« DC Circuit works hard to figure out just what Freeman means for guideline retroactivity | Main | Hawaii house extinguishes bill proposing full legalization of marijuana »

February 12, 2013

"How Crazy Is Too Crazy to Be Executed?"

The question in the title of this post is the main headline of this new Mother Jones essay authored by capital defense attorney Marc Bookman.  The lengthy piece carries this summary subheadline: "The voices told Andre Thomas to gouge out his eyes. But even that hasn't convinced the state of Texas to reconsider his death sentence." 

This companion piece, also authored by Marc Bookman, is headlined " 13 Men Condemned to Die Despite Severe Mental Illness: If juveniles and intellectually disabled people are ineligible for execution, why not paranoid schizophrenics?".  Here is how that piece gets started as an introduction to summaries of 13 capital cases involving defendants with severe mental illness:

Just how crazy must a person be to be ruled incompetent for execution in the United States?  Being profoundly mentally ill is not enough. You have to be deemed legally "insane."  At trial, the insanity defense generally hinges on a person's inability to distinguish right from wrong or understand the "nature and quality" of his act.  In the context of an impending execution, insanity means you cannot rationally comprehend that you are being put to death as a consequence of the crime you committed.

In 2005, a Texas jury found that Andre Thomas, the subject of my in-depth companion piece (see box below), was not insane at the time of his crime.  To put this in context, consider that Thomas was then, and still is, a delusional paranoid schizophrenic who hears voices — from God, he believes — telling him to do things.  He carved out the organs of his four-year-old son, his estranged wife, and her 13-month-old daughter, and took them home in his pockets, believing that this would kill the demons inside them.  In the days following his arrest, he insisted to a jailhouse nurse that his victims were still alive.

And that's not even the weirdest part of the story.  Thomas' case is on appeal in federal court, and as it stands, the courts cannot even address the question of whether he is competent to be executed until he is about to be.  But should someone as obviously crazy as Andre Thomas be facing execution at all?  Over the past decade, US courts have barred the death penalty for the intellectually disabled and for juveniles — the Supreme Court found that they have less culpability due to their lower mental functioning and immaturity. Many legal observers believe that barring the death penalty for the severely mentally ill, given their dissociation from reality, is the next frontier in capital jurisprudence.

Over the years, governors from both parties have seen fit to commute the death sentences of profoundly mentally ill prisoners, even in conservative states. But authorities in Texas have shown little mercy: The state Board of Pardons and Paroles has recommended clemency based on mental illness in only one case since 1977, when the death penalty came back into use (see Kelsey Patterson below) — and Gov. Rick Perry denied it.

February 12, 2013 at 05:35 PM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference "How Crazy Is Too Crazy to Be Executed?":


Harold Berman explains: "If a sane man is convicted of murder and sentenced to death, and thereafter, before the sentence is carried out, he becomes insane, his execution will be postponed until he recovers his sanity.
Generally speaking, this is the law in Western countries and in many non-Western countries as well. Why? The historical answer, in the West, is that if a man is executed while he is insane he will not have had the opportunity freely to
confess his sins and to take the sacrament of holy communion. He must be allowed to recover his sanity before he dies so that his soul will not be condemned to eternal hellfire but will instead have the opportunity to expiate
his sins in Purgatory and ultimately, at the Last Judgment, to enter the kingdom of heaven." I can't imagine why the Mother Jones demographic would want to perpetuate a taboo about punishment rooted in a particular medieval theological perspective.

Posted by: JWB | Feb 12, 2013 7:56:20 PM

Dorner is dead. Taing do Dia. Praise God.
Forget neither the innocent dead, nor the fatherless young ones,
nor the survivors devastated by this evil scum.

No chance to claim that he was "too crazy".
No time for the nuns to plan a vigil...
No time for the 'Innocence Project' to mobilise.

Posted by: Adamakis | Feb 12, 2013 8:00:35 PM

JWB --

"I can't imagine why the Mother Jones demographic would want to perpetuate a taboo about punishment rooted in a particular medieval theological perspective."

Because they want to get rid of the DP for any reason whatever, and will worry about consistency later.

Posted by: Bill Otis | Feb 12, 2013 8:29:58 PM

JWB, your argument proves too much. As Harold Berman himself points out in remarks that appear two sentences after the quotation you selected:

The example is, perhaps, of minor importance in itself; but what it illustrates is that the legal systems of all Western countries...are a secular residue of religious attitudes and assumptions...." (Emphasis added.)
In other words, if we are to purge all of those elements of law that are "rooted" in "theological perspective[s]," there's an awful big mess to clean up — starting, perhaps with certain punitive notions of justice. Cf. id. (noting that "[t]he Western law of crimes emerged" from a conception of just punishment thought to be "the very justice of God.")

