached in 5480 cases in which the reported opinion cited the Panetti case. ⁶³

To gather data for this Article, an extensive search of all substantive incompetency-to-be-executed claims based on the Supreme Court’s decision in Panetti v. Quarterman ⁶⁴ in all state courts was conducted using the Westlaw database and the Nexis Uni database. After filtering the initial results of the key term “Panetti v. Quarterman” to only state case opinions, Westlaw and Nexis Uni provided a list of eighty-five case opinions that cited Panetti. ⁶⁵ Additionally, another state case opinion citing Panetti ⁶⁶ was found during the research of federal case opinions for the second paper of this trilogy and was added to this analysis. ⁶⁷ Of the eighty-six case opinions found, twenty-eight of them included “valid” ⁶⁸ Panetti-based claims, and one made an incompetency-to-be-executed claim but did not directly cite Panetti in the state case opinion. ⁶⁹ Within this cohort, Panetti himself was the subject of one of the case opinions, ⁷⁰ nine case opinions had repeat defendants, ⁷¹ and nineteen case opinions involved defendants (other than Panetti) who appeared in only one case. ⁷² In total, twenty-four defendants made valid Panetti-based claims in the twenty-nine case opinions. ⁷³ Four from the remaining fifty-five case opinions were removed because, although they argued a competency-to-be-executed claim, they were not ripe ⁷⁴ and thus there was no discussion of the substantive aspects of Panetti. ⁷⁵ Seven case opinions were excluded due to involving claims related to Atkins v. Virginia ⁷⁶ and lacked any substantive discussion of Panetti. ⁷⁷ Ten case opinions were removed because they did not make incompetent-to-be executed claims and cited Panetti for procedural reasons, ⁷⁸ such as for discussions on the state’s ability to execute an individual, ⁷⁹ the extent of a defendant’s right to expert testimony, ⁸⁰ successor petitions, ⁸¹ or when the narrower holding should control. ⁸² Of the remaining thirty-six case opinions, twenty-five were removed because they were not death penalty cases, and thus substantive Panetti claims could not be made. ⁸³

The eleven remaining case opinions for eleven separate defendants do not have a standard incompetency-to-be-executed Panetti-based claim but rely on Panetti to argue for a categorical exemption ⁸⁴ from the death penalty for defendants whose serious mental illnesses make their execution unconstitutional on the grounds that such punishment is excessive and cruel and unusual. ⁸⁵ Included in this analysis are seven of these eleven case opinions where the defendant relied on Panetti to argue for a categorical exemption for offenders who are either seriously mentally ill or were seriously mentally ill at the time of their scheduled execution. The defendants and concurring/dissenting judges support this claim either with reasons parallel to those articulated in Atkins or by arguing that a person who is “seriously mentally ill” has, by definition, an impaired comprehension rendering them ineligible for the death penalty under Panetti. ⁸⁶ Two of the remaining four case opinions were removed because they argued for a categorical exemption different from the one that is the subject of this analysis, (e.g., a defendant who suffers from chronic PTSD but not a serious mental illness ⁸⁷ or a defendant whose age and mental illness -- in combination -- make the death penalty excessive in his case. ⁸⁸ The last two case opinions were excluded because, although they argued for a categorical exemption for persons who are seriously mentally ill, their reliance on Panetti was deemed to be premature, and thus their argument was rejected on those grounds. ⁸⁹

After all exclusions, this Article analyzes twenty-nine case opinions for twenty-four defendants who made valid incompetency-to-be-executed claims and seven case opinions for seven defendants who do not make incompetent-to-be-executed claims under Panetti but argue for a categorical exclusion for defendants who are seriously mentally ill.

A. Findings

Of the cohort of “valid” Panetti claims (meaning the court considered the substantive issue decided by the Supreme Court in Panetti in the case before it in a published opinion)—an n of 24 ⁹⁰(one of which was Panetti himself) ⁹¹—there were five cases that could be considered “successes,” meaning that the defendant was found incompetent to be executed under Panetti. ⁹² In two of these cases, ⁹³ the defendant was successful in the state court systems in a published opinion. ⁹⁴ In two, the reported court opinion ordered further proceedings, and in both cases, in unreported opinions the defendant was found incompetent to be executed. ⁹⁵ In one, the defendant was successful at the trial court level in an unpublished opinion, but the fact of that success was subsequently noted in a federal case dealing with that defendant. ⁹⁶ As a result, we were only able to analyze and code for the following number of cases where published state court opinions were available.

B. Examining individual cases

This section examines the two cases that were successes, two cases that were threshold successes, and then considers cases in which there were strong dissents and/or concurring opinions urging Panetti-based relief and cases holding state laws governing Panetti determinations unconstitutional. It then discusses Panetti failures.

