Scott Panetti is insane: will Gov Perry dare spare him?

EDITOR'S UPDATE: On Wednesday 3 December 2014, a federal appeals court stepped in just hours before Scott Panetti was due to be executed and halted the proceedings. NBC reports that the 5th US Circuit Court of Appeals granted a temporary reprieve "to allow us to fully consider the late arriving and complex legal questions at issue in this matter".

New York - This Wednesday, Texas plans to carry out its tenth execution so far this year.

The “hang ‘em high” state executes far more men and women than any other: since the death penalty was re-instated by the US Supreme Court in 1976, a national total of 1,392 have died in electric chairs or, more recently, on the cruciform gurneys of death by lethal injection – and 519 of them have been in Texas.

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This is the dark side of America. Most of the executions make no more news than a brief headline over an old police mug shot. But every now and then a case comes with a twist that garners national or even international notice.

The condemned might be a woman, or have been a minor when they committed capital murder, or have a case that they really did not do it. (Across America, more than 140 Death Row prisoners in the last 40 years have been found innocent after all.)

Wednesday’s planned execution is special because Scott Panetti, a white man of 56, is completely, hopelessly insane, a cartoon-style schizophrenic with assorted other mental and emotional ailments attached, and has been for years.

This raises the issue of competency. Just as you are meant to be sane enough to understand the charges against you before you face a jury of your peers, so you are meant to be sane enough to understand the connection between your Dead Man’s Walk to the execution chamber, the crime committed, and society’s need to punish and deter.

Panetti was diagnosed schizophrenic when he was 18, soon after he was discharged, honourably, from the Navy. He was hospitalised 13 times between that diagnosis and the day he committed murder in 1992.

One of his alternative personalities, ‘Sarge’ Iron Horse, had him shave his head, don military fatigues, arm himself with a sawn-off shotgun and a hunting rifle, and shoot his parents-in-law, Joe and Amanda Alvarado, at their home, in front of his wife and daughter.

Then he took wife and daughter to his shed, and holed-up there before calling the police. Panetti was persuaded to release the mother and child unharmed. Then he changed into a suit, dress shirt and tie, and surrendered.

His competence was always an issue. At his first competence trial, the jury deadlocked. A second jury was called, and he was found competent to stand trial. In a move which seems to have astonished nearly every lawyer and commentator since, the judge allowed him to dismiss his court-appointed lawyers and conduct his own defence.

This involved his coming to court in a theatrical cowboy costume with purple fringes, complete with Stetson hat. He entered a plea of insanity, which must have been rather obvious. Court records have him slipping into his ‘Sarge’ persona as he described the murder, the climax coming with him pointing his fingers, gun-style, at the jurors and shouting out: “Boom, boom, boom!”

He asked to call 200 witnesses, including Jesus and President John F Kennedy.

The prosecution argued that what they saw as theatrics were irrelevant: Panetti had murdered and all he needed to understand to make him “competent” for trial was that he had been charged with committing a crime. The jury agreed. He was sentenced to death, the appeals process began and the clock began to tick on his 20-year sojourn on Texas’ Death Row.

Panetti became the poster-boy for the issue of when a criminal is too mad to be executed when his case arrived before the US Supreme Court in 2007. The Justices ruled that the Texas courts had made “too narrow” an interpretation of competency. The condemned person, they said, must have a “rational understanding” of why the state plans to kill him or her.

But all the Court did was send the case back to the Texas state appeal courts, which ruled once again that Panetti was competent, and should die. This time, the Supreme Court let it go.

Last week, the New York Times argued in a leader under the headline ‘Will Texas Kill an Insane Man?’ that the Supreme Court had failed by refusing to overturn Panetti’s sentence or writing a full definition of competency.

The paper also pointed out that Panetti was one of 350,000 prison inmates who have been diagnosed as mentally ill, ten times the number of the insane who are in secure hospitals. The lack of health care for the mad is a major reason that there are so many in prison.

“A civilised society should not be in the business of executing anybody,” the Times concluded. “But it certainly cannot pretend to be adhering to any morally acceptable standard of culpability if it kills someone like Scott Panetti.”

The Times has long called for abolition. It is the newspaper of the “liberal elite”, and the death penalty is one of those issues that divide Red states from Blue, and the South from the North. Thirty-two states have the death penalty, 18 do not.

For years, the more the “liberal elite” have objected to the death penalty, the more Texas, Missouri, Alabama, Georgia and Louisiana, the states with the busiest death chambers, have clung to their “states’ rights” to kill whom they please.

But there are signs that may be changing.

The Texas Star-Telegram took the unusual step last week of declaring that ‘Scott Panetti Should Not Be Executed’.

“Whether or not Texas carries out Panetti’s execution on Wednesday, there will have been fewer state executions in Texas this year than in almost two decades. It’s clear the appetite for capital punishment is waning,” it wrote in a leader.

“Even those who support the death penalty should see that little good can come of executing a man so delusional he cannot truly appreciate his crime or understand its connection to his fate.

“If the courts will not stay his execution, Gov. Rick Perry should.”

That would offer a transformative moment. Perry has signed more death warrants than any governor in modern history – more even than his predecessor, Gov George W Bush - and in the Red state culture of the South and the Republican Right, hanging ‘em high is a display of virility and even of Christian righteousness.

A stay seems even less likely given that Politico has just reported that Perry is spending this week meeting groups of Texan and Republican power-brokers and fund-raisers to prepare his bid for the Republican presidential nomination in 2016.

What would they make of a wimp ready to spare a guilty man?

Panetti seems to have accepted his fate. He told his lawyer that he did indeed understand why he was to die: he was caught in a war between good and evil, and Satan had guided the prison warders to kill him to silence the Word of Jesus, which it was his mission to spread on Death Row.