Not even Texas should want to execute this death row inmate

Texas was scheduled to hold a hearing today to determine whether Andre Thomas is competent to be executed. But that hearing had to be called off, because the expert retained by the state to examine him was not able to do so. That is because Thomas is too mentally ill to be brought safely from the prison to the courthouse.

He may be too mentally ill to be transported from any one place to another. In spite of that, Texas still wants to execute him.   

In a letter filed with the court, Dr. Joseph Penn, mental health director of the University of Texas Medical Branch, explained that Thomas’s mental illness is so profound that he experiences “bizarre and grandiose delusions” despite his “current antipsychotic and other psychotropic medication treatment regimen.” He has what Penn called “an extensive past psychiatric history of schizoaffective disorder.” 

That disorder, Penn adds, “is a serious mental illness that includes psychotic schizophrenia-like symptoms such as hallucinations (typically auditory) and delusions (fixed false beliefs), disorganized speech and behavior, combined with a major mood disorder and mood symptoms such as mania or depression.” 

Prison staff “have also raised concerns regarding the stressors of being moved to a new and unfamiliar location with unknown new staff and a new physical plant and sounds and other sensory experiences (due to being legally blind) that he is not familiar with could certainly exacerbate his fragile psychotic illness.” 

Dr. Penn says that “Mr. Thomas is one of the most treatment resistant/refractory, and complicated patients that I have ever evaluated, consulted on, or treated.” But Texas wants to execute him anyway.  

Executing someone in Thomas’s condition would be indecent and inhumane. 

As I noted last September, “Punishment in the U.S. is not supposed to be a random act. It is supposed to communicate to the person being punished the social condemnation of the crime they committed. … But if it does not communicate to the criminal that message of condemnation, it fails to satisfy the requirements of justice.” 

Almost 40 years ago, the U.S. Supreme Court said that the Constitution forbids the execution of people who are deemed incompetent. Writing for the majority, Justice Thurgood Marshall said in such cases, “an execution has questionable retributive value, presents no example to others, and thus has no deterrence value, and simply offends humanity.” 

As Marshall explained, “Whether the aim is to protect the condemned from fear and pain without comfort of understanding, or to protect the dignity of society itself from the barbarity of exacting mindless vengeance, the restriction finds enforcement in the Eighth Amendment.” 

In 2007, the court reaffirmed that view, stating that it would be cruel to execute someone whose “mental illness deprives him of ‘the mental capacity to understand that [he] is being executed as a punishment for a crime.’”  

This view is no mere passing fancy. In its earlier decision, the court noted that as far back as the 17th century, English common law held that putting a “mad man” to death would be “a miserable spectacle, both against law, and of extreme inhumanity and cruelty, and can be no example to others.”

Scholars have found a similar view expressed in medieval legal systems, dating them to the 12th century. At that time, madness was thought to be a punishment dispensed by God. In their view, it would be inappropriate for humans to impose additional punishment.    

But whether in the past or in our time, prohibiting the execution of people whose mental condition renders them unfit to be executed has been easier said than done. While surveys show that 60 percent of the American people oppose executing individuals who have severe mental illnesses, many of those individuals have been put to death, and few have succeeded in proving they were incompetent to be executed. 

As the Death Penalty Information Center notes, “It is difficult to define the class of mentally-ill defendants who should be exempted.” And because that standard doesn’t define itself, some death penalty supporters are suspicious of claims that someone is not competent to be executed.

In Thomas’s case, such suspicions are clearly not warranted. 

Among other things, in the weeks before Thomas killed his wife and two children, he attempted suicide three times and complained of hearing voices no one else heard. A week after the crime, he took out one eyeball with his own fingers. Later, after he was sent to death row, he gouged out his other eye and ate it.  

He did all that because he had been commanded to do so by divine voices in his head.  

It is time for Texas to give up its misbegotten quest to execute Thomas, or for its governor to commute his sentence. If it does neither and succeeds in its plan to kill him, his execution would surely be “a miserable spectacle … of extreme inhumanity and cruelty.”   

Austin Sarat is the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College.  

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