1. Successes

In two cases, courts found that the planned execution violated the Panetti standards. In Staley v. State, ⁹⁷ after the defendant had initially been found incompetent to be executed, he was then involuntarily medicated; ⁹⁸ as a result of the medication, he was subsequently classified as competent to be executed. ⁹⁹ After this, however, the court found that such “involuntary medication of [Staley] was not permitted under the competency-to-be executed statute,” and that the “evidence conclusively shows that [Staley] is incompetent to be executed.” ¹⁰⁰ It concluded: “We hold that the evidence conclusively shows that appellant’s competency to be executed was achieved solely through the involuntary medication which the trial court had no authority to order under the [Texas] competency-to-be-executed statute.” ¹⁰¹

In Commonwealth v. Banks, ¹⁰² the state’s witnesses had agreed with the defense witnesses as to the defendant’s psychosis. ¹⁰³ Banks suffered from fixed delusions that he was “being poisoned in prison as part of a Department of Corrections conspiracy, that he was currently incarcerated as part of a government conspiracy and that his sentences of death had been vacated by God, Jesus, the Governor, George Bush or some combination of the same.” ¹⁰⁴ In finding that the defendant was incompetent to be executed under the rule established in Panetti, ¹⁰⁵ the court specifically pointed out the similarities between the Banks case and the Panetti case itself: “Banks does not have a rational understanding of the death penalty or the reasons for it, as required by Panetti.” ¹⁰⁶ It concluded in this manner: “WHAT IS INESCAPABLE, is that experts generally agreed that Banks had a significant number of fixed delusions relating to his crime and punishment and five of the six experts agreed that his delusions extended to his penalty.” ¹⁰⁷

a. Threshold successes ¹⁰⁸ and other cases with “Pro-Panetti” opinions

In two cases, defendants who were unsuccessful at their initial Panetti hearings were ultimately found incompetent to be executed. In one, ¹⁰⁹ the defendant was found incompetent at a subsequent Panetti hearing three years after the published decision, ¹¹⁰ but there are no other details available. The other, ¹¹¹ a subsequent unreported decision, granted the defendant’s petition as noted in a subsequent case. ¹¹²

There were, in addition to the cases referenced above, cases in which: concurring/dissenting judges conclude—in cases in which Panetti was unsuccessfully argued—that there should be categorical exemptions from execution for defendants with serious mental illness; ¹¹³ cases in which there were concurring or dissenting opinions concluding that, under Panetti, the defendant was incompetent to be executed, and cases assessing the constitutionality of state laws governing potential execution incompetence.

(1) Arguing for categorical exemption ¹¹⁴

The most thorough of these opinions was Part VIB of Justice Rucker’s opinion in Overstreet v. State. ¹¹⁵ There, in an otherwise-unanimous opinion in which the Court rejected the defendant’s Strickland v. Washington adequacy-of-counsel claims ¹¹⁶ (at the pretrial, trial, penalty and appellate levels) ¹¹⁷ as well as multiple evidentiary claims, ¹¹⁸ Justice Rucker relied on the state constitution’s “cruel and unusual” punishment clause, noting that the “underlying rationale for prohibiting executions of the mentally retarded is just as compelling for prohibiting executions of the seriously mentally ill.” ¹¹⁹ He cited U.S. Supreme Court decisions finding that a state is free as a matter of its own constitutional law to confer rights above the floor of constitutional safeguards found in the United States Constitution. ¹²⁰ He concluded:

Because I see no principled distinction between the diminished capacities exhibited by Overstreet and the diminished capacities that exempt the mentally retarded from execution, I would declare that executing Overstreet constitutes purposeless and needless imposition of pain and suffering thereby violating the Cruel and Unusual Punishment provision of the Indiana Constitution. ¹²¹

In at least three other cases, concurring and dissenting judges articulated a strong “categorical exemption” rationale in support of reversing convictions and sentences. ¹²² In State v. Lang, ¹²³ a case in which the death penalty was upheld, a three-justice concurrence discussed Atkins and Roper v. Simmons, ¹²⁴ and then made this argument:

Although it is unconstitutional to execute someone who is incompetent at the time of his or her execution, see Ford v. Wainwright … and the United States Supreme Court has not yet decided whether it is unconstitutional to execute someone who suffered from a serious mental illness at the time of the crime. If executing persons with mental retardation/developmental disabilities or executing juveniles offends “evolving standards of decency,” Roper, 543 U.S. at 563, …, then I simply cannot comprehend why these same standards of decency have not yet evolved to also prohibit execution of persons with severe mental illness at the time of their crimes. ¹²⁵

Similarly, dissenting in State v. Kahler, ¹²⁶ Justice Johnson concluded on this point:

Atkins spoke about mentally retarded offenders being less morally culpable because of their “diminished ability to understand and process information, to learn from experience, to engage in logical reasoning, or to control impulses,” as well as not being amenable to deterrence. 536 U.S. at 320… I fail to grasp how a severely mentally ill person possessing those same characteristics is not in the same less-morally-culpable category as the mentally retarded offender. If a person is incapable of understanding the nature and quality of their murderous act and/or did not know that the act was wrong, does it matter whether the cause of the cognitive deficiency is labeled mental retardation or chronic mental illness? The point is that, when executing a severely mentally ill person will not “measurably advance the deterrent or the retributive purpose of the death penalty,” it becomes “nothing more than the purposeless and needless imposition of pain and suffering.” 536 U.S. at 319, 321… ¹²⁷

