Respondents Brief — Panetti v. Quarterman

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No. 06-6407 |

MAP 29 2007

In The _OFFICE OF THE CLERK

Supreme Court of the United States

SCOTT LOUIS PANETTI,

Petitioner.

NATHANIEL QUARTERMAN, Director,

Texas Department of Criminal Justice.

Correctional Institutions Division,

Respondent.

—_— *

On Writ Of Certiorari To The

United States Court Of Appeals

For The Fifth Circuit

BRIEF FOR RESPONDENT

— .

GREG ABBOTT R. TED CRUZ

Attorney General! of Texas Solicitor General

KENT C. SULLIVAN Counsel of Record

First Assistant RANCE L. CRAFT

Attorney General WILLIAM L. DAvVis

BRANTLEY STARR

Assistant Solicitors General

ERIC JR. NICHOLS

Deputy Attorney General

for Criminal Justice TINA J. DETTMER

Assistant Attorney General

P.O. Box 12548

Austin, Texas 78711

(512) 936-1700

CAPITAL CASE

QUESTIONS PRESENTED

Does the Antiterrorism and Effective Death Penalty

Act of 1996 (AEDPA) require deference to the state

court’s determination that Panetti is competent to be

executed — and thereby statutorily preclude Panetti’s

request for federal habeas relief?

Does the Eighth Amendment prohibit execution of a

validly convicted capital murderer who, despite his

mental illness, knows that he committed capital mur-

der and has been found as a factual matter to have

the capacity to recognize that his punishment (1) is

the result of his being convicted of capital murder and _

(2) will cause his death?

TABLE OF CONTENTS

Page

Bn pe scincstinsscsisnchissishiniininsiishamsdeibbantadtitaiattibiis i

NE III cosicsicenancseceseninsetecibinuiiabicneniihinddediniindssials ii

EE IIa a a een a TC vi

EF Oe GD icictcintesirtcistnesicticiciiniiiniiaiaieadaniiee 1

ic ee citeicticsteiesniieniiesacipaininiiiniiniinaiapitbinin 1

B. Panetti’s Exhaustively Affirmed Conviction

and Sentence and the Rejection of His Alleged

Incompetence to Stand Trial and to Waive

TITIES sessuichisisiiierhespimsinasttinienenpeidieniiaaialanihiinhanintiiiiaipiaducie 3

C. Panetti’s Efforts to Prove Incompetence To Be

Executed in State and Federal Court ................ 6

Summary of the Argument ...............cccccccesssessesssesserseees 10

TIE icistccicnnitntencinniniinn RIN OES SN RoE 13

I. The State Court’s Determination That Panetti

Is Competent To Be Executed Is Entitled to

Tee eee aL Cee Oe 13

A. Ford Requires Only Minimal Process for

Deference To Be Afforded to the State

Court’s Competence Determination............ 15

B. The State Court’s Procedures Easily Satis-

fied Ford’s Minimal Due-Process Require-

TABLE OF CONTENTS - Continued

Page

II. Even If AEDPA Deference Does Not Apply,

Panetti’s Execution Does Not Violate ‘the

Be IOI occcccmmscrcserecscennessnasnenninasensans

A. The General Rule Against Executing the

Insane in 1791 Does Not Illuminate the

Specific Level of Understanding That De-

fines the Eighth Amendment Floor.............

Eighteenth-century courts did not em-

ploy a competence standard that corre-

sponds to any particular level of

understanding defined today.................

The Court should reject amici Legal

Historians’ speculation that Panetti

would not have been executed under

eighteenth-century standards ...............

a. The standard for execution compe-

tence in 1791 was not discernibly

lower than that for competence to

I ittinitntictrnntisinicntienaiinnien

b. Hale’s fourteen-year-old standard

provides no basis to conclude that a

court would have stayed Panetti’s

GORDOUMEGR GE BFE ccccccecececcccssccesesescece

c. Panetti’s claimed delusional be-

havior would not necessarily have

exempted him from execution in

The Court cannot reliably derive the

precise scope of the ban on executing

the insane in 1791 from rationales ad-

vanced to justify the ban........................

TABLE OF CONTENTS - Continued

Page

B. Contemporary State Legislation Does Not

Yield a National Consensus on the Thresh-

old Level of Execution Competence.............. 29

C. The Court Should Hold That the Appro-

priate Constitutional Standard for Compe-

tence To Be Executed Is Whether a

Defendant Has the Capacity To Recognize

That His Punishment Is the Result of His

Being Convicted of Capital Murder and

Will Cause His Death ..............ccceeeeeeeeeeeeee 33

1. Because of the inherent uncertainties

and subjectivity of psychiatric testing,

and the risks of malingering and abuse,

any standard for competence to be exe-

cuted should be rigorous and clear.......... 34

2. Panetti’s proposed “rational under-

standing” standard has no basis in the

Court’s precedent and would invite

ID sceciciesinecssictniinitintetintaiepiiiidinanininnionnseen 36

a. A “rational understanding” inquiry

would engraft Fifth and Sixth

Amendment concerns on an Eighth

Amendment test ..........cccccccceeseeesees 37

b. Panetti’s conception of “rational un-

derstanding” is far too expansive ...... 38

3. To prevent manipulation of the test,

execution competence should turn on

cognitive capacity, not on professed be-

ii ineasiachinicctnsiiniitiunsatinsingiiainaiiinditintnandaceniinenenie 41

TABLE OF CONTENTS -— Continued

Page

4. Application of the State’s proposed test

will advance the modern penological

interests behind the death penalty........

a. The State’s test will further the re-

tributive purpose of punishment.....

i. The retributive justification for

punishment necessarily pre-

cedes any execution-competence

CURED ccerccnscccinsnssinnininiaitnnitiin

ii. There are substantial prob-

lems with the wholly personal

view of retribution that Pa-

Netti AdVANCES .............seseeeseerees

b. Adoption of the State’s standard

will effectively deter would-be

GRU GUD cccccnscescsniinnnmsniannmeniatainiie

D. Under Both the State’s Proposed Test and

the Test That the Court of Appeals Applied,

Panetti Is Competent To Be Executed ..........

CUeENI NII... ncrccccosssecsneneninesisbeaeiean

TABLE OF AUTHORITIES

Page

CASES

Addington v. Texas, 441 U.S. 418 (1979) ........ccccccecsseeeeeeee 35

Ake v. Oklahoma, 470 U.S. 68 (1985) ......ccccccccccceceseceeeeeees 34

Atkins v. Virginia, 536 U.S. 304 (2002) ...........ccecceee passim

Baird v. State, 833 N.E.2d 28 (Ind. 2005)...........:..ccceeceee 32

Barefoot v. Estelle, 463 U.S. 880 (1983) ......csvsssssssssseseeee 38

Billiot v. State, 655 So. 2d 1 (Miss. 1995) .............cccceceeeees 31

Bingham v. State, 169 P.2d 311 (Okla. Crim. App.

Fai tctenniseenngrceenenepeninnieeemimeannnninnnen 32

Boykin v. Alabama, 395 U.S. 238 (1969) ..........::ccccccceeeees 37

Clark v. Arizona, 126 S.Ct. 2709 (2006) ..................000 35, 47

Commonwealth v. Jermyn, 652 A.2d 821 (Pa. 1995)........ 32

Cooper v. Oklahoma, 517 U.S. 348 (1996) ........ccccseceeeees 39

Drope v. Missouri, 420 U.S. 162 (1975).............006. 36, 38, 42

Dusky v. United States, 362 U.S. 402 (1960) (per

i cesiathiterncitiientiatiiniianaininapnidaiatamniiiaiateiatibianmaimetd 32, 37, 39

Enmund v. Florida, 458 U.S. 782 (1982)..........cccccccee 44, 47

Ex parte Panetti, No. 37,145-01 (Tex. Crim. App.

May 20, 1998) (per curiam) (unpublished) ..................... 5

Ex parte Panetti, No. 74,868 (Tex. Crim. App. Jan.

28, 2004) (per curiam) (unpublished) ..................cseeee 6

Faretta v. California, 422 U.S. 806 (1975)....................008 38

Ford v. Wainwright, 477 U.S. 399 (1986)...............0 passim

Godinez v. Moran, 509 U.S. 389 (1993) ........... 37, 38, 39, 41

Gregg v. Georgia, 428 U.S. 153 (1976) .......cc.ccceseeseseees 43, 46

TABLE OF AUTHORITIES — Continued

Page

Herrera v. Collins, 506 U.S. 390 (1993) ...........cccccseeeeeeeeees 38

Marks v. United States, 430 U.S. 188 (1977).................... 16

Massie v. Woodford, 244 F.3d 1192 (CA9 2001).............0.. 48

Panetti v. Cockrell, 73 Fed. Appx. 78 (CA5 2003)

ED cccscecsteesencmanenntinmemmmnemnamne 5

Panetti v. Dretke, 540 U.S. 1052 (2003) (Mem.).................. 5

Panetti v. Dretke, No. 04-CA-042 (W.D. Tex. Nov. 4,

Se cenpsennvesemsnsnsnennntsnmncsnemennmnnpginpieenmmnmennenente 10

Panetti v. Dretke, 448 F.3d 815 (CA5 2006) ...............:cc00 10 -

Panetti v. Johnson, No. 99-CV-260 (W.D. Tex. Mar.

BR, Se cantresenensnieninctninengnanintnteiseimmeninaeninianeten 5

Panetti v. Johnson, No. 99-CV-260 (W.D. Tex. June

Be Be erinenutstisuntntanineimeusnnainnempmemuemie 5

Panetti v. Texas, No. 72,230 (Tex. Crim. App. Dec. 3,

IIIT incrriititncciisitininnsinnstiidiiinninpundiemmmnmen 5

Panetti v. Texas, 525 U.S. 848 (1998) (Mem.).................044. 5

Penry v. Lynaugh, ee, UU 15

Provenzano v. State, 750 So. 2d 597 (Fla. 1999) (per

GROGRID ceseessseemneniemsemmnamnsenmne 31

Rector v. Bryant, 501 U.S. 1239 (1991)............cccceeeeeeeeeeeee 15

Rector v. Clark, 923 F.2d 570 (CA8 1991)...........cseeecseesees 48

Rees v. Peyton, 384 U.S. 312 (1966) (per curiam)............. 36

Roper v. Simmons, 543 U.S. 551 (2005)... passim

Schriro v. Summerlin, 542 U.S. 348 (2004)..................008 43

Scott v. Mitchell, 250 F.3d 1011 (CAG 2001) .............. eee 48

Singieton v. State, 437 S.E.2d 53 (S.C. 1993) ............eee 32

TABLE OF AUTHORITIES — Continued

Page

Skipper v. South Carolina, 476 U.S. 1 (1986)...............:0 48

Solem v. Helm, 463 U.S. 277 (1983)..........:ccccceeseeseseeeeeeeees 20

Solesbee v. Balkcom, 339 U.S. 9 (1950)...........cccccceceeeeecees 34

Spaziano v. Florida, 468 U.S. 447 (1984) .........::cccccceeceeee 43

Thompson v. Oklahoma, 487 U.S. 815 (1988)..............00+. 43

Tison v. Arizona, 481 U.S. 137 (1987)..........ccccccceeceeeeeeeeees 43

‘Trop v. Dulles, 356 U.S. 86 (1958) (plurality op.) ............. 20

Valdez v. Cockrell, 274 F.3d 941 (CA5 2001).................000 14

Van Tran v. State, 6 S.W.3d 257 (Tenn. 1999)................... 32

Walton v. Johnson, 440 F.3d 160 (CA4 2006) ................... 48

Williams v. Taylor, 529 U.S. 362 (2000).................ceceeeeeeee 15

Yarborough v. Alvarado, 541 U.S. 652 (2004)... 16

STATUTES AND RULES

IE cnciicicenesnsnienennemenmmmneccnonnnte 14, 16, 18, 19

28 U.S.C. §2254(d 2) (19B4).........0.ccrrcccosscccsrsccesesrsenes 14, 15

2B U.S.C. §2254(OK1) ..cccccssneseeeeecesssseneesees a N 15

Ariz. Rev. Stat. Ann. §13-4021(B) .0..........cccccecceceeeeeeeeeeeeees 30

Ark. Code Ann. §16-90-506(d)(1)(B)..........ccccccseeseeeeeeeeeeeees 31

COED, Tames GR. BBB. a ecceccccsccesnsceccccccssesssssesevesese 30

SP ts Sir icactuhsanicnasinnnnnmnnncenennennenieetmimanndiisagnnnnstionen 30

Ss, ee, SPI cccciinninsiritcericnnminneciinnicsnnnenpeteanaial 30, 31

ee I, SEU cccnesecesicerniemenemsennmannannnt 30, 31

SS ee 30, 31

TABLE OF AUTHORITIES -— Continued

Page

La. Rev. Stat. Ann. §15:567.1(B)...........c.....ssessessssorsessseeees 31

Md. Code Ann., Corr. Servs. §3-904(a)(2) ........cccecccsseeeeeees 30

Miss. Code Ann. §99-19-57(2Mb).......ccccesscccssesseseesesererseees 31

Fe 30, 31

Mont. Code Ann. §46-14-103...............ccccccsssseeseeseeeeseees 30, 31

a a FR cctcccrtscrcwiteitnsarericnncntanesssiciniin 31

Ne 30, 31

Ohio Rev. Code Ann. §2949.28(A) .00.......ccccccececesseeeeeeees 30, 31

Cs Tare, Baa. FET a ercenserssvecescsaceevsnsnssccsssessvessnenees 31

Tex. Code Crim. Proc. art. 46.05 .0...........ccccccseeeesseeeeeees 18, 30

Tex. Code Crim. Proc. art. 46.05(b)...............c:ceeeeeesseeeeeeee 17

Tex. Code Crim. Proc. art. 46.05(C) ...........ccccccssecesseeeeeeeeees 17

Tex. Code Crim. Proc. art. 46.05(f) .............ccseeceeeesereeeeeeees 18

Tex. Code Crim. Proc. art. 46.05(h) ..............ccsssseseeeereeeeees 30

ee A, Sr crrreceentnctnsininctinensmnctinniaaneiens 30

Wyo. Stat. Ann. §7-13-901(a)(v)s......ccccseseeeeesereeeeeeeee 30, 31

OTHER AUTHORITIES

ALI, Model Penal Code §4.01(1) ..0..........cccccceeeeeeeeeeeeseeeees 47

Am. Bar Ass’n, Report with Recommendations No.

