Amicus Curiae Brief — Panetti v. Quarterman

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No. 06-6407

In The

Supreme Court of the Anited States

SCOTT LOUIS PANETTI,

Petitioner,

versus

NATHANIEL QUARTERMAN, Director,

Texas Department of Criminal Justice,

Correctional Institutions Division,

Respondent.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Fifth Circuit

BRIEF OF AMICUS CURIAE IN SUPPORT

OF PETITIONER ON BEHALF OF NATIONAL

ALLIANCE FOR THE MENTALLY ILL (NAMI)

JOHN H. BLUME*

CHRISTOPHER SEEDS

CORNELL LAW SCHOOL

110 Myron Taylor Hall

Ithaca, New York 14853

(607) 255-1030

QUARLES & BRADY LLP

411 E. Wisconsin Ave.

Milwaukee, WI 53202

(414) 277-5000

*Counsel of Record Attorneys for Amicus Curiae

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

TABLE OF CONTENTS

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ILE RR ee i ERR ORCA i

, ° £. g |... SSREEERIERSRER Enon nnn il

INTEREST OF AMICUS CURIAE ................000....c000ee 1

REASONS THE WRIT SHOULD BE GRANTED........ 1

SERRATE A STON Creme ern er aes 1

II. SCHIZOPHRENIA & DELUSIONAL BELIEF

SELES SS ee a nS Rad ween oI 5

Il. THE FIFTH CIRCUIT'S MISGUIDED IN-

TERPRETATION OF FORD................0....:00c0000- 7

A. The Factual Discrepancy Between Bar-

Ii ischictainiicicnembitniatinnetinsdacsadseninie 8

B. Panetti Deserves Protection Under Ford,

But Is Denied It Under Barnard ................ 10

IV. THE PROPER INTERPRETATION OF THE

FORD STANDARD: MERE “AWARENESS” IS

NOT A MEANINGFUL REQUIREMENT FOR

A STANDARD PREVENTING EXECUTION

ig ESSER ORS So recene veneers 13

CONCLUSION ........... sad dciinaiaiacilaitaiidbaaiiaeinancedbdatialidncatedamabeiaes: 18

TABLE OF AUTHORITIES

Page

CASES

Barnard v. Collins, 13 F.3d 871 (5th Cir.

TT skndnsiaieashinsidnbiabgiaiiadeasiimabenebntesenuadseiceraliaans 8,9, 10, 12, 14

Ford v. Wainwright, 477 U.S. 399 (1986)................... passim

Lowenfield v. Butler, 843 F.2d 183 (5th Cir. 1988) ....... 7,10

Panetti v. Dretke, 448 F.3d 815 (5th Cir. 2006) .... 3, 4, 7, 8, 13

Panetti v. Dretke, 401 F.Supp.2d 702 (W.D. Texas

aaa 11, 12

Penry v. Lynaugh, 492 U.S. 302 (1989) ..............cccceceeeeeceeees 2

Walton v. Johnson, 440 F.3d 160 (4th Cir. 2006) .............. 14

OTHER AUTHORITIES

American Bar Association, Recommendations of the

American Bar Association Section of Individual

Rights and Responsibilities Task Force on Mental

Disability and the Death Penalty, 54 Cath. U. L.

I a a ai cnnideeestteeenninbeneieniieiioiiocahs 15

American Bar Association, Resolution 122A (Aug. 8,

ITT Tciaetgbaseaplalieaseassiai atime deiaeadandiaeatiidiicdatemniiaiatiaeiiniaiedsiios 3

American Psychiatric Association, Diagnostic and

Statistical Manual of Mental Disorders, 4th ed.

IERIE Rr Rasa nc Brea Nar RIO Sean OO er 5

American Psychiatric Association, Mentally Ill

Prisoners on Death Row (Dec. 2005)...................000000 3,15

American Psychiatric Association, Brief of Amicus

Curiae, Ford v. Wainwright, No. 85-5542 (1985)............ 3

ill

TABLE OF AUTHORITIES — Continued

Page

American Psychological Association and Florida

Psychological Association, Brief of Amici Curiae,

Ford v. Wainwright, No. 85-5542 (1985) ........0.. eee 3

Blumenthal & Liptak, Judging Whether a Killer Is

Sane Enough to Die, N.Y. Times (June 2, 2006) ............. 3

Bonnie, Mentally Ill Prisoners on Death Row:

Unsolved Puzzles for Courts and Legislatures, 54

Ss REA UD SHEET cimiconescnepetedntennnanasonsniaiiiniee 15

Cancro & Lehmann, Schizophrenia: Clinical Fea-

tures, Kaplan & Sadock’s Comprehensive Textbook

of Psychiatry, 7th ed., vol. 1 (2000)...................cceeeeeeeeee 6

Honberg, The Injustice of Imposing Death Sentences

on People with Severe Mental Illnesses, 54 Cath.

a ais NS IID eicuttiniehitenntiscniuicneonemitaduntetinineions 12, 16

National Alliance for the Mentally Ill, www.NAMLorg....... 16

National Institute of Mental Health, Schizophre-

nia, NIH Publication No. 3517 (2004)................cccccceeeeees 7

Slobogin, Minding Justice: Laws That Deprive

People With Mental Disability of Life and Liberty,

at 94 (Harvard University Press, 2006)...................005. 13

Vilojen et al., An Examination of the Relationship

Between Competency to Stand Trial, Competency

to Waive Interrogation Rights, and Psychopa-

thology, 26:5 Law & Hum. Behav. 481, 497 (2002)....... 12

World Health Organization, The ICD-10 Classifica-

tion of Mental and Behavioural Disorders: Diag-

nostic Criteria for Research (Geneva, 1993)................00- 5

United States Public Health Service, Mental Health:

