Monday, October 26, 2009

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.

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