107, Feb. 1997, available at http://www.abanet.

org/irr/rec107.html (last visited Mar. 27, 2007) ........... 41

TABLE OF AUTHORITIES -— Continued

Page

Am. Psychiatry Ass’n, Moratorium on Capital Pun-

ishment in the United States: Position Statement,

Oct. 2000, available at http://www.psych.org/edu/

other_res/lib_archives/archives/200006.pdf (last

ee ee iis Be iecectncinintiicnnniasiicicennitinntaiaunnnitentoeianies 41

Am. Psychological Ass’n, The Death Penalty in the

United States, Aug. 2001, available at http://

www.apa.org/pi/deathpenalty.html (last visited

SETI Tints IIE ientapeetiehiennindasbanndgeiininiinidinitidentabesidadenininnsicne 41

Amnesty International, United States of America:

the Death Penalty (1987) ..................cccceeseeeeeseseeeeeeeeeeees 40

William Blackstone, Commentaries on the Laws of

England (1st English ed. 1769).................... 23, 25, 26, 28

Bluestone & McGahee, Reaction to Extreme Stress:

Impending Death by Execution, 119 Am. J. Psy-

I Ee eittntneedntinnsansctartioteitimnesiintentmenes 40

Dale O. Cloninger & Roberto Marchesini, Execution

Moratoriums, Commutations and Deterrence:

The Case of Illinois, 38 Applied Econ. 967 (2006)........ 46

Edward Coke, The Third Part of the Institutes of

the Laws of England: Concerning High Treason,

and Other Pleas of the Crown, and Criminal

I i vincictitentnevitenneteneiiantedeiiemenineeieninnennnts 29

Hashem Dezhbakhsh, Paul H. Rubin & Joanna M.

Shepherd, Does Capital Punishment Have a De-

terrent Effect? New Evidence from Postmorato-

rium Panel Data, 5 Am. Law & Econ. Rev. 344

; TABLE OF AUTHORITIES — Continued

Joel Peter Eigen, Unconscious Crime: Mental Ab-

sence and Criminal Responsibility in Victorian

I Ge nicenccncnanintopiniitinnnicesaninnmenaninaiemieel 22, 23

Joel Peter Eigen, Witnessing Insanity: Madness and

Mad Doctors in the English Court (1995)............. 22, 23, 27

Matthew Hale, The History of the Pleas of the

ee ccnnnteienissiaieiinsinnencenmasemaiiainiiiis 23, 25, 26, 36

John Hawles, Remarks on the Trial of Charles

Bateman, in 11 A Complete Collection of State

Trials and Proceedings for High Treason and

Other Crimes and Misdemeanors (1811)....4:......00000000 29

Nancy S. Horton, Restoration of Competency for

Execution: Furiosus Solo Furore Punitur, 44 Sw.

Siete: SRIPeD ID scncnnnssnsccssnsmnensesunsteanensbemumemmnmcaeniannintes 40

H. Naci Mocan & R. Kaj Gittings, Getting Off

Death Row: Commuted Sentences and the Deter-

rent Effect of Capital Punishment, 46 J. L. &

TET IET RE Me MT SDT ET ORO OTT sesseesees 47

Douglas Mossman, Atkins v. Virginia: A Psychiatric -

Can of Worms, 33 N.M. L. Rev. 255 (2003).............. 40, 41

Isaac Ray, A Treatise on the Medical Jurisprudence

BS I Ga ccctccnnntnsnnattneneiemivccsemnisenneinmavesnemenn 28

Safeguards Guaranteeing Protection of the Rights

of Those Facing the Death Penalty, E.S.C. Res.

RI ics bao ccidhachegiaiacachiiags bainsietmamiabiniiatiiaihtid iatateete 33

U.N. ESCOR, Supp. No. 1, U.N. Doc. E/1984/92

RG LETS LITRES SETS 33

Nigel Walker, The Insanity Defense Before 1800,

477 Annals Am. Acad. Pol. & Soc. Sci. 25 (1985).......... 23

TABLE OF AUTHORITIES -— Continued

Barbara A. Ward, Competency for Execution:

Problems in Law and Psychiatry, 14 Fla. St. U. L.

SEER Sa CUNT cncinsocnsenntatnisascnenicncantaeatenntneninetenaiectunenenss 40

Paul R. Zimmerman, State Executions, Deterrence,

and the Incidence of Murder, 7 J. Applied Econ.

oT TUTE cisnceiicecsuntedisiduiauabntnbndniietameieninttbeniniedionmainemess 46

STATEMENT OF THE CASE

A. The Crime

Scott Louis Panetti has led a troubled and violent life.

Between 1981 and 1992, Panetti was hospitalized on

multiple occasions and variously diagnosed with substance

abuse and dependence, personality disorders, depression,

chronic undifferentiated schizophrenia, and schizoaffective

disorder. JA 339-41;' Federal Petition for Writ of Habeas

Corpus, No. 1:99-CV-00260 (W.D. Tex. Sept. 7, 1999)

(hereinafter “Federal Petition”) (Ex. 14). Although his

doctors initially treated him only with therapy, they later

placed him on medication, which proved effective in

controlling his mental illness. /d., at 462-63 (noting in

1986 that, while taking medication, Panetti “shows no

evidence of thought disorder” and “was not paranoid in his

attitude”), 466 (observing in 1990 that, after Panetti was

stabilized on his medication, he displayed no evidence of

“any delusions or any psychotic thinking, or any suicidal

or homicidal] ideations”).

Panetti married his second wife, Sonja, in 1988, and

they had a daughter the following year. 31.RR.61. In

August 1992, Sonja separated from Panetti because of his

drinking and physical threats. 31.RR.62. She took their

daughter, then three years old, to live with her parents,

Amanda and Joe Alvarado. 31.RR.60-61. Panetti later

called to threaten Sonja and his in-laws, saying he would

kill both her and the Alvarados or burn down their house.

31.RR.64. On September 2, 1992, in response to these

threats, Sonja obtained a protective order against Panetti.

31.RR.65-66; 41.RR (SX 91).

’ Citations to the transcript of Panetti’s capital-murder trial are

noted as “RR” (“Reporter’s Record”). Citations to the State’s exhibits

admitted into evidence during those proceedings are noted as “SX”

(“State Exhibit”). Citations to the pleadings, orders, and motions filed

in the trial court are noted as “CR” (“Clerk’s Record”). Citations to the

federal district court’s hearing on execution competence are noted as

“FH” (“Federa) Hearing”). Citations to the joint appendix filed in this

Court are noted as “JA.” c

Six days later, Panetti awoke before dawn, 33.RR.695,

shaved his head, 31.RR.95-96, and dressed himself in

camouflage, 33.RR.679. Arming himself with a rifle, a

sawed-off shotgun, 33.RR.696, and several knives,

33.RR.706-07, Panetti drove to the Alvarados’ house,

33.RR.696. When he arrived, Panetti broke his shotgun

trying to shatter a sliding glass door near Sonja’s bed.

31.RR.69; 33.RR.717. He chased Sonja out of the house

and confronted her in the front yard, 33.RR.704, hitting

her face with the butt of his rifle, 31.RR.73.

Although Sonja managed to retreat into the house and

lock the front door, Panetti shot the lock off and cornered

Joe and Amanda Alvarado in the kitchen. 31.RR.42-43;

33.RR.705. He asked Sonja, who was standing in the

adjoining hallway, who she would like to see die first.

31.RR.84. Using his rifle, Panetti then shot and killed Joe

Alvarado. 31.RR.84. Sonja begged Panetti not to kill her

mother, 31.RR.91, but Panetti pressed the rifle against

Amanda Alvarado’s chest and pulled the trigger,

32.RR.417-18, killing her and spraying Sonja and their

daughter with blood, 31.RR.91. Then his rifle jammed.

31.RR.92.

Panetti grabbed Sonja and their daughter and walked

them out to his Jeep. 31.RR.92-93. He drove them back to

his bunkhouse, 31.RR.94, where he had them wash off the

blood, 31.RR.96. When Sonja asked if she could go check

on her parents, he responded: “I just shot your parents. No

more mommy, no more daddy; get that through your

head.” 31.RR.96-97. He then forced Sonja to read the

protective order aloud. 31.RR.97-98. Sonja asked Panetti if

he planned to shoot her and her daughter. 31.RR.98. He

replied that he had not yet decided. 31.RR.98.

At dawn, Panetti allowed both Sonja and their daugh-

ter to leave the bunkhouse, telling Sonja that he planned

to stay there and “shoot two or three policemen” before

taking his own life. 31.RR.101. Panetti surrendered to

police that afternoon. 31.RR.241. Later the same day,

Panetti confessed to the murders, recounting the details of

the crime to police. 33.RR.692-737. When asked if he

thought that his mental condition excused his behavior,

Panetti replied, “it doesn’t excuse me from any of that. You

know, I made my bed and I’m going to lie in it... . I f***ed

up. I feel a lot of remorse.” 33.RR.734-35; see also JA 208.

Dr. Michael Lennhoff, a psychiatrist, interviewed

Panetti several times at the local jail. Panetti stated that

he had followed his drug regimen over the preceding year,

but he later confessed that he had not taken his medica-

tion for one week before the murders. Federal Petition Ex.

14, at 431, 436. Although Dr. Lennhoff noted that Panetti

exhibited genuine mental illness, he also concluded that

“Panetti may have wanted to impress me with how men-

tally disturbed he is, perhaps in an exaggerated way.” Jd.,

at 434. After a later meeting, Dr. Lennhoff felt that Pa-

netti was “still trying to impress me as not having commit-

ted a deliberate crime.” /d., at 436.

B. Panetti’s Exhaustively Affirmed Conviction and

Sentence and the Rejection of His Aileged In-

competence to Stand Trial and to Waive Counsel

Panetti was charged with capital murder. 1.CR.8. The

trial court appointed Dr. E. Lee Simes, a psychiatrist, to

evaluate Panetti’s competence for trial. JA 9. Dr. Simes noted

that, despite Panetti’s delusional thinking, “his overall story

was quite consistent and insightful.” JA 13. In particular, Dr.

Simes observed that Panetti understood why he was facing

capital-murder charges, the significance of those charges,

and the significance of the punishment he might receive. JA

13. Panetti also displayed ability to process questions and

information and to assist in his defense. JA 13. Dr. Simes

concluded that Panetti was competent to stand trial. JA 13.

In April 1994, Panetti moved for a competence hear-

ing. 2.CR.236-41. In the first trial-competence hearing, the

jury deadlocked at four for incompetent, three for compe-

tent, and five unaecided. 3.CR.295-96; 10.RR.379.’ At the

* Panetti incorrectly reports the final vote as nine-to-three in favor

of incompetence. Panetti Br. 8, n.6. That vote occurred earlier in the

deliberations. 3.CR.290.

second trial-competence hearing, the jury found Panetti

competent to stand trial. 13.RR.206-07.

Eight months later, Panetti sent the trial judge a

letter explaining that he had stopped taking all medica-

tion and, as a result, was “restored to sanity”; he had

dismissed his attorneys; he felt competent to represent

himself; he did not intend to “act like a lawyer” in his trial;

and he would be able to prove that he was insane at the

time of the murders. 3.CR.360. Panetti’s attorneys then

moved to withdraw as his counsel. 3.CR.363-64.

The trial court called a pretrial hearing to inquire

further into Panetti’s expressed desire to represent him-

self. 15.RR.5. The judge told Panetti that he personally did

not want Panetti to represent himself, 15.RR.10, and

asked Panetti’s attorneys to confer privately with Panetti

about waiving counsel, 15.RR.11. After this consultation,

Panetti’s attorneys reported that they did not think

Panetti should represent himself, but that was his “clear

intent.” 15.RR.12-13. Panetti confirmed that he wanted to

represent himself because he had the right to do so under

Texas law and the United States Constitution, and that he

was “fully aware” of the penalty for the charges against

him. 15.RR.18. Panetti then executed a voluntary waiver

of counsel. 3.CR.369. The district attorney informed the

court that, because the State was “concerned about pro-

tecting the Defendant’s rights,” he did not want Panetti’s

attorneys to withdraw. 15.RR.24. When the court re-

examined Panetti about his decision, Panetti replied, “I

understand everything that’s been going on today, sir. I do,

however, feel a little bit insulted that I have been asked

the same question so many times, Your Honor.” 15.RR.25-

28. The court held that Panetti had voluntarily and

intelligently exercised his right to represent himself and

then appointed standby counsel for Panetti. 15.RR.29-30.

At trial, Panetti entered a plea of not guilty by reason

of insanity. 31.RR.24. In his rambling opening statement,

Panetti informed the jury that he had been diagnosed with

paranoid schizophrenia and manic depression in 1986, and

that he believed only an insane person could prove the

insanity defense. 31.RR.28-29. As Panetti explains in his

brief, he exhibited bizarre and incoherent behavior

throughout his trial. Panetti Br. 11-15. He did call as

witnesses two psychiatrists who had previously treated

him, 38.RR.1567-1616, and endeavored to establish

through one that, when he did not take his medication, his

mental illness could prevent him from distinguishing right

and wrong, 38.RR.1574-75. The jury nonetheless found

Panetti guilty of capital murder and sentenced him to

death. 7.CR.1041-44; 38.RR.1685; 39.RR.102. The Texas

Court of Criminal Appeals (CCA) affirmed Panetti’s

conviction and sentence, Panetti v. Texas, No. 72,230 (Tex.

Crim. App. Dec. 3, 1997) (unpublished), and the Court

denied certiorari, 525 U.S. 848 (1998) (Mem.).

Panetti then filed a state habeas petition raising

fourteen claims, including whether he was competent to

stand trial and competent to waive counsel. State Petition

for Writ of Habeas Corpus, No. 3310-A, at 3-4 (Tex. Crim.

App. June 19, 1997). The CCA denied relief. Ex parte

Panetti, No. 37,145-01 (Tex. Crim. App. May 20, 1998) (per

curiam) (unpublished). Panetti next filed a federal habeas

petition, asserting the same fourteen claims that he had

alleged in his state habeas petition. See JA 355. The

district court denied this petition, Panetti v. Johnson, No.