A Report of the Surgeon General (2002) ............c0c0cc000000e 6

INTEREST OF AMICUS CURIAE'

NAMI (the National Alliance on Mental Illness) is the

nation’s largest grassroots mental health organization

dedicated to improving the lives of persons living with

serious mental illness and their families. Founded in 1979,

NAMI has become the nation’s voice on mental illness, a

national organization including NAMI organizations in

every state and in over 1,100 local communities across the

country, who join together to meet the NAMI mission

through advocacy, research, support, and education. NAMI

is dedicated to the eradication of mental illnesses and to

the improvement of the quality of life of all whose lives are

affected by these diseases. NAMI joins this brief in its

belief that education and understanding about mental

illness at all levels of judicial and legal systems is crucial

to the appropriate disposition of cases involving offenders

suffering from mental illness.

REASONS THE WRIT SHOULD BE GRANTED

I. INTRODUCTION

Twenty years ago, this Court heard the case of Alvin

Ford, a schizophrenic death row inmate. Ford was delu-

sional; he firmly and falsely believed that he could not

be executed. Ford’s attorneys argued that the Eighth

Amendment prohibits the execution of persons who are

incompetent or insane. This Court agreed. Ford v. Wain-

wright, 477 U.S. 399, 409-10 (1986). Justice Powell’s

' The parties have consented to the filing of this brief. Counsel for

a party did not author this brief in whole or in part. No person or

entity, other than the Amicus Curiae or its counsel made a monetary

contribution to the preparation and submission of this brief.

concurring opinion, which sought to “determine the precise

definition” of “the category of defendants defined by their

mental state” for whom the Eighth Amendment bars

execution, id. at 419, provided what most lower courts now

recognize as the standard for determining whether a State

may execute a mentally ill or cognitively impaired pris-

oner. See Penry v. Lynaugh, 492 U.S. 302, 333 (1989).

According to Justice Powell:

If the defendant perceives the connection be-

tween his crime and his punishment, the retribu-

tive goal of the criminal law is satisfied. And only

if the defendant is aware that his death is ap-

proaching can he prepare himself for his passing.

Accordingly ... the Eighth Amendment forbids

the execution only of those who are unaware of

[1] the punishment they are about to suffer and

[2] why they are to suffer it.

Ford, 477 U.S. at 422 (Powell, J., concurring) (emphasis

added).’

* In Ford’s support, organizations of mental health professionals,

including the American Psychiatric Association and the American

Psychological Association entered as amici curiae, to ensure that “the

process by which such decisions are made be fair and reliable so as to

protect the integrity of the determination and the role to be played by

psychiatric opinions in reaching that determination.” Brief of Amicus

Curiae for the American Psychiatric Association, Ford v. Wainwright,

No. 85-5542 (1985); see Brief of Amici Curiae for the American Psycho-

logical Association and Florida Psychological Association, Ford v. —

Wainwright, No. 85-5542 (1985). The amici did not express opinion on

the existence of an Eighth Amendment right or on the appropriate

language for a governing legal standard; “resolution on those matters,”

one amicus wrote, “turns on considerations as to which [it] possesses no

special expertise.” Jd. at 6. Amici simply urged that if there was a right

protecting the insane from execution, the Court must not “denigrate”

that right by skirting reliability of the evaluations upon which compe-

tency-to-be-executed determinations would rely. See id. at 7.

The Eighth Amendment categorical bar against

executing incompetent persons -— if it is to be applied fairly

and reliably — is compromised by the Fifth Circuit’s inter-

pretation and application of the competency to be executed

standard. In the past year, the American Psychiatric

Association, the American Ps ychological Association, and

the American Bar Association all have adopted resolutions

or position statements addressing the execution of prison-

ers who suffer from severe mental illness. The American

Psychiatric Association has publicly expressed concern

over the Fifth Circuit’s interpretation of the Ford stan-

dard, seeing in it “confusion about the meaning of the idea

that the prisoner must be able to understand (or be aware

of) the nature and purpose for (reasons for) the execution.”

American Psychiatric Association, Mentally Ill Prisoners

on Death Row, Commentary on Position Statement (Dec.

2005); see American Bar Association, Resolution 122A

(Aug. 8, 2006). Amici share this concern. The important

issue presented by this case is whether the competency to

be executed standard currently used by the Fifth Circuit is

under-inclusive in. a constitutionally offensive manner.

Amici submit that it is. |

Panetti v. Dretke, 448 F.3d 815 (5th Cir. 2006) is a

striking case, not only because of the severity of peti-

tioner’s mental illness, his aps self-representation in

the fiasco that served as his trial, and the widespread

media coverage the case has received (see, e.g., Blumenthal

& Liptak, Judging Whether a Killer Is Sane Enough to

Die, N.Y. Times (June 2, 2006)), but because unlike many

cases involving testimony of psychiatric diagnosis and

opinion, the experts agree that Panetti is severely men-

tally ill. In fact, they agree that Panetti suffers from

schizophrenia, the most debilitating mental illness. The

focus of this case, therefore, lies not in a battle of the

experts as to whether Scott Panetti is severely mentally

ill, he clearly is and there is no dispute about it. The issue

is whether his schizophrenia renders him incompetent to

be executed; therefore, the focus of this brief is on the Fifth

Circuit’s interpretation and implementation of the consti-

tutional mandate of Ford. See Panetti v. Dretke, 448 F.3d

815 (5th Cir. 2006).

