With Execution Looming, Judge Denies Competency Hearing for Oklahoma Death-Row Prisoner Benjamin Cole

A Pittsburg County, Oklahoma judge has denied a com­pe­ten­cy hear­ing for death-row pris­on­er Benjamin Cole (pic­tured), clear­ing the path for his exe­cu­tion on October 20, 2022. 

In a three-page rul­ing issued on October 4, 2022, Judge Mike Hogan con­clu­so­ri­ly assert­ed that Cole’s lawyers had not met the required ​“sub­stan­tial thresh­old show­ing of insan­i­ty” to receive a jury tri­al on his com­pe­ten­cy to be exe­cut­ed. The rul­ing assert­ed that the expert reports sub­mit­ted by the par­ties ​“are con­flict­ing” and that the report sub­mit­ted by the prosecution’s expert was ​“exten­sive in scope and in the mate­ri­als reviewed” and was ​“very per­sua­sive on the issue of Defendant’s current capacity.” 

The rul­ing con­tained no exam­i­na­tion of defense counsel’s evi­dence that Cole suf­fers from schiz­o­phre­nia and brain dam­age, is often cata­ton­ic, and does not under­stand the rea­sons for his pend­ing exe­cu­tion. Nonetheless, in the lone sen­tence address­ing the sub­stance of the issues before the court, Judge Hogan wrote: ​“In con­sid­er­ing the total­i­ty of the evi­dence, includ­ing [the pros­e­cu­tion expert’s] report, the Court FINDS the Defendant is com­pe­tent to be exe­cut­ed as currently scheduled ….” 

Cole’s defense team issued a state­ment from assis­tant fed­er­al defend­er Tom Hird in response to the rul­ing, say­ing, ​“Benjamin Cole is inca­pac­i­tat­ed by his men­tal ill­ness to the point of being essen­tial­ly non-func­tion­al. His own attor­neys have not been able to have a mean­ing­ful inter­ac­tion with him for years, and the staff who inter­act with him in the prison every day con­firm that he can­not com­mu­ni­cate or take care of his most basic hygiene. He sim­ply does not have a ratio­nal under­stand­ing of why Oklahoma seeks to execute him.” 

Oklahoma law requires the war­den to ini­ti­ate pro­ceed­ings for a jury deter­mi­na­tion of com­pe­ten­cy if ​“there is good rea­son to believe that a defen­dant under judg­ment of death has become insane.” ​“The warden’s refusal to ini­ti­ate com­pe­ten­cy pro­ceed­ings,” Hird said, ​“is an abuse of his dis­cre­tion, and we will prompt­ly appeal the denial of our mandamus petition.”

The court con­duct­ed a hear­ing on Cole’s peti­tion for a com­pe­ten­cy tri­al on September 30, three days after the Oklahoma Board of Pardons and Parole had denied defense counsel’s peti­tion for clemen­cy. Cole’s lawyers wrote in that peti­tion that ​“Benjamin Cole today is a frail, 57-year-old man with a dam­aged and dete­ri­o­rat­ing brain, suf­fer­ing from pro­gres­sive and severe men­tal ill­ness who pos­es no threat to any­one in any way.” After a clemen­cy hear­ing on September 27, the board vot­ed 4 – 1 to deny the petition. 

A University of North Carolina study of exe­cu­tions from 2000 to 2015 found that ​“21^st-cen­tu­ry exe­cu­tions dis­pro­por­tion­ate­ly involve pris­on­ers diag­nosed with men­tal ill­ness and who have expe­ri­enced trau­mat­ic child abuse.” A Death Penalty Information Center review of the 98 U.S. exe­cu­tions car­ried out from 2017 through 2021 cor­rob­o­rat­ed those results, find­ing that near­ly 85% of those exe­cut­ed had evi­dence of one or more of: seri­ous men­tal ill­ness; brain injury, devel­op­men­tal brain dam­age, or an IQ in the intel­lec­tu­al­ly dis­abled range; and chron­ic seri­ous child­hood trau­ma, neglect, and/​or abuse. 

Information sup­plied by coun­sel for the 25 pris­on­ers cur­rent­ly slat­ed for exe­cu­tion by Oklahoma also sug­gest that, like Cole, they are dis­pro­por­tion­al­ly indi­vid­u­als with seri­ous men­tal health issues. On October 5, 2022, Richard Fairchild filed his peti­tion for clemen­cy with the Board of Pardons and Parole, argu­ing that he suf­fers from ​“pro­gres­sive and chron­ic brain dis­ease caused by years of cat­a­stroph­ic head trau­ma. … During his 26 years on death row,” the peti­tion states, “[his] brain has con­tin­ued to dete­ri­o­rate; he can no longer tell the dif­fer­ence between real­i­ty and delusions.”

Fairchild is sched­uled to be exe­cut­ed on November 17, 2022.