And, finally in Commonwealth v. Bauhammers, ¹²⁸ Justice Todd concurred, specifically endorsing the Lang concurrence:

[A]s with mentally retarded defendants, it is not clear that either purpose of capital punishment—retribution or deterrence—is served by imposing that punishment on defendants who are severely mentally ill at the time of their crimes…An individual with a serious mental illness may be just as seriously impaired in his ability to “understand and process information” as an individual with a diminished IQ or an individual who has not yet reached the age of legal majority. ¹²⁹

(2) Other cases with Panetti-focused dissents

The most complex case in this array is that of State v. Haugen, ¹³⁰ in which the defendant at one point sought to discharge his attorneys and waive future appeals. ¹³¹ The majority here rejected the argument that Panetti was violated by the trial court’s determination that due process was not violated by allowing the execution to proceed, ¹³² in the face of two dissents. In one, per Justice Walters, ¹³³ the dissenters relied on Panetti in focusing on the trial judge’s failure to consider a report by a neuropsychologist who had concluded that Haugen was incompetent to be put to death. ¹³⁴ In the other, per Justice De Muniz, ¹³⁵ the dissenters concluded that “the trial court, however, was not authorized to simply ignore evidence relevant to Haugen’s competence to be executed, whether that was Haugen’s wish or not.” ¹³⁶ There were other cases in which dissents relied, at least in part, on Panetti, to support the position that the defendant was entitled to a new hearing at which he can demonstrate his incompetency to be executed. ¹³⁷ In one of these cases, ¹³⁸ the dissent took sharp issue with the majority’s holding on what process was due in a Panetti hearing:

Rather, the majority concludes it simply can take the evidence Mr. Cole presents to this Court to support his threshold showing and use that evidence to make credibility determinations as to whom to believe and whose reports are entitled to more weight in the first instance and then itself decide the ultimate factual issue of whether Mr. Cole is incompetent. ¹³⁹

(3) Cases declaring state statutes unconstitutional under Panetti ¹⁴⁰

In Ward v. Hutchinson, ¹⁴¹ the Arkansas Supreme Court – relying in significant part on Panetti – found the state statute governing determinations of incompetency to be executed to be unconstitutional as not “comport[ing] with the fundamental principles of due process.” ¹⁴² That statute – which had authorized the state corrections director to initiate a determination of competency when he was satisfied that “there were reasonable grounds for believing that death-row inmate was not competent to understand nature and reasons for punishment of death” ¹⁴³ was found to be “devoid of any procedure by which death-row inmate had opportunity to make initial substantial threshold showing of insanity to trigger hearing process,” ¹⁴⁴ and further failed to provide for an appropriate evidentiary hearing. ¹⁴⁵

(a) Statutory developments elsewhere

The developments in Panetti-based litigation in state courts must be considered in the context of the state statutes that govern Panetti proceedings in those venues. As noted above, the Arkansas Supreme Court has found a state statute governing such proceedings to be unconstitutional. ¹⁴⁶ What, though, about other jurisdictions? Research reveals that at least two other jurisdictions (Texas ¹⁴⁷ and Oklahoma ¹⁴⁸) have changed their statutes since Panetti was decided, and that two states (Kentucky ¹⁴⁹ and Ohio ¹⁵⁰) prohibit the death penalty in cases involving defendants with serious mental illnesses. ¹⁵¹ In addition, legislation has also been introduced in at least seven states arguing for a categorical exemption from the death penalty for offenders who are seriously mentally ill. ¹⁵² On the other hand, two states fail to expressly authorize or require the decision-makers to allow the offender to be heard and share their evidence or argument. ¹⁵³ Lastly, six states do not require decision-makers to consider testimony from independent experts. ¹⁵⁴

C. Rejections of defendants’ claims

(1) Introduction

The vast majority of Panetti cases in state courts rejected defendants’ claims. These cases can be categorized into these groupings: cases where the court believed the defense expert had conceded that the Panetti standard was not met, cases where the court found the defense expert(s) to be less credible than the state expert, cases where the court believed the defendant was malingering, ¹⁵⁵ cases where the court found the defendant to be severely mentally ill, but still had a rational understanding of linking the crime and impending execution, and cases in which the defendant sought a categorical exemption from the death penalty because of serious mental illness. ¹⁵⁶

(2) Concessions by defense experts

In seven of the sixteen cases in this grouping, the court determined that there were such concessions. ¹⁵⁷ In Mays v. State, ¹⁵⁸ defense expert Dr. George Woods ¹⁵⁹ had concluded that the defendant was incompetent for execution because he lacked “a rational understanding of the connection between his crime and punishment.” ¹⁶⁰ Yet, the court focused on what it perceived as a concession by Woods: he “acknowledged at the competency hearing that Mays did not articulate that particular belief [regarding the state executing him regarding his delusional belief related to his energy invention] to anyone until this legal issue came up.” ¹⁶¹ The other defense expert, Dr. Bhushan S. Agharkar, concluded that Mays was not competent to be executed, noting that, although he understood he was to be executed, he lacked a “rational understanding of the reason he is being executed.” ¹⁶² However, Agharkar had noted that he solely “conducted screenings and he admitted he would never diagnose someone based on his screenings.” ¹⁶³ When placed in the context of Mays’ other statements to defense experts, ¹⁶⁴ it defies credulity to conclude that those experts’ opinions are invalidated by these alleged concessions. ¹⁶⁵

