Mental Illness

Texas Court Stays Execution of Mentally Ill Prisoner with Schizophrenia

The Texas Court of Criminal Appeals on October 19, 2018 stayed the execution of Kwame Rockwell (pictured), a severely mentally ill death-row prisoner suffering from schizophrenia, who had been scheduled to die on October 24. The court found that Rockwell had raised “substantial doubt that he is not competent to be executed” and reversed a ruling by the Tarrant County District Court that had rejected Rockwell’s competency claim without an evidentiary hearing and without providing funds for him to obtain a competency evaluation. The appeals court ordered the trial court to appoint “at least two mental-health experts” to evaluate Rockwell’s competency. On October 16, Rockwell’s lawyers had appealed the Tarrant County order arguing that the trial court had abused its discretion in rejecting his competency claim The appeal argued that Rockwell “does not understand he is to be executed,” “has no understanding that he was convicted of capital murder and sentenced to death,” and “does not comprehend that he has been incarcerated on death row since 2012 or even that he is presently incarcerated in a Texas prison.”

The U.S. Supreme Court ruled in Ford v. Wainwright (1986) that the Eighth Amendment prohibits the execution of prisoners who have become “insane”—which the Court defined as being “unaware of the punishment they are about to suffer and why they are to suffer it.” In 2007, in the Texas case of Panetti v. Quarterman, the Court explained that a prisoner whose delusions prevent him from having a “rational understanding” of these circumstances is incompetent to be executed. A neuropsychologist who examined Rockwell in July reported that Rockwell said he saw snakes and demons that were inside of him, appeared to be hearing voices, and, in response to a question about his name, said “my name is God.” The doctor’s affidavit said Rockwell “does not understand or appreciate where he is, the nature of his charges, why he is in prison, or the nature of his punishment.” Rockwell’s lawyers also presented the court with evidence of his significant family history of psychotic illness, including twelve family members across three generations of his family with mental illness diagnoses, and Rockwell’s own mental illness in childhood and as an adult. Citing prison records, the appeal states: “Rockwell has consistently experienced intense hallucinations and auditory delusions, despite spending the majority of his sentence on four or more antipsychotic medications concurrently. He is haunted by snakes and demons. No medications have been able to eliminate his hallucinations or delusions.”

The U.S. Supreme Court has never categorically excluded people with serious mental illness from being sentenced to death or executed. A 2014 poll found that Americans by a two-to-one margin oppose executing people with mental illness. Several states have recently considered, but not adopted, legislation to bar the death penalty for people with severe mental illnesses. Rockwell’s trial lawyer did not present to the jury mitigating evidence of Rockwell’s schizophrenia or his family’s history of psychotic mental illness. Nonetheless, the Texas state and federal courts denied Rockwell’s claim that he had been provided ineffective representation at sentencing. In an opinion piece for Pacific Standard written before the Texas Court of Appeals granted the stay, David M. Perry compared the courts’ treatment of Rockwell’s case with the recent stay of execution granted to fellow Texas prisoner Juan Segundo. Segundo was granted a stay so the Tarrant County court could reconsider his claim of intellectual disability after the Supreme Court had ruled that the standard Texas had previously applied unconstitutionally risked that some people with intellectual disability would still be executed. “America still doesn't have clear protections for people with severe mental illness,” Perry explains. “These two cases in Texas remind us of the unfortunate diagnostic limitations that protect only some people with disabilities from the death penalty.”

Law Review: Junk Mental Health Science and the Texas Death Penalty

Junk science is “enabling and perpetuating grave miscarriages of justice” in Texas death-penalty cases. So concludes Professor James Acker in his article, Snake Oil With A Bite: The Lethal Veneer of Science and Texas’s Death Penalty, published in the latest issue of the Albany Law Review. Acker’s article highlights the heightened risks of injustice from pseudo-science and junk science in capital cases in Texas, one of the few states that conditions death eligibility upon a finding of the defendant’s future dangerousness. Acker writes that, “at virtually every ... stage of the state’s capital punishment process,” Texas prosecutors “have alternately enlisted expert witnesses and scientists who have helped move accused and convicted offenders progressively closer to the execution chamber, and ignored or discounted scientific norms and developments inconsistent with securing and carrying out capital sentences. All too often, the determinations made in support of death sentences are of dubious reliability—including opinions and conclusions based on what many would agree to qualify as junk science—thus greatly enhancing the risk of miscarriages of justice ....”

