It's for Your Own Good. Really. Now Die

It appears that everyone agrees, Steven Staley is a paranoid schizophrenic.  In lay terms that means he's a fucking lunatic.  The question is what to do with him.

Brandi Grissom in the Texas Tribune gives some background.

Staley fatally shot Fort Worth Steak and Ale restaurant manager Robert Read in the course of a 1989 robbery that came at the end of a four-state crime spree with two accomplices. He was sentenced to death in 1991.

Staley has been diagnosed with paranoid schizophrenia. Jail staffers have found Staley in his cell covered with his feces and urine. He has bruised himself by banging his head against walls, and he has lain catatonic for so long that he wore a bald spot on the back of his head. 

"He believes there is a big conspiracy orchestrated by the state and that everybody, everybody, is part of the conspiracy," his attorney, John Stickels, said in May 2012. "He believes that he was wrongfully convicted because of the conspiracy."

See, here's the thing. Staley's in prison in Texas. On death row. They want to kill him, but even by the peculiar standards of sanity that apply to such matters in the Lone Star State (see the case of Andre Thomas), Staley's too crazy to kill. Except when he's medicated. Which at the moment he is.
A bit more background.

In February 2006, Staley's execution was stayed after the court found him mentally incompetent. In 2006, he told psychologist Mark Cunningham that the jury found him guilty because the judge was trying to steal his one-of-a-kind faded red 1958 Pontiac pickup, which he said had a $1.5 million street value, and because Oprah Winfrey paid off the jury.

After that stay, Tarrant County state district Judge Wayne Salvant ordered Staley to be forcibly medicated.

Wednesday, the Court of Criminal Appeals ruled.

In this case, we are asked to decide whether state or federal law disallows the execution of a mentally ill inmate who was previously found incompetent to be executed and later became competent only after he was involuntarily medicated pursuant to a court order. 

That's the opening of the majority opinion which concluded that the court that ordered the forced medication had no statutory authority to do so, and that because Staley was incompetent to be killed when he wasn't medicated, he should be returned to that state and therefore not executed.  It's a terrific decision, but there's little in the way of broader principle in it.  It's not constitutional; it just interprets a couple of Texas statutes.  There were, of course, dissenting opinions. 

But this isn't a post about the opinions.  As I said, they're just about the statute.  Ho hum.  No, what's striking here is the prosecution.

Jim Gibson, an assistant criminal district attorney in Tarrant County, said the decision was disappointing and that the prosecutor's office is considering what steps to take next in the case. Without medication, he said, Staley will be left trapped with the demons in his head.

"We’ve always thought it was unfortunate that because of his actions he’s consigning himself into a descent into madness," Gibson said.

Ah, see, it wasn't to kill him. They wanted to medicate him so he'd be happier.  For his own good. 

Tarrant County prosecutors argued that Staley needed to be medicated not solely for purposes of competency for execution but also to protect him from his own frightening delusions and psychosis.

That thing about making it OK to kill him?  You know, like how chemotherapy causes hair to fall out.  Same thing.  A side effect.  You get the chemo, you'd rather not go bald, but hey, it's worth it.  Same here.  Staley gets his shit back together.  He'd rather not be killed, but hey, it's worth it.

And really, it makes the prosecutors happy.  So really, it's a win all around.

Chutzpah, they say, is killing your parents and pleading for leniency because you're an orphan.

Or maybe it's being a prosecutor in Tarrant County, Texas.

Really, They Should Have Wanted To Know

Here was the plan.

On June 6, a team of corrections officers were going to strap Abdul Awkal down to a table, stick needles in his arms, and pump him full of pentobarbital.  If all went smoothly (far from a sure thing, this was Ohio, poster-child state for incompetently carried out state killings), he'd be dead by 10:15 or so.  Maybe a couple of minutes later.

It was all a go.  The Supreme Court of Ohio set the date.  The Parole Board said to kill him.  The Governor signed off on it.

But there was this messy fact.  Awkal was nuts.  Seriously bonkers.  He didn't understand what was going on.  He was not, that is, legally competent to be executed.  Maybe.

They'd been arguing about this for a while, and Awkal's lawyers kept losing.  Until, with two days to go, the trial judge decided he should hold a hearing.

Awkal Probable Cause 

The problem is that a hearing takes time. Schedules have to be matched, witnesses called, rulings made.  And then there are appeals.  But Awkal was to be killed on the 6th.  Judge Friedman wanted a hearing.  But

HEARING TO BE SET SUBJECT TO AVAILABILITY OF EXPERT WITNESSES.

Really?  When?  After the killing?  Ordering a hearing is great, but once the Supreme Court sets an execution date, it's the only Ohio court that can stop it. So they went to the Supreme Court to get a stay. 

And the next morning, June 5, one day to go, the court told them to pound sand.

Awkal stay denied

It wasn't unanimous, but it didn't have to be.  No stay.  No continuance to find out if the Constitution allowed his execution.  Not our problem, said 5 of them.  Off with his head.

Which really might have ended it.  Except that Governor Kasich, whose record in these things is proving respectable, granted a reprieve.

Awkal warrant of Reprieve

Two weeks, he said.  Which would be Wednesday.

And Judge Friedman held his hearing.  The one to determine whether killing Awkal would violate the Constitution.  The one the Supremes were trying to stop by refusing a stay.  And the judge determined that, hey, you know what?

He's not competent and can't be executed.  Though that might change down the road.

Awkal Competency ruling

Except, you know, Friedman can't actually stop the killing.  Because, as I said, once the Supreme Court sets an execution date, it's the only Ohio court that can stop it. 

Which they did Monday afternoon.  With about 36 hours to go.