In Battaglia v. State, ¹⁶⁶ three of the four experts who testified had concluded that the defendant was incompetent to be executed; however, the Court privileged the testimony of the one expert whose opinion was contrary. In this case, Dr. Diane Mosnik, Dr. Timothy Proctor, and Dr. Thomas Allen agreed that Battaglia “suffer[ed] from Delusional Disorder” and as a result, was incompetent to be executed because he lacked a rational understanding of the reason for his execution. ¹⁶⁷ Nonetheless, the court rejected the defendant’s Panetti application, accepting the testimony of the fourth witness, Dr. James Womack (court appointed), who concluded that he had a personality disorder and not a mental illness, and was a “malingerer, not credible.” ¹⁶⁸ Significantly, the court put great weight on the fact that Dr. Womack had worked for the Federal Bureau of Prisons for 21 years. ¹⁶⁹

In this case, the court saw as a concession the fact that Dr. Mosnik “admitted” that [Battaglia was] aware of his execution date and of the fact that he had committed the murders for which he was convicted, ¹⁷⁰ notwithstanding the fact that he “lack[ed] a rational understanding of the connection between the crime and impending execution,” ¹⁷¹ along with Dr. Proctor having “admitted …that it is possible for an intelligent person to feign delusions.” ¹⁷² A blistering dissent criticized the majority for its “overly restrictive view of the standard for evaluating a defendant’s competency to be executed that imposes a more onerous burden on the defense in order to establish incompetency,” ¹⁷³ concluding:

This Court should not permit the execution of a person who may be categorically exempt from the death penalty due to his severe mental illness in the name of deference to the lower court’s ruling, where that ruling appears to have been based on a flawed interpretation of the law. Under these circumstances, I cannot agree with the majority opinion’s decision to uphold the trial court’s ruling without first giving the trial judge the opportunity to clarify his findings and conclusions in light of the proper standard. ¹⁷⁴

In minimizing the value of Dr. Mosnik’s testimony, the court noted that she had “never testified in support of the State’s position regarding execution competency.” ¹⁷⁵ How can this observation be reconciled with the Court privileging Dr. Womack’ status as a long-time employee of the state department of corrections? ¹⁷⁶

In State ex rel. Barton v. Stange, ¹⁷⁷ a case in which the defense expert testified that the defendant was unable to “provide rational assistance to counsel and … engage in consistent, logical, and rational decision making,” ¹⁷⁸ the Court found that the witness’s focus on the brain injuries (causing a major neurocognitive disorder) ¹⁷⁹—rather than on mental illness—made Panetti inapplicable. ¹⁸⁰ Further, although the Court concluded that the witness “admits this [his brain injury impairment does] not meet the standard set out in Ford,” ¹⁸¹ this ignores the witness’s testimony that “Barton was incompetent under the standard set forth in …Justice Marshall’s plurality opinion in Ford.” ¹⁸² And, in State ex rel Clayton v. Griffith, ¹⁸³ a case in which a defense expert testified that Clayton was incompetent to be executed as a result of the defendant’s expressed feeling that he “is called to preach the gospel and will be released from prison by a miraculous act of God…,” ¹⁸⁴ the value and weight of that testimony was minimized as “the witness had conceded Clayton seemed aware of his current prison status.” ¹⁸⁵

(3) Defense witness credibility

In seven of the cases in this cohort, ¹⁸⁶ the court’s decision rejected Panetti applications relying, at least in part, on what it perceived as a lack of credibility on the part of defense witnesses. ¹⁸⁷ Of interest is the fact that three of the cases involved the same witness – Dr. William Logan – whose testimony was at the heart of three Eighth Circuit cases that had come to the same conclusion. ¹⁸⁸ In our prior paper that considered those cases, we came to this conclusion, to which we adhere today:

The trilogy of cases just discussed can only be interpreted in one way: that the Circuit’s intuitive feeling that Dr. Logan was not a credible witness in spite of the thoughtful dissents [in the cases in question] overcame all evidence that was offered on behalf of the defendants. It is, to us, otherwise inexplicable. ¹⁸⁹

What we will characterize as the “Dr. Logan cases” in state court followed the same pattern as those in federal court. By way of example, in State ex rel. Middleton v. Russell, ¹⁹⁰ Dr. Logan testified that the defendant “believe[ed] his conviction was the result of a conspiracy which included his associates, law enforcement, the courts, prosecutors and his defense attorneys” and he that “he [would] not die while incarcerated but [would] be cleared on charges and return to the community,” ¹⁹¹ and that Middleton “lack[ed] a rational understanding of the reason for his execution and is therefore not competent to be executed” because of his delusional disorder, a psychotic mental illness. ¹⁹² Yet here, the court found Dr. Logan to not be credible because, apparently, he did not find Middleton to be as delusional as Scott Panetti, the defendant in the Panetti case. ¹⁹³ There is nothing in the Panetti cases – or elsewhere in any of the cases – that finds that, to meet the threshold of the Panetti decision, the defendant need to be as mentally ill as was Panetti himself. ¹⁹⁴