Amici have two central concerns. The first is the

failure of the Fifth Circuit’s competency to be executed

standard to comport with the retributive rationale for the

right espoused in Ford. See Petitioner’s Brief at 24-32. The

second concern, which is more significant to mental health

professiona.s and organizations, is the fact that the Fifth

Circuit’s standard draws medically arbitrary distinctions

between severely mentally ill persons. For both reasons,

the Fifth Circuit’s errant application of Ford wrongly and

arbitrarily renders severely mentally ill prisoners subject

to execution. More specifically, Amici are concerned here

with death sentenced prisoners whose delusions, disorgan-

ized thought processes, or other mental impairments

directly impact their ability to internalize the fact that

they will be executed and/or the actual reason for their

execution. The Fifth Circuit’s interpretation of Ford

wrongly excludes this set of prisoners from the Eighth

Amendment category established in Ford.

Amici begin by explaining the delusional belief sys-

tems characteristic of schizophrenia. We then discuss how

the Fifth Circuit’s interpretation of Ford fails to take these

significant impairments into account, specifically with

regard to Mr. Panetti. Finally, we discuss a proper inter-

pretation of Ford, one that was recently articulated and

embraced by the American Psychiatric Association.

Il. SCHIZOPHRENIA & DELUSIONAL BELIEF

SYSTEMS

Within the set of prisoners whose delusions, disorgan-

ized thought processes, or other mental impairments

directly impact their ability to internalize the finality of

their execution and the actual reason for the execution,

the most prevalent affliction, anc that which affects Mr.

Panetti, is schizophrenia. The clinical diagnosis of schizo-

phrenia involves a finding of one of the following symp-

toms: (a) thought echo, thought insertion or withdrawal, or

thought broadcasting; (b) delusions of control or influence

or delusional perceptions; (c) hallucinatory voices; and (d)

persistent delusions of other kinds that are culturally

inappropriate and completely impossible. World Health

Organization, The ICD-10 Classification of Mental and

Behavioural Disorders: Diagnostic Criteria for Research

(Geneva, 1993). The diagnostic criteria for schizophrenia

under the DSM-IV likewise involve a finding of one or two

(depending upon severity) of the following symptoms: (1)

delusions: (2) hallucinations; (3) disorganized speech; (4)

grossly organized or catatonic behavior; (5) negative

symptoms such as affective flattening. American Psychiat-

ric Association, Diagnostic and Statistical Manual of

Mental Disorders, 4th ed. (Wash. DC, 1994). As the criteria

show, perceptual and thought disorders are the core

elements of the clinical definition of schizophrenia:

The feature common to all manifestations of

schizophrenia thought disorder is that patients

think and reason on their autistic terms accord-

ing to their own intricate private rules of logic.

Schizophrenic patients may be highly intelligent,

certainly not confused, and they may be pains-

taking in their abstractions and deductions. But

their thought processes are strange and do not

lead to conclusions based on reality. . . .

Cancro & Lehmann, Schizophrenia: Clinical Features, in

Kaplan & Sadock’s Comprehensive Textbook of Psychiatry,

7th ed., vol. 1 (2000), at 1189 (emphasis added).

The thought disorders — delusions — that underlie

schizophrenia are often persistent. And often, from the

perspective of everyone other than the patient, they do not

equate with logic. See WHO, ICD-10. By definition, delu-

sions are “false ideas that cannot be corrected by reason-

ing and that are idiosyncratic for the patient (i.e., not part

of the patient’s cultural environment). Jd. at 1187; see also

Mental Health: A Report of the Surgeon General (2002)

(“Delusions are firmly held erroneous beliefs due to distor-

tions or exaggerations of reasoning and/or misinterpreta-

tions of perceptions or experiences.”) (internal quotation

and citation omitted). Most commonly, the delusions

experienced by a person suffering from schizophrenia

involve a scenario of persecution accompanied by gran-

deur, battles between good and evil involving high stakes.

Cancro & Lehmann at 1187-88. As the National Institute

of Health explains:

Delusions are false personal beliefs that are not

part of the person’s culture and do not change,

even when other people present proof that the

beliefs are not true or logical. People with schizo-

phrenia can have delusions that are quite bi-

zarre, such as believing that neighbors can

control their behavior with magnetic waves, peo-

ple on television are directing special messages

to them, or radio stations are broadcasting their

thoughts aloud to others. They may also have de-

lusions of grandeur and think they are famous

historical! figures. People with paranoid schizo-

phrenia can believe that others are deliberately

cheating, harassing, poisoning, spying upon, or

plotting against them or the people they care

about. These beliefs are called delusions of perse-

cution.

NIMH, Schizophrenia, NIH Publication No. 3517 (2004).

In sum, two defining features characterize the delu-

sions that make up schizophrenia: first, the delusions are

not based on the patient’s cultural environment — in broad

terms, they are not based on reality; second, the delusions

are firmly held beliefs that are not subject to change, even

in the presence of true, logical proof. Neither feature,

however, factors into the Fifth Circuit’s interpretation of

Ford.

Ill. THE FIFTH CIRCUIT’S MISGUIDED INTER-

PRETATION OF FORD

The Fifth Circuit maintains that it uses Justice

Powell’s competency to be executed standard in evaluating

Ford claims. Panetti, 448 F.3d at 819 (citing Lowenfield v.