Posted by: Michael Drake | Feb 12, 2013 8:35:59 PM

Oh dear, Mr. Drake. Trying to peddle silly Rawlsian notions of justice? Dear Dear. Did Berman even bother cite Rorty because "secular residue" is straight out of Post Modern Bourgeois Liberalism which, in a delicious point of irony, was Rorty's destruction of Rawlsian notion of justice. I guess it shows Berman can at least read the critics.

"If juveniles and intellectually disabled people are ineligible for execution, why not paranoid schizophrenics?".

That is a fair question but the best response is that the intellectually disabled shouldn't be ineligible for execution. One of the great follies of Atkins is the vain assumption that mental illness if a vague concept while intellect is a specific concept because there is a test and a number behind it. In fact, Atkins is based upon nothing else but a fetish for numbers.

Atkins is a plague upon our society and it should not be imitated!

Posted by: Daniel | Feb 12, 2013 9:40:20 PM

Good comments. It was getting lonely here. I encourage people whose memory of Western Civ 101 has not been erased to come here more often.

Daniel, the low IQ score came from educational deprivation. The reason? Making too much money selling drugs from age 9 to waste time in school, too costly in lost sales to attend school.

What were the Justices doing at age 9? Could the Justices, as persuasive lawyers, lure a competitor to a car, give him a ride, and kill him? Atkins was not only, not retarded, he had superior social and business skills.

During his case, he spent a lot of time with lawyers. As a result, his Verbal IQ improved. He is now death penalty eligible, using his IQ score. He also discovered a truly effective method of special education, hanging around lawyers. We should now send all mentally retarded students to lawyers' offices for their full time special education. Give the law firms the outrageously expensive and worthless tuition of $40,000 totally wasted on people who will never amount to anything. This would be a new revenue stream for law firms, and would actually improve their language ability, instead of their now worthless special ed programs. I have called the lawyer a dumbass, as a term of art, not as an invective. Well, these dumbasses can make themselves truly useful.

Posted by: Supremacy Claus | Feb 12, 2013 11:08:49 PM

Who is crazy here?

Someone removes the organs of the family members he murdered to keep them safe from demons.

Or the lawyers seeking to privilege the murders of this psycho butcher, because they believe his motivation makes him less culpable. These lawyers also happen to believe in mind reading. They believe in future foreseeing. They believe the standard of conduct should be that of a fictional character. Why? To make the standard objective, of course. None in the entire nation knows the real meaning of the word, reasonable, when every 10th Grader who has gotten to Medieval philosophy in World History does. That includes a Harvard Law grad with a PhD in Medieval Legal History (!?), didn't know the technical meaning of the word, reasonable, as based on reason, the ability to perceive God, with the New Testament as the most reliable guide to moral decision making. And therefore the reasonable person is really Jesus the Christ, yet another fictional character. All of this insanity violates the Establishment Clause of this secular nation, with the entire common law being in insurrection against the constitution, including the idea of judicial review.

Posted by: Supremacy Claus | Feb 13, 2013 1:32:27 AM

SC, please don't miss your next medication cycle..

Posted by: MidWestGuy | Feb 13, 2013 11:13:42 AM

Daniel, Harold Berman was JWB's authority, not mine, so maybe take the matter up with him. But there's nothing "Rawlsian" about Berman's deflationary account of law-as-religious-leftovers, any more than there's anything un-Rortian in the idea that many Western institutions (like law) are teeming with the residue of religious traditions.

Posted by: Michael Drake | Feb 13, 2013 2:18:20 PM

Looking back at the original article I see that it mushes together the doctrinally distinct questions of whether a) a given defendant was sane enough at the time of the killing to be held criminally responsible; b) the same defendant was sane enough at the time of trial to participate meaningfully in his own defense; and c) the same defendant is sane enough at the time a death sentence is to be carried out to be executed. While in principle the tests for sanity could be different at the different stages, the I think more compelling reason for them to be distinct is that sometimes sane people subsequently become insane or vice versa, but of course question c) should never arise at all unless questions a) and b) have already been answered and the answer was "sane." Here the article ultimately doesn't present c) all that cleanly because its strong implication is that the relevant factfinders got a and/or b wrong at an earlier stage in the process, rather than these being cases where perfectly sane defendants subsequently lost their sanity while on death row. (Is the article correct on this? I have no idea. I'm not going to read the underlying trial records.)

But my Bermanesque point is that it's pretty easy to come up with secular-sounding theories about why sanity should be relevant to issues a and b (even if one suspects there may be residual religious ghosts hiding underneath secular-sounding notions of autonomy/responsibility/"rights"/"dignity"/etc) but trickier for c. If the old rationale (it's unjust to kill a man without giving him a last clear chance to repent before God and be absolved by God's minister and reconciled by the sacraments) doesn't hold, what's the secular-sounding rationale that can be swapped in? Why is it unjust to inflict punishment on someone who doesn't currently know what's going on? Who cares, and why do they care? If a criminal sentence includes a punitive fine and the defendant then loses his sanity, do we expect the government to refrain from levying on the defendant's bank account because it's unjust to seize the defendant's assets for purposes of punishment at a point in time where the defendant won't understand why that's happening?