99-CV-260 (W.D. Tex. Mar. 9, 2001), but granted a certifi-

cate of appealability on, inter alia, whether Panetti was

competent to stand trial and competent to waive counsel,

Panetti v. Johnson, No. 99-CV-260 (W.D. Tex. June 3,

2001). The court of appeals denied habeas relief, Panetti v.

Cockrell, 73 Fed. Appx. 78 (CA5 2003) (unpublished), and

the Court again denied certiorari, Panetti v. Dretke, 540

U.S. 1052 (2003) (Mem.).

In sum, one jury and four courts rejected Panetti’s

trial-incompetence claim; one court found him competent

to waive counsel and four courts rejected his collateral

challenge to that determination; and another jury and two

courts rejected his insanity defense. No judge or jury has

ever found him incompetent.

C. Panetti’s Efforts to Prove Incompetence To Be

Executed in State and Federal Court

Once an execution date was set, Panetti filed a motion

in the state trial court under Texas Code of Criminal

Procedure Article 46.05 asserting incompetence to be

executed. JA 355. After concluding that Panetti had failed

to make a substantial showing of incompetence, the state

court denied his Article 46.05 motion, JA 355, and the CCA

dismissed his appeal, Ex parte Panetti, No. 74,868 (Tex.

-Crim. App. Jan. 28, 2004) (per curiam) (unpublished).

Panetti then filed a habeas petition in federal district

court, asserting that Ford v. Wainwright, 477 U.S. 399

(1986), prohibited his execution. JA 355-56. The district

court granted a stay of execution and allowed Panetti an

opportunity to present his renewed allegations to the state

trial court. JA 357.

In response to Panetti’s second Article 46.05 motion,

the state court appointed two neutral experts, Dr. George

Parker and Dr. Mary Anderson, to assess Panetti’s compe-

tence to be executed. JA 59. After conducting a joint

interview of Panetti, Drs. Parker and Anderson filed a

report documenting their observations and conclusions. JA

70-76. This report reflects Panetti’s hostility to Drs.

Parker’s and Anderson’s questions, his tendency toward

religious conversation, his attempted manipulation of the

interview process, and his general refusal to cooperate

with the court-appointed experts. JA 70-73, 75.

Because of Panetti’s refusal to cooperate, Drs. Parker

and Anderson also relied on several sources of collateral

data — including prison records; letters that Panetti had

recently written to friends and family; court documents,

including documents relating to other competence deter-

minations; discussions with prison staff; and another

expert evaluation of Panetti — to help form their relevant

opinions. JA 73-75. Based on these data and their personal

observations, Drs. Parker and Anderson concluded that

Panetti (1) “knows that he is to be executed, and that his

execution will result in his death” and (2) “has the ability

to understand the reason he is to be executed.” JA 75.

In response, Panetti filed a detailed submission

criticizing Drs. Parker and Anderson’s methodology and

contrasting their conclusions with those in a psychiatric

evaluation that Panetti had previously presented to the

court. JA 79-98. After considering that submission, the

state court again denied relief under Article 46.05. JA 99.

Panetti then sought habeas relief in the federal

district court, JA 375,- which concluded that the state

court’s determination of Panetti’s competence to be exe-

cuted was not entitled to AEDPA deference because Pa-

neti: allegedly failed to receive constitutionally sufficient

process, JA 359-61. After granting Panetti’s motions for

appointment of counsel, discovery, and funds for expert

and investigative assistance, JA 358, the district court

held an evidentiary hearing on competence, JA 362.

At the hearing, Panetti presented expert testimony

from Dr. Mary Alice Conroy, a psychology professor, JA

136; Dr. Susan Rosin, a psychologist, JA 198; Dr. Seth

Silverman, a forensic psychiatrist, JA 219; and Dr. Mark

Cunningham, a clinical and forensic psychologist, JA 323.

The State presented expert testimony from Dr. Parker and

Dr. Anderson — the neutral experts that the state trial

court had appointed — and lay testimony from Steve

Miller, Major of Correctional Officers for the prison in

which Panetti is incarcerated, JA 275-76; Terri Hill, a

Texas Department of Criminal Justice (TDCJ) Lieutenant

assigned to Panetti’s housing area, 1 FH 192; and Victoria

Williams, a TDCJ security officer who frequently con-

versed with Panetti, 1 FH 199.

All of the expert witnesses agreed that Panetti suffers

from some degree of mental illness. Although some of the

experts labeled this illness schizophrenia or schizoaffective

disorder, e.g., JA 144-45, 205, they were collectively unable

to agree on a single diagnosis, see JA 239, 313.°

* Dr. Conroy noted that “the major portion of our population in our

inpatient units in federal Bureau of Prisons hospitals are diagnosed

with some form of schizophrenia,” JA 142, and Dr. Silverman opined

that most schizophrenics are competent to be executed, JA 227.

The experts did agree, however, that Panetti has the

capacity to — and does, in fact —- understand that he will be

executed. JA 147-48, 207, 236, 243, 245.*

Further expert testimony established Panetti’s spe-

cific understanding that he committed the murders.

Indeed, Dr. Rosin testified that Panetti recounted details

of his activity on the day of the murders and expressed

sorrow for having committed the crime. JA 208; see also

JA 148-49 (Dr. Conroy’s testimony that Panetti believed

that God had forgiven him for killing the Alvarados and

had “wiped the slate clean”). Dr. Silverman testified to

uncertainty about whether Panetti knows that he killed

the Alvarados, but only because Panetti steadfastly re-

fused to answer his questions on this topic. JA 221.

Several experts also concluded that Panetti’s delu-

sions created a false sense of the true reason for his

execution. E.g., JA 149, 156, 202, 209 (testimony from Drs.

Conroy and Rosin that Panetti believes his execution was

ordered to prevent him from preaching the Gospel).

Importantly, however, these same experts testified that

Panetti understands that the State’s stated reason for his

execution is punishment for capital murder. JA 157, 214.

Dr. Parker testified that portions of Panetti’s re-

sponses to the experts’ execution-competence examinations

could be attributed to malingering, see JA 241-43; see also,

e.g., JA 174, 177, 181 (noting additional reports of Pa-

netti’s suspected malingering in the past), and Drs. Parker

and Anderson each specifically testified that Panetti has

* Lay testimony corroborated this point. Major Miller testified that

Panetti cooperated with him in going over the State’s pre-execution

forms, JA 281, IJ-42-53, and demonstrated his understanding of the

forms’ questions about disposition of assets, choice of last meal, and the

like. JA 287-88. Additional lay testimony reflected Panetti’s demon-

strated ability to communicate coherently - and politely — with prison

staff. E.g., 1 FH 193-96 (testimony of Terri Hill); 1 FH 200 (testimony of

Victoria Williams).

the capacity to understand the reason for his execution,

JA 245, 247, 303-04. Both Dr. Parker and Dr. Anderson

emphasized that Panetti was deliberately manipulative

and uncooperative during his interview with them. JA

239-40, 244-46, 271, 300, 303, 312-14; accord JA 75. They

based their ultimate conclusions on Panetti’s overall

cognitive functionality, as demonstrated through letters he

wrote to friends and family, his logical responses to inter-

view questions, and his ability to understand such things

as history and movies. JA 242-43, 302-04.

Dr. Parker’s suspicions of malingering were corrobo-

rated by evidence of psychiatric evaluations conducted in

the two years following Panetti’s capital trial. For exam-

ple, Dr. Michael Gilhousen noted that loosening of Pa-

netti’s thought processes “appeared to be intentional on

his part to create the impression of mental illness.” JA

167, I-30. After another interview, Dr. Gilhousen de-

scribed Panetti’s behavior as “obviously manipulative and

theatrical.” JA 171-72, II-20. Another doctor expressed the

belief that Panetti’s switching among different voices was

“contrived ... to impress us or lead us to believe that he

did have alter personalities.” JA 170, II-41.

After hearing all the evidence, the federal district

court made three factual findings. First, based on the

experts’ agreement, the court concluded that Panetti is

aware that he will be executed. JA 372.

Second, the district court found that Panetti is aware

that he committed both murders. JA 372. The court based

this conclusion on Dr. Conroy’s and Dr. Rosin’s testimony

that Panetti knows that he murdered the Alvarados. JA

372. Although the court recognized that Dr. Silverman’s

testimony cast doubt on this conclusion, the court dis-

counted that testimony, noting that it was based on

Panetti’s limited responses during his interview with Dr.

Silverman. JA 372.

Third, the district court found that Panetti under-

stands the State’s stated reason for execution. JA 372.

The court based this finding on the testimony of Drs.

Conroy and Rosin, and discounted Dr. Silverman’s con-

trary testimony for the same reason. JA 372-73.

Additionally, the district court recounted Dr. Parker’s

and Dr. Anderson’s assessments that “some portion of

Panetti’s behavior could be attributed to malingering,” and

it expressly concluded that, although all of the experts had

agreed Panetti had “some degree” of mental illness, their

testimony collectively “casts doubt on the extent of Pa-

netti’s mental illness and symptoms.” JA 363.

Finally, the district court noted Dr. Cunningham’s

testimony that “suggests” that Panetti’s delusions prevent

him from understanding that Texas is a lawfully consti-

tuted authority and lead him to believe that the State “is

in league with the forces of evil that have conspired

against him,” and it observed that this testimony was

consistent with the testimony of Panetti’s other experts.

JA 373. The court made no finding, however, whether

these delusions were genuine or the partial product of

malingering, because the court deemed it irrelevant to the

question of whether Panetti “knows the reason for his

execution” within the meaning of the court of appeals’s

execution-competence test. JA 373.

Based on these factual findings, the district court

concluded that Panetti is competent to be executed. JA

373. Although the court denied Panetti’s habeas petition, it

stayed his execution pending appeal, JA 373, and granted

a certificate of appealability, Panetti v. Dretke, No. 04-CA-

042 (W.D. Tex. Nov. 4, 2004). The court of appeals affirmed

the district court’s denial of habeas relief, Panetti v.

Dretke, 448 F.3d 815 (CA5 2006); JA 374-84, and the Court

granted certiorari, JA 387.

SUMMARY OF THE ARGUMENT

In devoting fully half of his brief to his statement of the

case, Panetti endeavors to focus the Court’s attention on his

lengthy mental-health history, explaining that “incompe-

tency runs like a fissure through every proceeding in this

case.” Panetti Br. 6. But that fissure has been mostly sealed

once and for all by the conclusive determinations of state

and federal courts repeatedly rejecting Panetti’s direct and

collateral challenges to adverse rulings on his insanity

defense, his competence to stand trial, and his competence

to waive counsel. For that reason, Panetti correctly con-

cedes that, as a matter of law, he is now presumed compe-

tent to be executed. Ibid.

The state court, the district court, and the court of

appeals have all concluded that Panetti has failed to

overcome that presumption. The district court found as a

factual matter that Panetti knows that he murdered the

Alvarados, that he will be executed, and that the State’s

stated reason for executing him is that he committed two

murders. Panetti has not challenged those factual findings

on appeal.

Distilled to its core, Panetti’s case does not turn on the

weighing of his mental-health history or a reconsideration

of his capital trial, but rather on the resolution of two

purely legal issues: (1) whether the state court’s determi-

nation of execution competence was entitled to AEDPA

deference; and (2) whether the Eighth Amendment re-

quires a capita] convict to have a “rational understanding”

of the reason for his execution.

Panetti virtually ignores the first question, but it

alone is dispositive. His sole argument against AEDPA

deference is that the state court’s competence ruling

violated his procedural-due-process rights under Ford v.

Wainwright, 477 U.S. 399 (1986), because the court did not

conduct a ful] evidentiary hearing or appoint a psychiatric

expert to-submit evidence on his behalf. But Ford does not

extend any such guarantee, requiring only an opportunity

to be heard and an impartial tribunal — both of which

Panetti received. Because the state-court procedures were

adequate under Ford, the AEDPA statutorily bars Pa-

netti’s request for habeas relief.

Even if AEDPA deference were not due the state

court’s findings, the Court still should affirm the court of

appeals’s judgment that Panetti is competent to be exe-

cuted. There is no disputing that, under Ford, it violates

the Eighth Amendment to execute the insane. The only

merits question here is what is the proper standard for

measuring “insanity.” The court of appeals correctly

rejected Panetti’s claim that the proper standard is

whether a defendant “rationally understands” the reason

for his capital sentence. Although the Court has not yet

resolved this question, its approach to Eighth Amendment

questions leaves no doubt that “rational understanding” is

not the constitutional threshold of execution competence.

The Court’s usual empirical bases for evaluating the

constitutionality of punishments - eighteenth-century

practice and modern state legislation — do not settle the

issue. The vague standards for execution competence that

courts applied at the time of the Bill of Rights, when

today’s diagnostic methods were unknown, do not trans-

late into any definitive level of understanding that the

Court could identify as the constitutional minimum. And

because only half of the death-penalty States have any

statutory definition of execution competence — and even

those States diverge in their definitions — there is no

consensus in contemporary values on this point.

The Court is left, then, to exercise its own independ-

ent judgment in defining the level of mental incapacity

that renders death a constitutionally impermissible

penalty. Both Panetti’s and his amici’s proposed standards,

which require that a convict “rationally understand” the

reasons for his execution, are fundamentally flawed. Given

the inherent subjectivity and manipulability of such a

standard, capital murderers could as a routine matter

claim a lack of “rational understanding” through malinger-

ing or refusing to cooperate with experts. Moreover, such a

requirement — imported from the Court’s Fifth and Sixth

Amendment jurisprudence concerning defendants’ strate-

gic participation at the guilt and sentencing phases — is

out of place at the moment of execution. Finally, the

retributive and deterrent interests served by the death

penalty — focused primarily as they are on society at large

rather than the capital murderer — do not demand the

“rational understanding” that Panetti urges.

The Court should instead adopt a clear and objective

test for execution competence. Specifically, the Court

should hold that a mentally ill capital convict is incompe-

tent to be executed only if, because of his illness, he lacks

the capacity to recognize that his punishment (1) is the

result of his being convicted of capital murder and (2) will

cause his death. This standard controls for the malinger-

ing or uncooperative convict, is appropriately tailored to

the execution stage of capital proceedings, and serves the

twin goals of retribution and deterrence that justify

capital punishment. Applying this standard, the Court

should hold that Panetti is competent to be executed.

