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  • Rob Will

No Honor in Killing the Insane

Updated: Mar 29, 2023

“I have always been disgusted by the death penalty and I decided that I could not, as a human being, condone it even by abstentation.”

-Albert Camus, in a letter to Marcel Ayme

In the 20 years I have been here on Texas Death Row I have witnessed and experienced a consistent daily cycle of beauty and horrors. After two decades it is rare that I will have a physical reaction of revulsion and disgust to something that I see or hear. I had just such a reaction last night when I heard on the prison show (on 90.1 KPFT) that Andre Thomas has been given an execution date for April 5th 2023, even though he is extremely mentally ill – to the point to where he has ripped both of his eyes out of his head.

Earlier this week a guy came back from visitation and said his wife saw something online about Andre getting a date. No one believed this though. A few days ago, I asked a C.O, if Thomas had been given an execution date and moved over to the Death Watch section. In a dismissive tone he quickly and confidently replied, “They ain't gonna do that.” Later on when he walked by my cage he told me that he talked to a sergeant and the sergeant said that Thomas had been given an execution date and was still on the Jester 4 psychiatric unit “but that don't make any sense.”

I specifically asked this C.O about Andre Thomas because I remembered a conversation that I had with him some years back. This was when Thomas was still housed here, before he tore out his other eye. The C.O was walking the pod on a day when Andre had a really bad schizophrenic episode. His partner started antagonizing Andre and he put a stop to this and had the psych department people come talk to him.

Later on, I talked to the C.O about this. He is a conservative Republican who generally takes a very “tough on crime” stance on criminal justice issues. He supports the death penalty in certain cases but believes there are a lot of people here who do not deserve to be here. I specifically remember him saying “Like Thomas and the other ones who are all the way insane, there isn't any honor in killing crazy people like that, it's pointless. Just keep them locked up for life.”

Most people in our society do not support the execution of those who are suffering from severe mental illness. I think that most people generally believe that judges and prosecutors would not allow a severely schizophrenic prisoner to be executed because there are laws against this. Those who are familiar with the inner-workings of the system of capital punishment know better though. As Damien Echols observed in his book Life After Death:

I live with men who haven't been in contact with reality for years. The truth is that insanity is rampant on Death Row, as is retardation. The law says that the insane and the mentally retarded (the laws terminology not mine) cannot be executed, yet it happens on a regular basis. It's both sad and frightening.

Indeed. The thing that makes the situation with Andrew Thomas particularly sad and frightening is the severity of his mental illness. I mean, on two different occasions he ripped his eyes out of his head! How can anyone suggest that these two acts do not directly show that he is completely insane? I have spent years around Andre Thomas and he was schizophrenic before he ever arrived here. He most certainly did commit a horrible crime and this should not be overlooked at all, but this was a direct result of his mental illness. To execute Andre Thomas would be a morally repulsive act of injustice– and one that is indeed in direct violation of state and federal law.

How is it then that he has an execution date? To explore such a question, one must boldly venture into the labyrinthine realms of capital litigation– which are filled with tangled webs of obscure legalese, countless Kafka-esque contradictions, and innumerable tricks, traps and hurdles. This superstructure of injustice was created by design in an attempt to help uphold the system by any means and prevent favorable outcomes for capital defendants, at any cost.

The dynamics of this are very complicated and searching for answers and understanding within these realms can be a difficult process. Here, however, is some basic relevant information concerning the situation with Andre Thomas: an incompetency-to-be-executed claim raised in a capital appeal is known as a Ford claim, after the landmark Supreme Court case Ford v. Wainwright, 477US-399 (1986).

In this opinion written by Justice Thurgood Marshall, the SCOTUS held that the Eighth Amendment to the Federal Constitution prohibits a state from carrying out a death sentence on a prisoner who is insane. Notably, Justices O'Connor and White issued a separate opinion in which they concurred in the result in part and dissented in part, expressing the view that the Eighth Amendment did not create this right but advocated remand so the state [Florida] could address problematic procedural due process issues. Justices Rehnquist and Berger fully dissented. Justice Powell issued a separate opinion concurring in part and concurring in judgement.

There is quite a bit of legalese dealing with various procedural issues (which tends to be the case when a SCOTUS ruling on one case includes four separate opinions). The following lines from the controlling majority opinion are the most relevant to the central finding of Ford:

“Whether its aim is to protect the condemned from fear and pain without comfort of understanding, or to protect the dignity of society itself from the barbarity of exacting mindless vengeance, the restriction finds enforcement in the Eighth Amendment…It is no less abhorrent today than it has been for centuries to exact in penance the life of one whose mental illness prevents him from comprehending the reasons for the penalty or its implications…we leave to the state the task of developing appropriate ways to enforce the constitutional restriction.”