Similarly, in State ex. rel Cole v. Griffith, ¹⁹⁵ the court found Logan to not be a credible witness, in part, because he had not interviewed his ex-wife (a victim of an assault at the time of the murder for which Cole was convicted) or “her family of their description of the marital discord.” ¹⁹⁶ The court came to this conclusion notwithstanding the fact that Logan had diagnosed the defendant as evidencing “symptoms of psychosis with gross delusions” that prevent[ed] him from “comprehending or forming a rational understanding of the reason for the execution.” ¹⁹⁷ The majority found the witness to not be credible because he testified for the defense in two other Missouri death penalty cases. ¹⁹⁸ This allegation was rebutted firmly in Justice Stith’s dissent:

Finding experts willing to get involved in death penalty litigation is exceedingly difficult, and it will be all the more so if experts must be “one and done”—if they can testify only in a single case before being discounted as just a defense shill. This is particularly true here where defense counsel indicate that Dr. Logan, in fact, testifies for both the prosecution and the defense—but if this is in question, then it could be explored in cross-examination at the hearing that the majority refuses to permit. ¹⁹⁹

In the final case of the Dr. Logan trilogy, the court, in State ex rel. Clayton v. Griffith, ²⁰⁰ again rejected the witness’s testimony as not credible. ²⁰¹ There, Dr. Logan testified that the defendant ‘firmly believe[d that] God [would] intervene and his execution [would] not occur,” ²⁰² and that these delusions “are fixed and unchangeable,” as a result of his head trauma (that had been documented by MRI tests). ²⁰³ But the court ruled that his opinions about Clayton “are not credible” for the same reasons that it refused to “credit the substantially similar opinions he offered in Middleton.” ²⁰⁴ Again, Justice Stith dissented, arguing that this testimony (as well as that by Dr. Foster, another defense expert) provided a threshold showing that Clayton “should be allowed the opportunity to convince the special master ²⁰⁵ that he “does not have a rational understanding of the reasons for his execution.” ²⁰⁶

As we have previously noted, the court – in Mays and in Battaglia – found defense witnesses to not be credible (focusing in Mays on what it saw as the witness improperly passing notes to defense counsel, ²⁰⁷ and in Battaglia, to a significant extent, because the witness had heretofore only testified on behalf of defendants in death penalty cases). ²⁰⁸ The courts also found defense witnesses to not be credible in Green v. State. ²⁰⁹ In Green, where the defense expert concluded that the defendant was “not aware…that he is responsible for a crime for which he’s being executed,” ²¹⁰ the Court was instead persuaded by the testimony of the state’s expert witness who found that the defendant “exhibited signs of symptom magnification, the intentional exaggeration of symptoms in an effort to achieve secondary gain.” ²¹¹ Because the defendant “[knew he was] to be executed by the State, [knew he was] convicted of killing the victim … [knew] the execution date, and then … proclaimed [his] innocence which shows a rational understanding of [the] imminent date and … the charges … against [him],” the trial court thus accepted the state witness’s testimony and found the defendant competent to be executed. However, as we (MLP & TRH) noted in our earlier article about the federal court aspects of the Green case:

Nothing here, however, goes to a critical prong of Panetti: did the defendant have a “rational understanding of the State’s reason for his execution”? Although the issue of “rational understanding” was addressed, it appeared only to be considered in the context of the fact that the defendant was able to proclaim his innocence, a far cry from what is demanded by Panetti. ²¹²

(4) Malingering

Given the extent to which allegations of malingering dominated many of the federal post-Panetti cases, ²¹³ it is rather surprising that this issue was raised in only two of the state cases: Battaglia ²¹⁴ and Gore. ²¹⁵ One of these cases – Battaglia ²¹⁶ – is a clear example of what we have previously discussed as the confirmation heuristic: the court (through its flawed “ordinary common sense”) ²¹⁷ believed that Battaglia was malingering, so it chose to privilege the testimony of the one expert who disagreed, notwithstanding the subsequent rebuttal of this testimony by one of the defense experts. ²¹⁸

In this case, three witnesses – a defense expert, a state’s expert and an expert appointed by the court ²¹⁹ -- agreed that the defendant “suffer[ed] from Delusional Disorder” and as a result, was incompetent to be executed because he lacked a rational understanding of the reason for his execution. ²²⁰ Importantly, all three experts also agreed that they “found no evidence of malingering.” ²²¹ Moreover, in response to the state’s witness’s testimony that the defendant was malingering, ²²² one of the defense witnesses testified in rebuttal that the tests she administered showed “no indication of malingering or feigning [on the part of the defendant],” ²²³ and that his “beliefs appear[ed] to be the product of a vast and complicated delusional system.” ²²⁴

In choosing to endorse the conclusions of the one expert who found the defendant to be malingering, the court accepted the finding of the trial court that had relied heavily on the fact that that expert—Dr. James Womack – had worked for the Federal Bureau of Prisons, thus making him the “most qualified” of all the experts in the case. ²²⁵ There is no evidence that this conclusion was supported by any valid or reliable research.

