Mia Armstong Lopez writing for Slate:
André Thomas has no eyes. One he gouged out in 2004,
in jail, days after he murdered his estranged wife, Laura Boren, their son, and
her daughter. The second he pulled out and ate in 2008, while on death row in
Texas.
There’s no one who hears Thomas’ story and
doesn’t respond with a “sharp intake of breath,” Robin Maher, the executive
director of the Death Penalty Information Center, told me. Thomas’ lawyers have
called him one of the “most mentally ill prisoners in Texas history,” a
distinction that seems to unite observers too. The details of death penalty
cases are always devastating, as capital punishment is, in theory, supposed
to be reserved for the most severe of murders. But Thomas’ case feels uniquely
raw and excruciating.
In the 18 years since he was sentenced to death, the
story of what got Thomas there has been paraded out repeatedly in courts and in
the media: how he cut out the children’s hearts and a part of his wife’s lung;
how he pocketed the organs and walked home from Boren’s apartment after trying,
unsuccessfully, to take his own life; how, the day before the crime, he sought
help at a hospital after stabbing himself. A doctor found that he was paranoid,
hallucinating, and suicidal, according to court records. Thomas left the
hospital while the doctor was applying for an emergency detention order, which
was never carried out. Thomas, who is Black, was convicted by an all-white jury
that included three members who openly disapproved of interracial marriage.
(Boren was white.)
Thomas has long-standing diagnoses of schizophrenia
and schizoaffective disorder, and the delusions that characterize his illness
are religious in nature and extend across decades. Following the murders,
Thomas reportedly told police that he killed Boren and her two children, who he
believed were connected to the devil, because God told him to do so. Now Thomas
has said he believes that the state is trying to kill him because of “how
important” he is to God.
Thomas was scheduled to die in April. But these
delusions were concerning enough that a Texas court decided that his lawyers
could have the opportunity to seek to demonstrate he is “incompetent to be
executed”—that is, that he is not in a mental state to understand the reason
for his execution. Earlier this month, a judge appointed the two experts—a
psychiatrist, recommended
by Thomas’ team, and a psychologist, recommended by the
state—who will evaluate Thomas, and whose evaluations will inform the
judge’s ultimate decision, in the coming months, as to whether the state of Texas
can kill him.
After years of appeals, these sorts of competency
proceedings often represent a last-ditch effort to avert the death penalty for
prisoners with serious mental illness. With few exceptions, “success” comes
only in the form of delaying an execution date (not, for example, resentencing
to a different punishment). But competency proceedings serve as a microcosm for
how the criminal legal system perceives mental illness, weighs responsibility,
and defines justice. To understand what Thomas is up against is to
understand just how far a state may push a person in pursuit of killing them.
In the U.S., it is illegal to execute someone who is
“insane.” In its 1986 ruling to that effect, in the case Ford v. Wainwright,
the Supreme Court cited English common law from the 1600s, which judged the
execution of a “mad man” to be a “miserable spectacle” of “extre[me] inhumanity
and cruelty.” Ford, who was convicted of murder in 1974 and sentenced to
death in Florida, developed severe delusions about vast conspiracies against
him, exhibiting symptoms of paranoid schizophrenia. He later went through
Florida’s process for determining competency, which involved a 30-minute evaluation
by three psychiatrists appointed by the governor. They each issued reports that
determined, in broad strokes, that although Ford was suffering from psychosis,
he understood the penalty to be imposed on him. The Supreme Court determined
that the procedures for adjudicating Ford’s competence were inadequate,
and his case was sent back down to the lower courts. Ford died
on death row five years later, before the question of his own
competence to be executed—and thus, according to the Supreme Court case in his
name, eligibility for the death penalty—could be settled with any finality.
But what, exactly, qualifies someone as legally
“insane”? Ford didn’t provide a clear answer. Twenty years later,
in Panetti v. Quarterman,
the court inched closer to one. Panetti, who was convicted in Texas of
murdering his in-laws, also has diagnoses of schizophrenia and schizoaffective
disorder, and believes that his execution is
a conspiracy, part of his long-standing “spiritual warfare with Satan” (as
his lawyer put it last year). For execution in cases like Panetti’s to be
constitutional, the Supreme Court ruled, the prisoner needs a “rational
understanding” of the state’s reason for execution ahead of that execution
being carried out. Such an understanding is required for “retributive bang for
the buck,” as law professor Christopher Slobogin told me. But “rational
understanding,” the court itself acknowledged, is also “difficult to define”:
The justices left that work up to the states, and the patchwork of different
judges within them.
Ford and Panetti establish that going
forward with the execution of someone with serious mental illness can be
unconstitutional. But for years, advocates have hoped that the Supreme Court
would also exclude defendants with serious mental illness from ever being
sentenced to death in the first place. The Supreme Court has prohibited the death
sentence for other defendants: In 2002 it ruled that people
with developmental disabilities were ineligible for the death penalty, and in
2005, it excluded
juvenile offenders from capital punishment. But given the makeup of
the court, adding severe mental illness to that list is now highly unlikely.
