Executing the insane: a look at death penalty schemes in Arkansas, Georgia and Texas.

• Author: Zywien, Stephanie

Faced with such widespread evidence of a restriction upon sovereign power, this Court is compelled to conclude that the Eighth Amendment prohibits a State from carrying out a sentence of death upon a prisoner who is insane. Whether its aim be to protect the condemned from fear and pain without comfort of understanding, or to protect the dignity of society itself from the barbarity of exacting mindless vengeance, the restriction finds enforcement in the Eighth Amendment. (1)

1. INTRODUCTION

   On January 6, 2004 Charles Singleton ("Singleton"), a man treated often for schizophrenia and psychotic delusions, was executed by the State of Arkansas. (2) Three months prior, on November 4, 2003, the State of Georgia executed James Willie Brown ("Brown"), a man long diagnosed as a paranoid schizophrenic. (3) A third man, Kelsey Patterson ("Patterson"), who struggled with paranoid schizophrenia for more than twenty years, was executed by the State of Texas on May 18, 2004. (4)

   Despite the fact that these men all struggled with severe mental disorders, they were nonetheless found competent to be executed under their respective state statutory schemes. (5) In 1986, the Supreme Court handed down Ford v. Wainwright, holding it unconstitutional under the Eighth Amendment to inflict the death penalty upon an insane prisoner. (6) It is up to the states, however, to build or adjust statutory schemes that fall in line with the Court's holding. (7)

   This note, guided by stories of three mentally ill defendants, will explore statutory death penalty and habeas corpus schemes in Arkansas, Georgia and Texas and their respective application to individuals with severe mental illness. Part II will examine the history of the death penalty, the habeas corpus process and mental illness, looking specifically at the Eighth Amendment as well as the landmark decisions Ford v. Wainwright and Atkins v. Virginia. Part III will discuss in further detail the current statutes in Arkansas, Georgia and Texas. Part IV will take a closer look at these three specific cases involving mentally ill defendants. Part V will analyze the implications of applying Atkins to defendants suffering from severe mental illness and, more specifically, how such an application would affect current death penalty statutes in Arkansas, Georgia and Texas. Finally, Part VI will conclude this note emphasizing the pressing need for the exclusion of mentally ill offenders from death penalty eligibility.

2. HISTORY

   The idea of a penalty of death as punishment for criminal behavior has existed since the earliest periods of North American history and is currently statutorily recognized by thirty-eight states as well as by the United States Government and Military. (8) While its purpose is continuously debated, the most pervasive justification for the death penalty is the idea of retribution. (9) Retribution is most often referred to as a notion of "justice," but is better defined by the legendary philosophy, "an eye for an eye." (10) Regardless of its justification, the death penalty is well established in the United States and is consistently used in our criminal justice system. (11) Since 1976 more than one thousand people have been executed, many of them mentally ill. (12)

   Despite the fact that mentally ill defendants can be incapable of comprehending reality, they continue to be executed for their crimes. (13) One reason for this is that until the 1980's, mental illness itself was ill-defined and often misunderstood. (14) These misconceptions have been somewhat corrected due to strides in the field of psychology, and recognition of mental illness by the Supreme Court. (15) Today, mental illness is defined as "any of various conditions characterized by impairment of an individual's normal cognitive, emotional, or behavioral functioning, and caused by social, psychological, biochemical, genetic or other factors." (16) The most common mental illnesses experienced by defendants include: bipolar disorder, schizoaffective disorder, schizophrenia, post-traumatic stress disorder, depression and borderline personality disorder. (17)

   Historically, mentally ill defendants were not protected from a sentence of death. (18) As written in the Constitution, the Eighth Amendment prohibits cruel and unusual punishment. (19) What constitutes "cruel and unusual" has been hotly contested for decades. (20) Interpretations of the Eighth Amendment in landmark Supreme Court decisions, however, seek to protect those who cannot comprehend the punishment they face. (21) One of these decisions was Ford v. Wainwright, handed down by the Court in 1986. (22) In 1974, petitioner Ford was convicted of murder in Florida and sentenced to death. (23) While he indicated no signs of mental illness throughout the trial, in early 1982 Ford's behavior began to change drastically. (24) He became confused, paranoid and suffered from delusions of grandeur. (25) In 1983, a psychologist diagnosed Ford with "a severe, uncontrollable, mental disease which closely resembles 'Paranoid Schizophrenia With Suicide Potential.'" (26) When asked if he would be executed, Ford stated, "I can't be executed because of the landmark case. I won. Ford v. State will prevent executions all over." (27)

