They have a test. It's a sort of Byzantine catch-22 whereby a condemned but insane murderer is, um, "competent" to be executed if he can "factually understand the reason" (as the prosecution put it) why the state wants to kill him. Now, certainly the sanest people in America would have a great deal of trouble "factually understanding" the government's reasons, either in particular or in general, for judicial killing, but that is a quibble that plays on the meaning of the words "factual" and "understanding" in a way detrimental to the dignity of the state and is unlikely to impress men in black robes.
More to the point, in my lifetime I have known a number of insane individuals. These were people who had recurring psychotic episodes, and in several cases, had become more or less permanently mad, despite the best medications medical science has to offer.
One was a very brilliant woman who had almost gotten a PhD, before schizophrenia barred the way. Even in the grip of her psychosis she could have very easily understood the State's reasons for the death penalty. She grasped complex, difficult, convoluted and even dodgy, reasoning without difficulty. She was a cultural studies type, a postmodernist--though that was not the origin of her psychosis. She was delusional in many ways--for example, she was troubled by guilt for having had regular sex with dogs earlier in her life. There is no doubt that she was crazy, but she would have been completely executable, if the State had come to feel that imaginary sex with dogs was a capital crime, because she could have followed the State's reasoning.
Likewise I knew another unfortunate person, who heard command voices, usually spoken by the Archangel Michael, that told him to kill himself. He tried twice, and succeeded on the second occasion. During the decade between the onset of his illness and his death he held down a job as a computer programmer, and never went more than a few days without hearing the voices during that time. But he could understand a chain of reasoning, simple or complex, good or bad, without difficulty.
My point is that I very much doubt if _any_ genuine psychotic would be exempted by the current legal test. So we have what some would call a perfect legal rule, that protects the mad from execution, but whose protection no madman will ever qualify for.
"In Texas," said Greg Wiercioch, a lawyer with the Texas Defender Service who has consulted with Panetti's defense, "if you cast a shadow on a sunny day, you're competent to be executed."
Liberal lawyers in Texas, who more or less by definition, lose on appeal, at least get the satisfaction of delivering such folksy lines before the bench, though, alas, it only slightly impedes the steamroller of the law as it runs over justice.
Robert Blecker, a law professor at the New York Law School and a cautious supporter of the death penalty, said Panetti's execution could serve the goal of retribution.
"He knows what he did," Blecker said. "He knows what the state is about to do to him, and why. For the retributivist, the past counts. It counts for us, and for us to be retributively satisfied, it must also count for him."
I wonder what it feels like, to be "retributively satisfied?"
As an aside, I have never run across the term "retributivist." I guess I don't get out enough. It's the perfect word, though, for those who believe in, enable, and grease the skids of, our present criminal justice system. I'd prefer something like the term "accomplice," but I can settle for Professor Blecker's word instead.