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Friday, June 29, 2007

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

On Prof. Kerr's post about the AEDPA holdings in yesterday's Panetti v. Quarterman death penalty decision from the Supreme Court, I left a link to my post rant yesterday afternoon about Justice Kennedy's rulings on the merits of the case. That prompted the following comment from someone posting there as "Public_Defender":

It's interesting to see how peeved some people get when they might not get to kill a schizophrenic. Now I see where the support for torture comes from.

If killing a documented schizophrenic vindicates your sense of morality, you are morally depraved. Panetti's schizophrenia at least partially explains his depraved desire to kill. What explains yours?

I'll reprint here (without block-quoting it) the reply comment I left there, somewhat enlarged. It turned out that I wasn't quite done ranting after all.


This isn't about morality (although I think morality here is generally parallel). It's about justice.

We're not talking about the State of Texas executing just any old "documented schizophrenic." Nor are we talking about the State of Texas executing someone because they're a "documented schizophrenic."

Scott Panetti

We're talking about the State of Texas executing a documented schizophrenic who is a convicted double-murderer — one who was found sane, found capable of participating meaningfully in his defense, and found competent to waive counsel, and none of those findings are in question any more — and whom the jury also found guilty beyond a reasonable doubt of the aggravating factors that justify the ultimate penalty.

I don't know the percentages, but it would amaze me if a very high percentage of the prisoners on death row, whether in Texas or elsewhere, aren't psychotic. Many of them are very psychotic indeed. You may want a different legal system, one in which everyone who's merely psychotic is excused from legal culpability, but that's not the system we live in — that's not the test for whether someone is exempt from punishment for their crimes.

But now Justice Kennedy and the liberal wing have rewritten constitutional capital punishment law to say that you have to be nicely enough adjusted to have a "rational appreciation" of the State's "rationale" for your execution. Otherwise, the State cannot execute you.

And who decides? Well, every expert under the sun has now been invited to testify. Juries get no vote on this subject — none. The judge who decides is quite likely not going to be the one who heard the trial evidence. But ultimately, it's the Nine Black Robes in Washington — now self-anointed as our national Psychiatrists-in-Chief — who get to decide, isn't it?

And they've expressly refused as part of this opinion to give the lower trial and appellate courts, state or federal, any more guidance for what the hell "rational appreciation" of the State's "rationale for execution" means.

I get no joy from executions. I handled capital cases as a Fifth Circuit law clerk 25 years ago. I've handled capital cases on a pro bono basis since then. There's nothing but tragedy and sadness here. The question is whether there's also justice or not.

I believe that even apart from its AEDPA holdings, Justice Kennedy's opinion in this case is by far the worst piece of SCOTUS death penalty jurisprudence ever written. No other case comes remotely close, and there are quite a few others that I have thought were pretty bad (including, actually, some that are perceived as pro-prosecution).

If you're genuinely big on protecting the rights of the accused, Pub_D, you'll figure out that you do yourself no favors by trying to ridicule, as bloodthirsty ghouls, those who believe in individual rights but nevertheless also believe in justice for victims and for society.


UPDATE (Fri Jun 29 @ 11:45pm): On this website, I came across a link to a short video clip of Scott Panetti that it says appeared as part of a 1997 HBO program on the Texas death penalty system. I haven't seen the full HBO program. The website, though, is a useful reminder that there are people who love Scott Panetti, and who are joyful that yesterday's decision was in his favor. They have my sympathy, but not my agreement. I transcribed the clip, and also took the screen-cap above from it:

GUARD: You got anything you wanna say to these people?

PANETTI: I had a ... a vision as we sort of surface-dive into the twenty-first century. For a society of two hundred and fifty million who claim the higher form of law, a superior form of law, to eliminate five thousands of its own members —

GUARD (interrupting): But you woke up and everything was alright, right?

PANETTI (calmly continuing, after the interruption): — in a form of what is vengeance against itself, it seemed like it wasn't justice, but perverse entertainment.

GUARD: Aw-right, well, we gonna move along there a little bit, you have a nice day there, aw-right?

I'm not suggesting that you or I or anyone can make a psychiatric evaluation of the man from these few seconds. But the man is, at a minimum, capable of arguing against the death penalty. If he can volunteer a counter-rationale against capital punishment, does that not imply that he understands ... the State's rationale for it?

Posted by Beldar at 08:04 PM in Law (2007) | Permalink


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Tracked on Jun 29, 2007 10:15:42 PM


(1) DRJ made the following comment | Jun 29, 2007 11:59:21 PM | Permalink

I rarely react this way on the internet but Public Defender's comment made my blood boil. Thanks for posting an eloquent and effective response.

(2) Jinnmabe made the following comment | Jun 30, 2007 12:42:18 AM | Permalink

Beldar, it's clear. If he can come up with a counter-argument, that means that he probably disagrees with the state's rationale, which means he does not TRULY have a rational appreciation for that rationale, because if he did, he would agree with it, since the state's rationale is per se the correct one.

Heh. See how easy it is?

(3) Beldar made the following comment | Jun 30, 2007 1:34:11 AM | Permalink

I'm sure you're familiar, Jinnmabe, with Catch-22.

(4) antimedia made the following comment | Jun 30, 2007 2:59:37 PM | Permalink

People like Pub_D should have to come down from their ivory towers and their oh-so sympathetic intellectualism and live with the so-called schizophrenic murderers of the world.

It never even seems to occur to them that warehousing murderers rather than executing them exposes the rest of the prison population to the worst among us.

Of course that's no sweat off their gilded butts. They get to spout their high and mighty beliefs while others get to suffer the consequences.

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