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Thursday, June 28, 2007

SCOTUS, per Kennedy: Panetti's not insane, knows he's a murderer, and knows that that's why Texas plans to kill him. But Texas can't, because Panneti might be too psychotic to really quite grok capital punishment

Anthony Kennedy, Associate Justice of the Supreme Court of the United States, is a good man and a smart man. I know he loves his country and the law, and devotes his best efforts to serving each through serving the other. In several important decisions released today at the end of this year's Supreme Court Term, he was the key, "swing" vote in 5-to-4 decisions in which he joined Chief Justice Roberts and Associate Justices Scalia, Thomas, and Alito. It is important to remember this; it is unseemly, and unfair, and unsophisticated, to pillory the man because he sometimes swings the other way.

But one of the areas on which he is consistently a poor fifth for the opposite wing of the Court is in death penalty cases, and oh! today he's delivered another kick — not just to my home state of Texas and the federal appellate court that hears appeals from it, the Fifth Circuit, but to every state everywhere whose publics have demanded (and whose legislatures and courts have agreed) that our society's worst crimes be punished by the most severe penalty.

Today's Panetti v. Quarterman is unusual for death penalty cases in that it produced only two opinions — one by Justice Kennedy, for the Court majority comprising himself and Justice Stevens, Souter, Ginsberg, and Breyer, and a dissent by Justice Thomas, in which Chief Justice Roberts and Justices Scalia and Alito joined.

To reach the merits of the case, Justice Kennedy first had to torture beyond recognition the plain language of a statute passed by Congress specifically to keep federal courts from trying to act as a combination of bullies and nannies to all the state-court systems throughout the country, the "Antiterrorism and Effective Death Penalty Act of 1996," or as we down in Texas call it, the "AEDP-ah-HAH!-hah-hah!-A." In fairness, most of the federal district and circuit courts tried to get with the program after Congress declared that it was time for federal courts to stop permitting, even encouraging, convicted murders sentenced to death from gaming the system for, literally, decades. It's beyond my energy level today to critique Justice Kennedy's AEDPA holdings, but I refer you, with approval, to Prof. Orin Kerr's excellent and timely analysis here.

I shall put that aside for the nonce, because I am sputteringly angry — and yet entirely unsurprised — to know that now the United States Supreme Court has appointed itself as Psychiatrists-in-Chief for all capital murderers everywhere and forever after throughout these United States.


Read with me about the starting place of this saga, as described by Justice Kennedy (slip op. at 2, .pdf at 7):

On a morning in 1992 petitioner [Scott Panetti] awoke before dawn,dressed in camouflage, and drove to the home of his estranged wife’s parents. Breaking the front-door lock, he entered the house and, in front of his wife and daughter, shot and killed his wife’s mother and father. He took his wife and daughter hostage for the night before surrendering to police.

Please. If you are a decent human being, spare at least ten seconds to re-read and think about that paragraph. And then, but only then, ponder this with me:

Two innocent human beings were brutally executed in front of the people most dear to them (and vice versa). A decade and a half has passed since then, and on every morning during that long parade of seasons and years, Scott Panetti has been served a hearty breakfast by the Texas Penal System. Around noon on every one of those days, the sun has passed over the graves of his victims while he was served his lunch. And on every one of those days — going back to the George H.W. Bush presidency, mind you — the sun has set on a society whose duly constituted conscience and fact-finders, twelve jurors good and true, have had the punishment they found to be justified — that they found to be required for there to be justice for both Scott Panetti and his two victims and the society he ripped them from — thwarted and delayed and frustrated. Scott Panetti had supper on all of those nights, too. Texas Death Row's not the Hilton, of course. But it's very fine accommodations compared to a grave, isn't it?

Scott Panetti got 56 pages of rapt personal attention (in turn representing dozens and hundreds of man-hours of legal reading, research, analysis, and writing) from the Supreme Court today. His victims got ... that one paragraph I just quoted, and that I hope you read at least twice.

I know Justice Kennedy knows about those victims in the abstract; and I'm not saying he necessarily ought to have written more about them, their lives, or their deaths, or the aftermath of that for the other, still-living victims of this crime. I just wish that I knew, for certain, that before he and the other Justices voted on this case, they had all actually spent a few moments just thinking, really hard, about those graves — and how long they've been there, and what that means.