Butler, 843 F.2d 183, 187 (5th Cir. 1988)). But the Court of

Appeals’ interpretation of what it means for a prisoner to

be “unaware of the punishment they are about to suffer

and why they are to suffer it,” Ford, 477 U.S. at 422

(Powell, J., concurring), only partially encompasses the

mentally ill individuals Justice Powell had in mind. The

Fifth Circuit’s understanding of the competency to be

executed standard is essentially this: A severely mentally

ill prisoner is competent to be executed if he is merely

aware of the reason the State has given for executing him.

According to the Court of Appeals, a prisoner need not

“rationally understand” or comprehend the reason for his

execution, he need only be “aware” of it. Panetti, 448 F.3d

at 819 (citing Barnard v. Collins, 13 F.3d 871 (5th Cir.

1994)).

In Barnard, the Fifth Circuit found a prisoner compe-

tent who knew he was to be executed on a certain day, and

who knew he was to be executed for killing a boy during a

robbery. The court deemed it of no consequence that the

prisoner simultaneously believed his pending execution

was the final chapter of a delusional conspiracy against

him rather than punishment for felony murder. 13 F.3d at

876. In this case, the court concluded that Panetti’s compe-

tency claim was governed by Barnard. And the court ruled

Panetti competent because Panetti can parrot that the

State told him he would be executed for killing his wife’s

parents. That, according to the court below, satisfied the

“nature, pendency, and purpose” test the court applied in

Barnard. Panetti, 448 F.3d at 819.

A. The Factual Discrepancy Between Barnard

And Ford

Barnard, however, is fundamentally at odds with

Ford. The starkest evidence that the line the Fifth Circuit

has drawn is not one this Court intended is that, by the

Fifth Circuit’s approach, the symptoms alleged by Alvin

Ford, whose claims gave rise to the governing standard,

would not make the constitutional cut. In response to

assertions that he would be executed, Alvin Ford acknowl-

edged, “I know there is some sort of death penalty.” Ford, |

477 U.S. at 403. But Ford also believed that he had elimi-

nated executions and therefore could not suffer the death

penalty. Jd. In essence, Ford’s response when told of his

impending execution was, “I know you say there is a death

penalty by which you will execute me, but I do not believe

it.” Ford’s belief that he had eliminated executions, cou-

pled with his perception that he “owned the prisons and

could control the Governor through mind waves,” id., was

firmly at odds with reality.

Contrary to Barnard, a plurality of this Court viewed

the dichotomy between reality and Ford’s delusional belief

as evidence of incompetence, justifying a remand to state

court for a competency hearing. Jd. at 410 (“Petitioner's

allegation of insanity in his habeas corpus petition, if

proved, therefore, would bar his execution.”). And Justice

Powell, reviewing the facts under his newly announced

standard for competence to be executed, asserted that if

the facts Ford presented were accurate, “petitioner's claim

of insanity plainly fits within this standard. According to

petitioner’s proffered psychiatric examination, petitioner

does not know that he is to be executed, but rather be-

lieves that the death penalty has been invalidated.” Jd. at

422 (Powell, J., concurring).’ For both the majority and

concurring opinions in Ford, execution could only be

justified if it had retributive value. And that value, in the

Court’s view, was lost on prisoners like Ford, who did not

believe and therefore had not internalized the finality of

execution.

The facts of Ford display the flaws in the Fifth Cir-

cuit’s interpretation of Justice Powell's standard. That

court fails to take into account precisely the thought

impairments and the resulting impossible beliefs that the

* Unlike Ford, Panetti’s delusional belief system affects his ability

to appreciate the reason “why” he will be executed, rather than, as in

Ford's case, the fact of ex” sution itself.

Ford Court found indicative of incompetence. The Fifth

Circuit ignores the medical condition, deemed relevant in

Ford, in which dichotomous “belief systems impair men-

tally ill prisoners from internalizing “why” they will be

executed.’

B. Panetti Deserves Protection Under Ford,

But Is Denied It Under Barnard

Mr. Panetti’s schizophrenic symptoms place him well

within the category of severely mentally ill persons whose

executions are prohibited by the Eighth Amendment.

Since 1986 (six years prior to the crime), Panetti has been

diagnosed repeatedly as suffering from schizophrenia or

schizoaffective disorder.. No diagnosis has contradicted

* The Fifth Circuit’s decision in Lowenfield, cited by the Fifth

Circuit as the case in which it adopted Justice Powell's standard, treads

much more closely to Ford than Barnard. In Lowenfield, the Fifth

Circuit held that a diagnosis by a single psychologist that the defendant

was a paranoid schizophrenic did not present a threshold showing of

incompetence to be executed under Ford. 843 F.3d at 187. Lowenfield

characterized the Ford standard as whether the prisoner “comprehends

the nature of the penalty’ and whether the prisoner’s mental illness

‘prevents him from comprehending the reasons for the penalty or its

implications.” Jd. at 187 (quoting Ford, 477 U.S. at 417).

