My client was too insane to execute – but not to leave death row | Opinion

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Scott Panetti, who lent his name to a landmark Supreme Court case that protects seriously mentally ill people from being executed, died on death row in Texas in May, despite a federal judge’s ruling that he was too insane to execute. Days before his death, corrections officials moved Scott to a prison hospital in Galveston where, shackled to a bed, he succumbed to respiratory failure.

That Scott, a man I represented for more than 20 years, did not die on a gurney in the death chamber is a small grace. But the state’s dogged pursuit to execute him left him languishing in a legal limbo on death row.  

Most people who are found incompetent for execution, like Scott himself, continue to suffer on death row for years afterward, often untreated, because the state technically retains the right to carry out the execution at some future point should they “regain” competency.

Texas and other death penalty states should adopt a law allowing courts to declare a person “permanently incompetent” to be executed and reform their death sentence to life in prison so they can get the mental health treatment and antipsychotic medication they need. Such a measure would save states time and money wasted on continuing to pursue the execution of seriously mentally ill persons who can never be constitutionally put to death. 

Texas spent 30 years trying to execute Scott Panetti. He never should've been on death row.

Scott was diagnosed with schizophrenia in his early 20s. Schizophrenia, like other psychotic disorders that afflict so many people, is incurable. A psychotic disorder causes a person to lose contact with reality because of symptoms that can include delusions (strongly held false beliefs), hallucinations (distortions in perception), and disorganized thinking and speech. Antipsychotic medication may alleviate some of the debilitating consequences of these symptoms, but it cannot cure these mind-altering diseases. 

Scott would be hospitalized for his schizophrenia more than a dozen times in the decade before the crime. In September 1992, he stopped taking his antipsychotic medication. His wife eventually moved out of the house with their 3-year-old daughter and went to live with her parents. Gripped by a delusion that his wife’s parents were members of a pedophile ring and molesting his daughter, Scott broke into their home in the middle of the night and killed them at point-blank range with a deer rifle.

Texas charged Scott with capital murder and sought the death penalty. Less than six months before his trial, Scott announced that God had miraculously cured him of his schizophrenia. He stopped taking his medication and fired his attorneys. 

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Scott appeared in court as his own lawyer, wearing a burgundy cowboy outfit that included a lavender bandana and suede leather pants tucked into cowboy boots with stirrups. He tried to subpoena the pope, President John F. Kennedy and Jesus. Examining witnesses, he rambled incessantly and fired off incomprehensible, irrelevant questions before waiting for an answer.

He recited nonsensical “cowboy” aphorisms and anecdotes. In a futile effort to keep him on track, his family frantically passed notes to Scott with questions he should ask the witnesses. Scott called himself to the stand. Assuming a new personality, “Sarge,” he gave a bizarre third-person account of the murders, while mimicking the sounds of the gun shots and pretending to point a rifle at the jurors.

After the jury convicted Scott and sentenced him to death, Texas spent the next 30 years trying to execute him. 

'If you cast a shadow on a sunny day, you're competent to be executed'

Facing Scott’s first execution date, we raised a claim under Ford v. Wainwright, where the Supreme Court had ruled in 1986 that the Constitution bans the execution of people who are insane when their execution is imminent. The court carefully noted that anyone meeting this standard would not have their death sentence vacated. Instead, they would remain on death row until they regained their mental faculties, at which point the state could carry out the sentence the jury had legitimately imposed.

For the next 20 years after the Ford decision, Texas courts sent a parade of seriously mentally ill people to their deaths, finding not a single one of them incompetent under Ford. The standard was so toothless, I rephrased it as, “If you cast a shadow on a sunny day, you’re competent to be executed.”

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When examined by expert doctors, Scott could parrot the reason he was on death row for killing his parents-in-law. But, in the next breath, he would explain that his execution was, in fact, part of a sweeping satanic conspiracy to prevent him from speaking out about the sexual abuse and corruption he had uncovered in Fredericksburg, Texas, and to silence him from preaching the Gospel to save the souls of the wicked on death row. The Texas courts concluded that Scott was competent because he was factually aware of the asserted reason for his execution. 

On appeal, we argued that in order to satisfy the retributive purpose of capital punishment, the Ford standard had to require more than a bare factual awareness of the reason for the execution. The Supreme Court granted review. Texas Solicitor General Ted Cruz, now a U.S. senator, argued the case for execution. In Panetti v. Quarterman, the Supreme Court rejected Cruz’s position and ruled in 2007 that a death sentence cannot be carried out unless a person has a rational understanding that they are being executed for the crime they committed.

It took 16 more years and two more evidentiary hearings in federal court to vindicate Scott’s right not to be executed while incompetent. In 2023, applying the legal standard that bears Scott’s surname, a federal judge ruled that his mental illness prevented him from rationally understanding the state’s reasons for his execution.

California law allows 'permanently incompetent' to be executed declaration

In an effort to save time and money that would otherwise be spent while holding out the hope that a person found incompetent to be executed would eventually regain competency (or be cured), California recently passed a law that allows a court to declare that a person is “permanently incompetent” to be executed.

The court must find that “the nature of the mental illness or disorder giving rise to incompetence is such that the incarcerated person’s competence to be executed is unlikely to ever be restored.” If the court makes such a finding, the person is resentenced to life in prison without the possibility of parole and removed from death row.

Since the law’s passage, California courts have found at least seven people to be permanently incompetent, less than 2% of the nearly 600 people on death row there.

A finding of permanent incompetence would not only remove the person from death row, but also eliminate the distressing strategic and moral quandary that a capital defense attorney faces when representing a person suffering from serious mental illness. Namely, should counsel try to persuade the client to take antipsychotic medication that could alleviate the symptoms that torment them daily, if doing so will improve their mental status and possibly render them competent for execution?

As one federal appeals court infamously put it, “Eligibility for execution is the only unwanted consequence of the medication.”

Enacting laws that recognize the reality of permanent incompetency will not fling open the doors of death rows around the country. A recent study found that only 28 condemned inmates have been found incompetent for execution under the Ford/Panetti rulings since 1986, when Ford was decided. During that same period, nearly 1,600 executions were carried out, a ratio of less than 2% of successful cases to executions.

The ratio is even starker in Texas, where nine prisoners have been spared on Ford/Panetti grounds, versus nearly 600 executions (1.5%).

Passing a law that permits a court to declare someone like Scott Panetti permanently incompetent would allow those who are seriously mentally ill to be removed from death row and receive the psychiatric treatment and medicine they need ‒ without the fear that those who treat them humanely may be paving the way for their execution.

Greg Wiercioch has represented people on death row in Texas for more than 30 years. In 1995, he cofounded Texas Defender Service, a nonprofit law firm dedicated to improving the quality of capital representation in Texas. In 2007, he successfully argued Panetti v. Quarterman in the Supreme Court. In 2012, Greg became a member of the clinical faculty at the Frank J. Remington Center at the University of Wisconsin-Madison Law School. He supervises students in the Legal Assistance to Incarcerated People clinic.