By now anyone interested in reading Panetti v. Quarterman has read it. The opinion is rather straightforward: Texas failed to afford Panetti a meaningful opportunity to test whether he was competent enough to be executed.
Here is what I saw:
- This was not an error correction case. This was also not a case that set new standards or even redefining the governing case law (Ford v. Wainwright). Panetti, like Smith, Brewer, Abdul-Kabir, Miller-El (etc) before it, was yet another message to the Fifth Circuit & the Texas courts about a perceived over-production of executions in Texas. Panetti readily could have been a case about error correction or even redefining the standards the Court laid out in Ford v. Wainwright. The Court instead spilled much ink focusing on what it held to be insufficient process afforded to Panetti by the state trial court & the subsequent rubber stamping of that flawed process by the Texas Court of Criminal Appeals and then the Fifth Circuit. In that regard, the issue at bar in Panetti (competency to be executed) was less important as the language of the opinion made clear Justice Kennedy had problems with the failure to afford the procedural protections afforded by precedent.
- The fact that Kennedy wrote the opinion and Thomas wrote the lead dissent means that at the conference the majority was likely 5-4 in favor of reversal.
- The Court issued opinions in nine capital cases this Term. The Court ruled in favor of death four times (Belmontes, Landrigan, Lawrence, Brown) and in favor of the defendant five times (Abdul-Kabir, Brewer, Smith, Weaver, Panetti). Only one case was not decided by how Justice Kennedy aligned himself (Weaver). Justice Kennedy�s vote, to repeat the obvious, governs the Court�s capital jurisprudence. He doesn�t seem to be in favor of dismantling it, but rather slowly modifying it.
- The outlines of capital jurisprudence for the foreseeable future is set out by the decisions this term. Justice Kennedy is likely to be the swing vote — at least until Justice Scalia alienates one (or both) of the newer Justices or one of the liberals retires. Looking at SCOTUSBlog’s stat pack justices Robert, Kennedy & Alito — other than in capital cases — vote together more often than any other three judge combination so it would not be out of the queston as those justices remain on the Court they will move to the left like Justices Kennedy, O’Connor, Stevens, & Souter did before them.
In cases granting relief to the condemned four of the five (Abdul-Kabir, Brewer, Smith, Panetti) come from the Fifth Circuit or Texas which historically would affirm almost any capital case that came before them, including those where counsel was asleep, drunk or stoned at trial.
- My earlier comments on Uttecht v. Brown were again confirmed today by the Panetti Court — Justice Kennedy appears to want to move capital jurisprudence towards greater protection for capital defendants, but not to the extent of stopping all (or even more than a few) executions. In some ways the message in Panetti & the three other Texas capital cases this term sent a message that is the mirror opposite of the message Kennedy & the conservatives have purportedly been giving the Ninth Circuit.
When read in conjunction with the Court’s other opinions this term – the Court continues reigning in what Justice Kennedy perceives as the excesses of capital jurisprudence that he sees as out of the mainstream, whether that is granting too much or too little relief in capital cases. Put another way, Justice Kennedy appears to be proposing a “Goldilocks standard” for capital jurisprudence– not too hot (Texas & the Fifth Circuit) not too cold (a certain unnamed west coast circuit) but somewhere in between. What the next Term holds remains to be seen, but some already foreseeing another scolding of the Texas Court of Criminal Appeals early next Term in Medellin v. Texas.
DPIC notes another aspect of Panetti
Looking beyond this decision, the American Bar Association has passed a resolution calling for an end to executing those with serious mental illness. An almost identical resolution has been endorsed by the American Psychiatric Association, the American Psychological Association, and the National Alliance on Mental Illness, which urged the Justices to take Panetti�s case.
I would be remiss in not noting that other than the Court’s opinion in Panetti, it has not been a good week for capital defendants in the lower courts, more on that Friday.