Sunday, April 22, 2001

Standard of sanity at issue

Inmates with mental illnesses executed

By Spencer Hunt
Enquirer Columbus Bureau

        COLUMBUS — During his double murder trial, Pernell Ford said God would bring his two victims back to life if their coffins were brought into the courtroom.

        Condemned killer Calvin E. Swann often talked to animals and sometimes spoke only in numbers before he was sent to prison.

        Both were mentally ill. Alabama executed Mr. Ford in June 2000. Virginia Gov. James Gilmore stopped Mr. Swann's 1999 execution with five hours to spare.

   Here are the states with the highest number of executions. Ohio has executed one inmate since 1963. Below are totals for other states since the death penalty was reinstated.
   1. Texas: 245
   2. Virginia: 82
   3. Florida: 51
   4. Missouri: 48
   5. Oklahoma: 40
   6. Louisiana: 26
   7. South Carolina: 25
   8. Alabama: 23
   9. Arkansas: 23
   10. Georgia: 23
   Source: Death Penalty Information Center
    Here is a statistical look at Ohio's death row.
    Inmates: 201
    Men: 201
    Women: 0
    Average age: 39
    Average time on death row: Nine years
    African American: 50 percent
    Caucasian: 46 percent
    Hispanic 1.5 percent
    Other: 1.5 percent
   Source: Ohio Attorney General
   Of the states that allow death penalties, 13 forbid executions of mentally retarded inmates. The United States government also forbids execution of mentally retarded federal prisoners: Arkansas, Colorado, Georgia, Indiana, Kansas, Kentucky, Maryland, Nebraska, New Mexico, New York, South Dakota, Tennessee, Washington
    Source: Death Penalty Information Center
        The cases show the extremes the legal system faces with death row inmates who suffer from mental defects. As Ohio courts re-examine the case of condemned killer Jay D. Scott, they must answer a crucial question that's part of a growing national death penalty debate.

        How do you determine whether someone is sane enough to be executed?

        Attorneys who posed that question on Mr. Scott's behalf persuaded the Ohio Supreme Court to stop his execution less than an hour before it was to take place Tuesday night. On Friday, the 8th Ohio District Court of Appeals found he was competent to be executed, despite his diagnosed schizophrenia.

        Now the Ohio Supreme Court can set an immediate execution date or wait and weigh arguments.

        Chris Frey, a Cuyahoga County prosecutor, is confident Mr. Scott will be executed. If the courts need more time to reach the same conclusion, that's fine.

        “We want to make certain we follow the procedure the (Ohio) legislature established in the law,” Mr. Frey said. “We don't think there is any evidence whatsoever that suggests Jay D. Scott is incompetent.”

        No one disagrees Mr. Scott is schizophrenic. The state's legal standard says a mentally ill prisoner can be executed if he understands he will be put to death for a crime he committed.

        “That standard is so low almost anyone who's breathing can meet it,” said Timothy F. Sweeney, one of Mr. Scott's attorneys.

        Nearly every state that permits executions has adopted a competency standard similar to Ohio's. All stem from a 1986 U.S. Supreme Court decision, Ford v. Wainwright, that declared it's illegal to execute someone who is mentally incompetent.

        In part of that decision, Justice Lewis F. Powell Jr. wrote that a competent person must be aware of the punishment he or she is to suffer and the reason for it.

        While it seems simple enough, that standard has created plenty of controversy in states that permit executions.

        Missouri twice almost executed double murderer Roosevelt Pollard before a trial court found him incompetent and resentenced him to life imprisonment in 1999. Once asked what his own execution would mean, Mr. Pollard responded it would help him “chill out” for a while.

        In Arizona, prison doctors refused on ethical grounds to treat a mentally ill death row inmate, Claude Maturana, because doing so would make Mr. Maturana fit for execution. One prison psychiatrist told The Arizona Republic newspaper that treatment would be like “fattening the calf for slaughter.”

        Mr. Gilmore's 11th-hour decision to grant Mr. Swann clemency marked the first time the Virginia governor had intervened in a death penalty case. He had allowed 21 other executions.

        Other states have executed inmates who've had similar diagnoses.

        The case of Pernell Ford still troubles his former attorney, Lajuana Davis. Allowed to defend himself at his 1982 double murder trial, Mr. Ford put on a bizarre display that included coming to court dressed in a bedsheet.

        First institutionalized at age 6, Mr. Ford once told a judge he could instantly transport himself to any place on Earth and as a result had more than 400,000 wives.

        “The state said he had "unusual thoughts,'” Ms. Davis said of her client, who was executed June 2. “But he really was a person who was seriously impaired.”

        The way the Ohio Supreme Court resolves the question of Mr. Scott's sanity will likely set a precedent this state's courts will follow for other death row inmates.

        Ohio Attorney General Betty Montgomery insists Mr. Scott is sane enough to be executed.

        “You can see, even from his behavior throughout his ordeal Tuesday night, that he has responded as any normal person would respond,” Ms. Montgomery said.

        The attorney general was referring to Mr. Scott's reaction when he was told the execution was off. He took a deep breath, sighed and said “thank you,” according to John Pyle, one of Mr Scott's attorneys.

        Gov. Bob Taft also still supports the death penalty for Mr. Scott.

        “There was no evidence in the record that he was that impaired, and that's how we viewed it,” Mr. Taft said, referring to his decision not to grant clemency.

        Mr. Scott's attorneys, however, say his mental state wavers between stages in which he is lucid and alert to periods where he has no connection to reality.

        “In part, it depends on the day you talk to him,” Mr. Pyle said.

        While his mental state is in doubt, Mr. Scott's attorneys point to another case the U.S. Supreme Court is considering that they say could spare Mr. Scott's life.

        The nation's highest court has agreed to hear the case of Ernest McCarver, a mentally retarded inmate on North Carolina's death row. His appeal asks the court to ban executions of mentally retarded inmates as cruel and unusual punishment.

        “The fact that the U.S. Supreme Court is willing to consider such an issue should give our Ohio courts pause,” said Mr. Sweeney, Mr. Scott's other attorney.

        State officials argue that there is no link between Mr. McCarver and Mr. Scott.

        “Mr. Scott's attorneys are absolutely reaching,” Mr. Frey said.

        Across the country, mental-health advocates also oppose the death penalty for seriously mentally ill inmates. Ron Honberg, legal director for the Washington-based National Alliance for the Mentally Ill, said it boils down to a question of appropriate punishment.

        “The death penalty is the ultimate penalty and only supposed to be used in the most egregious circumstances,” Mr. Honberg said.

        “If someone in the throes of a mental illness commits a heinous act, is he deserving of the death penalty?” he said. “It's an important question and a very tricky answer.”


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