Threading the Needle

In 2002, the Supreme Court said that it was unconstitutional for the government (state or federal) to murder people with mental retardation.  In 2005, the Court said that it was unconstitutional for the government to murder people who committed their crime before they were 18 years old.  In 2008 the Court said that it was unconstitutional for the government to murder people who weren't themselves guilty of some form of homicide.
It's just a matter of time, it seems, before the Court carves out another category of people the Constitution says can't be mudered by the government.  There seemed two obvious sets of folks for the Court to save next.

1. The factually innocent.
2. The really, really crazy.

In some sense, the second category of people has already been taken off the table.  Back in 1986, in  Ford v. Wainwright (and see here), the Court said that it was unconstitutional for the government to murder people who, in the words of Justice Powell,

are unaware of the punishment they are about to suffer and why they are to suffer it.

But that's a really narrow measure.  We describe them as not insane (which is the word Ford used) but as "incompetent to be executed."  It excludes lots of the people who one death penalty lawyer described as

the really fucking crazy.

Which brings us to Reginald Brooks.  And to the Parole Board's decision, announced this morning.

Brooks suffers from mental illness, but not to the degree that it was the cause of the offense, and also not to the degree that he does not understand why he will be executed. . .  . [His] Brooks' mental health issues do not outweigh the significant aggravating factors
present in this case.

Did I mention that Brooks was tried and sentenced by a three-judge panel?  Did I mention that one of the three judges told the Parole Board that if he knew then what he knows know about just how crazy Brooks was - knows now because the state after nearly three decades of hiding that information finally revealed it - he would have voted for life rather than death?  Did I mention that if he'd voted for life Brooks could not have been sentenced to die?  Did I mention that the Parole Board didn't find that a consideration in its decision?

Too crazy to let him live.  Not crazy enough to keep him alive.
Brooks Clemency a 179740