* See Scott Panetti’s medical records, admitted as State Exhibits 1

through 6 at the second competency-to-stand-trnal proceeding in 1994:

Panetti was diagnosed at Starlite Village Hospital with chronic

undifferentiated schizophrenia in April 1986; diagnosed at Kerrville

State Hospital with schizophrenia in mid-May 1986; diagnosed at

Waco Veteran’s Hospital with chronic undifferentiated schizophrenia

in late May 1986; diagnosed at Tomah Veteran's Hospital with

schizophrenia in July 1986; diagnosed at Starlite Village Hespitai

with schizophrenia in October 1986; diagnosed at Kerrville Veterans

Hospital as suffering from schizoaffective disorder in November 1986;

and diagnosed at Kerrville Veterans Hospital as suffering from

schizoaffective disorder in 1992, just months before crime. Panetti

(Continued on following page)

that Panetti suffers from a schizophrenic condition.® Both

doctors who examined Panetti to determine his compe-

tence to stand trial recognized schizophrenia and schizo-

phrenic symptoms. See Petitioner’s Brief at 4-7. Both

agreed that Panetti’s delusions and other symptoms would

worsen if Panetti stopped taking antipsychotic medication,

which he did shortly before representing himself at trial

was also diagnosed at Cumberland Memorial Hospital with depression,

brain dysfunction, auditory hallucinations, homicidal ideations, and

delusions in August 1986; diagnosed at Northern Pines Unified Services

Center as suffering from depression and suicidal ideation in September

1986; committed to Kerrville State Hospital in 1990 for homicidal

behavior after threatening to kill himself, his wife, baby, and father-in-

law, believing the citizens of Kerrville were plotting against him. These

diagnoses are not inconsistent with the diagnoses of schizophrenia.

Further, during the -ompetency-to-be-executed proceedings, Dr. Conroy,

a forensic psychologist, diagnosed Panetti as suffering from schizoaffec-

tive disorder, a form of schizophrenia. See transcript of federal district

court competency-to-be-executed hearing, vol.1, at 14, 21-22 (Amici

adopt Petitioner’s citation form and will refer to the hearing transcript

as “FH”). Dr. Cunningham, a clinical and forensic psychologist, testified

that Panetti suffers from a disorder on the schizophrenic and/or

schizoaffective spectrum, that he is actively psychotic. See Panetti v.

Dretke, 401 F.Supp.2d 702, 707 (W.D. Texas 2004) (finding Panetti

suffers from “some form of mental illness”, which doctors had character-

ized as schizoaffective disorder).

* Of the experts appointed during the competency-to-be-executed

proceedings, Dr. Anderson, a court-appointed forensic psychiatrist,

refused to diagnose schizophrenia because she did not believe the

diagnosis relevant to the Ford standard (Dr. Anderson also did not

reach a conclusion as to whether Panetti was competent to be exe-

cuted.). 2 FH 40-41. Dr. Parker, a court-appointed clinical psychologist,

found that Panetti has “serious psychological problems.” 1 FH at 134.

Dr. Rosin, a psychologist, recognized that Panetti suffered from a fixed

delusional system. 1 FH at 82, 89-90. And Dr. Silverman, a psychiatrist,

testified that the dosages of medication that Panetti was taking before

trial were “diagnostic of psychotic illness.” 1 FH at 122.

and which he never resumed.’ See Petitioner’s Brief at 8-

10. And each of the mental health experts who testified

during the District Court competency hearings agreed

(whether they reported a diagnosis of schizophrenia or

not) that Panetti suffers from a fixed delusional belief

system: While Panetti is aware of the State’s stated reason

for executing him, he believes that the State, in conjunc-

tion with forces of darkness, wants to kill him for preach-

ing the Gospel. See Panetti, 401 F.Supp.2d at 708-09; id. at

708, n.3. Panetti’s mind holds a composite belief that is

completely impossible.

Under Barnard, this dichotomy — and more important,

this tension — between reality and Panecti’s delusion is

irrelevant. But under Ford, the fact that Panetti believes

the State’s explanation for his execution is a “sham,” (1 FH

’ That Panetti was permitted to represent himself after going off

the antipsychotic medication he was taking when found competent to

stand trial is also profoundly troubling to Amici. See Ronald S. Hon-

berg, The Injustice of Imposing Death Sentences on People with Severe

Mental Illnesses, 54 Cath. U. L. Rev. 1153, 1163-65 (2005); see also Jodi

L. Vilojen et al., An Examination of the Relationship Between Compe-

tency to Stand Trial, Competency to Waive Interrogation Rights, and

Psychopathology, 26:5 Law & Hum. Behav. 481, 497 (2002) (“In

comparison to defendants with other types of psychotic disorders ...

defendants with schizophrenia demonstrated considerable more

impairment on legal abilities. This finding is consistent with the high

rates of cognitive and functional impairments in individuals with

schizophrenia.”). Two doctors who had previously treated Panetti, and

who had previously diagnosed him as suffering from schizophrenia,

watched the trial. Dr. F. E. Seale who treated Panetti at Starlite Village

Hospital in 1986 stated that during the trial Panetti was suffering from

“delusion,” “totally out of touch with reality,” and “obviously mentally

ill.” Affidavit of F. E. Seale, Ph.D. Dr. Wolfgang Selck, who treated

Panetti at Starlite Village Hospital in April 1986, stated that Panetti’s

inappropriate and grandiose self-representation at trial was the

product of delusion and constituted a “break from reality.” Affidavit of

Wolfgang Selck, Ph.D.

at 25; see Petitioner’s Brief at 20), a pretextual explana-

tion by authorities to cover up the forces of darkness’ plot

to stop his preaching of the Gospel, eviscerates the re-

tributive benefit of executing the man. It is evident that

Panetti, though aware of his legal proceedings, has not

internalized “the nature of the debt that [he] owe[s]

society.” Christopher Slobogin, Minding Justice: Laws

That Deprive People With Mental Disability of Life and

Liberty, at 94 (Harvard University Press, 2006). In accord

with the retributive rationale for the Eighth Amendment

right adopted by the Ford majority and concurring opin-

ions, Panetti’s express disbelief of the State’s reason is

clear evidence that he is incompetent.