There was also no indication that the court ever considered such research on the question of the validity of malingering findings in general. It is well known to those who study this field of thought and practice that even “clinicians working in forensic settings, who are familiar with malingering, have a high misidentification rate.” ²²⁶ By way of examples, one well-known study reports that only 8% of defendants studied actually malingered, ²²⁷ whereas another study tells us that only 1.5% met the criteria for malingering. ²²⁸

(5) Mentally ill but rational

Multiple cases in the cohort concluded that the defendant was mentally ill but nonetheless rational enough to understand the reason for his execution, thus bringing them out of the scope of the Panetti case. This finding did not appear in any of the federal cases researched for these authors’ prior Panetti articles. In these cases, ²²⁹ patterns emerge. Although the courts concede that the defendants are delusional, they nonetheless find them rational enough to take them out of the category of defendants who cannot be executed under the Panetti case. Thus, in what had been characterized as paranoid schizophrenia, ²³⁰ individuals will adhere to persistent false beliefs and will generally not change their mind even when faced with strong evidence to the contrary. ²³¹ By way of example, where the defendant believed he was the “Prince of God,” ²³² and the court conceded that there was evidence of mental illness, ²³³ the court rejected his Panetti argument on the grounds that he was “aware that the State is executing him for the murders he committed and that he will physically die as a result of the execution.” ²³⁴ Elsewhere, the Tennessee Supreme Court found the defendant competent to be executed in spite of testimony that the “capacity of his brain to work in forming a rational understanding is in that of a pre-adolescent child.” ²³⁵ Notwithstanding this testimony, it concluded he had “a rational understanding of his pending execution.” ²³⁶ And, in yet another case, the court found that the defendant’s delusions did “not prevent him from rationally understanding the connection between the underlying conviction and his sentence of execution” ²³⁷

Finally, in State ex rel. Cole v. Griffith (discussed previously in the context of concessions made by defense experts), ²³⁸ the court paid no attention to testimony that the defendant had “symptoms of psychosis with gross delusions” that prevented him from “comprehending or forming a rational understanding of the reason for the execution.” ²³⁹

(6) Seeking a categorical exemption

Courts reject claims by defendants that there should be categorical exemptions in cases in which the defendant is seriously mentally ill at the time set for execution. In ten cases, courts rejected arguments that there should be a categorical exemption making the death penalty inapplicable to defendants with serious mental illnesses. In our previous article on Panetti cases in all federal circuits but the Fifth, two of the co-authors (MLP & TRH) concluded that “the theoretical protections of Atkins v. Virginia—prohibiting execution of persons with intellectual disabilities – needs to be extended to persons with major mental illnesses, thus obviating many of the problems inherent in most post-Panetti decisions.” ²⁴⁰ Although we noted that academic interest in this position “has diminished significantly in recent years,” ²⁴¹ these arguments continue to be made – albeit to this point, unsuccessfully—in state courts.

By way of example, in State ex rel. Strong v. Griffith, ²⁴² the defendant asked the court to extend the logic and holdings of Roper v. Simmons ²⁴³ and Atkins v. Virginia ²⁴⁴ (barring the imposition of the death penalty on individuals who were juveniles at the time of the crime or who were intellectually disabled), arguing that such a person “is similar to a person [in these groups whom the Supreme Court has determined not to] possess the capability … require[d] in order to impose the death penalty.” ²⁴⁵ He noted that such severely mentally ill persons “risk an unjust death sentence” because they are less able to assist counsel, may be poor witnesses, and may “create an unwarranted impression of lack of remorse for their crimes” by their demeanor. ²⁴⁶ The Court rejected this argument, concluding that “because Mr. Strong fails to present a cognizable claim for habeas corpus relief,” his arguments and supporting evidence need not be considered. ²⁴⁷ Dissenting, Judge Teitelman disagreed, applying Ford, Atkins and Roper to Mr. Strong and other severely mentally ill individuals. ²⁴⁸ Elsewhere, in State v. Jenkins, ²⁴⁹ the defendant argued that “the same rationale for exempting the intellectually disabled from the death penalty should apply to exempt defendants who are seriously mentally ill from that punishment.” ²⁵⁰ The Court dismissed the argument tersely: “We decline to vary from the principle articulated in Panetti.” ²⁵¹

The court in State v. Kleypas ²⁵² gave the issue more attention. It rejected the defendant’s argument that “[t]he culpability of the severely mentally ill is diminished in the same manner as juveniles and the mentally retarded,” by distinguishing the classification of mental illness from that of (as then referred to) mental retardation or age:

Mental illnesses present less discernable common characteristics than age or mental retardation. Caselaw relating to the implementation of Ford v. Wainwright, 477 U.S. 399 (1986), and Panetti v. Quarterman, 551 U.S. 930 (2007), illustrates the difficulty in defining a discernable standard relating to mental illness. See Panetti v. Quarterman, 2008 WL 2338498 (W.D. Tex. 2008). As the [American Bar Association] standard ²⁵³ recognizes, case-by-case evaluations would be necessary; it follows that the level of culpability will vary on a case-by-case basis. While we recognize that some mental illnesses may make a defendant less culpable and less likely to be deterred by the death penalty, often such illnesses can be treated and may not manifest in criminal behavior. ²⁵⁴

