With less than eight hours to go before Scott Panetti was to be executed, the 5th U.S. Circuit Court of Appeals granted a stay of execution. The question everyone is asking now is why did the super conservative court rule to halt the state’s action? Perhaps it’s because of the dissent that Judge Tom Price wrote last week, when the case was before the super conservative Texas Court of Criminal Appeals, which denied a stay. Price, who has been a high-court judge for eighteen years and will be leaving the CCA in January, wrote the following about Panetti:
It is inconceivable to me how the execution of a severely mentally ill person such as applicant would measurably advance the retribution and deterrence purposes purportedly served by the death penalty. And, yet, unless and until a federal court or the Supreme Court grants his application, applicant, who few dispute is severely mentally ill, will be executed, whereas a similarly situated mentally challenged person, such as one who is mentally retarded or one who is insane, will have his sentence commuted to life in prison. This artificial line divides life and death. I can imagine no rational reason for carving a line between the prohibition on the execution of a mentally retarded person or an insane person while permitting the execution of a severely mentally ill person. At a minimum, therefore, I would hold that the execution of a severely mentally ill person violates the Eighth Amendment of the federal Constitution.
Price goes on to say it’s time to abolish the death penalty entirely. While the Fifth Circuit almost certainly ignored those words, it’s entirely conceivable that the court heeded his commonsensical language about the absurdity of green-lighting the execution of the severely mentally ill while forbidding the execution of the mentally retarded.
Now maybe the US Supreme Court—which still has Panetti’s last appeal in front of it—will parse the issue even further.