Acker’s article discusses Texas’s long history of abusing expert testimony in support of execution, starting with the case of Estelle v. Smith, in which Dr. James Grigson — later nicknamed “Dr. Death” — evaluated Ernest Smith for his competency to stand trial, did not notify counsel of the evaluation, failed to advise Smith of his right to remain silent, and then testified in the penalty phase “that Smith was a severe sociopath, that his condition could not be treated, and that he ‘is going to go ahead and commit other similar or same criminal acts if given the opportunity to do so.’” The U.S. Supreme Court overturned Smith’s death sentence in 1981 for violations of his right to counsel and his constitutional privilege against compelled self-incrimination. Two years later, in Barefoot v. Estelle, the Court permitted the use of psychiatric predictions of future dangerousness, despite warnings by the American Psychiatric Association that such testimony was speculative and highly unreliable. Grigson went on to testify in 167 capital cases, repeatedly responding to hypothetical questions posed by prosecutors (even after he was expelled from state and national professional associations because of this practice) that defendants whose institutional records he had never reviewed and whom he had never evaluated were certain to commit future acts of violence. Texas has also misused expert mental health testimony in capital cases to falsely argue that capital defendants posed an increased threat to society because of their race or ethnicity, Acker writes. He describes the testimony of Dr. Walter Quijano, a clinical psychologist who testified in seven cases that defendants were more likely to pose a danger to society because they were black or Latino. The Texas Attorney General’s office ultimately conceded error in all but one of those cases. Duane Buck’s case, however, reached the Supreme Court, where Chief Justice Robert condemned Quijano’s testimony as “powerful racial stereotyping.”

The Texas courts also systemically disregarded scientific standards or otherwise abused expert mental health testimony in determinations of intellectual disability and competency to be executed, Acker says. In the case of Moore v. Texas, the Supreme Court declared Texas’s approach to intellectual disability to be unconstitutional and ordered a reconsideration of Bobby Moore’s intellectual disability claim. With the prosecution, the defense, and multiple mental health groups all agreeing that Moore is intellectually disabled, the Texas Court of Criminal Appeals nevertheless upheld his death sentence. Finally, Acker writes, the state’s approach to competency has been an outlier, deeming Scott Panetti — who had been “hospitalized more than a dozen times [for mental illness and] been diagnosed as suffering from schizophrenia, bipolar disorder, auditory hallucinations, and delusions of persecution and grandeur” — competent to stand trial, to represent himself, and to be executed. Texas “has alternatively coopted, disregarded, and subverted science and prevailing disciplinary norms of the mental health professions,” Acker concludes. “The death penalty in Texas, imbued with powerful symbolism and political significance, has succeeded not only in condemning offenders, but also the principled teachings of science. ... Science and politics are a deadly mixture, in the nature of snake oil with a bite.”

Justices Appear to Favor Prisoner with Dementia in Case Seeking to Block Alabama Execution

The U.S. Supreme Court heard argument in Madison v. Alabama on October 2, 2018 on whether an Alabama death-row prisoner who has vascular dementia, brain damage, cognitive deficits, and memory loss from two near-fatal strokes is competent to be executed. During oral argument, Bryan Stevenson (pictured), the executive director of the Equal Justice Initiative, told the justices that, as a result of severe and progressively worsening dementia, Vernon Madison lacks a rational understanding of why Alabama intends to put him to death and is therefore incompetent to be executed. A majority of the justices appeared sympathetic to Madison's position, including Chief Justice John Roberts who is now regarded as the swing vote in death-penalty cases. The issues before the Court narrowed significantly as a result of concessions made by both sides at the argument. Madison's pleadings had argued that the Court's decisions in 1986 in Ford v. Wainwright and 2007 in Panetti v. Quarterman on competency to be executed applied beyond the limited circumstances of insanity and delusional mental illness at issue in those cases. "For purposes of retribution, there is no moral or constitutional distinction between a person who cannot 'recogni[ze] … the severity of the offence as a result of delusions and a person who is unable to do so as a result of dementia, cognitive decline, and memory deficits," his lawyers wrote. Alabama Deputy Attorney General Thomas Govan conceded that incompetency caused by severe dementia could also qualify. Stevenson, on the other hand, conceded in response to questioning by Justices Samuel Alito and Elena Kagan that merely having no memory of committing the offense does not make a prisoner incompetent to be executed. Rather, Stevenson said, the memory loss must be the product of a medical or physical condition that also affects the prisoner's understanding of why he or she is to be executed. Stevenson said Madison's severe vascular dementia has left him with no memory of having killed a police officer who responded to a domestic disturbance in 1985. An MRI has shown that Madison has suffered substantial brain damage, and psychological testing has documented significant cognitive decline accompanied by IQ-loss that now places him in the borderline range of intellectual functioning. Madison's dementia has also left him disoriented as to date and time and without the ability to rationally comprehend his legal situation. He is legally blind, Stevenson said, has slurred speech, cannot recite the alphabet past the letter G or retain basic information, cannot walk without assistance, and continually soils himself because he does not know how to use the toilet in his five-by-eight cell. Madison's physical disabilities, Stevenson said, provide evidence illustrating the extent to which Madison's vascular dementia has affected all aspects of his life. Stevenson argued that Alabama's courts improperly rejected Madison's evidence of incompetency, focusing only on whether his impairments were caused by insanity, psychosis, or delusions. Govan asserted in response that by reciting the correct legal standard from Ford and Panetti and making reference to the testimony concerning Madison's impairments, Alabama had in fact considered that evidence. He further disputed whether Madison is incompetent at all, stating that Alabama would find him competent to stand trial in his current condition. Stevenson closed the argument by telling the Court that the "awesome power" to execute a person who no longer poses an immediate threat must "be utilized fairly, reliably, and humanely." The Court, Stevenson said, reviews facts and circumstances "through the window of the Constitution ..... But the Eighth Amendment isn't just a window. It's a mirror." Our norms and values "are implicated when we do things to really fragile, really vulnerable people," Stevenson said. "And what we've argued is that dementia in this case renders Mr. Madison frail, bewildered, vulnerable in a way that cannot be reconciled with executing him because of his incompetency."

