Texas’ slow, tortuous fight to kill a mentally ill man

The state’s fight to kill Scott Panetti is now in its third decade.

CREDIT: Texas Department of Criminal Justice
CREDIT: Texas Department of Criminal Justice

Scott Panetti is very seriously mentally ill. He once buried his furniture in his backyard in the belief that this would purge the devil, who Panetti believed to have possessed his home. He was institutionalized about a dozen times, often involuntarily, for suicidal and homicidal behavior. Eventually, Panetti’s illness overcame him, and he murdered his estranged wife’s parents.

At Panetti’s trial, he was inexplicably allowed to represent himself. With his life on the line, Panetii wore a purple bandana around his neck, a cowboy hat and suspenders. He tried to call the Pope, Jesus Christ, and John F. Kennedy to the witness stand. And he sometimes shifted into an alternate personality named “Sgt. Ranahan Ironhorse.”

He was sentenced to die.

Since then, Panetti’s been the center of a seemingly never-ending legal fight between lawyers trying to save his life and Texas officials who want to kill him. The first time Panetti’s lawyers sought a court order stopping his execution, Bill Clinton was in the White House, TLC was topping the music charts, and Buffy Summers was still in high school.


Panetti won a victory in the Supreme Court, had that victory rendered largely meaningless by lower courts, sought refuge in a second, unrelated Supreme Court decision, and, just this week, won another incremental victory in a federal appeals court. There are no signs that his litigation saga is anywhere near completion.

Tuesday’s decision from the United States Court of Appeals for the Fifth Circuit arose out of Texas’ apparent effort to execute Panetti without telling his lawyers about it.

At a prosecutor’s request, a state court set a December 3, 2014 execution date for Panetti without consulting his attorneys. The lawyers found out that their client was about to be killed from an October 30 news report. Multiple courts then refused to delay Panetti’s execution or to provide his lawyers with the time or resources they needed to contest his execution — though the Fifth Circuit did eventually stay that execution to give the lawyers time to seek these resources.

Tuesday’s decision in Panetti v. Davis holds that Panetti must receive paid legal counsel, assistance from mental health experts that can help him build his case, and a full hearing to determine whether he is competent to be executed. The Texas legislature, it should also be noted, since changed the state’s law to prevent the kind of ambush executions attempted in this case.


But Panetti’s life remains in jeopardy largely due to an inconsistency in the Supreme Court’s precedents governing people with mental disabilities charged with capital crimes.

In Atkins v. Virginia, the Supreme Court held, using a term that is now considered antiquated, that “death is not a suitable punishment for a mentally retarded criminal.” People with intellectual disabilities, the Court explained, “have diminished capacities to understand and process information, to communicate, to abstract from mistakes and learn from experience, to engage in logical reasoning, to control impulses, and to understand the reactions of others.” These deficiencies sufficiently “diminish their personal culpability” to take the death penalty off the table.

A few years later, the Court extended this holding to juvenile offenders in Roper v. Simmons.

The Court has not, however, held that people with severe mental illnesses like Panetti are similarly ineligible for the death penalty, even though people with such disabilities also possess diminished capacities like the ones described in Atkins. Instead, the Court applies a very different test to determine whether someone with a severe mental illness may be executed.

“It might be said that capital punishment is imposed because it has the potential to make the offender recognize at last the gravity of his crime,” Justice Anthony Kennedy wrote for the Court in Panetti v. Quarterman— an earlier stage of Mr. Panetti’s litigation saga. But “the potential for a prisoner’s recognition of the severity of the offense and the objective of community vindication are called in question . . . if the prisoner’s mental state is so distorted by a mental illness that his awareness of the crime and punishment has little or no relation to the understanding of those concepts shared by the community as a whole.”

A death row inmate must have a “rational understanding” of why they are being executed before the state may put them to death.


This rule creates a bizarre framework whereby an inmate who flashes back and forth between periods of delusion and moments of sanity may be killed so long as the execution occurs while the inmate is lucid. It encourages the very kind of never-ending litigation that characterizes the Panetti case, and potentially pulls prosecutors into the ghoulish task of repeatedly asking a court’s permission to kill a person whose mental state is in flux.

Someone like Scott Panetti, meanwhile, is subjected to a very peculiar form of torture.

For over two decades he has sat in a cell, perhaps understanding and perhaps not understanding why he is always on the edge of death. Yet also knowing that, with little warning, he may be strapped to a gurney and killed.