ARGUMENT

I. The State Court’s Determination That Panetti

Is Competent To Be Executed Is Entitled to

AEDPA Deference.

Contrary to the district court’s conclusion, JA 359-61,

the state court’s adjudication of Panetti’s competence

claim, JA 99-100, is entitled to deference under the AEDPA

because it was neither contrary to, nor involved an unrea-

sonable application of, clearly established federal due-

process law as set out by this Court in Ford. This defer-

ence provides an alternative basis on which the Court

should affirm the court of appeals’s judgment that Panetti

is not entitled to federal habeas relief.° See JA 376 & n.1.

Like Panetti’s claim, the execution-competence claim

in Ford arose from a federal habeas appeal. 477 U.S., at

404-05. Under the federal habeas statute in effect at the

time, deference was afforded to factual determinations

made by the state court unless the petitioner established

one of the enumerated exceptions, one of which was

whether the state proceedings provided a “full and fair

hearing.” 477 U.S., at 411 (plurality op.); id., at 423

* The State raised the AEDPA-deference issue in the district court,

JA 359, the court of appeals, JA 376, and in its brief in opposition to

certiorari in this Court, Br. Opp. Cert. 7-9.

(Powell, J., concurring in the judgment); see also 28 U.S.C.

§2254(d)(2) (1984). Ultimately, a majority of the Court

concluded that deference was not appropriate because the

state procedure for determining execution competence was

found to be inadequate. Ford, 477 U.S., at 416 (plurality

op.); id., at 423 (Powell, J., concurring in the judgment).

The federal habeas statute has been amended since

Ford was decided. Under the AEDPA, a federal habeas

writ “shall not be granted” with respect to a state-court

judgment unless that adjudication:

“(1) resulted in a decision that was contrary to,

or involved an unreasonable application of,

clearly established Federal} law, as determined by

the Supreme Court of the United States; or

(2) resulted in a decision that was based on an

unreasonable determination of the facts in light

of the evidence presented in the State court pro-

ceeding.” 28 U.S.C. §2254(d).

As a statutory matter, the AEDPA — unlike the prior

version of §2254(d) — contains no requirement of a “full

and fair hearing” before deference is required. See Valdez

v. Cockrell, 274 F.3d 941, 946 (CA5 2001); JA 376, n.1.

Nevertheless, because it believed that Ford required, as a

constitutional matter, a full evidentiary hearing in state

court, the district court appears to have held §2254(d) of

the AEDPA to be unconstitutional as applied in this case."

JA 130-33, 361. That holding was in error.

* The district court’s reasoning on this question is somewhat

oblique and is potentially subject to an alternative interpretation,

which Panetti advances, Panetti Br. 4, n.3, that the court merely found

the state court’s failure to conduct a full evidentiary hearing to be “an

unreasonable application of ... clearly established federal law” under

§2254(d). Either way, the district court’s failure to accord AEDPA

deference to the state court’s competence finding was erroneous for the

same reason — that Ford compels no such conclusion.

A. Ford Requires Only Minimal Process for

Deference To Be Afforded to the State

Court’s Competence Determination.

Echoing the district court’s analysis, JA 359-61,

Panetti’s sole argument that AEDPA deference does not

apply is that the state court disregarded Ford’s holding

establishing the minimum procedural due process re-

quirements in assessing execution competence, Panetti Br.

4, n.3.’ Because the state court’s procedures fully com-

ported with the minimum protections outlined in Ford, its

judgment was entitled to statutory deference.

In concluding that the state competence determina-

tion in Ford was rot entitled to deference, the Court

established that the Constitution guarantees certain due-

process rights to habeas petitioners challenging their

competence to be executed. 477 U.S., at 411-16 (plurality

op.); id., at 423-27 (Powell, J., concurring in the judgment).

But because no majority of the Ford Court agreed on what

” Panetti does not raise an AEDPA challenge to the state court’s

application of the legal standard for execution competence, and with

good reason: there was (and is) no “clearly established federal law as

determined by the Supreme Court of the United States” on that point.

Justice Powell noted in his Ford concurrence that the plurality opinion

did not address the “meaning of insanity.” 477 U.S., at 418 (Powell, J.,

concurring in the judgment). Later, Justice Marshall, the author of the

Ford plurality opinion, confirmed that Ford did not establish a test for

execution competence. Rector v. Bryant, 501 U.S. 1239, 1241 (1991)

(Marshall, J., dissenting from denial of cert.). Although the Court has

subsequently acknowledged Justice Powell’s proffered test as the

appropriate standard in dicta, see Penry v. Lynaugh, 492 U.S. 302, 333

(1989), that reference does not constitute “clearly established law”

under the AEDPA. See Williams v. Taylor, 529 U.S. 362, 412 (2000)

(“That statutory phrase refers to the holdings, as opposed to the dicta,

of this Court’s decisions as of the time of the relevant state-court

decision.”).

And to the extent that the state court’s competence ruling encom-

passes factual determinations, Panetti likewise does not raise an

AEDPA challenge to the reasonableness of those determinations under

§2254(d\2). Accordingly, those facts must be presumed correct. 28

U.S.C. §2254(e)(1).

specific type or amount of process is due, Justice Powell’s

opinion concurring in the judgment — the opinion that

states the narrowest ground for the Court’s due-process

holding — controls. Marks v. United States, 430 U.S. 188,

193 (1977).

Justice Powell rejected any notion that a full-scale

“sanity trial” was constitutionally required:

“The State should provide an impartial officer or

board that can receive evidence and argument

from the prisoner’s counsel, including expert psy-

chiatric evidence that may differ from the State’s

own psychiatric examination. Beyond these basic

requirements, the States should have substantial

leeway to determine what process best balances

the various interests at stake.” Ford, 477 U.S.,

at 427 (Powell, J., concurring in the judgment)

(emphasis added).

Thus, as long as at least this level of process was provided,

former §2254(d)’s presumption of correctness applied.

And given the “substantial leeway” that state courts are

expressly given under Ford, the AEDPA today requires

even greater deference to the state court’s case-by-case

application of it. Yarborough v. Alvarado, 541 U.S. 652,

664 (2004) (“The more general the rule, the more leeway

{under the AEDPA that] courts have in reaching outcomes

in case-by-case determinations.”).

B. The State Court’s Procedures Easily Satis-

fied Ford’s Minimal Due-Process Require-

ments. ~

The Ford plurality identified three principal failings

with Florida’s procedure: (1) that it denied the prisoner

the opportunity be heard — specifically an opportunity to

submit “any material relevant to the ultimate decision;”

(2) that it denied the prisoner “any. opportunity to chal-

lenge or in.peach the state-appointed psychiatrists;” and

(3) that it placed the decision “wholly within the execu-

tive branch.” Ford, 477 U.S., at 413-16 (plurality op.).

Once those three failings are corrected, the plurality was

™~ —

explicit: “We do not here suggest that only a full trial on the

issue of sanity will suffice to protect the federal interests;

we leave to the State the task of developing appropriate

ways to enforce the constitutional restriction upon its

execution of sentences.” Jd., at 416 (plurality op.) (emphasis

added). And Justice Powell’s controlling concurrence was

even more emphatic, expressly noting that state procedures

“far less formal than a trial” would suffice. Jd., at 427

(Powell, J., concurring in the judgment) (emphasis added).

The procedures employed by the state court satisfy all

three requirements of Ford. First, unlike Ford — who was

not “included in the truth seeking process,” id., at 413

(plurality op.) — Panetti was provided with ample opportu-

nity to be heard. Florida prehibited consideration of any

materials submitted by Ford, ibid.; Panetti, in contrast,

was statutorily entitled to submit any “affidavits, records,

or other evidence” supporting his allegation of incompe-

tence, Tex. Code Crim. Proc. art. 46.05(c); JA 59, and he

did in fact submit such materials, JA 102, 108-12.

Second, unlike Ford — who was denied “any opportu-

nity to challenge or impeach the state-appointed psychia-

trists,” Ford, 477 U.S., at 415 (plurality op.) - Panetti was

expressly invited by the Court to submit any objections or

challenges to the court-appointed psychiatrists, JA 77-78,

and he did in fact submit such objections and challenges,

JA 79-98.

Third, and most importantly, unlike Ford — whose

competence proceedings were “wholly within the executive

branch,” Ford, 477 U.S., at 416 (plurality op.) - Panetti

had his competence challenge adjudicated by an impartial

court of law. Tex. Code Crim. Proc. art. 46.05(b). This is in

stark contrast to Ford, which considered the executive-

branch nature of the proceedings to be “[p]erhaps the most

striking defect in the [Florida] procedures.” 477 U.S., at

416 (plurality op.); see also id., at 427 (Powell, J., concur-

ring in the judgment).

Nonetheless, Panetti complains that the state court

denied his requests for “adversarial proceedings by which

he could contest the court-appointed experts’ opinions.”

Panetti Br. 4, n.3. But nothing in Justice Powell’s control-

ling Ford concurrence suggests that a live adversarial

hearing is necessary to satisfy due-process requirements in

this context. Indeed, Justice Powell expressly observed to

the contrary that “ordinary procedures — complete with live

testimony, cross-examination, and oral argument by counsel

— are not necessarily the best means of arriving at sound,

consistent judgments as to a defendant’s sanity.” Ford, 477

US., at 426 (Powell, J., concurring in the judgment).

Additionally, Panetti argues that the state court

erroneously decided his competence claim without ap-

pointing a psychiatric expert for him. Panetti Br. 4-5, n.3.

This argument is likewise unavailing. Although Justice

Powell’s opinion stated that due process requires that the

court accept any evidence from petitioner’s counsel, “in-

cluding psychiatric evidence that may differ from the

State’s own psychiatric examination,” see Ford, 477 U.S.,

at 427 (Powell, J., concurring in the judgment), nothing in

Ford gave Panetti a constitutional right to the appoint-

ment of his own expert at state expense. And, unlike in

Ford, neither Dr. Parker nor Dr. Anderson was the State’s

expert. Rather, each was a neutral mental-health expert

appointed by the state court. JA 59-60; see Tex. Code

Crim. Proc. art. 46.05(f).

In any event, Panetti did in fact submit his own

expert psychiatric evidence to the state court. Specifically,

Panetti presented the report of Dr. Mark Cunningham in

his second motion to determine competence under Texas

Code of Criminal Procedure Article 46.05, JA 102, 108-10,

which in turn prompted the state court to appoint its own

experts to evaluate Panetti, JA 59. After Drs. Parker and

Anderson submitted their report, the court invited Panetti

to respond. JA 77-78. In his detailed submission, JA 79-98,

Panetti relied on the Cunningham report to challenge Drs.

Parker and Anderson’s conclusions, JA 94-95.

Under any measure, the state-court proceedings

satisfied the strictures of Ford. Therefore, §2254(d),

as applied, is not unconstitutional. And because the

procedures were consistent with Ford, the state court’s

adjudication likewise did not contradict or unreasonably

apply “clearly established Federal law, as determined

by the Supreme Court of the United States.” 28 U.S.C.

§2254(d). Accordingly, the state court’s determination that

Panetti is competent to be executed statutorily bars his

request for federal habeas relief.

Il. Even If AEDPA Deference Does Not Apply, Pa-

netti’s Execution Does Not Violate the Eighth

Amendment.

Only if the Court concludes that the AEDPA does not

bar habeas review should it reach Panetti’s claim that the

court of appeals employed the wrong legal standard for

execution competence. Although Ford held that the Eighth

Amendment proscribes execution of the “insane,” 477 U.S.,

at 409-10, the Court did not define “insanity” or otherwise

delineate the constitutional threshold of competence to be

executed, id., at 418 (Powell, J., concurring in the judg-

ment), a question which remains unresolved.

Before turning to the merits of that claim, two issues

bear emphasis. First, there is no dispute that, under Ford,

executing the insane violates the Eighth Amendment.

Executing the insane was forbidden at common law, and it

is forbidden today. Although Panetti and his amici en-

deavor to frame this case as the final and most important

installment in the soon-to-be Atkins-Roper trilogy, that

book has already been written — in Ford. And second,

there is no dispute that, like many capital defendants,

Panetti suffers from some degree of mental illness. Panetti

devotes considerable energy to demonstrating this undis-

puted fact, while never confronting the fact findings made

by the state and federal district courts and the unbroken

line of judicial determinations of his competence.

The only legal question before the Court on the merits

of this case is what is the definition of “insanity” — that is,

what must a court find to conclude that a capital murderer

is constitutionally incompetent to be executed.

In determining whether the Eighth Amendment bars

a particular punishment as “cruel and unusual,” the Court

has followed a well-established analytical path. First, the

Court examines whether the punishment was among

“those modes or acts of punishment that had been consid-

ered cruel and unusual at the time that the Bill of Rights

was adopted” in 1791. Ford, 477 U.S., at 405; see also

Solem v. Helm, 463 U.S. 277, 285-86 (1983). Second, the

Court considers whether the punishment is deemed cruel

and unusual according to modern “standards of decency.”

Roper v. Simmons, 543 U.S. 551, 560-61 (2005) (quoting

Trop v. Dulles, 356 U.S. 86, 101 (1958) (plurality op.)).

Those standards derive principally from “objective evi-

dence of contemporary values,” the “clearest and most

reliable” of which is “the legislation enacted by the coun-

try’s legislatures.” Atkins v. Virginia, 536 U.S. 304, 312

(2002) (citation and quotation marks omitted). Finally, the

Court applies its “independent judgment” to evaluate “the

acceptability of a particular punishment under the Eighth

Amendment.” Roper, 543 U.S., at 563-64. In capital cases,

the Court has made this assessment primarily by refer-

ence to “the penological justifications for the death pen-

alty.” See id., at 571; Atkins, 536 U.S., at 317.

This three-part analysis does not support Panetti’s

contention that, under the Eighth Amendment, a capital

convict must “rationally understand” the reasons for his _

execution before it may proceed. Although execution of the

“insane” was deemed cruel and unusual in 1791, Ford, 477

U.S., at 406-08, the common law did not then draw fine

distinctions in mental ability, and thus did not delineate

any precise competence standard. Consequently, the

standards of the common law are, at best, inconclusive.