That it was a decade and a half in the making doesn't necessarily mean that today's decision was wrong, of course. But something is wrong somewhere, because there is no legitimate excuse on God's green earth for every single bit of the post-conviction proceedings in a case like this one to have taken more than 36 months. I say that as someone who was inside the system, someone who read the briefs and then helped write multiple capital murder appellate opinions in 1980-1981, back when the state of the law was vastly less settled than it is now. Within 36 months after conviction there ought to be a final, ultimate, "no-more-appeals by anybody to any court, no-more-nuthin' and we know for sure whether he's going to be executed or not" decision. If he gets a re-trial along the way, you restart the clock when and if he's re-convicted. But anyone who tells you that it ought to routinely take 15 years is a fool or a liar or, most likely, both. (And as a result of today's decision, this case will probably drag on for another three or four years minimum.)


Lines from Justice Thomas' dissent, summarizing facts that Justice Kennedy doesn't dispute (because they're indisputable) (slip op. at 1; .pdf at 36):

Scott Panetti’s mental problems date from at least 1981. While Panetti’s mental illness may make him a sympathetic figure, state and federal courts have repeatedly held that he is competent to face the consequences of the two murders he committed. In a competency hearing prior to his trial in 1995, a jury determined that Panetti was competent to stand trial. A judge then determined that Panetti was competent to represent himself. At his trial, the jury rejected Panetti’s insanity defense, which was supported by the testimony of two psychiatrists. Since the trial, both state and federal habeas courts have rejected Panetti’s claims that he was incompetent to stand trial and incompetent to waive his right to counsel.

There is no issue now as to whether Panetti was, or should have been found by the jury to be, not guilty of capital murder by reason of insanity. Justice Kennedy does not dispute that he was legally sane when he committed the crimes, nor that he was legally competent when he was tried and convicted for them. But Justice Kennedy says Texas can't execute this sane capital murder, based on a 1986 ruling from a case called Ford v. Wainwright.

Now, that opinion was a hodgepodge and a mishmash with no single written opinion commanding a majority of the Court's members — in other words, it was much more typical of the Supreme Court's death penalty decisions, and damned hard for the lower federal and state courts to wrestle with. Again, according to Justice Thomas' explanation of how the Fifth Circuit had tried to sort out Ford's application to Panetti's claims (slip op. at 19, .pdf at 54; citations omitted):

Because the issue before the Court in Ford was actual knowledge, not rational understanding, nothing in any of the Ford opinions addresses what to do when[, as in Panetti's case] a prisoner [allegedly] knows the reason for his execution but does not "rationally understand" it.

Tracing the language of Justice Powell’s concurrence, the [Fifth Circuit] Court of Appeals held that Panetti needed only to be "'aware' of" the stated reason for his execution. Implicitly, the Court of Appeals also concluded that the fact that Panetti "disbelieves the State’s stated reason for executing him" does not render him "unaware" of the reason for his execution.

Justice Kennedy, however, characterizes the evidence about Panetti's mental state — in order to "frame the issue" — by explaining that Panetti's delusions have

recast [his] execution as "part of spiritual warfare ... between the demons and the forces of the darkness and God and the angels and the forces of light." As a result, [Panetti's] expert explained, although [Panetti] claims to understand "that the state is saying that [it wishes] to execute him for [his] murder[s]," he believes in earnest that the stated reason is a "sham" and the State in truth wants to execute him "to stop him from preaching."

(Slip op. at 22; .pdf at 27; first three brackets mine; citations omitted; ellipses and later brackets by the Court.)

If that's so, says Justice Kennedy and the majority, Panetti's death penalty may end up never, ever being carried out. You see, the Constitution prevents us from killing him if he doesn't really grok how society feels about him and what he did (slip op. at 26-27; .pdf at 31-32; citations omitted; boldface mine):

The potential for a prisoner's recognition of the severity of the offense and the objective of community vindication are called in question, however, if the prisoner’s mental state is so distorted by a mental illness that his awareness of the crime and punishment has little or no relation to the understanding of those concepts shared by the community as a whole....