Montana Prosecutors Drop Death Penalty Against Mentally Ill Defendant

Lloyd Barrus (pictured, left) will not become the first person sentenced to death in Montana this century, after prosecutors dropped their pursuit of the death penalty for the killing of a sheriff's deputy. In a motion filed July 19, 2018, Broadwater County Attorney Cory Swanson (pictured, right) wrote that, "after extensive analysis of the Defendant's history of ... mental illness," the state would no longer seek the death penalty in the case. Doctors at the Montana State Hospital had diagnosed Barrus with multiple mental health disorders, including a delusional disorder, that led Judge Kathy Seeley to find him incompetent to stand trial and to commit him to a mental hospital for treatment. Medical records documented Barrus's history of mental health issues dating to 2000, and Swanson did not contest the diagnoses. The prosecution's notice to withdraw the death penalty acknowledged that Barrus's mental illness was potentially a "sufficiently mitigating circumstance" for the court to choose a life sentence over the death penalty. Swanson said he believes the mental health treatment plan ordered by the court will restore Barrus's competency to be tried, that he "expects to try this case before a jury, and believes the court will have the opportunity to hold the Defendant accountable through a just sentence, which includes up to imprisonment for life without the possibility of parole." With the death penalty off the table, Montana will continue its 21-year streak without a death sentence. The last time the state sentenced a defendant to death was 1996. Just two people remain on Montana's death row, and the state's last execution was in 2006. Several states have considered bills in recent years that would exempt people with severe mental illness from the death penalty, but no state has imposed such a ban.

STUDY: Tennessee Could Save $1.4 Million Annually Ending Death Penalty for Severe Mental Illness

Tennessee could save an estimated $1.4–1.89 million per year by adopting a ban on capital punishment for defendants with severe mental illness, according to a new report by the American Bar Association Death Penalty Due Process Review Project. The report said a severe mental illness death-penalty exclusion “could result in cost savings [because] a subset of individuals who currently could face expensive capital prosecutions and decades of appeals would become ineligible” for capital prosecution. As a result, “their trials and appeals would be significantly truncated, while still resulting in guilty verdicts.” The study projected statewide costs based upon its review of the death-row population from Shelby County, Tennessee, the nation's 13th largest county death row, and the results of comprehensive cost studies from other jurisdictions. Based on the 67 death sentences imposed in Shelby County between 1977 and 2017, the study estimated that approximately 15% of death-row prisoners had been diagnosed with a severe mental illness, which includes schizophrenia, schizoaffective disorder, bipolar disorder, delusional disorder, or major depression. If the same percentage of death-sentenced prisoners across the state had severe mental illness, the study said, 28 prisoners would have been exempted from Tennessee’s death penalty since 1977. The report based its cost estimates on a 2008 Urban Institute cost study of Maryland’s death penalty—considered one of the most rigorous of the state death-penalty cost studies conducted across the country. That study found that death-penalty cases cost about $1.9 million more than non-capital murder cases. Using that estimate, the report said, eliminating the 28 capital prosecutions of severely mentally ill defendants would have saved Tennessee $54.8 million over the last 40 years, or an average of $1.4 million per year. Mental Health America estimates that 20% of death-row prisoners have serious mental illness, the report said, and using its estimate of the prevalence of severe mental illness, Tennessee’s average annual savings would be even higher, at $1.89 million. Because no data were available on capital prosecutions in which seriously mentally ill defendants were not sentenced to death, the report did not calculate the potential additional cost savings from decapitalizing those cases. Tennessee is one of several states considering a mental illness exemption from the death penalty, and was selected for the study because it provides detailed information on all first-degree murder cases since 1977. In 2017, former Tennessee Attorney General W.J. Michael Cody expressed his support for a mental illness exemption, saying, “[a]s a former Tennessee Attorney General, I understand how horrific these crimes are and how seriously we must take capital cases. ... But in light of our increased understanding of mental illness, I believe that for those with documented mental illness of the most severe form at the time of their crime, the maximum punishment should be life in prison without parole.”

