Document Type


Publication Date

Spring 2022


One of the open secrets of death penalty law and policy is the astonishingly high percentage of individuals on death row with serious mental disabilities. This is well known to lawyers who represent this cohort (and presumably, equally well known to the district attorneys who nevertheless prosecute them and the judges who try and sentence them), but is not generally discussed in the press nor, certainly, in political discourse. In the aggregate, this is far beneath society’s radar.

It is now over 14 years since the US Supreme Court decided a case that clarified the underlying issues. In Panetti v. Quarterman, 551 U.S. 930 (2007), it ruled that such a defendant had a constitutional right to make a showing that his mental illness “obstruct[ed] a rational understanding of the State’s reason for his execution,” expanding its jurisprudence in this area beyond its first modern foray into this area of the law in Ford v. Wainwright, 477 U.S. 399 (1986), some two decades earlier. Ford had regularly been interpreted to require that competency-to-be-executed depended only on three findings: that the prisoner is aware he committed the murders, that he is going to be executed, and he is aware of the reasons the State has given for his execution.

The years that have passed since Panetti have given us a body of law that makes clear that, at least in certain jurisdictions, that case has been paid little more than lip service, and that persons with profound mental disabilities are still subject to execution (and in some cases, have been executed).

This paper is the third in a trilogy that the authors have written on how the Fifth Circuit has interpreted other Supreme Court cases in the context of defendants with mental disabilities facing the death penalty, and the issues related to adequacy of counsel in such cases. (See Michael L. Perlin, Talia Roitberg Harmon & Sarah Chatt, “‘A World of Steel-Eyed Death”: An Empirical Evaluation of the Failure of the Strickland Standard to Ensure Adequate Counsel to Defendants with Mental Disabilities Facing the Death Penalty, 53 U. MICH. J.L. REFORM 261 (2020); Michael L. Perlin, Talia Roitberg Harmon & Sarah Wetzel, “Man Is Opposed to Fair Play”: An Empirical Analysis of How the Fifth Circuit Has Failed to Take Seriously Atkins v. Virginia, 11 WAKE FOREST J. L.& POL'Y 451 (2021)). In the prior papers, there was little doubt as to the conclusions we reached. In an article that evaluated Fifth Circuit decisions in the context of Strickland v. Washington’s “pallid” adequacy-of-counsel standard, we found the cases to be “bizarre and frightening.” (at 308) In one that dealt with interpretations of the Court’s decision in Atkins v. Virginia, 536 U.S. 304 (2002), we found the caselaw to be “infinitely depressing.” (at 497) We concluded that, in this context, the Fifth circuit was “an embarrassment to our system of criminal law and procedure.” (at 309)

Here, we complete our trilogy by considering all Fifth Circuit cases that have interpreted Panetti. Astonishingly, an exhaustive review of the caselaw reveals that there has not been a single case decided by the Fifth Circuit in the fourteen years since Panetti in which that Circuit found that a defendant was not competent to be executed.

First, we consider the historical roots of the prohibition on the execution of the “currently insane,” and then consider the bizarre facts and circumstances of Panetti. Next, we demonstrate how the Fifth Circuit has, basically, ignored the Panetti decision, looking specifically at cases involving believability of experts, allegations of malingering, and “synthetic competency.” Following this, we apply therapeutic jurisprudence principles in an effort to determine the extent to which the legal system can be a therapeutic agent in cases such as the ones under discussion here. We conclude with some suggestions for amelioration of this broken system.


University of Louisville Law Review, Vol. 60, Issue 3 (Spring 2022), pp. 557