Texas to Execute Severely Mentally Ill Man Tonight Despite Public Outcry (Updated)

Tonight at approximately 6 p.m. CST Texas is scheduled to execute Scott Panetti, a man who has suffered from schizophrenia and other mental illnesses for over 30 years.

First diagnosed with schizophrenia in 1978, Panetti was hospitalized over a dozen times by 1992 and involuntarily committed to a mental hospital at least twice. On one such occasion in 1986, Panetti had buried his furniture in the backyard because he believed the devil was inside it.

In 1992, shortly after Panetti stopped taking his medication, he shaved his head, dressed in army fatigues, and killed his in-laws with a hunting rifle in front of his wife and 3-year-old-daughter. He turned himself in shortly after, and told police officers that "Sarge" was responsible for the killings.

After a jury found him competent to stand trial, a judge allowed him to represent himself in court. At his trial, Panetti wore a cowboy costume and a purple bandana and attempted to subpoena Jesus Christ, John F. Kennedy, and the Pope, along with 200 others. His statements were often incoherent and rambling, and at one point he even fell asleep. In 1995, Panetti was convicted of the murders and sentenced to death.

The central issue at hand—one which Panetti's lawyers and the state of Texas have been arguing over for decades—is whether Panetti is insane and therefore ineligible for legal execution. In 1986, the United States Supreme Court ruled that executing a mentally insane prisoner violated the Eighth Amendment to the U.S. Constitution. However, the court never defined what constituted mental "competency."

The Fifth Circuit Court of Appeals, which has jurisdiction over the state of Texas, thus developed its own test for competency, which requires prisoners facing execution to have factual awareness of the impending execution and the state's reasoning for it, or that they're able to say they understand they're being executed by the state because of the crimes they've committed, regardless of whether they believe it or not. Because Panetti knew that he committed two murders, was set to be executed, and was aware of the state's reason for executing him, the Fifth Circuit court ruled in 2004 that he was competent to be executed. However, witnesses for the state, a psychologist, and a clinical psychiatrist testified that Panetti believed the real reason the state wanted to execute him was to stop him from "preaching the gospel."

That competency test wasn't good enough for the U.S. Supreme Court. In 2007, the Court reversed the Fifth Circuit's decision and ruled that to stand competent for execution, a prisoner must also have rational understanding of the state's reason for execution. This meant the state must now prove that Panetti's schizophrenic delusions don't inhibit him from understanding the reason for his punishment.

In 2008, the Fifth Circuit held a second competency hearing for Panetti. Like in 2004, multiple expert witnesses testified Panetti believed the state was executing him to stop him from preaching the gospel. Despite their testimony, the court found Panetti had "both a factual and rational understanding of his crime, his impending death, and the casual retributive connection between the two," and once again ruled him competent to be executed.

The state's reasoning behind their ruling relied not on the expert witnesses testimony, but on secretly-taped conversations between Panetti and his parents in which, according to the court, he "initiates a very rational, organized conversation with his parents about various states abolishing the death penalty," among other things. The statements made in these taped conversations prove Panetti has rational understanding of the state's rationale for his execution, the court said.

Panetti has not had a competency hearing since 2008, though lawyers assert his mental state has deteriorated since then. It's clear that they're not the only ones who believe Panetti is too mentally ill to be executed. In recent months, Panetti's case has generated huge amounts of outcry from groups and individuals normally silent about the death penalty in Texas, including former Texas Gov. Mark White, who called Panetti's trial a "sham," and 55 evangelical leaders. Even Ron Paul wrote to Gov. Rick Perry asking he grant Panetti clemency.

It's unknown as to whether or not any of this outcry will help stop the execution from taking place. Currently, appeals are pending with the Fifth Circuit Court as to whether a new hearing will be granted in lieu of his execution today. Unless the court allows another competency hearing to take place, Gov. Perry issues a 30-day reprieve to review the case, or the U.S. Supreme Court intervenes, Panetti will be strapped to the gurney come 6 p.m. tonight.

If Panetti's execution is carried out, it won't be the first time Texas has executed a mentally ill prisoner. In 2004, the state executed Kelsey Patterson despite his history of psychotic behavior. During both his competency hearing and trial, Patterson testified that devices implanted in him by his lawyers were controlling his actions remotely.

Regardless of whether Panetti is ultimately executed, the entire process that's played out in his case represents a gross miscarriage of justice. "This is a case where we've had cascading, catastrophic error and it all concerns the criminal justice system's failure to protect a severely mentally ill man," Kathryn Kase, one of Panetti's lawyers, told me yesterday afternoon. If Texas carries out the execution this evening, it will be an outrage.

Update: At around 11:45 EST, the Fifth Circuit Court of Appeals issued a stay of execution. The stay, which can be accessed here, reads as follows:

"We STAY the execution pending further order of the court to allow us to fully consider the late arriving and complex legal questions at issue in this matter. An order setting a briefing schedule and oral argument will follow."

It is unclear what "late arriving and complex legal questions" have arisen that weren't present in years past. If I had to guess, I'd say the public (and notably conservative) outcry may have played a role here.