Likewise, a survey of modern state legislation offers

indefinite guidance, as it yields no consensus at all on the

mental faculty a capital murderer must possess at the

time of his execution. Finally, in the exercise of its inde-

pendent judgment, the Court should reject the proposition

that a capital convict must possess a “rational understand-

ing” of the reasons for his execution to render death an

acceptable punishment under the Eighth Amendment.

Such a standard is not tailored to the particular interests

at stake in the post-sentencing phase of capital proceed-

ings, invites malingering and abuse, and is not necessary

to advance the retributive and deterrent justifications for

the death penalty.

For all of these reasons, the Court should reject

Panetti’s and his amici’s proposed execution-competence

standards. It should instead hold that a mentally ill

capital convict is incompetent to be executed only if,

because of his illness, he lacks the capacity to recognize

that his punishment (1) is the result of his being convicted

of capital murder and (2) will cause his death. Under this

standard, Panetti is competent to be executed.

A. The General Rule Against Executing the

Insane in 1791 Does Not [Illuminate the

Specific Level of Understanding That De-

fines the Eighth Amendment Floor.

“(T]he Eighth Amendment’s ban on cruel and unusual

punishment embraces, at a minimum, those modes or acts

of punishment that had been considered cruel and unusual

at the time that the Bill of Rights was adopted” in 1791.

Id., at 405. It is now settled that this category included

execution of the “insane.” Jd., at 406-08. Thus, the relevant

historical inquiry is what degree of mental incapacity

qualified as “insanity” and triggered the ban, or, con-

versely, what level of understanding a capital convict then

had to possess to be eligible for execution.

As amici Legal Historians explain, the law of that

time “reveals no precise definitions or uniform standards

used ... to determine mental competency.” Legal Histori-

ans Br. 4. For that reason, no contemporary competence

metric defined as a specific consciousness level — including

the court of appeals’s “awareness” standard and Panetti’s

proposed “rational understanding” test — can claim any

eighteenth-century pedigree. Because the Court’s task

here is to prescribe the grade of understanding that marks

the constitutional threshold, the historical prong of the

Eighth Amendment inquiry is ultimately unhelpful.

Nevertheless, the historians believe that they can

divine enough of the ancient meaning of insanity to

conclude that a court in the Framers’ era would have

spared Panetti from his sentence. Panetti and the histori-

ans also infer from rationales for the ban on executing the

insane that it protected all who did not “rationally under-

stand” the reasons for their execution. The Court should

reject this speculation. Whether Panetti’s delusional

behavior would have earned him a reprieve from execution

in 1791 is, at best, indeterminate. And whatever one may

infer in hindsight from commentators’ justifications for

insulating the “insane” from capital punishment, such

inferences still do not confirm any discernible scale of

mental awareness that eighteenth-century judges and

juries actually applied in assessing execution competence.

1. Eighteenth-century courts did not employ

a competence standard that corresponds

to any particular level of understanding

defined today.

The State agrees with amici Legal Historians that the

Eighth Amendment incorporates “at least those protec-

tions from punishment the common law afforded English

subjects” at the time it was adopted, Legal Historians Br.

7, and thus that late eighteenth-century English prece-

dents and practice are the primary sources of information

about the Amendment’s original scope. The State further

agrees that these sources “did not bequeath definitive

standards to determine competence for execution.” /d., at

21.

* Indeed, this was true of competence at any stage of criminal

proceedings, as “there were simply no clear, accessible definitions of

derangement judges could include in their instructions to a jury that

might indicate what ‘threshold level’ might preclude criminal responsi-

bility.” Joel Peter Eigen, Witnessing Insanity: Madness and Mad

Doctors in the English Court 38 (1995); see also Joel Peter Eigen,

Unconscious Crime: Mental Absence and Criminal Responsibility in

Victorian London 24 (2003).

To the extent the common law did draw any distinc-

tions in competence levels for criminal proceedings, it was

only between “total insanity” and “partial insanity.” Only

the former provided a basis for acquittal or a reprieve from

execution. Eigen, Unconscious Crime, supra, at 40 (noting

that, prior to 1800, “criminal law recognized only a total

want of understanding and memory - a total insanity — as

grounds for acquittal”); 1 Matthew Hale, The History of

the Pleas of the Crown 30 (1736) (observing that “partial

insanity seems not to excuse them in the committing of

any offence for its matter capital”). Even then, Hale

acknowledged that “it is very difficult to define the indi-

visible line that divides perfect and partial sanity” and

explained that ultimately the judge and jury must make

that determination based on the particular circumstances

of the case. 1 Hale, supra, at 30; see also 4 William Black-

stone, Commentaries on the Laws of England 25 (lst

English ed. 1769) (“But if there be any doubt, whether the

party be compos or not, this shall be tried by a jury.”).

In this endeavor, courts of that era could not avail

themselves of “the sophisticated and intricate diagnostic

tools and categories developed by modern psychiatry.”

Legal Historians Br. 16. Indeed, doctors seldom even

participated in competence assessments. Eigen, Witness-

ing Insanity, supra, at 42 (noting that “medical men were

rarely present [in criminal] proceedings) throughout the

late 1700s”). “Usually it was not medical evidence but the

testimony of relatives, friends, or spectators that per-

suaded the court that the defendant had been mad... .”

Nigel Walker, The Insanity Defense Before 1800, 477

Annals Am. Acad. Pol. & Soc. Sci. 25, 30 (1985).

Given the indefinite insanity criteria of eighteenth-

century English practice, the historians urge that the

relatively strict competence standard applied by the court

of appeals — requiring that Panetti simply be “aware” of

his impending execution and the State’s reasons for it —

finds no support in the common law in 1791. Legal Histo-

rians Br. 19. That may well be the case.

But for the very same reason that the court of ap-

peals’s “awareness” test was unknown in 1791, so too was

Panetti’s proposed “rational understanding” test. Just as

English courts “did not draw the fine lines the Fifth

Circuit did,” ibid., neither did they draw the equally—

specific line that Panetti proposes. The vague formulations

employed by eighteenth-century courts, lacking a clear

taxonomy and uninformed by expert analysis, do not

translate to any of the specific competence standards

known to modern jurisprudence. Consequently, this first

stage of the Eighth Amendment inquiry does not define

the threshold level of execution competence.

2. The Court should reject amici Legal

Historians’ speculation that Panetti

would not have been executed under

eighteenth-century standards.

Although the historians acknowledge that the Fram-

ers would have found their era’s competence standards

“imprecise or even amorphous,” they nonetheless conclude

that “the law as generally understood then would not have

allowed the execution of a mentally ill and delusional

defendant like Mr. Panetti.” Legal Historians Br. 22. This

assertion appears to rest on two interpretations they

suggest concerning the eighteenth-century standard for

execution competence: (1) that it was more lenient than

the standard for trial fitness; and (2) that it approximated

the understanding of a fourteen-year-old child. Jd., at 14-

16, 18-19. Neither proffered interpretation is well founded.

a. The standard for execution compe-

tence in 1791 was not discernibly

lower than that for competence to

stand trial.

Because the common law dictated that a person could

be adjudged insane and spared execution even when he had

previously been found competent to stand trial, the histori-

ans deduce that either (1) the common law accounted for

mental] deterioration between conviction and execution or

(2) execution competence was a lower standard than trial

fitness. Jd., at 14-15. They settle on the latter explanation,

id., at 15, but for dubious reasons.

First; the historians speculate that it would have been

uncommon for a convict’s mental state to deteriorate

during the relatively short interval between conviction and

execution. However infrequent, though, such lapses —

rather than application of a lower competence standard —

were in fact the explicit basis of the common-law rule

allowing reassessment of sanity before execution: “[IIf,

after judgment, he becomes of nonsane memory, execution

shall be stayed.” 4 Blackstone, supra, at 24 (emphasis

added); see also 1 Hale, supra, at 35 (same). Second, the

historians note that it was within the discretion of the

court or king to assess a convict’s execution competence.

Legal Historians Br. 15. Even so, Blackstone and Hale

agree that the assessment itself was generally left to a

jury, 4 Blackstone, supra, at 25; 1 Hale, supra, at 35, and

they do not suggest that jurors used any different test for

insanity in this regard. Third, the historians reason that

an execution reprieve, which could be temporary, logically

demanded a lower standard than did a trial, in which

“resolution of the defendant’s criminal responsibility” was

at stake. Legal Historians Br. 15. That supposition has no

eighteenth-century basis and ignores the strong interest in

carrying out a valid sentence.

In any event, the historians’ interpretation is refuted

by the plain text of Hale’s and Blackstone’s lengthy dis-

courses on the law of insanjty, neither of which draws any

distinction at all between the standards for trial fitness

and execution competence. 1 Hale, supra, at 35 (explaining

that “if such person after his plea, and before his trial,

become of non sane memory, he shall not be tried . . . or, if

after judgment he becomes of non sane memory, his

execution shall be spared”); 4 Blackstone, supra, at 388-89

(applying term non compos to describe basis for exempting

defendant from further proceedings at all stages of capital

cases). Surely if execution competence required a different

test, these venerable authorities would have noted it in

these pertinent sections of their texts.

b. Hale’s fourteen-year-old standard

provides no basis to conclude that a

court would have stayed Panetti’s

execution in 1791.

Relying on Hale and other commentators, the histori-

ans also argue that “the level of understanding required to

meet the more forgiving standard of fitness for execution

was at least that of a child less than 14 years old.” Legal

Historians Br. 19.° Conceding that this test is “indefinite,”

they nonetheless argue that “it does not support the Fifth

Circuit’s approach.” Jbid. But as with other competence

definitions of the time, it is too vague to support any

particular metric of understanding.

First, one can only speculate how the Framers would

have ranked the mental capacity of a fourteen-year-old. But

more importantly, Hale’s age-based criterion was not the

definitive eighteenth-century standard. Blackstone, writing

in 1769, observed that the legal capacity of children them-

selves no longer hewed strictly to age groupings in capital

cases. 4 Blackstone, supra, at 23 (“[T]he capacity of doing

ill, or contracting guilt, is not so much measured by years

and days, as by the strength of the delinquent’s understand-

ing and judgment. For one lad of eleven years old may have

as much cunning as another of fourteen . .. .”). He then

describes the execution of several children between ages

eight and thirteen under this standard. /d., at 23-24.

And to the extent that Hale’s formulation still had any

currency in 1791, the historians admit that its application

* The historians’ implications that Hale’s 14-year-old standard was

specifically tailored for “fitness for execution” and was somehow “more

forgiving” than the competence test applied at other stages are incor-

rect. Hale expressly discussed this standard as applying to all phases of

capital proceedings. 1 Hale, supra, at 30.

“appears, if anything, to have been more indefinite.” Legal

Historians Br. 19 (emphasis added). Consequently, the

fourteen-year-old standard is of negligible utility in assess-

ing whether an eighteenth-century judge or jury would

have found Panetti competent to be executed.

c. Panetti’s claimed delusional behavior

would not necessarily have exempted

him from execution in 1791.

It is at the very least doubtful whether the specific

mental infirmity at the heart of Panetti’s claim — his

delusion of religious persecution, Panetti Br. 28 — would

have earned him a reprieve from execution in 1791. As one

commentator notes, “delusions” were not introduced as an

insanity defense until the trial of James Hadfield for the

attempted assassination of King George III in 1800, nine

years after the Eighth Amendment’s adoption. Eigen,

Witnessing Insanity, supra, at 49-51. And even Hadfield’s

acquittal “did not inaugurate delusion’s ‘career’ as a

regular feature of the insanity defense.” Jd., at 51. Indeed,

“(ijt was another twelve years before delusion was intro-

duced into testimony at the Old Bailey by a medical

witness.” Ibid.

Another commentator confirms that Hale’s “perfect

insanity” and fourteen-year-old measures did not encom-

pass delusional behavior as we understand it today:

“In the time of this eminent jurist insanity was a

much less frequent disease than it now is, and

the popular notions concerning it were derived

from the observation of those wretched inmates

of the mad-houses .... Those nice shades of the

disease, in which the mind, without being

wholly driven from its propriety, pertinaciously

clings to some absurd delusion, were either re-

garded as something very different from real

madness, or were too few, too far removed from

the common gaze, and too soon_converted by bad

management into the more active forms of the

disease to enter much into the general idea

entertained of madness.” Isaac Ray, A Treatise

on the Medical Jurisprudence of Insanity 21

(1962).

Accordingly, although eighteenth-century precedents may

yield limited examples of persons adjudged “insane” who

exhibited delusional behavior, the relevant commentaries

call into question the notion that such persons would

generally have been spared from capital sentences.

3. The Court cannot reliably derive the

precise scope of the ban on executing

the insane in 1791 from rationales ad-

vanced to justify the ban.

The Legal Historians invite the Court to divine the

precise level of understanding contemplated by the eight-

eenth-century ban on executing the “insane” by drawing

inferences from various suggested rationales for the

prohibition. Legal Historians Br. 22; see also Panetti Br.

37-40. Such an approach is fraught with uncertainty,

particularly when the rationales “do not provide a common

answer.” Ford, 477 U.S., at 419 (Powell, J., concurring in

the judgment).

If the contours of the ban hinged on the ability of the

convict to seek clemency or on the inhumanity of executing

the severely mentally ill, one has to question the extent to

which those reasons actually influenced the administra-

tion of capital punishment by courts that also sentenced

eight- and ten-year-old children to be hanged. See 4

Blackstone, supra, at 23-24. If the prohibition reflected the

view that mental illness is its own punishment, see id., at

389, the application would have depended entirely on the

jury’s assessment of whether the convict’s particular

illness was a sufficient penalty for his capital crime. If the

idea was to spare those who could not prepare for their

deaths, Justice Powell believed that to be satisfied so long

as the defendant is “aware that his death is approaching,”

Ford, 477 U.S., at 422 (Powell, J., concurring in the

judgment), which Panetti has been found to be, JA 372.

And although some believed that execution of the insane

would not deter sane persons, others at the time clearly

disagreed.”

B. Contemporary State Legislation Does Not

Yield a National Consensus on the Thresh-

old Level of Execution Competence.

In addition to forbidding punishment that was consid-

ered cruel and unusual in 1791, the Eighth Amendment

also prohibits modes of punishment that are inconsistent

with “evolving standards of decency that mark the pro-

gress of a maturing society.” Ford, 477 U.S., at 406 (cita-

tion omitted). The “clearest and most reliable objective

evidence of contemporary values is the legislation enacted

by the country’s legislatures.” Atkins, 536 U.S., at 312

(citation omitted). A survey of this legislation does not

support Panetti’s claim that a national consensus places

the threshold of execution competence at “rational under-

standing.” Panetti Br. 40. Rather, it reveals that no dis-

cernible consensus currently exists on this question.

