Texas’ Enthusiasm for Capital Punishment Crosses a Line

BY JESSICA KERBEL – The execution of Scott Panetti, a man who has been suffering from severe schizophrenia for the past thirty years, is scheduled for December 3, 2014.1  In 1992, Panetti shot and killed his wife’s parents, then held his wife and daughter hostage in a cabin.2  He claims his alter ego “Sarge” is responsible for the murder.3

Panetti’s affliction can be traced back to his diagnosis in 1978, and evidenced by his twelve subsequent hospitalizations prior to the murder.4  In 1986, he attempted to exorcise the devil from his home by burying his furniture in his backyard—the same year the Social Security Administration determined that his severe schizophrenia entitled him to federal benefits.5

After rejecting a plea deal, despite the state’s knowledge of his schizophrenia, Panetti was allowed to represent himself during his 1992 trial.6  The pro se litigant dressed as a cowboy and attempted to call over 200 witnesses—most notably: Jesus, JFK, and the Pope.7  Some of his medical records were ruled unfit for evidence because he drew crosses on them.8  What is most upsetting is that as a procedural safeguard a state has the ability to appoint counsel to pro se criminal defendants who suffer from mental illness, and it is wildly unclear as to why this measure was not taken.  In Indiana v. Edwards, the Court held that the standard for competency to stand trial was distinct from the standard for competency to represent oneself.9  Further, the right of self-representation is not absolute, and standby counsel may be appointed to assist the pro se defendant in matters of procedure and courtroom decorum.  10

The Supreme Court of the United States held that the state court failed to provide Panetti even “rudimentary process” in determining his competency to be executed, in violation of Supreme Court law emerging from Ford v. Wainwright.11 Despite this holding, on remand the state court found that Panetti was exaggerating his condition and the penalty was reinstated.12  The state court’s tenacious stance is further illustrated in its recent refusal to postpone the execution date to allow for a competency test; Panetti’s most recent evaluation was in 2008.13  An army of concerned politicians, mental health experts, and legal practitioners—including former state attorneys general, a former Texas governor, prosecutors, state and federal judges—came together to pen a clemency petition to change Panetti’s death sentence to life in prison.  “Our concern is that the criminal justice system recognizes both the diminished culpability of a person with severe mental illness, like Mr. Panetti, and the absence of penological value in carrying out a death sentence in a case of such extreme mental illness.”14  Compare this to a situation where a 3 year old child finds a gun and shoots his sibling; he killed another being, but a court would certainly not give that child the death penalty.  A strict “eye for an eye” retributivist approach is not the way our judicial system operates, and to support a death sentence in the face of Panetti’s severe mental illness is to ignore our long-standing hierarchy of mens rea.

Following the landmark decision of Gregg v. Georgia in 1976, Texas has executed more inmates than any other state—however today’s numbers are a far cry from the forty-eight executions carried out in 1999.15  Texas executed ten inmates during 2014 and has scheduled eight for 2015.16  Nationwide, capital punishment is on the decline and the public outcry surrounding Panetti v. Quarterman sheds light on one of many reasons for this trend.  Public support for the death penalty has reached its lowest level in 40 years, and currently eighteen states have abolished the death penalty.17  The ultimate goal is for the remaining states to join in abolishing the death penalty, and if the December execution transpires, hopefully the backlash from this unconscionable decision will serve as a wake-up call to prompt significant change in Texas legislation.



[1] Jessica Glenza, Lawyers File Emergency Motion to Stop Execution of Mentally Ill Texas Inmate (Nov. 8, 2014, 1:15 PM), http://www.theguardian.com/world/2014/nov/08/texas-inmate-emergency-motion-mental-health [hererinafter Glenza].

[2] Andres Jauregui, Execution Of Scott Panetti, Inmate With Schizophrenia, ‘Would Cross A Moral Line’: Lawyer (Nov. 13, 2014, 1:59 PM), http://www.huffingtonpost.com/2014/11/13/scott-panetti-execution_n_6152428.html [hereinafter Jauregui].

[3] Id.

[4] Glenza, supra note 1.

[5] Id.

[6] Christina Sterbenz, A Schizophrenic Man Tried To Call Jesus As A Witness In Court — Now Texas Is Going To Execute Him (Nov. 12, 2014, 4:47 PM), http://www.businessinsider.com/scott-panetti-execution-2014-11.

[7] Id.

[8] Id.

[9] Indiana v. Edwards, 554 U.S. 164, 165 (2008).

[10] Id. at 171.

[11] Panetti v. Quarterman, 551 U.S. 930, 952 (2007).

[12] Jauregui, supra note 2.

[13] Petition for a Recommendation of a Reprieve From Execution and for Commutation of Death Sentence to Life Imprisonment at 5, Panetti, 551 U.S. 930 (No. 06-6407).

[14] Id. at 67.

[15] Michelle Iracheta, Houston Group Protests Texas’ Death Penalty (Oct. 26, 2014, 12:16 AM), http://www.chron.com/news/houston-texas/houston/article/Houston-group-protests-Texas-death-penalty-5848226.php.
[16] Death Penalty Information Center, http://www.deathpenaltyinfo.org/upcoming-executions (last visited Nov. 14, 2014).

[17] Death Penalty Information Center, Executions Decline Nearly 10%; Sentences Remain Close to Historic Low, The Death Penalty in 2013: Year End Report 1, 2 (2013), http://deathpenaltyinfo.org/documents/YearEnd2013.pdf.


Jessica Kerbel is a 2016 Staff Editor of the Race and Social Justice Law Review.

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