Experts Call for Exclusion from Death Penalty for Veterans with PTSD
Some legal and psychiatric experts have concluded that veterans with post-traumatic stress disorder should be ineligible for execution. In an article in the Journal of the American Academy of Psychiatry and the Law, mental health experts Drs. Hal Wortzel and David Arciniegas wrote, “The tragedy of the wounded combat veteran who faces execution by the nation he has served seems to be an avoidable one, and we, as a society, should take action to ensure that it does not happen.” A 2008 study by the RAND Corporation estimated that about 300,000 of the 1.64 million military members deployed to Iraq and Afghanistan had post-traumatic stress disorder. The study also found that only 53% of those with such a diagnosis had received treatment in the previous 12 months. In 2008, the New York Times reported 121 cases in which veterans of the wars in Iraq and Afghanistan had been charged with killings. In Texas, an Iraq veteran named John Thuesen is on death row for shooting his girlfriend and her brother in 2009. Thuesen suffers from post-traumatic stress disorder, and his attorneys have argued he would have received a life sentence if the jury had been fully informed of his illness.
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Supreme Court Reverses Kansas Self-Incrimination Ruling
On December 11, the U.S. Supreme Court unanimously reversed a Kansas Supreme Court ruling that had granted relief to death row inmate Scott Cheever. The Kansas court had held that Cheever's 5th Amendment right against self-incrimination had been violated because testimony was given at his sentencing hearing by a psychiatrist who examined Cheever pursuant to a court order. Cheever had claimed he was under the influence of drugs at the time of the crime. The psychiatrist testified that his "antisocial personality," rather than his drug use, explained his crime. Justice Sonia Sotomayor, writing for the Court, said, "[W]here a defense expert who has examined the defendant testifies that the defendant lacked the requisite mental state to commit an offense, the prosecution may present psychiatric evidence in rebuttal." Since Cheever was relying on his mental state for his defense, the prosecution was entitled to present contrary evidence on his mental state. In an earlier case, the Court had ruled psychiatric statements could not be used against a defendant who "neither initiates a psychiatric evaluation nor attempts to introduce any psychiatric evidence."
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SUPREME COURT: Self Incrimination at Issue in Kansas Case
On October 16 the U.S. Supreme Court will hear arguments in Kansas v. Cheever. One of the key defense witnesses in Scott Cheever’s death penalty trial testified that Cheever’s use of drugs impaired his judgement on the day of the crime. Prosecutors, in turn, called the physician who performed Cheever’s court-mandated mental exam, and he testified that Cheever was aware of what he was doing when he committed the crime, based on Cheever's own statements to the doctor. The doctor's testimony prompted the Kansas Supreme Court to overturn Cheever’s conviction because prosecutors had violated Cheever’s Fifth Amendment right against self-incrimination. Following oral argument, the Court will decide whether Cheever must be retried or his conviction and death sentence stands.
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Ohio Panel Recommends Banning Death Penalty for Severely Mentally Ill
On September 26, the Joint Task Force to Review the Administration of Ohio’s Death Penalty voted 15-2 to recommend a ban on death sentences for people with severe mental illness. The panel of legal experts was created by the Ohio Supreme Court and the Ohio State Bar Association and includes judges, attorneys, and legislators. Their proposal will be submitted with other recommendations to the governor and the General Assembly in 2014. Terry Russell, executive director of the National Alliance on Mental Illness Ohio, said his organization has been advocating for such a ban since 1999, when the state resumed executions after 36 years with the lethal injection of an inmate with a lifelong history of severe mental illness--Wilford Berry. “We knew this man was severely mentally disabled,” Russell said. “It is inhumane to execute someone like that.” Panel member Judge Kathleen Keough said the exclusion was “a matter of common decency,” and defendants with mental illness should be considered similar to juveniles and those with intellectual disabilities, who are already excluded from the death penalty.
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STUDIES: ABA Criticizes Texas Death Penalty in Latest Report
On September 18, the American Bar Association's Death Penalty Due Process Review Project released its latest report, focusing on the fairness and accuracy of Texas’s death penalty system. The report found: “In many areas, Texas appears out of step with better practices implemented in other capital jurisdictions, fails to rely upon scientifically reliable methods and processes in the administration of the death penalty, and provides the public with inadequate information to understand and evaluate capital punishment in the state.” (Exec. Sum.) The assessment made several recommendations to help prevent wrongful convictions and improve due process, including requiring the indefinite preservation of biological evidence in violent crimes, abandoning the law's emphasis on predicting the “future dangerousness” of the defendant in deciding death sentences, and enacting appropriate statutes to deal with capital defendants with intellectual disabilities and severe mental illness. The report commended Texas on recent improvements to their justice system such as better lineup procedures, disclosure of police reports to the defense, and the establishment of two defender offices to provide capital representation throughout the state. The assessment team included Professor Jennifer Laurin from the University of Texas School of Law (Chair) and former Texas Governor Mark White.
