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On April 18, the U.S. Supreme Court will hear arguments on the question of whether Texas may execute Scott Louis Panetti, a man who believes the state is punishing him for preaching the Gospel. In reality, of course, the state is punishing Panetti for committing murder, but the state’s genuine reason is beside the point to Panetti, who was first diagnosed with schizophrenia in 1986 and was hospitalized more than a dozen times before he was arrested for murder in 1992. Panetti v. Quarterman, No. 06-6407. In 1995, while on trial for his life, he represented himself � wearing a cowboy costume. Instead of asking the panel of potential jurors a question, Panetti said: “The death penalty doesn’t scare me, sure but not much. Be killed, power line, when I was a kid. I’ve got my Injun beliefs as a shaman. I sent the buffalo horn to my sister. Adjustment, Jesus wrote.” His standby counsel described Mr. Panetti’s appearance at trial as “a joke … like out of a dime store novel.” Panetti’s case demonstrates that, for the severely mentally ill, the purported rationales for capital punishment � retribution and deterrence � ring hollow. Because Panetti believes that he is a victim of a government conspiracy, he certainly cannot “prepare himself for his passing,” as Justice Lewis F. Powell articulated in the 1986 case of Ford v. Wainwright, in which the court held that the Eighth Amendment bars the execution of the insane. Moreover, Panetti’s execution will not effectively deter others like him who commit acts of violence in a haze of hallucination, delusion and paranoia. A recent U.S. Department of Justice study reports that 56% of state prisoners and 45% of federal prisoners have a mental health problem. The study also reveals that mental health problems are strongly associated with violent crimes and recidivism: 61% of state prisoners who have a mental health problem also have a present or past violent offense. These numbers suggest two conclusions: Untreated mental illness can lead to violent crime, and untreated mentally ill prisoners commit crimes repeatedly. At the same time, many mentally ill individuals cannot receive the health care they urgently need. The National Alliance on Mental Illness has reviewed and graded every U.S. state and its mental health care system, and the national average is a “D.” Panetti’s home state of Texas ranks 47th in the nation for per capita mental health expenditures. As a country, we are failing our mentally ill citizens, and that is a public policy issue that warrants attention. But when the state seeks to execute a person who is so plainly insane, that is a constitutional issue. As it has done in the recent cases of juvenile execution and execution of the mentally retarded, the court should reiterate that the Constitution prohibits the execution of individuals with a severely diminished degree of moral culpability. It’s bad enough that a country as morally advanced and institutionally democratic as our own continues to employ capital punishment � a practice also employed by China, Iran and Saudi Arabia. But if the Supreme Court tolerates the execution of Panetti, a man who should never have been allowed to stand trial, let alone represent himself, the court will condone a shameful act of injustice. According to the 5th U.S. Circuit Court of Appeals’ application of Ford, Panetti does not meet the definition of insanity required to avoid execution. However, in the more than 20 years since the Ford opinion, the appellate court has yet to find a single inmate incompetent to execute. Even those who subscribe to the strictest method of constitutional interpretation should reject the execution of Panetti and those who are similarly insane, for even English common law recognized that execution of the insane “serves no purpose … because madness is its own punishment.” The court should rule for Panetti and confirm that the Eighth Amendment bars the death penalty in cases where the defendant has no rational understanding of the state’s reason for punishing him. Cara H. Drinan is a scholar in residence and visiting assistant professor at the Catholic University of America Columbus School of Law in Washington.

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