As Panetti notes, of the thirty-eight States that

authorize capital punishment, half do not have any statu-

tory definition of execution competence. /bid. By itself, this

statistic undermines the notion that there is any sort of

national “standard” on the requisite level of understand-

ing. Because those States’ citizens have yet to weigh in on

this issue, it is impossible to know how they would define

competence in this context.”

* Compare Edward Coke, The Third Part of the Institutes of the

Laws of England: Concerning High Treason, and Other Pleas of the

Crown, and Criminal Causes 6 (1797) (citing lack of deterrent effect),

with John Hawles, Remarks on the Trial of Charles Bateman 476, in 11

A Complete Collection of State Trials and Proceedings for High Treason

and Other Crimes and Misdemeanors (1811) (disagreeing with Coke

because “the terror tq the living is equal, whether the person [executed}

be mad or in his senses”).

" Panetti rightly does not suggest that the lack of a death-penalty

statute in the remaining twelve States bears in any way on whether a

(Continued on following page)

Furthermore, the state legislatures that have ad-

dressed the issue do not agree upon a standard. Texas

classifies as incompetent for execution a convict who “does

not understand: (1) that he or she is to be executed and

that the execution is imminent; and (2) the reason he or

she is being executed.” Tex. Code Crim. Proc. art. 46.05(h).

But this statute does not require the “rational understand-

ing” that Panetti urges, and indeed, Panetti was adjudged

competent to be executed under Article 46.05. JA 99. Four

other States mimic the court of appeals’s test, requiring

only that the convict be “aware” that he will be put to

death for a capital crime.”

The remaining fourteen States define execution

competence in terms of the convict’s capacity to under-

stand or know his sentence and the reasons for it.’ Like

consensus exists for purposes of execution competence. Although the

Roper Court found it appropriate to count those States in tallying the

jurisdictions that barred execution of juvenile offenders, 543 U.S., at

574, the present analysis demands a different calculus. Although a

State’s wholesale rejection of the death penalty may subsume its view

as to whether a particular category of offenders may be executed, it does

not speak to the distinct issue of when a person presumed competent

and eligible for his capital sentence may nonetheless be deemed

incompetent to proceed with the execution. See Ford, 477 U.S., at 425

(Powell, J., concurring in the judgment) (noting that in execution-

competence context, “the only question raised is not whether, but when,

|the) execution may take place”).

" Ariz. Rev. Stat. Ann. §13-4021(B); Colo. Rev. Stat. §18-1.3-

1401(2); Md. Code Ann., Corr. Servs. §3-904(a)(2); Utah Code Ann. §77-

19-201. Panetti mistakenly omits Utah from this group. Panetti Br. 40-

41 & n.25. Panetti also incorrectly posits that these statutes “implicitly”

embrace what Panetti inaccurately labels a “rational understanding”

requirement. J/bid.; see infra Part II.C.2. The word “awareness” alone

certainly does not imply the robust appreciation that Panetti mislabels

“rational understanding.”

* Florida, Idaho, Missouri, Montana, New York, Ohio, and Wyoming

use the words “capacity” or “capable.” Fla. Stat. §922.07(3); Idaho Code

Ann. §18-210; Mo. Ann. Stat. §552.060(1); Mont. Code Ann. §46-14-103;

N.Y. Correct. Law §656(1); Ohio Rev. Code Ann. §2949.28(A); Wyo. Stat.

Ann. §7-13-901(aXv). Georgia, Kentucky, North Carolina, and Oregon use

the term “ability.” Ga. Code Ann. §17-10-60; Ky. Rev. Stat. Ann.

(Continued on following page)

Texas’s statute, most of these provisions are ambiguous

with respect to the type of “understanding” that is the

focus of the capacity inquiry. Only four contain language

that arguably requires, or has been interpreted to require,

the “rational understanding” showing that Panetti pro-

poses." Georgia directs that the convict be able “to know”

why he is being executed and the nature of the punish-

ment, Ga. Code Ann. §17-10-60, which implies simply an

awareness of the reasons for his impending death. The

other nine use the term “understand” without qualifica-

tion,” leaving it unclear whether those statutes require for

competence to be executed “factual understanding” or

“rational understanding” — a distinction that has been a

feature of competence-to-stand-trial jurisprudence at least

§431.213; N.C. Gen. Stat. §15A-1001; Or. Rev. Stat. §137.463(6\a).

Arkansas and Louisiana use “competence” to understand. Ark. Code

Ann. §16-90-506(d)(1)(B); La. Rev. Stat. Ann. §15:567.1(B). Finally,

Mississippi uses the phrase “sufficient intelligence.” Miss. Code Ann.

§99-19-57(2)(b). As the district court observed, assessing a convict’s

capacity to understand is not the same as assessing whether he in fact

actually understands. JA 364-65; see infra Part II.C.3.

“ See Provenzano v. State, 750 So. 2d 597, 602 (Fla. 1999)

(per curiam) (holding that Florida’s éxecution-competence provision

“contains a rationality element, albeit a limited one”); Billiot v. State,

655 So. 2d 1, 15 (Miss. 1995) (suggesting that Mississippi's execution-

competence statute contemplates whether the convict has “a rational

understanding of what it means to be executed” and “the ability to

rationally connect his crime with the fact that he will be executed”);

N.C. Gen. Stat. §15A-1001 (requiring as element of competence for any

punishment that convict be able “to comprehend his own situation in

reference to the proceedings”); Or. Rev. Stat. §137.463(6)(a) (requiring

that capital convict be “able to comprehend the reasons for the sentence

of death and its implications”).

* Ark. Code Ann. §16-90-506(d)(1XB); Idaho Code Ann. §18-210;

Ky. Rev. Stat. Ann. §431.213; La. Rev. Stat. Ann. §15:567.1(B); Mo. Ann.

Stat. §552.060(1); Mont. Code Ann. §46-14-103; N.Y. Correct. Law

§656(1); Ohio Rev. Code Ann. §2949.28(A); Wyo. Stat. Ann. §7-13-

90 l(av). ;

since the Court handed down Dusky v. United States, 362

U.S. 402, 402 (1960) (per curiam)."*

Thus, the States whose legislatures have defined

“ execution competence make up a fractured lot. Although a

majority emphasizes the convict’s capacity, neither a

majority view, nor even a clear plurality view, emerges

about what level of understanding a capital murderer

must have the capacity to possess. Even the fourteen

States that look to convicts’ capacity still represent only 37

percent of the jurisdictions that authorize capital punish-

ment. And of those fourteen, only four arguably embrace

some form of what Panetti would term “rational under-

standing,” and even they focus on capacity, rather than an

actual demonstration of specific understanding. Those four

jurisdictions constitute only 10.5 percent of death-penalty

States, far less than a consensus by any measure. Indeed,

an equal number adopt a variant of the court of appeals’s

“awareness” test that Panetti challenges. Thus, at least at

the current time, the varied approaches of the several

state legislatures yield no objective consensus from which

the Court can divine any national standard reflecting

contemporary values on execution competence.”

* Panetti includes in his accounting judicial decisions from five

States with no statutory definition of execution competence. Panetti Br.

41-42 & n.30. The Court should reject this attempted expansion of the

Eighth Amendment inquiry for two reasons. First, because the point of

this survey is to assess “contemporary values,” the Court has focused

principally on “the legislation enacted by the country’s legislatures,”

Atkins, 536 U.S., at 312 (citation omitted), which presumably reflects

the mores of the electorate. By contrast, judicial opinions cannot claim

the same representative quality. Second, only three of these decisions

purport to express state law, and they each differ in substance. Bing-

ham v. State, 169 P.2d 311, 314 (Okla. Crim. App. 1946); Singleton v.

State, 437 S.E.2d 53, 58 (S.C. 1993), Van Tran v. State, 6 S.W.3d 257,

265-66 (Tenn. 1999). The remaining two address the federal constitu-

tional standard. Baird v. State, 833 N.E.2d 28, 29 (Ind. 2005); Com-

monwealth v. Jermyn, 652 A.2d 821, 822 (Pa. 1995).

” Panetti further relies on professional opinion to support his view

that “rational understanding” should be the constitutional standard.

Panetti Br. 42-43. This reliance is misplaced. In Atkins, the Court

(Continued on following page)

C. The Court Should Hold That the Appropriate

Constitutional Standard for Competence To

Be Executed Is Whether a Defendant Has the

Capacity To Recognize That His Punishment

Is the Result of His Being Convicted of Capi-

tal Murder and Will Cause His Death.

Because the foregoing historical and contemporary

surveys yield no clear standard for execution competence

under the Eighth Amendment, the Court’s typical past

practice would be to apply its “own independent judgment”

to define the level of mental incapacity that renders death

a constitutionally impermissible penalty. See Roper, 543

U.S., at.564. Both Panetti’s and his amici’s proposed

execution-competence standards are deeply flawed. The

State urges the Court to reject those proposals and instead

adopt a clearer and more objective test. Specifically, the

Court should hold that a mentally ill capital convict is

incompetent to be executed only if, because of his illness,

he lacks the capacity to recognize that his punishment

(1) is the result of his being convicted of capital murder

and (2) will cause his death.

The State’s proposed standard — derived from Ford

and the Court’s Eighth Amendment jurisprudence -

prevents the execution of the truly incompetent, while at

the same time (1) incorporating essential safeguards

looked to professional] opinion, religious opinion, international consen-

sus, and polling data only after it had found a state-law consensus

against executing the mentally retarded. See 536 U.S., at 316, n.21.

Even if there were such a consensus, the additional evidence that

Panetti cites is sparse in comparison to that adduced in Atkins. Cf. ibid.

Panetti, for example, proffers no evidence of any international consen-

sus, perhaps because no other country has yet addressed the specific

question before the Court. And when the United Nations addressed the

question, it declined to opine at al] as to the substantive standard that

should be employed. See Safeguards Guaranteeing Protection of the

Rights of Those Facing the Death Penalty, E.S.C. Res. 1984/50, U.N.

ESCOR, Supp. No. 1, at 33, U.N. Doc. E/1984/92 (1984) (setting a

prohibition on execution of “persons who have become insane” but not

defining insanity).

against malingering and noncooperation with psychologi-

cal examiners, (2) being specifically tailored to the post-

sentencing phase of capital proceedings, and (3) effectively

advancing the modern penological interests behind the

death penalty.

1. Because of the inherent uncertainties

and subjectivity of psychiatric testing,

and the risks of malingering and abuse,

any standard for competence to be exe-

cuted should be rigorous and clear.

Panetti and his amici endeavor to frame this case as a

natural extension of Atkins and Roper. But mental illness

. differs from mental retardation and age in several mate-

rial respects. Unlike age and mental retardation, severe

mental illness is (1) subject to conflicting diagnoses,

(2) given to subjectivity, (3) mutable over time, and (4) in

some instances, within the ability of the individual to

ameliorate or exacerbate, by voluntarily taking —- or

ceasing to take — medications that may help control the

illness. Each of these distinctions renders incompetence to

be executed far more susceptible to malingering or abuse

than is either age or mental retardation.

The Court has often noted the difficulties that attend

even the most skilled psychiatric diagnoses. “[P]sychiatrists

disagree widely and frequently on what constitutes mental

illness [and] on the appropriate diagnosis to be attached to

given behavior and symptoms.” Ake v. Oklahoma, 470 U.S.

68, 81 (1985). For that reason, “a particularly acute need

for guarding against error inheres in a determination that

‘in the present state of the mental sciences is at best a

hazardous guess however conscientious.” Ford, 477 U.S.,

at 412 (plurality op.) (quoting Solesbee v. Balkcom, 339

U.S. 9, 23 (1950) (Frankfurter, J., dissenting)). As Justice

Powell explained,

“Unlike issues of historical fact, the question

of petitioner’s sanity calls for a basically subjec-

tive judgment. And unlike a determination of

whether the death penalty is appropriate in a

particular case, the competency determination

depends substantially on expert analysis in a

discipline fraught with ‘subtleties and nuances.’”

Id., at 426 (Powell, J., concurring in the judg-

ment) (quoting Addington v. Texas, 441 U.S. 418,

430 (1979)) (citations omitted).

Just last Term, the Court observed that the medical

definitions of mental illness “are subject to flux and

disagreement,” and that such diagnoses “may mask

vigorous debate within the profession about the very

~ contours of the mental disease itself.” Clark v. Arizona,

126 S.Ct. 2709, 2722, 2734 (2006). “[T]he consequence of

this professional ferment,” the Court noted, “is a general

caution in treating psychological classifications as predi-

cates for excusing otherwise criminal conduct.” Id., at

2734.

Not only are psychiatric diagnoses subjective and

frequently conflicting, they are by their nature subject to

change. Atkins and Roper were predicated on constant

variables: if a defendant is fifteen or seventeen or twenty

at the time of the crime, that age at that instant is fixed

and unchanging; likewise, if an individual is of normal

intelligence throughout his or her life, that person cannot

be expected later to become mentally retarded. In contrast,

if a person is sane yesterday and today, that does not mean

he or she will be sane tomorrow.

As Justice O’Connor cautioned in Ford, that mutabil-

ity carries with it serious risks of malingering:

“(T]he potential for false claims and deliberate

delay in this context is obviously enormous. This

potential is exacerbated by a unique feature of

the prisoner’s protected interest in suspending

the execution of a death sentence during incom-

petency. By definition, this interest can never be

conclusively and finally determined: Regardless

of the number of prior adjudications of the issue,

until the very moment of execution the prisoner

can claim that he has become insane sometime

after the previous determination to the contrary.”

477 U.S., at 429 (O’Connor, J., concurring in part

and dissenting in part) (citations omitted) (first

two emphases added).”

Finally, unlike with age or retardation, capital

murderers facing execution may have some ability to

voluntarily choose to render themselves incompetent to

be executed simply by ceasing to take their medication.

Indeed, in the case at bar, the evidence indicates that

Panetti’s medication had been largely successful in con-

trolling his mental illness, Federal Petition Ex. 14, at 462-

63, but that he willingly chose to stop taking it, id., at 431,

436; 3.CR.360.