Just to follow up on a related point from the prior thread about the squishy-sounding dude who was complaining about prisons being all un-Christian, it is perhaps worth thinking about the intellectual history in terms of the ways in which the roots of modern penological practice and mass incarceration are at least in part rooted in Bentham and the Panopticon and suchlike 19th century progressives and rationalistic technocrats who believed they were rising above the superstitions of the past.

Posted by: JWB | Feb 13, 2013 3:35:56 PM

@Michael Drake. True enough but what made Rorty different is not his analysis of the issue but his resolution viz. that this secular residue should be ripped out and tossed in the trash, a perspective FWIW that he shared with Holmes.

@JWB "it's pretty easy to come up with secular-sounding theories about why sanity should be relevant to issues a and b (even if one suspects there may be residual religious ghosts hiding underneath secular-sounding notions of autonomy/responsibility/"rights"/"dignity"/etc)"

The problem with these secular sounding theories is that they often have their root, as Atkins does, in the field of psychology. Yet psychology has spent much of the last century trying to distance itself from even the hint of a religious residue. Jung spent the last 15 years of his life making the point that the true basis of psychology was not in religion but in chemistry. And he is considered to be one of the most "mystical" of modern psychologists. So if one believes, as I do, that Atkins is fundamentally founded in a quasi-religious understanding of rights and dignity it is especially galling to see the tools of psychology (in this case an intelligence test) used to prop up such value judgements. Psychology keeps trying to distance itself from religion and other disciplines (like law) keep trying to drag it back again for ulterior purposes. Intelligence tests were never designed to determine who lives and who dies.

Psychology spends a century separating itself from religion and now that it is somewhat taken as an objective science it finds itself used by religion to give a scientific sheen to religious judgements. How ironic.

Posted by: Daniel | Feb 13, 2013 4:38:15 PM

I'm certainly not a fan of Atkins. I don't know what Rorty thinks of it. I tend to think that Atkins is in some important sense entirely backwards: if you've got a very low IQ I'm willing to give you a break in terms of my expectations of your practical ability to fully comply with the complexities of the Internal Revenue Code and the federal securities laws, but I'd like to think that "Don't Kill People" is an extremely simple and straightforward norm, and if we need to triage things in terms of which subset of the laws we can reasonably ask our lower-IQ fellow citizens to comply with, that's definitely one of the ones to keep.

Posted by: JWB | Feb 13, 2013 5:00:35 PM

"[W]hat's the secular-sounding rationale that can be swapped in...? Why is it unjust to inflict punishment on someone who doesn't currently know what's going on?"

I don't see the puzzle. The religious rationale Berman gives is that people ought not to be denied an opportunity for otherworldly redemption. The corresponding secular rationale would be that people ought not be denied an opportunity for worldly redemption. You either agree with that or you don't. But neither of these rationales is more compelling (within its respective framework) than the other.

Posted by: Michael Drake | Feb 13, 2013 6:51:36 PM

Midwest: Please tell us if you are a lawyer. If you are not, have a nice day. If you are, you believe in mind reading, future forecasting, and standards of conduct based on those of a fictional character. Not just a sicko, but a denizen of the Twilight Zone. You need vigorous deprogramming from cult beliefs.

Posted by: Supremacy Claus | Feb 14, 2013 6:49:41 AM

Supremacy Claus:

What is a more "reliable guide to moral decision making"?

"The fundamental basis of this Nation’s ideals was given to Moses on Mount Sinai.
The fundamental basis of the Bill of Rights of our Constitution comes from the teachings
which we get from Exodus, St. Matthew, Isaiah, and St. Paul. The Sermon on the Mount
gives us a way of life, and maybe some day men will understand it as the real way of life. "—Harry S. Truman, 1952

Posted by: Adamakis | Feb 14, 2013 10:12:58 AM

JWB doesn't really help me much ... where is the refutation of the arguments made? As noted in the headnotes:

"As to deterrence, the same cognitive and behavioral impairments that make mentally retarded defendants less morally culpable also make it less likely that they can process the information of the possibility of execution as a penalty and, as a result, control their conduct based upon that information. Nor will exempting the mentally retarded from execution lessen the death penalty’s deterrent effect with respect to offenders who are not mentally retarded. Second, mentally retarded defendants in the aggregate face a special risk of wrongful execution because of the possibility that they will unwittingly confess to crimes they did not commit, their lesser ability to give their counsel meaningful assistance, and the facts that they are typically poor witnesses and that their demeanor may create an unwarranted impression of lack of remorse for their crimes."

