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August 8, 2022

"'The World of Illusion Is at My Door': Why Panetti v. Quarterman Is a Legal Mirage"

The title of this post is the title of this new paper authored by Michael Perlin, Talia Roitberg Harmon and Haleigh Kubiniec now available via SSRN. Here is its abstract:

Some fifteen years ago, in Panetti v. Quarterman, 551 U.S. 930, 956 (2007), the Supreme Court ruled that a mentally ill defendant had a constitutional right to make a showing that his mental illness “obstruct[ed] a rational understanding of the State’s reason for his execution.”  In a recent paper, two of the authors (MLP & TRH) analyzed the way the Fifth Circuit had construed that case, and concluded that that court “has basically ignored Panetti’s holdings in all its decisions.” See “Insanity is Smashing up Against My Soul”: The Fifth Circuit and Competency to be Executed Cases after Panetti v. Quarterman, 60 U. LOUISVILLE L. REV. 557, 578 (2022).  In this article, we expand that inquiry to consider how all federal circuits have interpreted Panetti, and we find that Panetti has never -- with the exception of one case, later vacated -- been a remedy upon which defendants with serious mental illness facing the death penalty could rely.

We analyze all the circuit-level Panetti decisions, and consider the case law through a therapeutic jurisprudence (TJ) filter, concluding that this body of cases violates all TJ precepts, and offer a series of recommendations -- as to issues related to adequacy of counsel, the need for databases of experts competent to testify in such matters, the need for other scholars to study the cases we discuss here, and to seek to breathe new life into arguments made some years ago barring the death penalty in all cases of defendants with serious mental illness -- to, we hope, ameliorate this situation in the future.

August 8, 2022 at 01:01 AM | Permalink


Just from the syllabus, the flaw in the argument is readily apparent.

Panetti is a competency case, not a sentencing case. Competency is a rather low bar to meet. As long as person is not delusional or very developmentally impaired, they are likely to have a rational understanding of their sentence -- that they are about to be put to death for their role in the death of the victim. While a good number of prisoners may have unrealistic hopes about their chances of relief from the court or a last minute pardon, they know that they have a pending execution date and the underlying reason for their execution.

The concerns raised by the syllabus seem to be focused on mental illness short of incompetency that, in the view of the authors, should be an absolute bar to the imposition of sentence.

As far as a database of experts, my experience is that the attorneys handling these cases (at least in my part of the country) have a database of mental health experts that they use. The problem is that the experts who are willing to make the conclusions that these defense attorneys want do not have a reputation for neutral,objective, findings. Instead, they appear in every death case (and many non-death cases) as defense experts and appear to have never met a defendant who is competent to be executed or does not have serious mental illness. Very quickly, these experts compile a rather lengthy list of court findings that they are not credible. And since the universe of experts willing to do what these attorneys need them to do in multiple cases is small, the capital defense bar has little alternative but to go back to the well of these experts.

Posted by: tmm | Aug 8, 2022 10:24:00 AM

I was going to say that, hopefully, by the time it gets to an appeal that all convicts would lose. Somewhat like how I really don't understand the complaints about conviction rates, both by plea and those few who actually choose to go to trial. Prosecutors are supposed to ensure they only take cases to trial that they can, in fact, prove to the satisfaction of the trier of fact. I see this being fairly similar, that unless the authors are counting all pre-trial-court pro-defendant findings (however numerous or rare they may be), I'm not sure how much merit there is in looking at the fact that by the time they get to an appeals court the remaining claims fail.

Posted by: Soronel Haetir | Aug 8, 2022 11:47:50 AM

Soronel, while that would generally be true, it's not always true.

An appeal is not simply about guilt. It's about whether the rules have been followed. Given the deference required by federal habeas, federal habeas petitions should uniformly be meritless (i.e. no state prosecutor or state judge should be ignoring clear rules). At the state court level, however, cases often arise on the border between what is allowed/not allowed, particular when dealing with new statutes or new major precedents. (For example, about four years ago, my state changed its evidence rules to allow propensity evidence in child sex cases, we are still getting major precedents clarifying the line set by the new rules.) So, a tiny fraction of appeals will have merit.

Panetti claims are different than most appeals. Generally speaking, most states (and Panetti itself) assume that defendants are competent. Thus, defendant has the burden of proof. While you will occasionally get appeals in which the defendant challenges how the trial court resolved competing expert (which almost uniformly fail given deference to the finder of fact), the more significant appeals involve whether defendant has produced enough evidence suggesting incompetence to warrant a hearing. And Panetti is not about the original competence but about the change in defendant's mental status since the original trial. (If defendant was incompetent at the time of trial or sentencing, there would not have been a trial or sentencing.) So the question is what information is provided suggesting that defendant's mental health had declined.

I would hope that most state high courts (and death cases almost uniformly go to the state high court rather than lower courts) would grant hearings and order supplemental mental exams when the facts warrant it. (And, at least, the federal habeas courts seem to agree with how the state high courts are evaluating these claims.) Of course, the main problem with many of these claims (at least the ones that I have seen) is that they rely largely on the same doctors who found mental health issues earlier in the case with the finders of fact rejecting those findings at the time that they were originally made. Since these experts' evaluations have already been found to be questionable, relying on them to get a new hearing often fails.

Posted by: tmm | Aug 9, 2022 10:21:31 AM

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