As Justice Powell duly noted in his separate opinion, the majority opinion fails to make a determination on this extremely important issue: the meaning of insanity in the context of the central holding of the opinion. And man-oh-man (!) since the 1986 SCOTUS Ford opinion, there have been thousands and thousands of pages of lower state and federal court opinions that have offered vast (and vastly contradictory) interpretations of various aspects of Ford. A recent article in Slate, The Problem With How Courts Decide Whether Someone Can Be Executed gives some interesting insight into this. The piece notes that in 2007 the SCOTUS (seemingly) clarified Ford and set (supposed) standards for when states can execute someone with serious mental illness, in their Panetti v Quarterman opinion. Here is the basic summary of the holding in Panetti:

Previously, The Fifth Circuit had rejected Panetti's argument that an inmate cannot be executed if he lacks a “rational understanding” of the State's motivation for the execution. They instead relied on Justice Powell's concurrence in Ford, holding that an inmate need only have an awareness of the State's reason for execution, not necessarily a rational understanding of it. (It should be noted that Panetti believes his death sentence is part of a conspiracy to prevent him from continuing to spread the word of God and also to cover up evidence of a pedophilia ring in Fredericksburg, rather than a punishment for the murders for which he is convicted).

The Supreme Court held that the Fifth Circuit's previous analysis was too restrictive under Ford v. Wainwright, because it treated Panetti's mental condition as irrelevant as long as he had in some sense a factual awareness of the state's rationale. The Court also ruled that the Fifth Circuit’s decision "rests on a flawed interpretation of Ford," because it failed to consider that Panetti's delusions may have prevented him from understanding the meaning of his punishment even though he professed to be aware of the facts, stating, “the Ford opinions nowhere indicate that delusions are irrelevant to “comprehen[sion]’ or “aware[ness]” if they so impair the prisoner’s concept of reality that he cannot reach a rational understanding of the reason for the execution. If anything, the Ford majority suggests the opposite…Gross delusions stemming from a severe mental disorder may put an awareness of a link between a crime and its punishment in a context so far removed from reality that the punishment can serve no proper purpose… he suffers from a severe, documented mental illness that is the source of gross delusions preventing him from comprehending the meaning and purpose of the punishment to which he has been sentenced. This argument, we hold, should have been considered.”

However, the Court did not undertake its own analysis of what kind of “rational understanding” the Eighth Amendment requires a death row inmate to have, saying, "Although we reject the standard followed by the Court of Appeals, we do not attempt to set down a rule governing all competency determinations."

After the SCOTUS Ford opinion was issued in 1986 legal experts immediately foresaw that the problematic nature of the vague language could easily lead to a situation where lower court contradictory interpretive pandemonium would force the SCOTUS to hear and decide another case clarifying Ford. For 21 years this pandemonium drudged through the lower courts until the muck piled up high enough to reach the Supreme Court and result in the Panetti opinion. After the SCOTUS Panetti opinion was issued in 2007 legal experts immediately noted that the lack of clarity in the ruling could lead to very problematic contradictory lower court interpretations and application. Sigh… And that is exactly what has occurred over the past 14 years.

Another criticism of Panetti is that the ruling incorrectly and unjustly misinterprets Ford and greatly narrows its application. Bottom line is this: since the 1986 Ford ruling there has not been a single instance where any court has found a Texas death row inmate incompetent to be executed and removed them from Death Row. One of the most disturbing aspects of this process is that the state's attorneys habitually manufacture, manipulate, twist, turn, maneuver and fabricate evidence that the courts then cite as valid in denying claims. To be fair to Judges though, in reading such opinions, I have often thought that they would rule differently if they truly knew just how dramatically flawed some of this evidence is.

This is how Andre Thomas has ended up with an execution date. I have spent years and years around both Andre and Scott Panetti. Like most people suffering from severe schizophrenia they fluctuate between a wide range of catatonic and maniacal states. “Rational Understanding?” There is no way that anyone truly utilizing a fully informed and objective standard of analysis could honestly conclude that Scott Panetti and Andre Thomas possess the contextual legal definition of “Rational Understanding”.

Andre Thomas is scheduled to be executed on April 5th. If the state of Texas goes forward with his planned execution, everyone involved will be engaging in a disgusting act of injustice.

A statue of Lady Justice stands in front of the Supreme Court of the United States of America. She presents us with a set of scales demanding fairness and balance within the judicial system. She willingly wears a blindfold across her eyes declaring that “justice is blind” to anything other than pure impartiality and righteousness within the system. If Andre Thomas is executed those responsible will permanently disfigured the soul of Lady Justice with an act of mindless barbarity. Blood tears of sorrow will eternally flow from the empty sockets beneath her blindfold, as she mourns this partial death of the dignity of society.

In the Ford opinion Justice Thurgood Marshall notes that, “for centuries, no jurisdiction has countenanced the execution of the insane… The bar against executing a prisoner who has lost his sanity bears impressive historical credentials; the practice consistently has been branded ‘savage and inhuman’.” Those in positions of influence who control the judicial power of the State of Texas should stand on the right side of history and grant Andre Thomas a stay of execution, remove him from Death Row, and resentence him to life in prison. Justice demands this. There is absolutely no honor in executing the insane

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