And, in yet another case, the court tasked the state legislature with the duty to classify: “We leave it to the Legislature, if it chooses, to determine exactly the type and level of mental impairment that must be shown to warrant a categorical exemption from the death penalty.” ²⁵⁵

In addition to Strong, other putative categorical exemption cases exist, containing extensive concurring or dissenting opinions. ²⁵⁶ In Overstreet v. State, ²⁵⁷ the Court rejected the defendant’s argument (endorsed in that portion of Justice Rucker’s majority opinion that had support from no other members of the court) that the Indiana state constitution should be read to create a categorical exemption:

Although I can certainly understand why the legislature might choose to prohibit the execution of all persons suffering from severe mental illness, that has not occurred in this state, and I cannot read Article I, Section 16 more expansively than the Eighth Amendment. ²⁵⁸

(7) Conclusion

There have been perilously few cases in which courts have taken seriously the teachings of Panetti. What appears to be overwhelming testimony of defendants’ serious mental illness – prohibiting them from rationally understanding the reasons for their impending executions – is regularly minimized or outright rejected. Most, although not all, of the state courts hearing these cases take Panetti no more seriously than do federal courts. ²⁵⁹

IV. Therapeutic jurisprudence ²⁶⁰

Therapeutic jurisprudence (“TJ”) recognizes that the law is potentially a therapeutic agent, with either therapeutic or anti-therapeutic consequences; it considers whether legal rules, procedures, and lawyer roles can or should be reshaped to enhance their therapeutic potential while not subordinating due process principles. ²⁶¹ It asks how the law “actually impacts” people’s lives, ²⁶² by supporting “an ethic of care.” ²⁶³ It seeks “to bring about healing and wellness,” ²⁶⁴ and values psychological health. ²⁶⁵ Further, adherence to the principles and tenets of therapeutic jurisprudence “maximiz[es] the likelihood that voice, validation and voluntariness ²⁶⁶ will be enhanced.” ²⁶⁷

Its guiding principles are commitments to dignity ²⁶⁸ and to compassion. ²⁶⁹ It believes that people “possess an intrinsic worth that should be recognized and respected, and that they should not be subjected to treatment by the state that is inconsistent with their intrinsic worth.” ²⁷⁰ The dignity-enhancing principles of TJ “enhance the likelihood that shame and humiliation will diminish and that greater dignity will be provided.” ²⁷¹ And, on compassion, consider the words of Professors Anthony Hopkins and Lorana Bartels:

The argument we make here is that TJ is founded upon the psychology of compassion, understood as a sensitivity to and concern for the suffering of others and a commitment to alleviating and preventing it. The “other” in the context of TJ is any person upon whom the law acts or any actor within the legal process. ²⁷²

On the same point, Professor Nigel Stobbs has added;

Compassion is a virtue, value, or disposition to act which can be held by individuals or groups …. Compassion is generally defined as having two elements. First is empathy--the capacity to sense that another is suffering, and to know what it might feel like to be subjected to that kind of suffering …. The second element of compassion is a felt need to try and alleviate that sensed suffering of other. ²⁷³

These authors’ previous articles about interpretations of Panetti in federal cases carefully examined the TJ implications of relevant decisions, focusing on issues related to expert believability, ²⁷⁴ expert funding, ²⁷⁵ malingering, ²⁷⁶ and synthetic competency. ²⁷⁷ Analysis of these cases in the Fifth Circuit concluded that;

These decisions reflect an abject level of stereotyping on the part of the court, and this stereotyping starkly reflects how this bias, coupled with judges’ use of false “ordinary common sense,” ²⁷⁸ has a significant impact on their decision-making processes. On the other hand, if the court had embraced TJ principles, each of these decision-making “pressure points” could have been invigorated with new options and individualized decision-making. ²⁷⁹

These articles further consider the TJ implications of courts’ failures to acknowledge the severity of defendants’ mental illnesses ²⁸⁰ and of the pervasive inadequacy of counsel, ²⁸¹ and concluded here that judges treat evidence of mental illness in criminal cases “so as to conform to the judges’ pre-existing positions,” ²⁸² in teleological ways that utterly violate TJ principles. ²⁸³ Here, courts fall prey to the allure of the confirmation bias heuristic through which we focus on information that confirms our preconceptions, ²⁸⁴ especially over disconfirming information. ²⁸⁵ Valid and reliable evidence shows that judges thus focus on information that confirms their preconceptions (i.e., confirmation bias), to recall vivid and emotionally charged aspects of cases (i.e., the availability heuristic), and to interpret information that reinforces the status quo as legitimate (i.e., system justification biases). ²⁸⁶ A judicial proceeding cannot be “fair” if the judge decides cases in such teleological manners. ²⁸⁷