Federal Appeals Court Hears Argument in Case of Texas Death-Row Prisoner Who Gouged Out His Eyes

A severely mentally ill Texas death-row prisoner who gouged out his eyes and ate one of them has asked a federal appeals court to allow him to appeal a lower court decision that upheld his conviction and death sentence and found that he had been competent to stand trial. Andre Thomas (pictured, left when arrested; center, after gouging out his right eye prior to trial; right, after gouging out and eating his left eye while on death row); is seeking review of his claims that his conviction and sentence must be overturned because he is severely mentally ill, received inadequate representation at trial and at sentencing, and his jury was tainted by racial bias. On June 5, a panel of the U.S. Court of Appeals for the Fifth Circuit heard oral argument on whether Thomas is entitled to a “certificate of appealability” ("COA"), a procedural prerequisite to obtaining appellate review of the issues in his case. Thomas was sentenced to death in 2005 for the murders of his ex-wife, their son, and his ex-wife’s daughter. His lawyers did not contest that he had committed the murders, but argued he was incompetent to stand trial. Thomas began hearing voices at age nine and began smoking marijuana and using alcohol during his childhood. His condition sharply deteriorated shortly before the murders, as he heard voices, repeatedly mutilated himself, put duct tape over his mouth for days at a time because he believed God had told him not to talk, and attempted suicide. While in jail awaiting trial, Thomas gouged out his right eye. In 2008, while on death row, he then gouged out and ate his left eye. Three psychologists who evaluated Thomas before trial said he had paranoid schizophrenia and was incompetent to stand trial. However, after just six weeks of treatment, a state hospital psychologist claimed that Thomas had been exaggerating the symptoms, changed his diagnosis to "substance-induced psychosis," and judged Thomas competent to be tried. Thomas’s trial lawyers did nothing to contest the competency finding—allowing the trial to proceed—failed to retain an expert to challenge the state’s diagnosis of drug-related psychosis, and failed to present significant evidence of his mental illness. On appeal, Thomas challenged his lawyers’ performance on these issues. Appeal counsel also argued that, as a result of trial counsel’s failures, Thomas’s jury was impermissibly tainted by racial bias. Thomas is Black; his ex-wife was White. Written questionnaires submitted by several jurors suggested this raised serious concerns for several of the jurors. One juror wrote that he opposed interracial marriages because he believed “the bloodlines shouldn’t be mixed.” Another expressed concern that “any children” of an interracial marriage “would not have a specific race to belong to.” A third said “interracial relationships were contrary to God’s intent.” Although Thomas’s trial counsel were aware of these responses, they asked no follow-up questions of these jurors, and accepted them to serve on the jury. Finally, Thomas’s current lawyers argued that subjecting people like him, with severe mental illness, to the death penalty is categorically unconstitutional. “There is a growing consensus against the execution of the severely mentally ill,” they wrote in a brief. “The leading legal and mental-health professional organizations—including the American Bar Association, the American Psychiatric Association, and the American Psychological Association—oppose the death penalty for the severely mentally ill.” [UPDATE: The Fifth Circuit granted Thomas a certificate of appealability permitting him to appeal the denial of his claims that his lawyers were ineffective in failing to challenge his competency, failing to present mitigating evidence relating to his mental illness, and failing to take action to keep jurors who expressed clear racial animus off his jury. The court denied his request for a COA on the constitutionality of executing prisoners who are severely mentally ill.] 