   Based on Ford's rapidly declining mental state, counsel invoked procedures of Florida law governing the determination of competency of a condemned inmate. (28) Following the procedures set forth by Florida law, the Governor appointed three psychologists to determine whether Ford had "the mental capacity to understand the nature of the death penalty and the reasons why it was imposed upon him." (29) While the psychologists were in accord on the question of Ford's sanity, their diagnoses differed. (30) Despite this evidence, the Governor proceeded to sign a death warrant without explanation or statement. (31) Following an unsuccessful attempt to schedule a state court hearing to determine anew Ford's competency to be executed, Ford's counsel filed a habeas corpus petition in the United States District Court for the Southern District of Florida. (32) The district court denied the petition without a hearing. (33) After a divided court of appeals affirmed the district court's decision, the Supreme Court granted Ford's petition for certiorari in order to resolve an important issue: whether the Eighth Amendment prohibits the execution of the insane and, if so, whether the district court should have held a hearing on petitioner's claim. (34)

   In 1986, Justice Marshall delivered the Court's opinion holding it unconstitutional "to exact in penance the life of one whose mental illness prevents him from comprehending the reasons for the penalty or its implications." (35) Additionally, the Court found the Florida statute failed to provide adequate assurances of accuracy in determining a person's competency. (36) While the Court found a full trial on the issue of sanity unnecessary, it suggested that the State should develop appropriate ways to enforce the constitutional restriction upon its execution of sentences. (37)

   Fifteen years following the Ford decision, in 2002, the Court handed down Atkins v. Virginia. (38) Petitioner Atkins was convicted of abduction, armed robbery and capital murder in the State of Virginia. (39) Despite testimony presented by a forensic psychologist concluding Atkins was "mildly mentally retarded," he was nonetheless sentenced to death because of two aggravating circumstances. (40) Additionally, the State presented a rebuttal witness who testified that Atkins was not mentally retarded but was of "average intelligence, at least" and diagnosed him as having antisocial personality disorder. (41) On appeal, the Supreme Court of Virginia affirmed the imposition of the death penalty, rejecting Atkins' contention "that he is mentally retarded and thus cannot be sentenced to death." (42) Based on the concerns presented by the dissenters on appeal, the Supreme Court granted certiorari. (43)

   Justice Stevens delivered the Court's opinion, concluding that under the Eighth Amendment, in light of "evolving standards of decency," it would be excessive to punish a mentally retarded offender with a penalty of death. (44) Through its opinion, the Court created a categorical exception for mentally retarded individuals, stating that while their mental deficiencies did not warrant an exception from criminal sanctions, they diminished their personal culpability. (45) Further, the Court stated that the imposition of the death penalty on a mentally retarded person failed to serve two main purposes of capital punishment: retribution and deterrence of capital crimes. (46)

   Following the Ford and Atkins decisions, scholars in both the legal and psychology fields began to advocate for a similar categorical exemption for mentally ill individuals. (47) Many states, as well as the Model Penal Code, already permit defendants to offer evidence that an offense was committed "under the influence of extreme mental or emotional disturbance." (48) Additionally, several states allow mental illness to be considered by the jury as a mitigating factor that could reduce a defendant's culpability. (49) Several of the provisions specify that the impairment must be due to "mental disease or defect" or "mental illness." (50) Even further, state death penalty statutes currently include mental illness as a mitigating factor with respect to execution, allowing a defendant to request competency hearings prior to being executed. (51)

   The fact that both mental illness and incompetence have been codified in state death penalty statutes reflects the increasingly widespread agreement that defendants with several mental illnesses should be excluded from capital punishment. (52) This notion has been supported by the professional, religious and legal communities. (53) Both the American Psychological Association ("APA") and the National Mental Health Association ("NMHA") have...