Texas Court of Criminal Appeals Judge Tom Price cites the unreasonably high risk of executing an innocent person as one of several compelling reasons that the death penalty should be abolished.


By all reasoned accounts, Scott Panetti is mentally ill. He has been most of his adult life. After honorably discharging from the Navy at age 18, the 56-year-old Panetti began to experience and battle schizophrenia. By the time he was 34, he had been hospitalized fourteen times for the disease. This extreme mental illness led to Panetti being convicted in 1992 in Fredericksburg for stabbing to death the parents of his wife and seriously wounding her in the attack as well.


During the decade prior to this horrific crime of domestic violence, he was involuntarily committed ten times to mental hospitals in Texas and Wisconsin.


Thus, there is no question that Scott Panetti is, and has been since 1978, mentally ill.


Newspapers, mental health advocates, death penalty opponents, and even his ex-wife called upon the State of Texas not to carry out his December 1, 2014 scheduled execution. But, incoming governor and current attorney general Greg Abbott is not sympathetic to those efforts. The attorney general’s office has aggressively fought to have Panetti put to death by lethal injection in the state’s death chamber at Huntsville.


Fortunately, approximately six hours before Panetti’s 6:00 p.m. scheduled execution, a three-judge panel of the Fifth Circuit Court of Appeals intervened and stayed the execution. Abbott’s office was not pleased, countering the decision by saying Panetti’s claims of incompetence have been considered and rejected by the courts numerous times in the past.


Abbott’s willingness to aggressively push for the execution of a mentally ill inmate indicates that the rate and pattern of executions in Texas will continue, if not accelerate, during his tenure as governor.


The incoming governor, we feel, should join the rest of the community of reasonable thinking people and educate himself on the issue of executing the mentally ill. On the very day of Panetti’s scheduled execution, Public Policy Polling published a survey that found that Americans by a 2-1 margin oppose the death penalty for mentally ill defendants. This view crossed race, gender, geographic, region, political affiliation and education lines. Republicans in Abbott’s own party opposed the practice of executing the mentally ill by a 59 percent margin.


One of those Republicans, who not only opposes executing the mentally ill but now opposes the use of the death penalty in any situation, is Judge Tom Price, a member of the Texas Court of Criminal Appeals. The judge made his views known in a stunning November 26, 2014 dissenting opinion in the Panetti case in which he objected to the court’s refusal to stay the execution.


Judge Price open his dissent with this remarkable revelation: “Having spent the last forty years as a judge for the State of Texas, of which the last eighteen years have been a judge on this Court, I have given a substantial amount of consideration to the propriety of the death penalty as a form of punishment for those who commit capital murder, and I now believe that it should be abolished.”


The judge characterized Panetti as suffering from “severe mental illness.” He pointed to two Supreme Court decisions, Atkins v. Virginia and Ford v. Wainwright, in which the court held that “evolving standards of decency” force the conclusion that executing the mentally retarded or insane does not “measurably advance the retribution and deterrence purposes served by the death penalty.”


Applying this broad principle to the Panetti case, Judge Price said that “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.”


Anyone who, like Judge Price, rationally considers the propriety of the death penalty would conclude that this irrevocable punishment is hopelessly flawed, with too many disparities in its application, to be either constitutional or act as a legitimate response to crime. It is a punishment directed primarily against the socially disadvantaged, racial minorities, the poor, and those with the least effective legal representation. Besides these historical issues, Judge Price offered probably the most compelling reason to abolish the death penalty:


“… society is now less convinced of the absolute accuracy of the criminal justice system… In my time on this Court, I have voted to grant numerous applications for writs of habeas corpus that have resulted in the release of dozens of people who were wrongfully convicted, and I conclude that it is wishful thinking to believe that this State will never execute an innocent person for capital murder… I am convinced that, because the criminal justice system is run by humans, it is naturally subject to human error. There is no rational basis to believe that this same type of human error will not infect capital murder trials… I conclude that the increased danger that a wrongfully convicted person will be executed for capital murder that he did not commit is an irrational risk that should not be tolerated by our criminal justice system.”


What legitimate purpose would the execution of Scott Panetti serve? Similarly, what purpose does the execution of anyone serve?