IV. THE PROPER INTERPRETATION OF THE

FORD STANDARD: MERE “AWARENESS” IS

NOT A MEANINGFUL REQUIREMENT FOR A

STANDARD PREVENTING EXECUTION OF

THE INSANE

This case exemplifies why mere “awareness,” the test

applied by the Fifth Circuit, is not a meaningful require-

ment for determining whether to execute prisoners who

are severely mentally ill. The mere awareness test makes

no sense when applied to a prisoner who is plagued by

delusions of grand persecution, as severely mentally ill,

schizophrenic individuals like Mr. Ford and Mr. Panetti

very often are. From the perspective of the mental health

profession, and with regard to diagnoses of schizophrenia

and related mental illnesses in particular, the distinction

that the Fifth Circuit draws between “rational under-

standing” and “awareness,” see Panetti, 448 F.3d at 819-21

(citing Barnard), is false. A severely mentally ill patient

who lacks “actual awareness,” lacks awareness, period.”

Hence the concern of the American Psychiatric Association

over the Fifth Circuit’s decision in Barnard:

There has been some confusion about the mean-

ing of the idea that the prisoner must be able to

understand (or be aware of) the nature and pur-

pose for (reasons for) the execution. In Barnard

v. Collins, decided by the Fifth Circuit in 1994,

the state habeas court had found that Barnard’s

“perception of the reason for his conviction and

impending execution is at times distorted by a

delusional system in which he attributes any-

thing negative that happens to him to a conspir-

acy of Asians, Jews, Blacks, homosexuals, and

the Mafia.” Despite the fact that Barnard’s un-

derstanding of the reason for his execution was

impaired by delusions, the Fifth Circuit con-

cluded that his awareness that “his pending exe-

cution was because he had been found guilty of

the crime,” was sufficient to support the state

habeas court’s legal conclusion that he was com-

petent to be executed.

* This is not a matter of epistemology about what it means to

“know” — certainly there are different types of knowledge, in linguistic

terms and in legal standards, and it is the law’s provenance to deter-

mine the meaning of “knowledge” or “awareness” in any given context.

Nor does the issue here involve a metaphysical debate over the nature

of life and death. Cf. Walton v. Johnson, 440 F.3d 160, 179 (4th Cir.

2006) (Wilkinson, J. concurring) (“Judges called upon to interpret the

Eighth Amendment may not engage in metaphysical inquiries under

the guise of constitutional interpretation. ... The Powell test appreci-

ates that the Constitution does not countenance judicial forays into

inherently philosophical arenas.”). Amici’s contention is simply that the

Barnard test excludes persons who are in fact incompetent to be

executed.

In order to emphasize the need for a deeper un-

derstanding of the state’s justifying purpose for

the execution, [the APA] would require that an

offender not only must be “aware” of the nature

and purpose of punishment but also must “appre-

ciate” its persoril application in the offender’s

own case — that 1s, why it is being imposed on the

offender. This formulation is analogous to the

distinction often drawn between a “factual un-

derstanding” and a “rational understanding” of

the reason for the execution. If, as is generally

assumed, the primary purpose of the compe-

tence-to-be executed requirement is to vindicate

the retributive aim of punishment, then offend-

ers should have more than a shallow understand-

ing of why they are being executed.

American Psychiatric Association, Mentally Ill Prisoners

on Death Row, Commentary on Position Statement (Dec.

2005) (emphasis added) (citations omitted); accord Rec-

ommendations of the American Bar Association Section of

Individual Rights and Responsibilities Task Force on

Mental Disability and the Death Penalty, 54 Cath. U. L.

Rev. 1115 (2005), § 3(a); Richard J. Bonnie, Mentally Ill

Prisoners on Death Row: Unsolved Puzzles for Courts and

Legislatures, 54 Cath. U. L. Rev. 1169, 1173 (2005).

As the APA emphasizes, mere “awareness” of “the

nature and purpose of punishment” has little meaning in

the context of an individual suffering from delusional belief

systems. Amici agree with the APA that a meaningful (and

faithful) interpretation of the Ford standard requires more;

a mentally ill individual must “appreciate” the “personal

application” of the punishment “in the offender’s own case.”

To be competent, a prisoner must have the capacity to

reflect on the execution as punishment for the crime

committed and internalize the execution as payback to

society. This requires that a condemned inmate have

enough grasp of reality to believe that he really will die,

and enough to believe that the real reason he will die is

because of his crime.”

* It is important to emphasize that Amici’s position is not that all

prisoners diagnosed with schizophrenia are categorically incompetent

for execution. Nor is Amici’s position that Ford exempts from execution

only those who have been diagnosed with schizophrenia or a particular

mental illness. See Honberg, 54 Cath. U. L. Rev. at 1166 (“If we define

mental illness diagnostically in a narrow way with just five or six

discrete diagnoses, we would be under-inclusive. This would exclude

some people who may not fit within the specified diagnostic categories,

but who nevertheless may be profoundly disabled.”). Schizophrenia has

a diverse and yet undetermined causality. See www.NAMLorg (“Scien-

tists still do not know the specific causes of schizophrenia, but research

has shown that the brains of people with schizophrenia are different, as

a group, from the brains of people without the illness. Like many other

medical illnesses such as cancer or diabetes, schizophrenia seems to be

caused by a combination of problems including genetic vulnerability

and environmental factors that occur during a person's development.”)