2. Panetti’s proposed “rational understand-

ing” standard has no basis in the Court’s

precedent and would invite abuse.

The Court has recognized that “a defendant’s mental

condition may be relevant to more than one legal issue,

each governed by distinct rules reflecting quite different

policies.” Drope, 420 U.S., at 176: Accordingly, legal compe-

tence evaluations must be specifically tailored to the stage

of proceedings at which they apply. See Rees v. Peyton, 384

U.S. 312, 314 (1966) (per curiam). :

As Justice Powell accurately noted in Ford, an

“Eighth Amendment [incompetence to be executed] claim

can arise only after the prisoner has been validly convicted

of a capital crime and sentenced to death.” 477 U.S., at 425

(Powell, J., concurring in the judgment). Thus, the rele-

vant inquiry is merely when, and not whether, a valid

death sentence may be carried out. Jd., at 425 & n.5; see

Panetti Br. 47 (recognizing that “an offender’s execution

can proceed if he regains his sanity”). Because the “ra-

tional understanding” test that Panetti and the APA urge

addresses concerns that are absent in the post-sentencing

* In so noting, Justice O'Connor echoed the concerns of Hale, who,

some three centuries earlier, likewise urged courts to guard against the

potential for “great fraud” concerning those claiming incompetence. 1

Hale, supra, at 35; Legal Historians Br. 15, n.8.

phase of capital proceedifigs, the Court should decline to

adopt it.

a. A “rational understanding” inquiry

would engraft Fifth and Sixth Amend-

ment concerns on an Eighth Amend-

ment test.

Although Panetti uses the phrase loosely, “rational

understanding” is a specific term of art; it describes the

core of several] pre-sentencing competence tests. “Rational

understanding” was introduced in Dusky, in which the

Court defined the test for competence to stand trial as

whether the defendant has “sufficient present ability to

consult with his lawyer with a reasonable degree of ra-

tional understanding” and has “a rational as well as

factual understanding of the proceedings against him.”

362 U.S., at 402 (quotation marks omitted); see also

Godinez v. Moran, 509 U.S. 389, 398 (1993) (concluding

that the “rational understanding” test should also be used

to measure a defendant’s competence to plead guilty and

to waive the right to counsel).

In explaining the “rational-understanding” compo-

nent of pre-sentencing competence determinations, the

Godinez Court emphasized the “strategic choices” that

criminal defendants must be capable of making for a

court to find them competent to relinquish such signifi-

cant trial rights as the Fifth Amendment’s privilege

against self-incrimination and the Sixth Amendment’s

rights to jury trial and confrontation of adverse witnesses.

Ibid.; see Boykin v. Alabama, 395 U.S. 238, 243 (1969).

The Court went on to note additional strategic choices,

including “whether (and how) to put on a defense and

whether to raise one or more affirmative defenses,” that a

defendant who pleads not guilty will be called upon to

make during the course of trial. Godinez, 509 U.S., at 398.

For all of these strategic choices, a “rational under-

standing” is necessary to ensure that defendants do not

foolishly or mistakenly relinquish valuable constitutional

rights. A defendant faced with such choices must be able to

“understand the nature and object of the proceedings

against him, to consult with counsel, and to assist in

preparing his defense.” Drope, 420 U.S., at 171.

But a capital convict, unlike a capital defendant, has

substantially fewer rights, and there are no significant

strategic choices left for him to make. See Herrera v.

Collins, 506 U.S. 390, 399 (1993) (explaining that the

presumption of innocence disappears after conviction and

listing numerous constitutional rights that defendants

enjoy but that convicts do not); Barefoot v. Estelle, 463 U.S.

880, 887-88 (1983) (discussing the “secondary and limited”

nature of federal habeas proceedings); see also Ford, 477

U.S., at 421 (Powell, J., concurring in the judgment)

(noting that, because the Court’s “decisions already recog-

nize ... that a defendant must be competent to stand trial,

... the notion that a defendant must be able to assist in

his defense is largely provided for”). Assuming that a

convict is competent to be executed, only the remote

possibilities of clemency or commutation — processes that

_call for no significant strategic decisions by a convict — can

prevent the sentence from being carried out.

b. Panetti’s conception of “rational un-

derstanding” is far too expansive.

Panetti’s argument is, in fact, even more aggressive

than one for inclusion of only a pure “rational understand-

ing” component. Although he invokes that phrase through-

out his brief, the substantive requirement that Panetti

asks the Court to incorporate is actually a version of the

heightened “knowing and voluntary” requirement that the

Court has held applicable, over and above the “rational

understanding” competence component, with respect to a

defendant’s decision to plead guilty or to waive his right to

counsel. Godinez, 509 U.S., at 400-01 & n.12; Faretta v.

California, 422 U.S. 806, 835 (1975).

As Godinez explained, “knowing and voluntary” is not

part of any competence test; it is an additional safeguard

designed to ensure not merely that a defendant has the

capacity to understand trial proceedings, but rather that

he “actually does understand the significan.. and conse-

quences of a particular decision and whether the decision

is uncoerced.” 509 U.S., at 401, n.12 (emphasis added).

The heightened level of cognizance embodied in the

“knowing and voluntary” standard lies at the heart of the

test that Panetti and his amici ask the Court to adopt.

See, e.g., Panetti Br. 37, 45 (asserting that, before execu-

tion, a convict should be able to “prepare himself for death

as expiation for his offense” and “suffer the anguish of

realizing that he is being put to death for what he did”

(quotation marks omitted)); APA Br. 17 (proposing a test

that would require capital convicts to have “more than a

shallow understanding of why they are being executed”);

ABA Br. 5-6 (urging that convicts must have a “meaning-

ful” or “deeper” understanding of their fates).

The true substance of Panetti’s proposed test is thus

even less supportable than an accurately labeled “rational

understanding” test would be. Even putting aside concerns

about vagueness, requiring a “deep” or “meaningful”

appreciation of the State’s reasons for imposing the death

penalty would create an even greater risk that the Court’s

test could be circumvented through malingering or abuse.

See supra Part II.C.1. These same concerns would apply at

the competence-to-stand-trial stage — which explains, in

part, why the mere capacity to have a “rational under-

standing” of the proceedings, rather than actual demon-

stration of the “deeper” type of understanding embodied in

the “knowing and voluntary” requirement, is all that

competence test requires. Cooper v. Oklahoma, 517 U.S.

348, 354 (1996) (quoting Dusky, 362 U.S., at 402).”

* By contrast, use of the “knowing and voluntary” inquiry in the

specific contexts of competence to plead guilty or to waive the right to

counsel presents no such risk because malingering or noncooperation

would only frustrate, rather than facilitate, a defendant’s expressed

intention to waive those nghts.

When viewed in light of the overall death-row popula-

tion, Panetti’s proposal is especially problematic. As a

matter of common understanding, most individuals who

commit heinous murders are, almost by definition, not

entirely sane. Although estimates vary, some sources

indicate that as many as 70 percent of death-row inmates

suffer from some form of schizophrenia or psychosis.

Nancy S. Horton, Restoration of Competency for Execu-

tion: Furiosus Solo Furore Punitur, 44 Sw. L.J. 1191, 1204

(1990) (citing Amnesty International, United States of

America: the Death Penalty 108-09 (1987)); see JA 142

(expert testimony that most of the convicts in federal

Bureau of Prisons hospitals are schizophrenic). Many, if

not most, schizophrenics exhibit the type of delusional

thinking that Panetti has been observed to exhibit. See

Douglas Mossman, Atkins v. Virginia: A Psychiatric Can of

Worms, 33 N.M. L. Rev. 255, 280 (2003); APA Br. 8 (noting

that “[djelusional thinking is a hallmark symptom of

schizophrenia” (citing DSM-IV-TR 299-301, 312)).” Accord-

ingly, Panetti’s “rational understanding” requirement

would be applied to a population that is, in significant

part, delusional — and thus necessarily irrational. See APA

Br. 9, n.11.

This situation contrasts sharply with the factual baek-

drop of Atkins. There, the Court quoted expert testimony

that “[mjental retardation is a relatively rare thing. It’s

about one percent of the population.” 536 U.S., at 309, n.5

(quotation marks omitted). Here, the potential population

is much larger, and the introduction of Panetti’s ill-defined

* Indeed, one death-row study of a limited population noted that

half of the profiled inmates exhibited delusional tendencies, which

included persecutory delusions (e.g., inmate’s belief that he was target

of a Jewish conspiracy). Barbara A. Ward, Competency for Execution:

Problems in Law and Psychiatry, 14 Fla. St. U. L. Rev. 35, 39-40 & n.26

(1986) (citing Bluestone & McGahee, Reaction to Extreme Stress:

Impending Death by Execution, 119 Am. J. Psychiatry 393, 393 (1962)).

Other inmates in the study coped with their predicament through

obsessive rumination, “thinking furiously about other things, such as

appeals, religion, or philosophy.” /bid.

— and inherently indefinite - “rational understanding”

component would render the execution-competence stan-

dard substantially overinclusive. See Mossman, supra, at

289 (“Given the high rate of serious mental illness among

homicide defendants, granting psychiatric exemptions

could leave very few individuals eligible for the death

penalty.”).

Nor is this potential for exempting vast numbers of

convicted murderers from execution an unintended conse-

quence of Panetti’s and his amici’s proposed test. Indeed,

amicus APA is nothing if not candid, explaining that both

its own position and the ABA’s is that “an individual who

is found incompetent to face the death penalty” should not

have his sentence “merely suspended,” but should “have

his sentence permanently commuted to a non-capital

punishment.” APA Br. 17, n.15 (emphasis added). Thus, -

the conceded objective of these amici (and the predictable

consequence of their proposed test) is not simply avoiding

the inhumanity of executing a person who is truly insane,

but rather removing from death row as large a class of

capital convicts as reasonably possible.”

3. To prevent manipulation of the test, exe-

cution competence should turn on cogni-

tive capacity, not on professed beliefs.

In general, “the focus of a competency inquiry is the

defendant’s mental capacity; the question is whether he

has the ability to understand the proceedings.” Godinez,

* The objective sought by these amici is in keeping with their

stated public policy position — that there should be a national morato-

rium on all executions. See Am. Bar Ass’n, Report with Recommenda-

tions No. 107, Feb. 1997, available at http://www.abanet.org/irr/rec107.

htm] (last visited Mar. 27, 2007); Am. Psychiatry Ass’n, Moratorium on

Capital Punishment in the U.S.: Position Statement, Oct. 2000,

available at http://www.psych.org/edu/other_res/ib_archives/archives/

200006. pdf (last visited Mar. 27, 2007); Am. Psychologica] Ass’n, The

Death Penalty in the U.S., Aug. 2001, available at http://www.apa.org/

pi/deathpenalty.htm] (last visited Mar. 27, 2007).

509 U.S., at 401, n.12; Drope, 420 U.S., at 171 (articulat-

ing a capacity-based test for competence to stand trial).

The execution-competence standards that Panetti and his

amici propose are at times appropriately phrased in terms

of capacity. See, e.g., Panetti Br. 29-30, 38, 39, 40 & n.24,

41, 44, 45, 47; APA Br. 6, 16; ABA Br. 4, 5, 7, A-1, B-1. But,

at other times, their arguments focus instead on their

characterizations of what Panetti actually believes. See,

e.g., Panetti Br. 22, 27-29, 31-32, 40, 45; APA Br. 3-4, 6-8,

12-13; ABA Br. 7-8.”

But any execution-competence standard not phrased

in terms of capacity would be readily susceptible to cir-

cumvention by lies or noncooperation. There are undoubt-

edly numerous capital convicts who, though mentally ill,

are capable of reading and understanding this Court's

decisions — or, at the least, understanding their lawyers’

explanations of those decisions. If the Court announces an

execution-competence test that is not phrased in terms of

cognitive capacity, any such convict would have consider-

able incentive to attempt to avoid execution by “incor-

rectly” answering (or refusing to answer) any relevant

question about his impending fate.”

# As much as cognitive capacity should be a part of any execution-

competence test that the Court adopts, the “significantly impairs”

qualifier that amici propose, APA Br. 3, 16; ABA Br. 5, should not.

Notably, amici offer no defense of this ambiguous qualifier. Indeed,

despite the appearance of the phrase in their proposed tests, amici at

other times appear to support a pure capacity analysis. See, e.g., APA

Br. 11-12; ABA Br. 7-8. In any event, given the conflicting diagnoses and

subjectivity inherent in mental-illness determinations, “significantly

impairs” is no more definite than “rationally understands.”

* The sample interview questions that the APA offers, APA Br. 18

(“Why have you been sentenced to death?”; “Will you be executed?”),

illustrate the problem. Assuming that these questions would strike at

the core of the execution-competence test that the Court adopts, and

further assuming that capacity were not the test’s linchpin, a convict

whose mental illness does not affect the relevant aspects of his cogni-

tive capacity could nevertheless escape execution through deliberate

misstatements. Perhaps for this reason, in this passage of its brief, the

(Continued on following page)

4. Application of the State’s proposed test

will advance the modern penological in-

terests behind the death penalty.

The Court has recently confirmed that retribution and

deterrence are capital punishment’s two predominant

social purposes. Roper, 543 U.S., at 571 (citing Gregg v.

Georgia, 428 U.S. 153, 183 (1976) (joint opinion of Stewart,

Powell, and Stevens, JJ.)); accord Atkins, 536 U.S., at 318-

19. As shown below, application of the State’s proposed test

will advance each of those interests.”

a. The State’s test will further the re-

tributive purpose of punishment.

Retribution aims either “to express the community’s

moral outrage or ... to right the balance for the wrong to

the victim.” Roper, 543 U.S., at 571; see Atkins, 536 U.S.,

at 319 (explaining that retribution is “the interest in

seeing that the offender gets his ‘just deserts’”). The Court

has repeatedly emphasized the societal focus of retribu-

tion. See, e.g., Thompson v. Oklahoma, 487 U.S. 815, 836

(1988); see also Schriro v. Summerlin, 542 U.S. 348, 360

(2004) (Breyer, J., dissenting); Gregg, 428 U.S., at 183-84

(joint opinion of Stewart, Powell, and Stevens, JJ.). Pa-

netti misunderstands the societal nature of retribution,

erroneously equating it with vengeance. Panetti Br. 46 &

n.33. In fact, retribution is the legitimate penological

interest that helps prevent vengeance. Tison v. Arizona,

481 U.S. 137, 181 & n.19 (1987) (Brennan, J., dissenting)

(explaining that the Eighth Amendment channels imper-

missible private vengeance into constitutionally permissi-

ble retribution); see also Gregg, 428 U.S., at 183 (joint

APA acknowledges that the interviewer’s focus should be the convict’s

“mental capacities,” rather than his mere professed beliefs. /bid.