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MENTAL ILLNESS: Texas High Court Strikes Down Forcible Medication of A Death Row Inmate
On September 11, the Texas Court of Criminal Appeals held (5-4) that a trial court illegally ordered the forcible medication of a mentally ill death row inmate for the purpose of rendering him competent to be executed. The case involves Steven Staley, whose mental health began to deteriorate when he entered death row in 1991. He received an execution date in 2006, but was deemed too ill to be executed. A court ordered that his paranoid schizophrenia be treated by forcible medication, which continued for six years. In its ruling, the CCA held that “the evidence conclusively shows that appellant's competency to be executed was achieved solely through the involuntary medication, which the trial court had no authority to order under the competency-to-be-executed statute. The finding that appellant is competent must be reversed for lack of any evidentiary support.” The ruling did not address whether the state constitution forbids the execution of someone forcibly drugged or whether the defendant in this case is too ill to be executed at all. Read full text of the ruling here.
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STUDIES: American Bar Association Releases Assessment of Virginia Death Penalty
On September 5, the American Bar Association's Death Penalty Due Process Review Project released its latest report, focusing on the fairness and accuracy of Virginia's death penalty system. The assessment recommended changes to the way the state handles defendants with mental retardation and severe mental illness. It also recommended requiring prosecutors to disclose additional information about testifying witnesses and allowing prosecutors to withdraw the death penalty even after charging a defendant with capital murder. The report was critical of the state's practice of setting an execution date before all appeals are complete because it "effectively provides less due process to those under a death sentence than that which is afforded to non-capital inmates." The report praised recent improvements in documenting police procedures for eyewitness identification and accreditation of crime laboratories, but recommended additional reforms. The assessment found the state to be not in compliance or only in partial compliance with many of the ABA's protocols for the death penalty. The assessment team included Mark Earley, the former Attorney General of Virginia, John Douglass (Chair), the Dean Emeritus of the University of Richmond Law School, and other leaders from the judicial and legislative communities.
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MENTAL ILLNESS: Man Who Defended Himself in a Cowboy Suit Deemed Sane Enough for Execution
The U.S. Court of Appeals for the Fifth Circuit recently held that Texas death row inmate Scott Panetti is sane enough to be executed, despite his long history of severe mental illness. Panetti was sentenced to death for the 1992 murder of his in-laws. Putting aside Panetti's bizarre behavior in court, the judge allowed him to represent himself at trial, where he wore a purple cowboy suit and subpoenaed Jesus Christ and Anne Bancroft as witnesses. Panetti had been hospitalized 11 times for mental illnes prior to the murders and had been released only 2 months earlier. In a previous ruling, the Fifth Circuit held that Panetti only needed to realize he had committed a crime and was therefore being executed in order to satisfy the Eighth Amendment's ban on executing individuals who are insane. The U.S. Supreme Court stopped the pending execution and held that courts should consider a defendant's complete mental history in determining whether he has a rational understanding of his situation. Panetti has said his execution is a ruse to hide a satanic plot to kill him. The Fifth Circuit relied in part on taped conversations between Panetti and his family to determine his competency.
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UPCOMING EXECUTION: Florida's Narrow Interpretation of Mental Competency Leads to New Date
UPDATE: Ferguson was executed on Aug. 5. Florida has set an August 5 execution date for John Ferguson, a death row inmate who has suffered from severe mental illness for more than four decades. As far back as 1965, Ferguson was found to experience visual hallucinations. He was sent to mental institutions and was diagnosed as paranoid schizophrenic, delusional, and aggressive. In 1975, a mental health doctor described Ferguson as “dangerous and cannot be released under any circumstances.” Nevertheless, he was released less than a year later. Ferguson believes he is the "Prince of God" and is being executed so can save the world. Ferguson's attorneys recently filed a petition with the U.S. Supreme Court, asserting that Florida courts have applied the wrong standard for mental competency, ignoring the current interpretation of this issue by the High Court, which requires that an inmate have a rational understanding of why he is being executed. An earlier editorial in the Tampa Bay Times opposing Ferguson's execution, agreed, “Florida is embracing an interpretation of competency for execution so pinched that it would virtually extinguish limits on executing the severely mentally ill. The state says Ferguson is aware that he is being put to death and that he committed murder, and is therefore competent to be executed.”
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UPCOMING EXECUTION: Mentally Ill Inmate Asks for Execution in Alabama
Andrew Lackey is scheduled for execution in Alabama on July 25, despite suffering from mental illness his entire life. Lackey asked for an execution date, even though neither his state nor federal appeals have been completed. Despite extensive evidence of serious mental problems, the trial judge refused to order an expert competency evaluation, failed to inquire about medications he is taking and how they affect his mental state, and did not ask state officials about their diagnosis of Lackey’s mental condition. After a failed suicide attempt, Lackey asked the state to carry out his execution. Attorneys at the Equal Justice Initiative, who had represented Andrew Lackey, recently argued that the judge should not have permitted him to waive his appeals until his mental competency was properly evaluated.
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