STUDY: Pervasive Rubberstamping by State Courts Undermines Legitimacy of Harris County, Texas Death Sentences

State-court factfinding by judges in Harris County, Texas death-penalty cases is "a sham" that "rubberstamps" the views of county prosecutors, according to a study of the county's capital post-conviction proceedings published in the May 2018 issue of the Houston Law Review. In The Problem of Rubber Stamping in State Capital Habeas Proceedings: A Harris County Case Study, researchers from the University of Texas School of Law Capital Punishment Center examined factfinding orders in 191 Harris County capital post-conviction proceedings in which factual issues were contested, and found that in 96% of the cases, Harris County judges adopted the county prosecutors' proposed findings of fact verbatim. In the vast majority of cases, judges signed the state’s proposed document without even changing the heading. Looking at the 21,275 individual factual findings that county prosecutors had proposed, the researchers discovered that 96% of the judicial findings were word-for-word what prosecutors had written. The study's authors—Capital Punishment Center Director and Judge Robert M. Parker Chair in Law Jordan M. Steiker, Center Co-Director and Clinical Professor James W. Marcus, and Clinical Fellow Thea J. Posel—identified two related state post-conviction practices that they say "undermine the accuracy and fairness of the death penalty" in the nation's most prolific county for executions: "the reluctance of state trial courts to conduct evidentiary hearings to resolve contested factual issues, and the wholesale adoption of proposed state fact-finding instead of independent state court decision-making." State post-conviction applications typically present affidavits from witnesses and experts containing evidence that could have been, but was not, presented at trial. This evidence may "relate[ ] to the accuracy of the conviction, including forensic, alibi, or eyewitness testimony; or the affidavits might highlight important [penalty-phase] mitigating evidence regarding the inmate’s psychiatric or psychological impairments, abused background, or redeeming qualities." The systemic rubberstamping rejects this evidence, often without any evidentiary hearing into contested factual issues. The "inadequate development of facts" caused by this "one-sided consideration of contested factual issues," the researchers say, "prevents Harris County post-conviction courts from enforcing federal constitutional norms." The sham state-court proceedings also lead to unreliable federal habeas corpus review of Harris County death sentences, the researchers said, "[b]ecause even rubberstamped findings receive deference in federal court." When federal habeas relief is denied and an execution occurs, "prosecutors and newspapers recount the many layers of review undertaken" in the case, notwithstanding the underlying reality that "those layers of review afforded no meaningful consideration of the inmate’s constitutional claims." The reality of rubberstamped state-court factfinding and illusory federal appellate review, they say, "undermines the legitimacy of Harris County executions."

Prosecutors Withdraw Death Penalty, Agree to Guilty Pleas in Two High Profile Cases With Multiple Victims

State and federal prosecutors have agreed to withdraw the death penalty in exchange for guilty pleas by defendants charged with multiple killings in two unrelated high-profile murder cases. On May 4, Lake County, Indiana prosecutors dropped the death penalty against Darren Vann (pictured, left), who had killed seven women. On May 1, federal prosecutors announced they would not pursue the death penalty against Esteban Santiago (pictured right), who killed five people and wounded six others in a shooting rampage at the Fort Lauderdale-Hollywood International Airport in Florida in 2017. Military records reflect that Vann—a former Hawk Missile system operator who had earned a National Defense Service Medal—was prematurely discharged from the Marine Corps in 1993 for conduct described as "incongruent with Marine Corps’ expectations and standards." Vann had been capitally charged in the strangulation deaths of two women after having been released from prison in Texas in 2013 where he had served time for a rape conviction. County prosecutors agreed to withdraw the death penalty in exchange for his admission of guilt in their murders and the murders of five other women in an area of Gary, Indiana, frequented by sex workers and drug users. He was arrested in October 2014 after police found one victim's body in a motel bathtub. Vann told police he had killed six other women and later led authorities to their remains. Marvin Clinton, the longtime boyfriend of one of the victims and father of her child, called the death penalty "the easy way out" and said he preferred than Vann be sentenced to life without parole. "I want him to suffer," Clinton said. "These women will haunt him for the rest of his life.” Federal prosecutors reached a plea agreement that would avoid a protracted death-penalty trial for Santiago, a severely mentally ill Iraqi War veteran who suffers from auditory hallucinations and is being medicated for schizophrenia. Santiago opened fire in the Fort Lauderdale airport two months after having been released from a psychiatric hospitalization in Alaska. At that time, Santiago told local FBI agents in Anchorage that he was hearing voices and thought the government was controlling his mind. Local police then confiscated his handgun, but returned it to him weeks before the airport shooting. Santiago's lawyer, Assistant Federal Public Defender Eric Cohen, said Santiago has expressed remorse for the shooting. U.S. District Judge Beth Bloom has ordered Santiago to undergo a mental health evaluation to ensure he is legally competent to plead guilty and has scheduled a competency hearing for May 23.

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