(last visited Oct. 8, 2006). And the illness is manifest by a variety of

symptoms: Overt symptoms, such as delusions and hallucinations;

disorganized systems, such as confused thinking, speech, and behavior;

and negative symptoms, such as emotional flatness, lack of expression,

and an inability to start and complete activities, all support a diagnosis

of schizophrenia. See www.NAMLorg (“No one symptom positively

identifies schizophrenia. All of the symptoms of this illness can also be

found in other brain disorders.”); see generally National Institute of

Menta] Health, Schizophrenia, available at www.nimh.nih.gov/publicat/

schizoph.cfm (last visited Oct. 8, 2006).

But not all of these symptoms impair a prisoner's ability to be

“aware of the punishment they are about to suffer and why they are to

suffer it.” See Ford, 477 U.S. at 422 (Powell, J., concurrence). Emotional

flatness or jack of expression, for example, has little to say, beyond

suggesting the presence of other symptoms of schizophrenia, about a

person’s ability to comprehend a State’s reason for execution or the

fact of execution itself. Even overt symptoms such as hallucinations

and delusions, and disorganized symptoms such as loose association,

may not render a prisoner incompetent to be executed unless those

(Continued on following page)

17 | -

A prisoner like Ford, who daes not believe he will die

and who fails to appreciate the finality of execution, never

internalizes punishment and does not acknowledge the

payback to society manifest in execution. Likewise, a

prisoner like Panetti, who believes he is being executed for

preaching the Gospel — an affront to forces of darkness

wholly beyond social reality — never internalizes that his

execution is remuneration to society. As the APA stresses,

prisoners suffering from mental impairments like Barnard

and Panetti should not be deemed competent for execution

under Ford. But they are in the Fifth Circuit.

A legal test measuring a death sentenced inmate’s

competency to be executed cannot be inherently inconsis-

tent with medical knowledge, practice and standards.

When a court distinguishes between mentally ill prisoners

based on a parsing of words or a subjective choice from a

variety of dictionary definitions — distinctions that make

no medical sense — a court undermines the expert evalua-

tions upon which the competency hearing itself is based,

and thus undercuts the reliability of the determination.

The Fifth Circuit’s parsimonious interpretation of Ford

thwarts the views of the qualified physicians who exam-

ined Scott Panetti, and, thereby, renders the competency

determination unreliable.

Amici endorse the APA’s interpretation of the Ford

standard as in accord with the retributive rationale

adhéred to in Ford and as a proper definition of the range

of debilitating mental illness that a majority of the Court

symptoms directly impair the prisoner's ability to appreciate the

finality of the execution and to acknowledge the retributive nature of

the punishment, the execution as payback to society for the crime the

prsoner committed.

and Justice Powell believed the Eighth Amendment

protects. Amici urge this Court to grant certiorari to

address the Fifth Circuit Court of Appeals’ erroneous

interpretation and application of Justice Powell’s stan-

dard.

CONCLUSION

WHEREFORE, for the reasons set forth above, the writ

of certiorari should be granted.

*Counsel of Record

November 13, 2006

Respectfully submitted,

JOHN H. BLUME*

CHRISTOPHER SEEDS

CORNELL LAW SCHOOL

110 Myron Taylor Hall

Ithaca, New York 14853

(607) 255-1030

QUARLES & BRADY LLP

411 E. Wisconsin Ave.

Milwaukee, WI 53202

(414) 277-5000

| Attorneys for Amicus Curiae

No. 06-6407

——- - a

In The

Supreme Court of the Anited States

SCOTT LOUIS PANETTI,

Petitioner,

versus

NATHANIEL QUARTERMAN, Director,

Texas Department of Criminal Justice,

Correctional Institutions Division,

Respondent.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Fifth Circuit

BRIEF OF AMICUS CURIAE IN SUPPORT

OF PETITIONER ON BEHALF OF NATIONAL

ALLIANCE FOR THE MENTALLY ILL (NAMI)

JOHN H. BLUME*

CHRISTOPHER SEEDS

CORNELL LAW SCHOOL

110 Myron Taylor Hall

Ithaca, New York 14853

(607) 255-1030

QUARLES & Brapy LLP

411 E. Wisconsin Ave.

Milwaukee, WI 53202

(414) 277-5000

*Counsel of Record Attorneys for Amicus Curiae

COCKLE LAW BRLEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

TABLE OF CONTENTS

| Page

EES IN SR ee ee AE i

Ey Gy ey i ccicecovcecssoccecevsicenecasecdvendoneatios il

INTEREST OF AMICUS CURIAE ...........0..0...000000000005. 1

REASONS THE WRIT SHOULD BE GRANTED ........ 1

EERE EER OR ER NET OT aN 1

Il. SCHIZOPHRENIA & DELUSIONAL BELIEF

I iitciinderscanitagtinss EEA NOW RE CoRR ee 5

Il. THE FIFTH CIRCUIT’S MISGUIDED IN-

TERPRETATION OF FORD.........................00000- 7

A. The Factual Discrepancy Between Bar-

ETE A ae OE Fee a Te eR 8

B. Panetti Deserves Protection Under Ford,

But Is Denied It Under Barnard . eladiiiiaenlinns 10

IV. THE PROPER INTERPRETATION OF THE

FORD STANDARD: MERE “AWARENESS” IS

NOT A MEANINGFUL REQUIREMENT FOR

A STANDARD PREVENTING EXECUTION

LTTE Ieee era 13

RSE SEE A rr ee OE ss Be EDD 18

TABLE OF AUTHORITIES

Page

CASES

Barnard v. Collins, 13 F.3d 871 (5th Cir.