... The principles set forth in Ford are put at risk by a rule that deems delusions relevant only with respect to the State’s announced reason for a punishment or the fact of an imminent execution, as opposed to the real interests the State seeks to vindicate. We likewise find no support elsewhere in Ford, including in its discussions of the common law and the state standards, for the proposition that a prisoner is automatically foreclosed from demonstrating incompetency once a court has found he can identify the stated reason for his execution. A prisoner’s awareness of the State’s rationale for an execution is not the same as a rational understanding of it. Ford does not foreclose inquiry into the latter.

Translation: "You Texans down there! You, there! 'Tain't enuff that yer capital murderers be sane, and 'tain't enough that they know they murdered their in-laws, and 'tain't enuff they know that's why you say yer gonna kill 'em. Stop killin' them murderers whut lack a purty good 'rational understanding' of yer 'rationale' fer killin' 'em! (And, by the way: We'll be the judge o' that up here in Washington, D.C.!)" 


And if you think I was kidding just now when I used Heinlein's "grok" concept as my own shorthand for what Kennedy seems to be saying about a prisoner's "rational understanding of a state's rationale for an execution," read the part in which Justice Kennedy seems to magnanimously allows how his new standard might be hard to apply and then proceeds to suggest that the initial bar is set awfully low (slip op. at 27; .pdf at 32):

This is not to deny the fact that a concept like rational understanding is difficult to define. And we must not ignore the concern that some prisoners, whose cases are not implicated by this decision, will fail to understand why they are to be punished on account of reasons other than those stemming from a severe mental illness. The mental state requisite for competence to suffer capital punishment neither presumes nor requires a person who would be considered "normal," or even "rational," in a layperson’s understanding of those terms. Someone who is condemned to death for an atrocious murder may be so callous as to be unrepentant; so self-centered and devoid of compassion as to lack all sense of guilt; so adept in transferring blame to others as to be considered, at least in the colloquial sense, to be out of touch with reality. Those states of mind, even if extreme compared to the criminal population at large, are not what petitioner contends lie at the threshold of a competence inquiry. The beginning of doubt about competence in a case like petitioner’s is not a misanthropic personality or an amoral character. It is a psychotic disorder.

Didja follow that? If not, that's too damn bad because — hey, they've also decided (slip op. at 28-29; .pdf at 33-34) that they're not going to really tell us what they really mean for the lower courts to do with all this!

Although we reject the standard followed by the Court of Appeals, we do not attempt to set down a rule governing all competency determinations. The record is not as informative as it might be, even on the narrower issue of how a mental illness of the sort alleged by petitioner might affect this analysis....

... The District Court, of course, was bound by [Fifth] Circuit precedent, and the record was developed pursuant to a standard we have found to be improper. As a result, we find it difficult to amplify our conclusions or to make them more precise. We are also hesitant to decide a question of this complexity before the District Court and the Court of Appeals have addressed, in a more definitive manner and in light of the expert evidence found to be probative, the nature and severity of petitioner’s alleged mental problems.

Punt. That is just so shameful, it's beyond words.

But what do you bet that Scott Panetti somehow, very mysteriously, manages to become even more psychotic before his next examination by the next set of experts and his next hearing on whether he has a sufficient rational understanding of the rationale for executing him? Which of today's SCOTUS decisions do you think will be the subject of imaginative conversations on death rows around the U.S.A. starting tonight and running well past Independence Day?

"Lord-a-Mercy! the State of Texas wants to end my preachin' because the lightning bolts of righteousness spring from my very fingertips, and the Devil himself has grasped those Texas snakes by their throats to menace the Angels protecting me, they're menacing my Angels with their eight-foot crimson fangs of injustice! Get thee behind me Satin! Get thee out from behind me, Warden! I hear the voices telling me to preach, and can't you hear the choir? The choir!"

For those who are faking or exaggerating, the schtick probably gets old — but it sure beats a cold steel needle. (Double entendre intended.) And no, I'm not suggesting that genuine medical professionals can't detect most faking and exaggeration. But when the SCOTUS is appointing itself as Psychiatrists-in-Chief, as they did for purposes of rejecting the testimony of the real ones who examined Scott Panetti, it doesn't much matter how accurate the experts are, does it?)