In the meantime, some states have taken action:
Both Ohio and Kentucky have
prohibited the death penalty for people with severe mental illness. (The
details vary by state, but generally speaking, illnesses include schizophrenia,
schizoaffective disorder, bipolar disorder, and delusional disorder, and the
illness or associated symptoms must play a role in the crime.) Similar bills
are sitting in other state legislatures, including in Arizona and Texas,
but they are difficult to pass because of the polarization
that surrounds the death penalty generally.
In many states, the answer to “Who can ethically
receive the death penalty?” is “no one”: Twenty-three states
have outlawed capital punishment, and the governors of five others
have suspended executions. In the states that do enforce it, the death penalty
is often carried out in a highly politized, procedurally precarious manner. An
analysis by the Death Penalty Information Center found
that between 1972 and 2020, “prosecutions in just 2 percent of U.S.
counties accounted for half of all U.S. executions”; the top three counties
were in Texas. In these counties, lawyers and advocates fight for their
clients’ lives with extremely limited tools.
In theory, the line between sanity and insanity,
knowledge of the consequences of one’s choices and incomprehension of the line
between cause and effect, could be grounds for a rich and nuanced philosophical
discussion. But the death penalty itself is a blunt, extreme punishment, and
there are
familiar patterns in many of the proceedings that decide whether
someone is mentally eligible to suffer it. Prosecutors claim that the prisoner
is “malingering”—faking their illness to avoid punishment. Mental health
experts hired by the defendant’s team opine that the individual in question has
a long, documented history of mental illness, including severe delusions, often
religious or conspiratorial. Judges find that, sure, the prisoner is mentally
ill, but not mentally ill enough. Court filings often reveal a “sliding
door” moment that occurred shortly before the original crime: some interaction
the individual had with law enforcement or the health care system where things
could have gone totally differently, where they could have gotten help, where
the future crime could have, possibly, been averted—but was not.
Put together, these patterns reveal a brutal truth:
If the state wants to kill someone with mental illness, it can often find a way
to do so. A 2022
article, for example, identified nine Fifth Circuit cases since the
2007 Panetti decision in which the prisoner’s competency was in
question—in not a single one did the appeals court find the prisoner incompetent
to be executed.
Panetti himself may be an exception—for now. Since
his landmark Supreme Court case, he has remained on death row, cycling through
competency proceedings. It is typical for prisoners to be stuck on death row
for decades, caught in a snare of proceedings and appeals. On Sept. 27, after
almost a year of deliberation following a hearing, U.S. District Judge Robert
Pitman determined that Panetti was incompetent. “The Eighth Amendment,” Pitman
wrote, “demands more than a single thread of arguably rational thought in a sea
of otherwise disorganized thoughts and delusions to establish that a person
rationally understands the reasons for his execution.”
The ruling is a victory for Panetti. But it has no
sense of finality; the state can appeal Pitman’s decision. Texas could also
argue, in the future, that Panetti has regained competence, and set
another execution date—restarting the entire process.
For death row lawyers, any foothold against
execution is still better than none. In preparing for his competency
evaluation, Thomas’ legal team pursued a risky strategy in hopes of ultimately
getting their client more humane treatment. In court filings, they argued that
Thomas should stop taking all antipsychotic medications prior to being
evaluated by experts so that they could assess his rationality at a baseline,
unmedicated state. This was a desperate effort to ensure that Thomas has the
best chance of being deemed incompetent by the experts, and later the judge,
but it also illustrates a clear dilemma: Would it be safe for Thomas
to be taken off medication? Could we trust the Texas prison system to keep
someone experiencing an episode of psychosis and self-harm safe?
It’s an example of what Maher called the “perverse
choices” tied up in the death penalty. For lawyers, doctors, and others who
walk through the capital process, this is a hard truth: Attempting to avert
someone’s death can have excruciating consequences for their lives.
In the absence of more robust state laws or guidance
from the Supreme Court, we are left in a sort of purgatory where people spend
decades cycling through court procedures that broadcast the intimate
details of their mental health crises to varying levels of decisionmakers,
while their lawyers are often forced to weigh what would be best for them
medically against what’s most strategic legally. Victims’ families, too, are
brought before courts again and again, their pain stretched out over years with
little resolution. Tax dollars disappear in a black hole of expert fees and
attorney hours. Usually, the outcome is the same. In Ford, the Supreme
Court decided that executing a person who is extremely mentally ill would be a
“miserable spectacle,” saying we owe them a process. But we have, decades
later, not managed to move beyond spectacle.
Thomas will soon be evaluated by the two court-appointed
experts tasked with determining whether he understands that “he is to be
executed and that the execution is imminent,” and the reason for the execution.
Some argue that these standards, established by Texas
state law, are more simplistic than the standard laid out by the Supreme
Court in Panetti. But Thomas’ fate will ultimately depend on the court’s
understanding of what he understands. It is a shaky series of questions on
which to stake someone’s life.
In setting the conditions for Thomas’ evaluation,
the judge ignored the request for him to be unmedicated. As it stands now, he
will stay on his treatment.
According to court records submitted by his attorney
in July, when asked what would happen if the state did execute him, Thomas
said, “They can’t kill me, that’s the thing. They can’t.” He reportedly posited
he would end up with brain damage but wouldn’t die. “I’d be locked,” he
continued, “inside a room inside my mind.”
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