Others, myself included, believe that if we are going to keep the ultimate punishment (Not saying I agree with it, I just accept that it will be around for the foreseeable future) we must be VERY judicious in how we administer that punishment.  And, when dealing with someone that is mentally ill, we must be even more scrutinizing.

Here is a situation that may give you pause:

Four years before he murdered his in-laws in Texas, Scott Panetti buried some furniture in his yard. The devil, he claimed, was in it. After he was arrested and charged with the killings, Panetti, who has a history of severe mental illness, represented himself at his capital trial wearinga purple cowboy suit. He called himself “Sarge” and subpoenaed Jesus, during the court proceedings.  The jury found him guilty and sentenced him to death.

His appeal eventually reaching the United States Supreme Court, which in 2007 ruled that the state of Texas hadn’t adequately evaluated whether Panetti’s mental condition allowed him to fully understand the nature of his punishment—which is required under the constitution in order to sentence someone to death. The court stayed the execution and sent the case back for further proceedings.

Seven years later, Panetti’s illness hasn’t gone away, but the Supreme Court has given Texas the green light to kill him. The court’s decision, announced on October 6 without comment, upheld a 5th Circuit Court of Appeals ruling that Panetti was sane enough for execution. The appellate court’s decision, in turn, was based in part on the opinion of a Florida psychiatrist who has deemed at least three Florida death row inmates with long and well-documented histories of mental illness to be sane enough for the needle.

At the trial, serving as his own lawyer, Panetti rambled incoherently through his defense. Among the hundreds of people he sought to subpoena were not only the Messiah, but John F. Kennedy and the Pope as well. Two jurors later told one of Panetti’s lawyers that his behavior had so frightened them that they voted for death largely to make sure he’d never get out of prison. (Texas at that time did not offer the option of life without parole.)

Two months after his sentencing, Panetti tried to waive his right to a lawyer for the appeal—a move tantamount to suicide. But this time, a judge refused his request, ruling that he was not mentally competent to make that choice.

Panetti may have been too incompetent to ditch his lawyer, but in 2003 a Texas state court determined, without a hearing, that he was sane enough to kill. His lawyers appealed to the federal district court, and the case ultimately landed before the Supreme Court, where Texas Solicitor General (and now US Senator) Ted Cruz defended the state’s right to put Panetti down.

Panetti’s lawyers appealed, arguing that he still hadn’t received a fair hearing on his competency as the Supreme Court had ordered six years earlier. “Paradoxically,” they wrote, “Panetti must invoke the Supreme Court’s decision in his own case to vindicate his right—now a second time—to rudimentary due process in an execution competency proceeding.”

The 5th Circuit Court of Appeals ruled against Panetti anyway, quoting the Court’s mental competency evaluator in its August 2013 ruling—even though Waldman was the only expert who testified at the competency hearing that Panetti was not, in fact, sick:

The State’s chief expert—Dr. Waldman—doubted that Panetti suffered from any form of mental illness and was “emphatic in his opinion that Panetti has a rational understanding of the…connection between [his] crime and [his] execution.”

Last week, the United States Supreme Court agreed.

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An IQ score of above 70 is widely accepted to determine someone does not have a mental disability.  Mental health professionals argued to the Court that due to the margin of error, those possessing scores as high as 75 could still qualify as disabled using other criteria, due to the margin of error of these tests.

VIDEO

“The states are laboratories for experimentation, but those experiments may not deny the basic dignity the Constitution protects,” Kennedy said in an opinion that was joined by the court’s four more liberal justices.

Kennedy relied on legal briefs filed by psychiatrists and psychologists who supported Hall to undergird his opinion.  Beyond the test score, the groups said there’s a consensus among the mental health professions that an accurate diagnosis also must include evaluating an individual’s ability to function in society, along with finding that the mental disability began in childhood.

