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A Plea from the Right

Conservative stalwarts urge Texas to spare Scott Panetti.


A federal court has halted the execution of mentally ill Texas prisoner Scott Panetti, which had been scheduled for this evening. A three-judge panel of the Fifth Circuit Court of Appeals in New Orleans wrote that it had issued the stay "to allow us to fully consider the late arriving and complex legal questions at issue in this matter." Panetti's lawyers have argued that he is too mentally ill to be executed and is entitled to a hearing over his competency.

Though the state’s attorneys have responded that his case has been adequately considered by the courts and “his underlying claim of mental illness has been exaggerated,” the Attorney General’s Office, told the Associated Press this afternoon there was "no legal reasoning to appeal" the last-minute ruling, and that the execution would not take place this evening.

For more on the Panetti case, read our earlier story.

Panetti’s case represents the third time this year that a Texas execution has been stayed over mental health issues. In May, inmates Robert Campbell and Edgardo Cubas had their executions halted so that courts could further explore whether the death sentences should be carried out in light of their mental illnesses, according to the Death Penalty Information Center.

At the heart of Panetti’s now-famous death penalty case is the question of whether he is competent to be executed. His case helped determine how courts decide whether a prisoner is too mentally ill to face the death penalty, but, as our reporting on his case demonstrates, the standards in this area are still very murky.

A growing number of advocates, including many conservatives, have pleaded with Texas to save Panetti from execution (see below), arguing that to execute him would cross a moral line. They have been joined by Republican judges on the Texas Court of Criminal Appeals, one of whom used the Panetti case as a means to announce his opposition to the death penalty.

Over the past few days, reports on Panetti’s case have looked back on the history of executions of Texas prisoners with signs of mental illness. Some commentators have speculated that conservative support might sway Texas Gov. Rick Perry, whose actions will be noticed nationally if he runs for president, to intervene by issuing a stay of execution. This did not come to pass. Perry leaves office on Jan. 20, and his successor, Greg Abbott, is the attorney general overseeing the state’s case against Panetti.

For more on the case, read Meg Kissinger’s deep reporting from 1999 on Panetti’s life or the voluminous documents collected by his lawyers at the Texas Defender Service.

Update 6:45 p.m. 12.01.2014

Despite calls from a growing chorus of supporters including numerous conservative leaders, the Texas Board of Pardons and Paroles unanimously ruled this afternoon to decline clemency for Scott Panetti, a schizophrenic prisoner on Death Row for murdering his in-laws.

The board — composed of members appointed by Gov. Rick Perry — voted 7-0 to reject a petition filed by Panetti’s attorneys to commute Panetti’s death sentence to life without parole.

Perry cannot grant a commutation without the board’s recommendation. He can, however, issue a 30-day stay of execution, and Panetti’s attorneys have sent a letter asking him to exercise this authority. The letter focuses on District Attorney Bruce Curry. Panetti’s lawyers say he set an execution date in October without informing them, and that this deprived them of an opportunity to seek a new hearing over Panetti’s competency to be executed. Curry has not responded to request for comment. Panetti’s attorneys also have petitions pending at the Fifth Circuit and U.S. Supreme Court, requesting a new competency evaluation for their client, whose mental health they say has deteriorated since he was last evaluated seven years ago.

“Without a 30-day reprieve so that we may investigate and litigate his competence to be executed,” wrote his attorneys, Kathryn Kase and Gregory Wiercioch, “Mr. Panetti will go to the execution chamber convinced that he is being put to death for preaching the Gospel, not for the murder of his wife’s parents.”

Original Story

As an execution approaches, attorneys for the condemned always submit a flurry of legal filings, calls for clemency, and appeals for public support. In Texas, which employs the death penalty more than any other state, these appeals get little public attention beyond the most committed of anti-death penalty activists.

The case of Scott Panetti, a mentally ill inmate who is scheduled to be executed on Wednesday, is proving to be an exception. Efforts to stop his execution are finding support from an unusual corner: More than 20 conservative leaders have signed a letter to Texas Gov. Rick Perry asking him to commute Panetti’s sentence to life in prison.

The move to save Panetti, disclosed by the participants today, raises the question of whether a recent conservative campaign for criminal justice reform may move into hot-button issues like the death penalty, traditionally an area where widespread public support and deep divisions within the right have kept many conservative leaders on the sidelines.

“Among conservatives there is much debate about the effectiveness and the morality of the death penalty,” the letter to Perry said. “Some crimes are so terrible, and committed with such clear malice, that some believe that execution seems the only appropriate and proportional response. But Scott Panetti’s is no such case.”

Panetti has a 30-year history of documented mental illness. Although prosecutors and doctors for the state have convinced multiple judges that Panetti may be faking his symptoms to avoid execution, these conservatives are not convinced. “This was no act cooked up to get him off of murder charges,” the letter reads.

Several of the names on the letter are associated with the Right on Crime movement, a group of conservatives who have pushed state legislatures and the federal government to reduce incarceration and reform sentencing laws. So far these mainstream conservatives, including Pat Nolan of the American Conservative Union Foundation, and Richard Viguerie of, have focused on criminal justice reform in part as a means of saving taxpayer money and what Newt Gingrich has called “lost human potential.”

Underlying the movement, however, is also an element of evangelical Christian compassion, which has been mobilized in the past in support of stopping an execution. In 1998, Karla Faye Tucker — who committed a particularly brutal stabbing of two people with a pickax before undergoing a religious conversion while on death row — became a cause among evangelical figures. Pat Robertson championed her case on The 700 Club.

As with the Tucker execution, Panetti’s conservative supporters are using the language of morality not to oppose the death penalty as a whole, but to take issue with specific executions — like those of the mentally ill — about which they have moral qualms. “As conservatives, we must be on guard that such an extraordinary government sanction not be used against a person who is mentally incapable of rational thought,” the letter reads. “It would be immoral for the government to take this man’s life.”

Nolan, a longtime prison reformer now based at the American Conservative Union Foundation, said the signatories included both death penalty abolitionists like himself and death penalty supporters who found the Panetti case beyond the pale. While the letter was narrowly drawn, he said, it may open the way to a broader debate that conservatives have avoided – at least in public.

“For those of us that are troubled by the death penalty, it’s a chance to go to those who defend the death penalty and say, ‘Can you justify executing this man?’” Nolan said. “We think the next step is to say, ‘How can we support a system that allows an outcome like this?’”

Even before today’s letter, a handful of conservatives like Ron Paul and the evangelical lawyer Jay Sekulow came out in support of clemency for Panetti. This letter, however, suggests a spread to the mainstream of the conservative community.

That spread was further bolstered last week when Texas Court of Criminal Appeals Judge Tom Price wrote in a dissent to the court’s decision to let the Panetti execution proceed that he no longer supported the death penalty at all. “Based on my specialized knowledge of this process, I now conclude that the death penalty as a form of punishment should be abolished,” he wrote, “because the execution of individuals does not appear to measurably advance the retribution and deterrence purposes served by the death penalty.”

In practical terms, the efforts to save Panetti’s life face steep odds. Texas Gov. Rick Perry can issue a stay to keep Panetti from being executed on Wednesday, but he cannot commute the sentence unless he receives a favorable recommendation from the state’s Board of Pardons and Paroles. It is extremely rare for the board -- whose members are all Perry appointees – to recommend clemency.