aii aaa liad ian iene 8,9, 10, 12, 14

Ford v. Wainwright, 477 U.S. 399 (1986)................... passim

Lowenfield v. Butler, 843 F.2d 183 (5th Cir. 1988)....... 7,10

Panetti v. Dretke, 448 F.3d 815 (5th Cir. 2006) .... 3, 4, 7, 8, 13

Panetti v. Dretke, 401 F.Supp.2d 702 (W.D. Texas

SESS eee nae ernie eka aere cs eae RT ee eI 11, 12

Penry v. Lynaugh, 492 U.S. 302 (1989) .00........ccccecccceeeeceeees 2

Walton v. Johnson, 440 F.3d 160 (4th Cir. 2006) .............. 14

OTHER AUTHORITIES

American Bar Association, Recommendations of the

American Bar Association Section of Individual

Rights and Responsibilities Task Force on Mental

Disability and the Death Penalty, 54 Cath. U. L.

| EEE RT TR 15

American Bar Association, Resolution 122A (Aug. 8,

SUeeriiebichichsetscibechietechinessicaieieicienieniaiaileimealitatiaaeinadadidaiataiattatapinassiictatan 3

American Psychiatric Association, Diagnostic and

Statistical Manual of Mental Disorders, 4th ed.

I i a 5

American Psychiatric Association, Mentally Ill

Prisoners on Death Row (Dec. 2005)...........00...0ccc00000 3,15

American Psychiatric Association, Brief of Amicus

Curiae, Ford v. Wainwright, No. 85-5542 (1985)............ 3

ill

TABLE OF AUTHORITIES — Continued

Page

American Psychological Association and Florida

Psychological Association, Brief of Amici Curiae,

Ford v. Wainwright, No. 85-5542 (1985) ............c00ccccc0ee 3

Blumenthal & Liptak, Judging Whether a Killer Is

Sane Enough to Die, N.Y. Times (June 2, 2006)............. 3

Bonnie, Mentally Ill Prisoners on Death Row:

Unsolved Puzzles for Courts and Legislatures, 54

Cath. U. L. Rev. 1169 (2005)..................cssssesersscsssereerores 15

Cancro & Lehmann, Schizophrenia: Clinical Fea-

tures, Kaplan & Sadock’s Comprehensive Textbook

of Psychiatry, 7th ed., vol. 1 (2000)..............ccccccceccceeeeeees 6

‘Honberg, The Injustice of Imposing Death Sentences

on People with Severe Mental Illnesses, 54 Cath.

Pe eee Se ENE eicciscbenncinistnichibaiinieciciiiiabedipaisdhitatnniiinins 12,16

National Alliance for the Mentally Ill, www.NAMLorg....... 16

National Institute of Mental Health, Schizophre-

nia, NIH Publication No. 3517 (2004) ..........cccceecceeeeeee 7

Slobogin, Minding Justice: Laws That Deprive

People With Mental Disability of Life and Liberty,

at 94 (Harvard University Press, 2006)..............00000000. 13

Vilojen et al., An Examination of the Relationship

Between Competency to Stand Trial, Competency

to Waive Interrogation Rights, and Psychopa-

thology, 26:5 Law & Hum. Behav. 481, 497 (2002)....... 12

World Health Organization, The ICD-10 Classifica-

tion of Mental and Behavioural Disorders: Diag-

nostic Criteria for Research (Geneva, 1993).............0..00.. 5

United States Public Health Service, Mental Health:

A Report of the Surgeon General (2002) ............cccccceeeeeees 6

INTEREST OF AMICUS CURIAE'

NAMI (the National Alliance on Mental Illness) is the

nation’s largest grassroots mental health organization

dedicated to improving the lives of persons living with

serious mental illness and their families. Founded in 1979,

NAMI has become the nation’s voice on mental illness, a

national organization including NAMI organizations in

every state and in over 1,100 local communities across the

country, who join together to meet the NAMI mission

through advocacy, research, support, and education. NAMI

is dedicated to the eradication of mental illnesses and to

the improvement of the quality of life of all whose lives are

affected by these diseases. NAMI joins this brief in its

belief that education and understanding about mental!

illness at all levels of judicial and lega) systems is crucial

to the appropriate disposition of cases involving offenders

suffering from mental illness.

REASONS THE WRIT SHOULD BE GRANTED

I. INTRODUCTION

Twenty years ago, this Court heard the case of Alvin

Ford, a schizophrenic death row inmate. Ford was delu-

sional; he firmly and falsely believed that he could not

be executed. Ford’s attorneys argued that the Fighth

Amendment prohibits the execution of persons who are

incompetent or insane. This Court agreed. Ford v. Wain-

wright, 477 U.S. 399, 409-10 (1986). Justice Powell's

' The parties have consented to the filing of this brief. Counsel for

a party did not author this brief in whole or in part. No person or

entity, other than the Amicus Curiae or its counsel made a monetary

contribution to the preparation and submission of this brief.

concurring opinion, which sought to “determine the precise

definition” of “the category of defendants defined by their

mental state” for whom the Eighth Amendment bars

execution, id. at 419, provided what most lower courts now

recognize as the standard for determining whether a State

may execute a mentally ill or cognitively impaired pris-

oner. See Penry v. Lynaugh, 492 U.S. 302, 333 (1989).

According to Justice Powell:

If the defendant perceives the connection be-

tween his crime and his punishment, the retribu-

tive goal of the criminal law is satisfied. And only

if the defendant is aware that his death is ap-

proaching can he prepare himself for his passing.

Accordingly ... the Eighth Amendment forbids

the execution only of those who are unaware of

1] the punishment they are about to suffer and

_2| why they are to suffer it.