Ladies and gentlemen, friends and neighbors, it's less than a day old, and the ink is barely dry on the page. But I'm here to tell you that Panetti v. Quarterman is the single worst piece of so-called precedent on capital punishment ever written by the United States Supreme Court.

If you want Supreme Court Justices who not only overturn the will of the people as expressed both by Congress and by the state legislatures, and who not only will ride roughshod over the findings and evaluations of the lower state and federal courts, but who also will write touchy-feeey pieces of drivel, all in lieu of faithfully and intelligibly interpreting the U.S. Constitution on matters quite literally of life and death, then you will vote in November 2008 for a Democratic candidate. Any of them, all of them, will replace anyone in Justice Kennedy's five-person majority today who might retire in the following four years with someone worse than him in this regard. You can take that to the bank.

Posted by Beldar at 06:32 PM in Law (2007) | Permalink


Other weblog posts, if any, whose authors have linked to SCOTUS, per Kennedy: Panetti's not insane, knows he's a murderer, and knows that that's why Texas plans to kill him. But Texas can't, because Panneti might be too psychotic to really quite grok capital punishment and sent a trackback ping are listed here:

» More on Panetti v. Quarterman's new "rational appreciation of the State's rationale for your execution" prerequisite for the death penalty from BeldarBlog

Tracked on Jun 29, 2007 8:08:29 PM


(1) DRJ made the following comment | Jun 28, 2007 6:54:23 PM | Permalink

You're on fire today, Beldar.

At moments like this, all we can do is remember the victims. Pity, too, the poor jailers who take care of Scott Panetti and the Fifth Circuit and state court judges who must wrestle with the SCOTUS decisions.

It's clear that some Supreme Court justices abhor the death penalty and they use confusing decisions to chip away at it until they have the votes to outlaw it. In the meantime, this is one dumb Texan who's smart enough to know supreme arrogance when I read it.

(2) Jinnmabe made the following comment | Jun 29, 2007 2:17:31 AM | Permalink

A question I had that the decision leaves unclear is: what if the defendant just flat disagrees with the state's stated reason? "Yeah, you say you want to kill me because I killed some folks but I think really it's because we live in a broken, corrupt patriarchy blah, blah, blah...." You can't put him to death, he doesn't GET it. Or "grok" it, as you put it.

I mean, my little supposition here still sounds crazy to me, but there are plenty of otherwise sane (within the traditional meaning of that word) people who believe crap like that. They are "execution-proof"? Why not just come right out and say it's cruel and unusual to execute someone who doesn't want to be executed?

(3) Beldar made the following comment | Jun 29, 2007 3:30:14 PM | Permalink

Jinnmabe, the answer to your question is: We don't know. Neither will the federal district or circuit courts. No one, not even Justice Kennedy, will really know until the next case that comes before the SCOTUS to raise these questions — which they'll probably "cert. deny" and leave us still hanging around in the dark.

I do know that lots of lawyers for capital murderers will be looking for evidence that their clients are sufficiently psychotic that they don't grok -- er, have a "rational understanding of the State's rationale for their execution." And Justice Kennedy has basically said, at a minimum, that it's now open season for them to try to prove that up via "expert" testimony that the state and federal courts are now pretty much bound to hear.

(4) JW made the following comment | Jun 29, 2007 9:14:52 PM | Permalink

Thanks for offering some analysis on the Panetti decision. Seems like more blogs and opinion pieces I've come across seem much more interested in the school assignment cases.

I'm glad to see that someone out there recognizes the problems with the standard (or lack thereof that the Court has given us). A variation on the Panetti case served as the factual background for a moot court competition I participated in at Seton Hall this past Spring (though, without the AEDPA issue). Throughout the process I became convinced that the Court should not adopt the amorphous "rational understanding" standard. My own teammate (who had to argue both sides of that issue) was firmly convinced that the Court should rule just like it has.

I suppose I say all of that simply to say that I was very interested to see the outcome of the case. I appreciated your analysis and was encouraged to see that you used some of the same reasoning I used to try to convince my teammate. Thanks for the post.

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