'The Timeless Explosion of Fantasy's Dream': How State Courts Have Ignored the Supreme Court’s Decision in Panetti v. Quarterman

Abstract

Multiple states have enacted statutes to govern procedures when a state seeks to execute a person who may be incompetent to understand why s/he is being so punished, an area of the law that has always been riddled with confusion. The Supreme Court, in Panetti v. Quarterman, 551 U.S. 930 (2007), sought to clarify matters, ruling that a mentally ill defendant had a constitutional right to make a showing that his mental illness “obstruct[ed] a rational understanding of the State’s reason for his execution.” Id. at 968. However, the first empirical studies of how Panetti has been interpreted in federal courts painted a dismal picture. Only a handful of defendants have ever been successful in federal courts in seeking to enforce the Panetti ruling, see Michael L. Perlin & Talia R. Harmon, “Insanity is Smashing up Against My Soul”: The Fifth Circuit and Competency to be Executed Cases after Panetti v. Quarterman (with Prof. Talia Harmon,) 60 U. LOUISVILLE L. REV. 557 (2022), and two of the authors of this abstract have characterized the relief ostensibly offered by that case as nothing more than an “illusion” or a “mirage” in a federal context, see Michael L. Perlin, Talia R. Harmon & Haleigh Kubiniec, “The World of Illusion Is at My Door”: Why Panetti v. Quarterman is a Legal Mirage, 59 CRIM. L. BULL. -- (2023) (in press). The issues of believability of experts, allegations of malingering, and “synthetic competency” dominated these decisions.

In this paper, we seek to expand this inquiry to determine (1) how defendants in state courts seeking to assert Panetti claims have fared, and (2) the extent to which state statutes have made any meaningful difference in the way such cases have been decided. Our findings are little different. In the fifteen years since Panetti was decided, only two reported state court cases have found for the defendants; in many of the other cases, the evidence of the defendant’s delusional mental illness was staggering. Here, in addition to the focus on the purported quality of expert testimony, there is a cohort of cases (none of which were successful) that raises an issue that has mostly been seen as largely an academic exercise – whether there should be a categorical exemption from the death penalty for such defendants.

We also once more investigate the significance of the fact that the caselaw in this area has totally ignored the teachings of the school of legal thought known as therapeutic jurisprudence and offer some conclusions and recommendations (based on therapeutic jurisprudence principles) that, if implemented, can (at least partially) ameliorate this situation.

Keywords: death penalty, mental disability, Panetti v. Quarterman, therapeutic jurisprudence, incompetency to be executed, categorical exemption, expert witnesses