Hearing this decision restored some of my faith in the Supreme Court.  Not much, but it did restore it a little.  We cannot allow any one single factor to ever determine something as complicated as mental capacity.  How can a single test of anything relating to mental health be absolutely determinative.  Also, when it comes to something as serious as putting someone to death – we want to be sure that they have the mental capacity to understand and appreciate the nature and quality of the actions they took that made them eligible for the death penalty.  Someone can be criminally insane and a danger to society – but are we prepared as a society to accept killing anyone, no matter their mental capacity?  I believe the supreme court, at least to some extent, to a stance to say that no…we are not.

Much of the scarcity of the drugs used for lethal injections is as a result of many European countries boycotting drug sales for executions.

Tennessee lawmakers overwhelmingly passed the electric chair legislation in April, with the Senate voting 23-3 and the House 68-13 in favor of the bill.

Concerns about lethal injection also have risen at a time when Tennessee and many states — including Oklahoma, Missouri and Texas — obtain execution drugs in secret from unidentified compounding pharmacies. Death penalty opponents say the secrecy raises the risk of something going wrong.

Again I will make a plea here for humanity.  Hold on…I am not arguing that we should or should not have executions.  That argument is much too volatile, much too emotional, and I do not believe I could have any hope of a consensus on that issue – WHAT I AM ARGUING IS that if we as a society are going to punish the most serious of our offenders with the ultimate penalty, if we are going to take away their lives, we must retain our dignity and do it in as painless and humane manner.

I don’t argue for this because I do not appreciate that many of those sentenced to death have done heinous, horrible, torturous things to people.  I understand that, and to be honest, if one of my family members was the victim of some of the types of crimes they have committed I would want revenge too.  I would want them to suffer for what they did.

But we cannot accept that as a society.  We must resolve not for revenge, but for justice.  We must make up our minds that no matter what someone has done, it will lead to the degradation of our society to allow for our government to inflict torture and physical pain on someone.  It is barbaric.  It is gruesome, medieval even.

In the past we have seen what happens when people are electrocuted in old sparky.  Sometimes they don’t die immediately and they convulse, scream and spasm.

If we are going to execute people we must simply put them down like a violent animal.  Euthanize them.

I save the argument for whether we should keep the ultimate punishment for another day…I suggest you look into those freed by organizations such as the innocence project before you make up your mind where you stand.  Is it really ok if we execute a couple innocent people to make sure we kill the bad ones as well?

So what’s changed?  There has been much controversy over the drugs we use to euthanize those sentenced to death both in Oklahoma and Texas.

A new development is that the state of Texas had been disclosing to the public what drugs they use for lethal injections.

That was until April, when Patricia Fleming, assistant general counsel for the TDCJ in Hunstville filed a brief asking that the TDCJ be able to keep secret the poison we shoot into the veins of those our society have deemed too dangerous and too much of a burden to keep alive.

Among the arguments to keep the drugs secret are foreign bans on the drugs used for lethal injections and the potential danger of violent opposition to those distributing such drugs was posed by those that are opposed to the death penalty.

Seriously?  Despite which side of the debate you fall on, and you believe we should or should not still have lethal injection among the punishment for the worst of offenses in Texas, most certainly you would agree that we should at least know how we do it and what drugs are going to be used.

Imagine the alternative: blind trust in the government, empowered to subject someone to the most punitive, final and irrevocable of punishments, to employ whatever noxious toxins it sees fit, so long as it doesn’t cost the taxpayers too much money.  Would this not be an impermissible devolution of our society?

Even those gung-hoe, ready to kill-em-all and-let-God-sort-em-out could agree, the public absolutely must know what drugs we use to kill people.  Some amount of humanity and civility must be retained in a civil society.

And maybe we do want Murders to pay the ultimate price.  But at what social cost are willing to execute them.  Are we prepared to trust the government to do it right with no one looking over their shoulder.  I think not, and I hope that we don’t let this spiral even further out of control.

Related – http://www.texaslawyer.com/id=1202653509518/Oklahoma-Controversy-Over-Execution-Drugs-Resonate-for-Austin-Lawyer