Awkal stay

And there it stays.  Unless and until his competency is restored.  Which it might be if they give him the right drugs. Or unless the court of appeals or the Supremes decide that Friedman got it wrong.  Which, since they didn't want to give him a chance to get it at all . . . .

Sigh.

Anyone mention that this is all pretty fucked up?

Still, no execution on Wednesday here in the Buckeye State.

Exhale.

Sure He's Crazy. What's Your Point?

There's lots of argument around the margins, but nobody much disputes the basic point.  Abdul Awkal is crazy as a bedbug. At least, he is when he's not on his meds.

Was he legally insane at the moment he killed his wife and his brother-in-law? Is he technically competent to be executed?* The answer to those questions, at least the answers accepted by judges and the Parole Board and, it would appear, Governor Kasich, are "No" and "Yes."  Not insane when he killed, competent to be killed.

So off with his head.

The Parole Board, as you know, voted two weeks ago that he should be killed. It wasn't unanimous (though at 8-1 it wasn't exactly a nail-biter, either), nor did it have to be.  It's not actually binding, either.  The Governor has to wait for the Board before he can grant clemency, but he has absolute authority to do what he wants regardless of what they say.**

Oh, sure, they said, he suffers from Schizoaffective Disorder, Depressive Type, and has hallucinations and delusions.  (For just one instance, at least some of the time he believes that he'll be executed at the direction of the CIA).

But the docs say that he knows (at least some of the time) that he'll be killed because he killed two people. Which is all that matters, really.

It's what makes him competent.

Something clearly different from sane.

Back in 2009, talking about the then-impending (and since carried out) execution of John Allen Muhammad by the people of the Commonwealth of Virginia, I wrote this.

There you have it. If you're crazy enough, we can't kill you. Unless you happen to be crazy in exactly the right way. And oh, yeah, unless it's politically expedient. 

Abdul Awkal is scheduled to be murdered next Wednesday, June 6, at 10 in the morning.

Yesterday the Governor signed off on it.

There's still time for him to change his mind.

Or for a court to intervene.

I wouldn't hold my breath if I were you.

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*There's an actual standard for that, set out by Justice Powell in his concurring opinion in Ford v. Wainwright.

I would hold that the Eighth Amendment forbids the execution only of those who are unaware of the punishment they are about to suffer and why they are to suffer it.

**Governor Ted clearly felt free to do that, commuting death sentences they said should be carried out and killing those they said should get clemency.

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

Crazy Enough?

It's been settled at least since the Court decided Ford v. Wainwright in 1986. The Constitution does not permit the execution of those

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

Next up, the Beltway Sniper, John Allen Muhammad.

Some background here. Nobody much disputes that the sufficiently insane should not be executed. That was the practice in England and in the colonies. As the Chief Justice acknowledged in his dissent in Ford, English common law did not permit the execution of the insane and every state prohibits it. The questions in Ford were whether Florida's procedures provided sufficient mechanism for determining whether Ford was insane and, equally as important, just how crazy do you have to be before the Constitution thinks you're too nuts to fry.

Because the Supreme Court is what it is and was what it was, it's not surprising that while everyone agreed the sufficiently crazy shouldn't be executed, only five members of the court (Marshall, Brennan, Stevens, Blackmun, and Powell) thought the Constitution, specifically the Eighth Amendment, had any relevance to the subject. The other four (Rehnquist, Scalia, O'Connor, and White) saw it as a matter entirely of state law.

The underlying idea is that we don't kill crazy people because such killings have little value as retribution, have no deterrent effect, and are just offensive to human values. There's no point. But where do we step in. Even the five who thought the Constitution was relevant couldn't agree on who, exactly, was so crazy that the Constitution prohibited the execution. The line I offered above, that the prohibition on execution the insane reaches only to those who don't know that they're being killed and don't know, at least in the most general of ways, why, is from the concurring opinion of Justice Powell. It's become the rule.

John Muhammad, scheduled to be killed by the Commonwealth of Virginia on November 10, says he's too crazy to kill. On Thursday his lawyers asked the Governor to commute his sentence. Here, lifted from the firm website (and with thanks to Terry Lenamon for finding it), is their argument.

Execution is not justified in this case because of John Muhammad's severe mental illness as illustrated by brain damage, brain dysfuction, neurological deficits as well as his psychotic and delusional behavior. John Muhammad's mental illness was certainly exacerbated by the Gulf War Syndrome that he suffered from after his deployment and military service as a Sergeant in the first Iraq war.

Assuming they're right about what all is wrong with Muhammad, and there's no reason I can see to doubt that they are, they've still got a mighty tough row to hoe.

First, there's Governor Kaine who, while he says he opposes the death penalty, has also proved himself more than willing to execute. (He's signed off on five executions in the last seventeen months.) And even before Muhammad's request to commute the death sentence, Kaine said, on his monthly radio show,

I would know of no reason why clemency would be granted in this case.

So there's the problem that Kaine's apparently already made up his mind. He can't run for Governor again (Virginia limits Governors to a single term), but he's young and sees a political future for himself. It's hard to see any political capital in his stepping in on this one.

And there's the question of standards. Muhammad's lawyers say that on November 3 they're going to ask the Supreme Court to grant relief. But all they have is that Muhammad suffers from serious mental illness. Unless he's got the right problems, unless he doesn't understand he's going to be killed for doing something bad, he doesn't qualify for relief under Ford. And even if he does, getting five Justices to say, "This is the case we want to weigh in on" is likely to be a nearly impossible task.

There you have it. If you're crazy enough, we can't kill you. Unless you happen to be crazy in exactly the right way. And oh, yeah, unless it's politically expedient.

I don't see much hope for Muhammad.