* It will also further the penological interest in incapacitation. See

Athins, 536 U.S., at 350 (Scalia, J., dissenting) (quoting Gregg, 428

U.S., at 183, n.28) (joint opinion of Stewart, Powell, and Stevens, JJ.));

Spaziano v. Florida, 468 U.S. 447, 461-62 (1984).

opinion of Stewart, Powell, and Stevens, JJ.) (noting that

the retributive “function ... is essential in an ordered

society that asks its citizens to rely on legal processes

rather than self-help to vindicate their wrongs”).

i. The retributive justification for

~ punishment necessarily precedes

any execution-competence analysis.

The viability of retribution as a permissible theory of

punishment depends not on the “rational understanding”

that a convict may or may not have, see supra Part II.C.2;

cf. Panetti Br. 46, but rather on the convict’s moral culpa-

bility at the time he committed his crime, Enmund v.

Florida, 458 U.S. 782, 800-01 (1982) (reflecting that

“personal responsibility and moral guilt” define a crimi-

nal’s level of culpability and concluding that execution of

one convict for murders that he did not personally commit

failed to serve the retributive goal of punishment).

Roper and Atkins illustrate this point. In those cases,

the Court’s decisions turned on its conclusions that mem-

bers of specific classes of criminals lack sufficient moral

culpability at the time of their crimes to be sentenced to

death. Roper, 543 U.S., at 556, 571 (stating the issue as

whether the Constitution permits execution of a criminal

“younger than 18 when he committed a capital crime” and

concluding that retribution is not served by imposing the

death penalty on those “whose culpability or blameworthi-

ness is diminished|} to a substantial degree”); Atkins, 536

U.S., at 319 (weighing the retributive value cf the death

penalty in light of “the lesser culpability of the mentally

retarded offender”). If Roper had looked instead to the

status of the criminal at the time of trial, conviction, or

sentencing, its holding would not have forbidden his execu-

tion. Roper, 543 U.S., at 556 (noting that, at the time of his

conviction and sentencing, the defendant had turned 18).

In contrast to the proportionality concerns addressed

in Roper and Atkins, in the present context the question

of culpability will already have been conclusively — and

affirmatively — resolved. The issue is not whether the

Constitution permits society to impose the death penalty

on a criminal who was, for some reason, less culpable at

the time of his crime, cf. Roper, 543 U.S., at 556, 578;

Atkins, 536 U.S., at 306-08, 321, but rather whether an

unquestionably valid death sentence may be carried out

against a criminal who has subsequently become mentally

ill, see Ford, 477 U.S., at 425 (Powell, J., concurring in the

judgment). This is so because any convict to whom the

execution-competence test is applied will necessarily have

been adjudicated both sane at the time of his offense and

competent to stand trial, removing any doubts about

culpability that might in some cases arise from mental

illness.

ii. There are substantial problems

with the wholly personal view of

retribution that Panetti advances.

In addition to its predominate societal focus, the

retributive rationale has a secondary concern for capital

convicts’ awareness of what the death sentence means and

why it is being imposed. See Ford, 477 U.S., at 409; id., at

422 (Powell, J., concurring in the judgment). Panetti,

however, misunderstands both the scope and the promi-

nence of this secondary retributive interest.

Relying heavily on nonjudicial sources, Panetti asserts

that retribution requires a condemned prisoner to have a

subjective appreciation of the moral impropriety of his

criminal conduct and to “suffer the anguish” of knowing

the reason for his fate. Panetti Br. 45; see also APA Br. 15

(centering the APA’s retribution argument on convicts’

“thinking about their forthcoming execution|s]” and

whether they have “more than a shallow understanding of

why they are being executed” (quotation marks omitted);

ABA Br. 6, 8 (supporting a proposed requirement that

capital convicts have “a-deeper understanding of the

state’s justifying purpose” of punishment and asserting

that a capital convict should “have the capacity to accept

responsibility for his crimes” (quotation marks omitted)).

Putting aside its lack of support in case law, there are

significant problems with Panetti’s mind-of-the-criminal

approach. First, tailoring the execution-competence test to

the innermost thoughts of capital convicts would present

substantial practical problems. It is difficult to imagine

how anyone other than the convict himself could accu-

rately assess whether he truly appreciates the magnitude

of his moral wrong — at least with respect to a convict who

is willing to lie about such things. And under Panetti’s

proposed test, it would be remarkably easy for a convict to

feign his way out of a death sentence.

Second, allowing the execution-competence test to be

shaped primarily by a personal, subjective view of the

retributive rationale would prevent the execution of

convicts who genuinely lack moral qualms about their

crimes. It cannot be that amoral capital convicts should be

excused from death sentences based on amorality alone.

Yet Panetti’s proposed standard would yield that result.

b. Adoption of the State’s standard will

effectively deter would-be murderers.

Deterrence is another legitimate basis for punishment

distinct from retribution. See Atkins, 536 U.S., at 319;

Roper, 543 U.S., at 571. It embodies society’s interest in

preventing future criminal acts. Jbid. Historically, the

deterrent effect of capital punishment has been a matter of

substantial debate. See Gregg, 428 U.S., at 184-85 (joint

opinion of Stewart, Powell, and Stevens, JJ.). The most

recent — and most methodologically advanced — scholar-

ship, however, reflects a growing consensus among eco-

nomics scholars that imposition of the death penalty

substantially deters capital murder.” See Panetti Br. 47

* See, e.g., Dale O. Cloninger & Roberto Marchesini, Execution

Moratoriums, Commutations and Deterrence: The Case of Illinois, 38

Applied Econ. 967, 971 (2006); Paul R. Zimmerman, State Executions,

Deterrence, and the Incidence of Murder, 7 J. Applied Econ. 163, 189-90

(2004); Hashem Dezhbakhsh, Paul H. Rubin & Joanna M. Shepherd,

Does Capita] Punishment Have a Deterrent Effect? New Evidence from

(Continued on following page)

(acknowledging “the deterrent effect of the death pen-

alty”); see also Legal Historians Br. 25 (noting that

“{djeterrence was a key rationale for the death penalty at

common law”).

Necessarily, the question of execution competence will

arise only in proceedings founded on valid convictions, and

valid convictions depend on criminals’ sanity at the time of

the crime, Clark, 126 S.Ct., at 2718-21; ALI, Model Penal

Code §4.01(1). Assuming he is neither underage nor

mentally retarded, any sane prospective criminal can be

expected to fully appreciate the possibility that he could be

put to death for committing capital murder. In Roper and

Atkins, a prospective criminal in the same class as the

defendant would either be mentally retarded or under

eighteen years of age at the time of the prospective crime —

and thus arguably unable to appreciate the force of the

death penalty’s deterrent effect. Roper, 543 U.S., at 571-

72; Atkins, 536 U.S., at 319-20. By contrast, a prospective

criminal who is legally sane at the time he commits capital

murder has no such excuse. He is fully capable of “pre-

meditation and deliberation” — and, therefore, fully sus-

ceptible to the death penalty’s deterrent effect. Enmund,

458 U.S., at 799 (quotation marks omitted).

Moreover, the deterrent effect of execution will not be

measurably lessened by a prospective criminal’s un-

founded speculation that he might become incompetent

after sentencing. See Panetti Br. 47 (agreeing that a_

prospective capital murderer would not foresee losing his

competence to be executed sometime after he commits his

crime). But, were Panetti’s standard to be adopted, the

increased likelihood of avoiding the death penalty through

malingering or manipulating psychological examiners

might well reduce the fears of prospective murderers and,

Postmoratorium Panel Data, 5 Am. Law & Econ. Rev. 344, 372-73

(2003); H. Naci Mocan & R. Kaj Gittings, Getting Off Death Row:

Commuted Sentences and the Deterrent Effect of Capital Punishment,

46 J. L. & Econ. 453, 473-74 (2003).

as a result, unjustifiably reduce the death penalty’s

deterrent force. Cf. Skipper v. South Carolina, 476 U.S. 1,

14 & n.2 (1986) (Powell, J., concurring in the judgment).”

D. Under Both the State’s Proposed Test and

the Test That the Court of Appeals Applied,

Panetti Is Competent To Be Executed.

In evaluating Panetti’s competence to be executed, the

court of appeals — like all of the other courts of appeals

that have faced this issue” — applied its interpretation of

the execution-competence test articulated by Justice

Powell in his Ford concurrence. It asked whether the

evidence showed Panetti to be “unaware of the punish-

ment [he is] about to suffer and why [he is] to suffer it,” JA

379 (quoting Ford, 477 U.S., at 422 (Powell, J., concurring

in the judgment)), and appropriately rejected Panetti’s

argument for inclusion of a “rational understanding”

component, id., at 384; see supra Part II.C.2.

Under the State’s proposed test, Panetti could prop-

erly be held incompetent to be executed only if, because of

mental illness, he lacked the capacity to recognize that his

punishment (1) is the result of his being convicted of

capital murder and (2) will cause his death. To the extent

this test varies from that applied by the court of appeals,

any such variances are immaterial to the result because,

*° Indeed, adoption of the APA’s and ABA's proposed standard -

whereby the sentences of convicts lacking “rational understanding”

would be permanently commuted to non-capital sentences, APA Br. 17,

n.15 — would provide a predictable ex ante roadmap for a would-be

murderer currently on medication for mental illness. If that murderer

were to commit his crime, be convicted, and be sentenced to death, he

could simply intend to go off his medication and lose rationality for a

time, thus avoiding the death penalty permanently. For such an

individual, the deterrent effect of capital punishment would, at the very

least, be substantially diminished.

*” Walton v. Johnson, 440 F.3d 160, 173 (CA4 2006); Scott v.

Mitchell, 250 F.3d 1011, 1014 (CA6 2001); Massie v. Woodford, 244 F.3d

1192, 1195 & n.1 (CA9 2001); Rector v. Clark, 923 F.2d 570, 572 (CA8

1991).

as shown below, the record establishes that Panetti is

competent to be executed under either standard.

First of all, it is undisputed that Panetti has the

capacity to recognize that the punishment he faces is

death. Indeed, the experts all agreed and the district court

expressly found that, as a factual matter, “Panetti is aware

he is to be executed,” JA 363, 372; accord JA 3738. Panetti

did not oppose this conclusion in the district court, see JA

367, 372, did not challenge it in the court of appeals, and

does not challenge it here. Therefore, Panetti is unques-

tionably “[Jaware of the punishment fhe is] about to

suffer,” JA 379 (quoting Ford, 477 U.S., at 422 (Powell, J.,

concurring in the judgment)) ~ a finding that, in reflecting -

Panetti’s actual demunstration of his capacity to recognize

that his punishment will cause his death, goes beyond the

capacity that the State’s test requires.

The only question that remains is whether Panetti

has the capacity to recognize that his punishment is the

result of his being convicted of capital murder, or, under

the court of appeals’s analysis, whether he is aware of why

he is to be executed, JA 379. The record establishes that

Panetti passes each of these prongs as well.

Dr. Parker and Dr. Anderson each testified that

Panetti has the capacity to understand that he is being

executed for the murders of which he was convicted. JA

245, 247 (testimony of Dr. Parker), 303-04 (testimony of

Dr. Anderson); accord JA 75 (joint report of Drs. Parker

and Anderson), and the district court explicitly concluded

that “[t}here is evidence in the record to support a finding

that Panetti is capable of understanding the reason for his

execution,” JA 367. Again, Panetti does not challenge this

conclusion. And under the State’s proposed test, it is

irrelevant that these witnesses “were unable to reach a

formal conclusion that [Panetti] did, in fact, understand”

the reason for his execution. JA 364. For the reasons

already noted, it is the capocity to understand — rather

than actual demonstration of understanding ~ that defines

the minimal level of competence needed to satisfy this

prong of the State’s proposed test. See supra Part II.C.3.

And with respect to the court of appeals’s test, the

district court accurately noted that two of Panetti’s own

execution-competence experts testified that, “despite his

delusions, Panetti understands [that] the State’s stated

reason for seeking his execution is for his murders.” JA

366; see also JA 157 (testimony of Dr. Conroy); JA 214

(testimony of Dr. Rosin). Thus, not only did the district

court explicitly find that “Panetti is aware he committed

the murders that serve as the basis for his execution,” JA

372, but the court further found that “Panetti understands

the State’s stated reason for executing him is that he

committed two murders,” JA 372.

The district court also correctly concluded that the

alternative sense of “understand” embodied in Panetti’s

proposal did not match the court of appeals’s standard. JA

369 (noting that the court of appeals’s test does not require

the type of “rational understanding” that Panetti purports

to distill from Justice Powell’s Ford concurrence); JA 373

(noting that a capital convict’s delusional beliefs “do not

bear on the question of whether [he] knows the reason for

his execution for the purposes of the Eighth Amendment”

(quotation marks omitted)).

In sum, the record establishes that Panetti: (1) has

the capacity to recognize that his punishment will cause

his death (and does in fact does recognize this); and (2) has

the capacity to recognize that his punishment is the result

of his being convicted of capital murder (or, within the

meaning of the court of appeals’s test, is aware of why he

is to be executed). Taken together, these facts conclusively

establish Panetti’s competence to be executed under both

the court of appeals’s test and the State’s proposed test.

CONCLUSION

The judgment of the court of appeals should be af-

firmed.

Respectfully submitted.

GREG ABBOTT

Attorney General of Texas

KENT C. SULLIVAN

First Assistant

Attorney General

Eric J.R. NICHOLS

Deputy Attorney General

for Criminal Justice

March 2007

R. TED CRUZ

Solicitor General

Counsel of Record

RANCE L. CRAFT

WILLIAM L. DAVIS

BRANTLEY STARR

Assistant Solicitors Genera]

TINA J. DETTMER

Assistant Attorney General

P.O. Box 12548

Austin, Texas 78711

(512) 936-1700

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.