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Jennifer Toon is used to sharing intimate glimpses of difficult experiences with Texas lawmakers. A member of the Coalition of Texans with Disabilities, Toon frequently visits the Legislature to support bills that address the intersections between mental health and criminal justice. But talking about Bill 140, which deals with capital punishment and people with mental illness, was different. “Boy, I think testifying on HB 140 has been the most nervous of all the bills I have testified about,” she says, recounting her experience this spring. “It’s hard – because of that stigma and that cultural understanding of mental health – to go out there and say, I’m a person with a mental health problem. “
HB 140 was the the third bill of his kind go through the House committee in four years. It would exempt from the death penalty a person with proven schizophrenia, bipolar disorder or schizoaffective disorder if he was in the midst of a crisis when he committed his offense. In short: it would prevent Texas from executing critically ill defendants convicted of a capital felony. Although the measure was passed by State House this session, it was not the subject of a Senate committee hearing.
Toon, who suffers from borderline personality disorder, has been incarcerated twice for a total of 19 years for offenses committed while suffering mental health crises. Since her release in 2018, she says she feels the need to share her lived experience and humanize the dialogue within the legislative process. Despite her nerves, she got up from her chair at the Capitol in April, ran a hand over the back of her dress shirt to make sure the gray fabric was still tucked into her brown leather belt and blue jeans. , and approached the stand.
“I felt really personal about it,” she says of her testimony. “I know what it’s like to be out of my mind. … I might not be on death row and it wasn’t part of my criminal justice experience, but, you know, who can say it wouldn’t have been if my seizures weren’t hadn’t been worse? “
Texas executed 33 people since 2017 – more than any other state – and has a long the story of conviction people with serious mental illnesses to death. Advocates and organizations fighting for criminal justice reform say legislative loopholes make it more likely that a defendant’s mental illness will not be fully reflected in jury deliberations.
The American Bar Association condemned execute defendants who were mentally ill at the time of their offense. The Supreme Court of the United States has argued that the accused should not be executed if they do not understand the context of their death, and in 2002 not allowed the execution people who had an “intellectual disability” at the time of their offense. But the Supreme Court does not have clearly define what constitutes reasonable understanding or intellectual disability, and states, such as Texas, Indiana and Tennessee, continue to send mentally disturbed defendants to death row. Bills similar to HB 140 were introduced in Kentucky, Idaho, Indiana, Tennessee, Missouri, and South Dakota, but only Ohio adopted a to prohibit.
Scott panetti started showing symptoms of mental illness in his late teens. “His family were very worried about him,” said Jim Marcus, a lawyer well versed in capital affairs and a former colleague of one of Panetti’s lawyers. In the 13 years preceding his arrest for capital murder, Panetti ride a bike inside and outside mental hospitals in Texas and Wisconsin. She was diagnosed with schizophrenia and schizoaffective disorder. His symptoms included the development of a military alter ego named Sergeant Ranahan. “It was in Sergeant Ranahan that, you know, he committed the crime,” Marcus said. “It’s a product of his mental illness.”
The story of Panetti is a often cited drawing from Texas’ say again failure recognize the presence of serious mental illness in criminal cases, brought to life by the Kerr County Court’s decision to allow Panetti to represent himself at trial, and his subsequent arrival in a cowboy hat. Despite Panetti’s diagnosis and attempts to subpoena the Pope and John F. Kennedy at his trial, the court declared him competent to stand trial and sentenced him to death. The states say again attempts to execute him have led to multiple stays and, to this day, he remains on death row despite his belief that his execution is the product of a conspiracy.
As is the case with many defendants with serious mental illness, Panetti’s lawyers were unable to subsequently prove a defense of madness because he appeared to have moments of clarity and prosecutors argued that he was faking his illness. An insanity defense, which questions whether the defendant understands the difference between right and wrong, relies on a defendant’s intellectual capacity rather than their mental state. Because individuals whose crime arose as a result of a severe mental crisis often recognize the details of the crime they committed after their psychosis is resolved, an insanity defense rarely succeeds.
“You can intellectually understand that something is against the law and not have the ability to control it or control the way you think,” explains Toon. “It’s kind of like saying to a person with diabetes while going through insulin shock, ‘Well, you know, control it.’ Well, yeah, it doesn’t work that way.
HB 140 would have created a law recognizing “diminished capacity” during the sentencing phase; an accused would, if convicted of a capital offense, be sentenced to life without parole. “What HB 140 recognizes is that there are the Scott Panettis of the world who are gravely mentally ill,” Marcus said.
Without legislation, the inclusion of an individual’s mental illness in court proceedings is done on a case-by-case basis. Coincidentally, the testimony for HB 140 took place less than a week after the Texas Court of Criminal Appeals ruled to change Raymond Riles ‘death sentence to life imprisonment for Riles’ schizophrenia. Marcus is one of Riles’ attorneys, who had lingered on death row for more than 45 years. He was first convicted in 1976, two years in the Supreme Court ruled that juries should consider mitigating evidence– like serious mental illness – in their deliberations. During his trial, defense attorneys for Riles argued for an insanity defense, but the prosecution insisted he was faking his symptoms. His case then entered a lengthy appeal process that locked him in solitary confinement on death row for decades.
On June 9, just days after the legislative session ended with HB 140 still blocked in the Senate, Riles was sentenced to life in prison.
If a bill like HB 140 had been law when Riles was first convicted, Marcus says, Riles would likely have been sentenced to life without parole in the original trial. “In theory, not all murders are murder punishable by death,” says Marcus. “It’s completely discretionary.” A prosecutor must determine whether he wants to charge murder as aggravated assault, murder or capital murder – the latter opens the door to the death penalty, which is also generally more expensive. “The prosecutor has to decide that it’s really worth it. It’s worth spending an extra million dollars in this case to give this guy a lethal injection rather than putting him in jail for the rest of his natural life.
But Texas has historically been “tough on crime” and changing the narrative around punishment, Toon says, is easier said than done. Greg Hansch, executive director of the National Alliance for Mental Illness (NAMI) Texas, has assembled a coalition of criminal justice, mental health and faith advocates to support HB 140 and similar measures. He says these bills have been blocked largely because “there is a feeling in our legislature – a strong feeling – that policymakers and others should support blue.” Those registered in opposition to HB 140 this session are primarily law enforcement entities: Smith County District Attorney’s Office, Tarrant County District Attorney, Dallas Police Association, Houston Police Officers’ Union (HPOU), the Texas Municipal Police Association, and the Game Warden Peace Officers Association.
Asked for comment, the Tarrant County DA office said their opposition stems from a feeling that capital cases already consider reduced capacity in trials, and that HB 140 has allegedly created an undue defense. Ray Hunt, of the HPOU, said he respects juries and trusts the current system. Still, Marcus says juries are assigned to death penalty cases–who need additional screening–tender to be skeptical of mental illness as a mitigating factor when considering the crime.
Hansch is optimistic that a bill like HB 140 will eventually pass. The intention behind the death penalty, Toon notes, is to create a sense of justice for the victim and to hold the person who committed the crime to account. “People with severe mental illness,” she says, “can die without ever knowing what happened, what they did. So where is the justice in this? I don’t believe this is fairness.
This program is made possible by donations from Roxanne Elder in memory of her mother, journalist and journalism professor Virginia Stephenson Elder, Vincent LoVoi in honor of Jim Marston and Annette LoVoi, and other generous donors.