The vast majority of the state cases considered in this article replicate these failings that we found in the federal cases. As discussed below, with a very small handful of important exceptions, this case cohort ignores all therapeutic jurisprudence principles and is rife with examples of the confirmation bias. Judges “believe” a case should be decided in a certain way, and thus “teleologically privilege evidence of mental illness” (where that privileging serves what they perceive as a socially beneficial value) and “subordinate [such evidence]” (where that subordination serves what they perceive as a similar value). ²⁸⁸ Per Professor David Faigman, “[s]ome commentators suggest that the court’s use of science is disingenuous; these critics believe that the court cites empirical research when it fits the court’s particular needs but eschews it when it does not.” ²⁸⁹

A stark example of this is the Mays case. There, the court chose to ignore the testimony by the two defense experts that the defendant lacked “a rational understanding of the connection between his crime and punishment” ²⁹⁰ and that he lacked a “rational understanding of the reason he is being executed,” ²⁹¹ in large part, it appeared, because one of the defense witnesses passed notes to counsel during the hearing. ²⁹² Additionally, consider Battaglia where the three experts who found him to be incompetent to be executed were discredited one by one and the fourth expert was the victor because the court really seemed to believe he was malingering. ²⁹³ Again, this appears to perfectly reflect the meretricious use of the conformation bias heuristic.

Related is the way that the courts ignore the significance of the impact of traumatic brain injury on defendants’ behavior. ²⁹⁴ Generally, courts have not been sympathetic to Panetti claims made by defendants with traumatic brain injuries, ²⁹⁵ and most courts have been “unresponsive to TBI claims at this juncture of the proceedings.” ²⁹⁶ In one case, a federal court specifically rejected a death-row defendant’s argument that the Florida Supreme Court denied a death row petitioner’s claim that the Eighth Amendment categorically exempted him from execution because he suffered from severe traumatic brain injury and severe mental illness. ²⁹⁷

In the cohort of the cases discussed here, the results are similar. In State ex rel. Barton v. Stange, ²⁹⁸ the Court found that the witness’s focus on the defendant’s TBI (causing a major neurocognitive disorder) – rather than on mental illness – made Panetti inapplicable. ²⁹⁹ In State ex rel. Clayton v. Griffith, ³⁰⁰ where a traumatic brain injury caused the loss of “nearly eight percent of Clayton’s brain and 20 percent of his frontal lobe,” ³⁰¹ the court gave this evidence no value in coming to its conclusion that the defendant was competent to be executed.

These authors believe that, using the principles of therapeutic jurisprudence, “introduction of a defendant’s TBI could prove to be an effective tool during mitigation, in order to provide a clue as to why he may have performed the crime with which he was charged.” ³⁰² “[R]ecognition of a physical component of the defendant’s] disability could help to comport with therapeutic jurisprudence principles of dignity, voice and validation,” ³⁰³ but this has not happened.

Many of the cases discussed here that reflect conformation bias shroud a deep-seeded bias against the defendants before the court. Professor Colleen Berryessa has urged that the therapeutic jurisprudence literature “may also be instrumental in crafting ‘therapeutic interventions’ that promote judges’ cognitive awareness related to … biases and how such biases in cases involving mental disorders may result in anti-therapeutic outcomes by hindering an offender’s potential treatment opportunities.” ³⁰⁴ That “the entire body of scholarship [on neuroimaging evidence and TJ] has fallen on deaf ears in the contexts of criminal sentencing,” ³⁰⁵ in no arena more so than in death penalty cases. ³⁰⁶ There are, of course, exceptions. As noted above, Justice Rucker’s opinion in Overstreet ³⁰⁷ is a stand-alone example of how therapeutic jurisprudence (although he never refers to it by name) can animate a thoughtful, validating dignity-granting decision. Both Staley and Banks fall into this category as well. But such cases are, sadly, few and far between.

V. Conclusion

Although the “track record” of the state courts is not quite as woeful as that of the federal courts, it remains dispiriting. Depending on the categorization of cases, either only two defendants or five defendants were successful in their Panetti arguments, ³⁰⁸ and many of the Panetti losses involved profoundly mentally ill defendants. The continued reliance on cognitive-simplifying heuristics and false “ordinary common sense” – along with a failure to recognize the significance of TJ principles – taint this entire area of law. ³⁰⁹ In the Fifth Circuit, not a single decision for a defendant exists on Panetti grounds at the circuit level; ³¹⁰ in all other federal circuits, there was but one Panetti victory for a defendant, and that was subsequently vacated. ³¹¹ This pattern has been replicated in the state courts.

When considering the results from these authors’ trilogy of papers, the minute number of Panetti claims deemed to be valid by the courts, coupled with the fact that this current paper discussed many cases in which defendants were found severely mentally ill, but not irrational (under the Panetti standard), it underscores that it is time to reconsider the propriety of a categorical exemption of persons who are severely mentally ill from the death penalty. This opinion – currently the law in a few states and under consideration in others – is the most favorable solution to this otherwise intractable problem.

This paper concludes by returning to the Bob Dylan song which gives it its title. The couplet that begins with the line “the timeless explosion of fantasy’s dream” ends with “… the king and queen/ tumbled all down into pieces.” ³¹² This area of forensic mental disability law has so tumbled.