No Reprieve: Texas Still Executing Mentally Ill

Earlier this year the state of Texas executed an FBI agent, a state district judge, the president of Kenya, and a war hero who commanded a nuclear-powered submarine during the Civil War. More aptly put, Texas executed a seriously mental ill inmate named Monty Allen Delk who, at varying times, believed he was all of these things.

Delk was convicted and sentenced to death for the murder of Gene "Bubba" Allen of Anderson County in East Texas. Although the state of Texas maintained that Delk was "malingering," i.e., pretending to be mentally ill to stave off execution, the prison system's former chief mental health officer stated that Delk suffered from a severe mental illness, one that had become progressive in nature since it was first noticed in 1989 three years after Delk was tried and convicted.

Every execution poses its unique set of problems and Texas' death penalty system currently has more than its share of them. The state this month alone has embarked on an almost unprecedented killing spree -- seven executions were scheduled in May, and another eight executions already have been scheduled for the summer months. These cases include the planned execution of three juvenile offenders, several mentally retarded and mentally ill inmates, and several inmates whose lawyers performed abysmally either during their trials, during their appeals, or both.

A close examination of the Delk case reveals yet another significant -- but not altogether unusual -- flaw in the capital punishment system. The Supreme Court has ruled that executing severely mentally ill inmates violates the Constitution. The court also has held that a death row inmate must be mentally competent in order to drop his appeals. But the court has not directly addressed the issue of whether a death row inmate must be mentally competent in order to pursue his state and federal habeas appeals. In fact, the Texas Court of Criminal Appeals, and the Fifth Circuit Court of Appeals, which has jurisdiction over death penalty cases in Texas, have ruled that prisoner competence during state and federal habeas proceedings is not constitutionally required.

The question is fundamental to due process. Habeas is the first, last and often only avenue of appeal for death row inmates whose sentences have been upheld on direct appeal by the Texas Court of Criminal Appeals. But because Delk was unable to assist his attorney through his habeas appeals, he could not answer simple questions that were key to his case -- questions such as, did he commit the crime? Did he think his trial was fair? Did he think his trial lawyers adequately represented him? Were there circumstances about the crime or about his personal history that mitigated against a death sentence?

The fact that Delk's execution was allowed to proceed represents a three-pronged failure on the part of Texas' death penalty system. The first failure must be attributed to the courts, which failed to order a psychiatric evaluation of Delk, despite repeated requests by Delk's very able attorney, John Wright of Huntsville.

The second failure lies with Texas' executive clemency system. Because of his mental illness, Delk's sentence should have been commuted to life in prison. Yet the Board of Pardons and Paroles as well as Texas Governor Rick Perry did nothing. (It is important to note that four days before Delk's execution, the Georgia Parole Board, acting in a similar case, commuted death row inmate Alexander Williams sentence to life in prison after pleas from human rights activists.)

The third failure rests with the Texas media. While Williams' case attracted comprehensive media coverage in Georgia and beyond, newspapers in Texas largely failed to investigate Delk's case. Government -- including the criminal justice system -- works best under the glare of public scrutiny. Absent such scrutiny, abuses occur.

Ultimately, the Supreme Court will have to directly confront the issue of whether a death-sentenced prisoner need be mentally competent during his habeas appeals. Until that happens, the risk of other severely mentally ill inmates falling through the cracks of our judiciary is unacceptably high.

Hawkins is executive director of the National Coalition to Abolish the Death Penalty, an organization with more than 100 local, state, national, and international affiliates.

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