Professor Elisabeth Semel’s Analysis of Panetti v. Quarterman

Attention: Supreme Court and Education Reporters

Contact: Susan Gluss, media relations director, UC Berkeley School of Law
510.642.6936 or

Berkeley, CA —June 28, 2007. A divided Supreme Court today ruled against the execution of a mentally ill Texas man convicted of murder and sentenced to death. University of California, Berkeley, Law School Professor Elisabeth Semel called the opinion in Panetti v. Quarterman “another rebuke to the intolerably restrictive manner in which the Texas state courts and the Fifth Circuit interpret the U.S. Constitution in death penalty cases.”

Faculty Available for Interviews:

Elisabeth Semel: Clinical Professor of Law; Director, Death Penalty Clinic. For more than 30 years, Semel has defended criminal cases in the state and federal courts, including homicides and capital cases.

In a 5-4 opinion issued this morning, the U.S. Supreme Court brought a measure of clarity to the procedures that states must follow before executing an individual who asserts that he is mentally incompetent, and to the meaning of the Eighth Amendment’s prohibition against the execution of individuals who are incompetent. The opinion, authored by Justice Anthony Kennedy, was another rebuke, in a series of recent decisions by the Court, to the intolerably restrictive manner in which the Texas state courts and the Fifth Circuit interpret the demands of the U.S. Constitution in death penalty cases. While it is too early to predict the national impact of the Panetti opinion, it should move the nation’s courts in the direction of sparing the lives of some individuals who are suffering from severe mental disorders at the time they are scheduled to be executed.

In 1986, a plurality of Supreme Court, in Ford v. Wainwright, established the constitutional baseline for competency to be executed, holding simply that “those who are to be executed [must] know the fact of their impending execution and the reason for it.” Until its decision in Panetti, the Court had not spoken again about what Justice Kennedy yesterday acknowledged was not a “precise standard for competency.”

Mr. Panetti suffers from a long-standing psychotic disorder and, according to some of the mental health professionals who examined him, understands that the State of Texas plans to execute him. However, he believes that the reason for his execution is not the murders he was convicted of committing, but rather to stop him from preaching against the forces of darkness. The Texas state courts and the lower federal courts, which heard his case, concluded that Ford did not require Mr. Panetti to have a rational understanding of the reason for his execution before he was put to death. The Panetti majority, relying heavily on the reasoning of the four-Justice Ford plurality, ruled that the “retributive” purpose of the death penalty cannot be achieved when the individual’s “delusional beliefs result in a fundamental failure to appreciate the connection between [his] crime and his execution.” In this regard, Justice Kennedy’s opinion is consistent with the views he expressed when writing for the majority in Roper v. Simmons (2005), which held that the Eighth Amendment’s prohibition against cruel and unusual punishment precludes the execution of individuals who were under the age of 18 at the time of their crimes. In Simmons as in Panetti, Justice Kennedy recognized that “the case for retribution” — one of the Court’s two constitutionally-based rationales for upholding the death penalty — cannot be made for certain categories of individuals by virtue of their developmental differences (juveniles) or pervasive mental illness.

The Court’s rejection of “a strict test for competency” that fails to take into account the effect of profound mental illness on an individual’s awareness of the reasons for his execution is long overdue.

Equally important as the Court’s decision about the meaning of competency to be executed was its ruling about the procedure by which an individual facing execution must be permitted to raise the claim of incompetence once he had made a ‘”substantial threshold showing of insanity.” The Panetti majority concluded that the Texas court had deprived Mr. Panetti of “a constitutionally adequate opportunity to be heard” on his claim by, for example, refusing to transcribe the proceedings, declining to approve funds for mental health professionals to assist counsel for Mr. Panetti, denying Mr. Panetti’s lawyer the opportunity to respond to the psychiatric evaluations of the court’s experts, and communicating with the State without providing the same information to Mr. Panetti’s counsel. The Supreme Court, decades ago, ruled that defense counsel are entitled to funds for the assistance of mental health experts. However, it has done little, if anything, in recent years, to reaffirm the right of death-sentenced individuals to obtain these vital tools to engage in the adversarial process. Therefore, the Court’s identification of access to defense experts as indispensable to fair process is significant.

Like the overwhelming majority of capital cases that have reached the U.S. Supreme Court in the last decade, Mr. Panetti’s case was governed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), which imposes severe limitations on the ability of state-sentenced inmates to obtain review of their convictions and sentences through habeas corpus review in the federal courts. The Panetti Court’s favorable resolution appears to have been driven by an interpretation of the statute that is consistent with both judicial efficiency and the Eighth Amendment prohibition, which focuses on the competence of the individual when execution is imminent.

Among the myriad roadblocks to federal review, the AEDPA permits a federal court to consider an inmate’s second habeas corpus petition only under very narrow circumstances, primarily when it raises a claim that he is innocent of the crime. The State of Texas argued that the Court had no jurisdiction to hear Mr. Panetti’s claim of incompetence because it was raised for the first time in his second federal habeas corpus petition and did not fall within the exceptions to these statutory restrictions. The Court rejected the State’s “counterintuitive approach” in part because of the burden it would place upon the federal judiciary if inmates were forced to raise incompetency claims in their first federal habeas corpus petitions, which are typically filed long before the inmate is facing execution, in other words, long before an assessment of the individual’s competency to be executed can be made and the claim is “ripe” for a judicial decision. In straightforward fashion, the majority held that the statutory bar against second habeas applications does not apply when the individual waits to file until the claim is “ripe.”

Finally, the State argued that another provision of the AEDPA precluded a grant of relief, specifically, the provision requiring federal courts to defer to state court judgments unless the state court decision is “an unreasonable application of clearly established” Supreme Court law. The Court’s track record has, with a handful of notable and critical exceptions, been to find that deference to a state court’s judgment is required under the Act. However, deference is not necessary when the state court fails, as it did here, to provide the constitutionally minimal procedures discussed above, which, in the Court’s view, were mandated by Ford and would have allowed Mr. Panetti to present his incompetency claim to the state court. Justice Kennedy wrote that the standard for incompetency set out in Ford, while “stated in general terms,” was sufficiently clear to require the type of “rudimentary process,” denied Mr. Panetti by the Texas court. This aspect of the opinion, which concerns the meaning of the phrase “clearly established” Supreme Court law, promises to be of great interest to all who are caught in the procedural morass that defines capital post-conviction litigation in the current era.

The Supreme Court remanded the case to the Fifth Circuit, with the expectation that further fact development will take place in federal district court. That said, the Fifth Circuit has what can only be characterized as a record of defiance when the Supreme Court, even with detailed guidance, directs it to enforce fundamental constitutional rights.