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Panetti and Faretta


More details on the Panetti case are available in this story by Linda Greenhouse in the NYT.

Despite, or perhaps because of, his mental disorders, Panetti chose to represent himself at his trial, and so long as he met the standard of competence to make that decision, the trial judge had no choice under the Supreme Court's 1975 decision in Faretta v. California, 422 U.S. 806. Justice Blackmun had warned in dissent that the Court was creating a constitutional right to be a fool. In some cases, that means being a crazy fool. When a marginally competent defendant makes a Faretta motion, the trial judge is caught between Scylla and Charybdis. If the judge denies the motion and a reviewing court determines that the defendant was, in fact, competent to make the foolish choice, the resulting Faretta error is reversible per se. If the judge grants the motion, the trial can become a farce. Although reexamining Faretta is not the question presented in the present posture of this case, we can hope that the Court will understand that but for its ill-advised decision, Panetti would have had a lawyer who could have made a good case in mitigation from his mental illness and quite possibly avoided the death sentence in the first place. In an appropriate case, the Court should provide trial judges some slack between the level of competence at which the judge must allow the defendant to represent himself at the level at which he must not.

Some opponents of the death penalty like to speak in sweeping terms that we should never execute anyone with a "mental illness," as if that were a well defined and understood term. It is not. At its broadest, it means anyone diagnosable with any condition listed in the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders. That would be quite wrong, as the DSM-IV itself says. The criteria for including a condition in the DSM do not match the concerns of the law regarding moral responsibility. "In most situations, the clinical diagnosis of a DSM-IV mental disorder is not sufficient to establish the existence for legal purposes of a 'mental disorder,' 'mental disability,' 'mental disease,' or 'mental defect.'" The primary criterion for Antisocial Personality Disorder is "a pervasive pattern of disregard for and violation of the rights of others...." Not only should persons qualifying for this "diagnosis" not be exempt from punishment, they should be moved to the head of the line.

Clarification of the criteria for competence for execution would be a welcome development, but there is danger that the Court will paint with too broad a brush. Panetti believes that his sentence is the result of religious persecution rather than actual punishment for the murders he committed. Such claims can be heard in prisons all the time. I would be interested in hearing from people knowledgeable in the field if there is a ready way to distinguish between the kind of conspiracy theories that lots of people believe in and an actual delusion. Also, is there a good way to detect malingering of delusions can be detected? But even assuming Panetti's belief is a delusion, should that exempt him from a punishment otherwise warranted?


For the most part, I’d say yes: there is a way to distinguish between those with a penchant for conspiracy theories and genuine mental illness. We generally see people who have delusions with the disease of schizophrenia. What makes these folks different from the numerous people who believe, say, that the government brought down the twin towers are the other symptoms they have and the pervasiveness of their effects. You don’t have to spend much time in a psychiatric hospital before you know that people with genuine mental illness are very sick. They hear voices, they talk to people that aren’t there. They completely alter their lives in bad ways because of their illness. Ripping out the drywall of their homes because they believe that there are listening devices in the framework is common. Conspiracy “nuts” just have passionate beliefs but, for the most part, go on with their lives. They have jobs, are married, and can go to a sports game and enjoy it. A person with active mental illness can’t do these things. The illness infects every aspect of their lives.

Of course, there is the tricky “delusional disorder” that is separate from schizophrenia. I’ve seen this in my experience as a forensic psychologist. It’s tricky because the person appears quite normal except when it comes to their delusion: They hold it steadfastly and often become hostile violent when confronted.

A good forensic psychologist can distinguish legitimate mental illness from merely “odd behavior” – but, I think, many psychologists have poor critical thinking skills. They often will take a person at their word, which is perilous when dealing with people in the criminal justice system. Thus, many psychologists blindly accept that there are lot’s of people in the American’s jail and prisons with mental illness even though if you look carefully at the methodology of the studies done on this, it becomes apparent that they cannot be trusted (more on this in a later post). Going to law school didn’t get me a fancy car and may not get me to heaven, but it did teach me to be a good critical thinker.

For what it's worth: Panetti was hospitalized with schizophrenia and other maladies 15 times before committing the terrible crime that landed him on death row. That may or may not have legal bearing in this case, but it is interesting food for thought. My first thought is to wonder if someone dropped the ball in allowing him to be free in the first place.

It's possible someone dropped the ball. It's also possible that the heavy burden of proof for involuntary commitment made the ball unholdable.

I have no idea what happened in this case, but my experience tells me that Kent is right. We've made it so difficult to involuntarily hospitalize psychiatric patients in this country (much less, keep them hospitalized for any length of time) that it's no wonder that dangerously mentally ill folks are out in the community. Recent studies have shown that people with severe mental illnesses taken as a group are MORE violent than the general population -- usually when illicit drugs -- namely alcohol and cocaine -- are used.

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