The "bottom side" briefs were filed today in Panetti v. Quarterman, the "too crazy to execute" case. Briefs on both sides are collected here. In a couple of ways, this is a case study in the hazards of constitutionalizing a generally agreed rule.
No one in this case disputes that an insane person may not be executed, just as no one disputed that in Ford v. Wainwright, 477 U.S. 399 (1986). That was the rule at common law, and it was the law in all states with the death penalty well before Ford. The main issue in Ford was who decides whether a condemned inmate is insane and what process is due. However, Ford's transformation of that rule from a universally agreed principle of common and statutory law into a federal constitutional rule means that litigants are now expecting the United States Supreme Court to mark out the boundaries of who is actually "insane" for this purpose. The common law rule was vague, limited by the era's limited understanding of mental illness. (How limited? See The Madness of King George and be very glad you didn't live back then, even as king.)
If a rule is federal and constitutional, only the U.S. Supreme Court can authoritatively decide its boundaries. Standards set by legislatures, state high courts, and federal courts of appeals are only tentative pending a decision from Olympus. If the standard depends on changing scientific knowledge, the high court will need to revisit it occasionally. How many such rules are we going to have? How many can the law stand? For thirty years we have seen the turmoil in capital sentencing procedure law, as the high court first established broad outlines and then proceeded to micromanage the details, contradicting its prior decisions without squarely overruling them and spawning decades of confusion, overturned judgments, and multiple retrials of the same cases.
Is there a compelling case for not letting the states define "insanity" for execution, just as they do for substantive guilt? I don't see it. The core criteria are the ones the federal district court found met in this case. “Because the Court finds that Panetti knows he committed two murders, he knows he is to be executed, and he knows the reason the State has given for his execution is his commission of those murders, he is competent to be executed.” If a state wants to draw the circle of exemption broader than that as a matter of policy, fine. But those policy arguments should be addressed in legislation, which applies prospectively rather than holding up completed cases and which can be revised as our knowledge of the human mind goes forward.
But schizophrenia is a powerful mitigating circumstance, so why was Panetti sentenced to death in the first place? The blame here lies squarely at the Supreme Court's own doorstep. In Faretta v. California, 422 U. S. 806 (1975), the Court constitutionalized the rule of self-representation. Any defendant competent to waive his right to counsel must be allowed to represent himself, even if he is mentally incapable of mounting a competent defense. The Court should go back and fine-tune this rule to provide a zone of discretion to the trial judge between the minimum competence where a defendant may be allowed to represent himself and a higher level where he must be allowed to do so. But they haven't gotten around to it in three decades, so we have cases like this. Panetti exercised his constitutional right to be a fool, as Justice Blackmun noted in dissent, which is this case means a crazy fool. Panetti's standby counsel says, on page 26 of the Joint Appendix, that the trial was a mockery. It was judicial activism and unnecessary constitutionalization of rules of procedure that made it a mockery.
The ABA filed a brief in this case. It describes its membership as "more than 413,000 members includ[ing] prosecutors, public defenders, private lawyers, legislators, law professors, law enforcement and corrections personnel, law students, and non-lawyer 'associates' in allied fields." Notice how they always list prosecutors first? Yet the ABA appears in support of the defendant against the prosecution, as they always do. The brief itself is conclusory, citing little more than the ABA itself as authority. Why should the word of an organization that always takes one side against the other carry any weight at all?