A Possible Reprieve for the Mentally Ill on Death Row

A federal judge has declared that Scott Panetti, a longtime resident of Texas’ death row, is incompetent for execution due to the severity of his mental illness. The decision comes more than 15 years after the U.S. Supreme Court determined—also in Panetti’s case—that the Eighth Amendment bars the state from executing someone who doesn’t understand the reason for their execution. 

For three decades, Panetti has been among the most well-known severely mentally ill death row prisoners in the United States. But if he were to be executed, it wouldn’t be a first for Texas—in the past two decades, the state has executed numerous people with severe mental illnesses, including Kelsey Patterson in 2004. And while the governorship has changed hands since then, many of Texas’ decision-makers remain the same. 

This latest ruling decision in Panetti’s case, experts say, might even have some bearing on other mentally ill death row residents’ situations.

Panetti was sentenced to death in 1995 for the 1992 murder of his in-laws, Joe and Amanda Alvarado. Panetti, who had a documented history of paranoia, hallucinations, and reality distortions for decades before the murders, killed the couple after their daughter, his wife, got a restraining order against him and went to live with them.

But his trial was a spectacle. No longer on his antipsychotic medication—convinced God had cured him of his mental illness—he represented himself dressed as a “TV-Western cowboy” in a burgundy costume. He tried to subpoena witnesses including John F. Kennedy, the pope, and Jesus Christ. According to legal documents, he “rambled incessantly and incoherently…he visibly frightened the jurors. His trial was a mockery of the criminal justice system.” 

That was no act. Panetti had been exhibiting symptoms of schizophrenia since the 1970s. In 1986, he was caught in full-blown religious delusion, convinced he was “engaged in spiritual warfare with Satan,” per court documents. He was involuntarily committed more than 10 times in the decade before the murders. In 1988, he had been deemed “incompetent to manage his own affairs” by the Social Security Administration. 

The state swiftly set an execution date for Panetti in 2004, but even then his lawyers argued that his mental illness was too severe for him to comprehend. Panetti allegedly believed that he was being executed by the state as part of the devil’s attempt to “thwart his divine mission” and to cover up what he believed was a pedophile ring his in-laws were participating in.  

The Supreme Court took up Panetti’s case, and they determined in 2007 that the Eighth Amendment dictated that the bar for a person to understand why they’re being executed is high—they have to have a “rational understanding of the connection between his crime and his punishment,” per the decision.

While serving as solicitor general for the State of Texas, Ted Cruz himself argued in front of the Supreme Court that Panetti should be put to death. Cruz said he was faking his illness. 

Despite Panetti’s belief that his execution was actually part of a larger conspiracy, he was deemed competent and a new execution date was set for December 2014. Then, that execution date was also stayed while lawyers again argued his competency.  

A similar argument has now continued for decades.

“Scott Panetti’s mental health has deteriorated significantly since the last time he was evaluated, which was in late 2007,” said Panetti’s longtime attorney, Gregory Wiercioch. “We were able to use records from the Texas Department of Criminal Justice and our own interactions with Mr. Panetti that indicated his mental health had deteriorated since [then].” 

Experts have previously estimated that up to 20 percent of Texas death row prisoners receive ongoing mental health care. Some, like Panetti, have visible symptoms. 

Andre Thomas has been on Texas’ death row since 2004. He was convicted after stabbing his estranged wife to death, along with their 4-year-old son and her 13-month-old daughter. He had committed the crimes during what his lawyers would argue was a dangerous frenzy caused by a schizophrenic and psychotic episode—at the time, he believed he was fighting satanic forces, according to his lawyers. 

Thomas’ mental health issues began in his childhood and continued after his incarceration. After the murders, he gouged out his own right eye with his fingers, allegedly compelled by the Bible. He later removed his left eye. 

Thomas’ team is currently working to prove that he, too, is incompetent to be executed due to the severity of his mental illness. He was previously scheduled to be executed April 5, but a Grayson County court withdrew the date so his team could work on his competency case. 

Thomas’ attorney Maurie Levin said that his acts in prison—including the self-mutilation—”speak volumes about the severity of his mental illness.”

“The District Court’s opinion in Panetti underscores that to be competent to be executed, a prisoner must have a ‘rational understanding of the reason for [his] execution.’ Mr. Thomas, like Mr. Panetti, does not,” Levin told the Texas Observer.

She said Thomas, when asked recently to explain the reason for his execution, did not think it was due to his crime. Rather, he thought it was part of a biblical plot. 

“That’s why they want to kill me,” he said. “If we let him out of that freaking pyramid, their prison, we gotta make him promise he won’t use his power on us. Because if he did it would be all over. We’re talking about Revelations, between Michael and the archangels, the devil.”

Federal law bars the execution of people with intellectual disabilities, but no such sweeping restriction applies to people with mental illness. Only Kentucky and Ohio have state laws to ban the practice. (Twenty-seven states allow the death penalty. Alabama, Arizona, Florida, Georgia, Mississippi, Missouri, Oklahoma, Tennessee, and Texas are the only states that have executed people since 2020.)

For years, one Texas lawmaker has attempted to pass legislation to bar the death penalty for people with certain severe mental illnesses, including schizophrenia or schizoaffective disorder. Dallas Democrat Toni Rose first began pushing for this law in 2017, and the Texas House of Representatives has passed the bill in the past three legislative sessions. The state senate received the latest approved version in March but did not take action. Rose did not respond to requests for comment. 

Since 2006, the American Bar Association has taken a strong position by recommending that people should be spared the death penalty if they were significantly impaired by mental illness at the time of committing murder. 

In Panetti’s case, a decades-long legal back-and-forth appears to have been settled by a ruling from U.S.  District Court Judge Robert Pitman on September 28. Pitman wrote that Panetti “lacks a rational understanding of the connection between his offense and his sentence of death and that his execution would therefore violate the Eighth Amendment’s prohibition on cruel and unusual punishment.”

Elaborating, the judge wrote, “There are several reasons for prohibiting the execution of the insane, including the questionable retributive value of executing an individual so wracked by mental illness that he cannot comprehend the ‘meaning and purpose of the punishment,’ as well as society’s intuition that such an execution ‘simply offends humanity.”

In an interview, Wiercioch, the defense attorney, told the Observer it’s been a 20-year process to get the courts to recognize Panetti’s mental illness as it relates to the Eighth Amendment protection against “cruel and unusual punishments inflicted.” Wiercioch has been involved with Panetti’s case since 2003, when he worked with the Texas Defender Service. He has continued to work on the case ever since, despite a cross-country move and a career change. 

In a statement, Wiercioch, now a professor with the Frank J. Remington Center at the University of Wisconsin Law School, lauded the judge’s ruling. 

“Judge Pitman’s ruling prevents the State of Texas from exacting vengeance on a person who suffers from a pervasive, severe form of schizophrenia that causes him to inaccurately perceive the world around him,” he wrote.