It is not a matter of "complying" with the laws. "Their deficiencies do not warrant an exemption from criminal sanctions, but diminish their personal culpability." To respond to another comment, how this is "religious" is unclear to me, even if you don't agree with it.

Anyway, Atkins involved retardation. Ford v. Wainwright involves insanity. Reasons offered there. First, tradition. Originalists find that convincing at times. The opinion notes there was/are both religious and secular concerns behind this tradition, just like human rights generally. We have a general understanding of personal culpability that warrants understanding and killing those who don't understand is deemed wrong. This can be disputed, especially if it is deemed dangerous to others to keep the person alive. Either way, doing so is current understood to violate the 8A/14A.

Posted by: Joe | Feb 14, 2013 12:35:40 PM

Though I disagree, I find you somewhat reasonable about culpability; yet what Daniel and 'Supremacy Claus'"
highlight is the liberal use and distortion of the extra-Constitutional Atkins ruling.

Defenders employ IQ revisions, mental distress, medicines, or whatever they can seize to stop these death sentences,
as they misappropriate racism, upbringing, etc., in non-Atkins capital cases.
--- ----
Presumably, some are 'die-hards' who cannot accept execution for mature, sane, intelligent people either.

Laudably, my abolitionist Stepfather was involved as a psychiatrist in homicide and other trials in the '80s, and there were 2 or 3 in which he found the defendant sane and able to receive full punishment--despite recrimination--due to his honesty.

Posted by: Adamakis | Feb 14, 2013 2:27:04 PM


The problem is that the premise is a bald faced lie. "same cognitive and behavioral impairments that make mentally retarded defendants less morally culpable" but the instrument used to determine whether or not a person has cognitive impairments is an intelligence test, often given in an education setting, that doesn't even fain to evaluate a person's moral faculties. The underlying fallacy is an attempt to equate two distinct and separate concepts "intelligence" and "morality" that in fact bear little relationship to each other. This is true whether one swaps out the word intelligence and replaces it with "cognitive" as the problem remains the same. I don't know of any psychological test that measures "moral culpability" because one doesn't exist.

Posted by: Daniel | Feb 14, 2013 6:51:01 PM

Atkins doesn't excuse anyone from complying with the laws. There is no MR defense to murder. You comply, or you serve life in prison.

Perhaps the secular reason for the bar on executing the insane has to do with the justification for death vis a vis LWOP. The DP is generally justified on the basis of retribution (deterrence is kicked around, but retribution is really at the core). I suppose some people think you can achieve retribution/punishment by inflicting pain or loss on someone who doesn't really know what is going on. But generally it seems that the person's consciousness of the loss is part of the retribution/punishment. That would be my off-the-cuff idea about why executing the insane doesn't seem secularly justified.

Posted by: anon | Feb 15, 2013 12:43:37 PM

I don't think there is a "extra-Constitutional Atkins" ruling -- wherever the line is drawn there, there is some line where the concerns addressed there should kick in. Thus, it was 6-3, and nationalized what was already the rule in a majority of places anyhow. Since people are loathe to execute, they will draw the line with some room to spare. A few on one side will push as far as they can, the other will do so as well. Prosecution/Defense.

I don't see the "bald faced lie." Retardation in certain respects inhibits people's ability to act in various respects and if you have less ability to act with full competency, you have somewhat less moral culpability. Just where to draw the line there and how much you need to warrant a death penalty is debatable. It is not a "bald faced lie" though.

I think the last part of anon's comment is a basic part of the equation.

Posted by: Joe | Feb 15, 2013 1:51:43 PM

The test used here is challenged. One, Atkins provides some discretion on how to determine retardation, and to my understanding various factors ultimately are used to do so. Intelligence involves various things, including reasoned judgment. There can be some debate over the right test to use. I'm agnostic on the proper details on that, it being an expert matter I'm not skilled to analyze enough.

Posted by: Joe | Feb 15, 2013 1:56:45 PM


No, that is wrong. Your response....just like Atkins...is a good example of what happens when lay people confuse their inchoate "common sense" notions of what a concept is (or should be) with what experts in the field do. For example, there is nothing in any of the standard intelligent test that evaluates "reasoned judgement". Intelligence tests are not designed to evaluate moral reasoning.

And that's the problem. There are no "proper details" for you to "agnostic" about because there are no standardized tests that measure what you want them to measure. They simply don't exist and they aren't likely to exists because there is no agreement in the field of psychology on what moral reasoning is, let alone how one measures it.

"and if you have less ability to act with full competency, you have somewhat less moral culpability."

That is simply an arbitrary claim with no scientific foundation whatsoever.

Posted by: Daniel | Feb 15, 2013 5:45:16 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB