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Jennifer Toon is used to sharing intimate glimpses of difficult experiences with Texas lawmakers. A fellow at the Coalition of Texans with Disabilities, Toon frequently visits the Legislature to support bills that address intersections between mental health and criminal justice. But rising to speak about House Bill 140, which deals with capital punishment and people with mental illness, was different. “Boy, I think testifying on HB 140 was the most nervous I was out of all the bills I testified on,” she says, recounting her experience this spring. “It’s difficult—because of that stigma and that cultural understanding of mental health—to go up there and say: I am a person with a mental health problem.”
HB 140 was the third bill of its kind to make it through the House committee in four years. It would exempt an individual with documented schizophrenia, a bipolar disorder, or a schizoaffective disorder from the death penalty if they were in the midst of a crisis when they committed their offense. In short: it would prevent Texas from executing severely mentally ill defendants convicted of a capital crime. While the measure passed the state House this session, it did not receive a Senate committee hearing.
Toon, who has borderline personality disorder, was incarcerated on two separate instances for a total of 19 years as a result of offenses committed while enduring mental health crises. Since she was released in 2018, she says she feels a need to share her lived experience and to humanize dialogue within the legislative process. Despite her nerves, she rose from her chair at the Capitol in April, brushed a hand over the back of her dress shirt to ensure 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 may not be on death row and that wasn’t part of my criminal justice experience, but, you know, who’s to say it wouldn’t have been if my crises weren’t worse?”
Texas has executed 33 people since 2017—more than any other state—and has a long history of sentencing people with severe mental illnesses to death. Advocates and organizations fighting for criminal justice reform say legislative gaps make it more likely that a defendants’ mental illness will not be fully considered in a jury’s deliberations.
The American Bar Association condemns executing defendants who were mentally ill at the time of their offense. The U.S. Supreme Court has argued that defendants should not be executed if they do not understand the context behind their death, and in 2002 prohibited the execution of people who had an “intellectual disability” at the time of their offense. But the Supreme Court did not clearly define what constitutes a reasonable understanding or an intellectual disability, and states—like Texas, Indiana, and Tennessee—continue to send mentally ill defendants to death row. Bills similar to HB 140 have been introduced in Kentucky, Idaho, Indiana, Tennessee, Missouri, and South Dakota, but only Ohio has adopted a ban.
Scott Panetti began showing symptoms of mental illness in his late teens. “His family was quite concerned about him,” says Jim Marcus, a lawyer well versed in capital cases and a former colleague of one of Panetti’s attorneys. Over the course of 13 years prior to his arrest for capital murder, Panetti cycled in and out of mental health hospitals in Texas and Wisconsin. He was diagnosed with schizophrenia and a schizoaffective disorder. His symptoms included developing a military alter ego named Sergeant Ranahan. ”It was in the person of Sergeant Ranahan that, you know, he committed the crime,” Marcus says. “It’s a product of his mental illness.”
Panetti’s story is an oft-cited illustration of Texas’ repeated failure to recognize the presence of severe mental illness in criminal cases, made vivid 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 during his trial, the court declared him competent to stand trial and sentenced him to death. The state’s repeated 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 a product of a conspiracy.
As is the case with many defendants with a severe mental illness, Panetti’s lawyers later were unable to prove an insanity defense because he appeared to have moments of clarity, and the 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. Since individuals whose crime occurred as a result of a severe mental crisis often acknowledge the specifics of the crime they committed after their psychosis settles, an insanity defense rarely succeeds.
“You can intellectually understand that something is against the law and still not have the capacity to control that or to control your thinking,” Toon explains. “It’s kind of like telling a person with diabetes while they’re going into insulin shock, ‘Well, you know, control it.’ Well, yeah, it doesn’t work like that.”
HB 140 would have created a statute recognizing “diminished capacity” at the sentencing phase; a defendant would, if found guilty 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 seriously mentally ill,” Marcus said.
Without legislation, the inclusion of an individual’s mental illness in court deliberations is on a case-by-case basis. Coincidently, testimony for HB 140 occurred less than a week after the Texas Court of Criminal Appeals decided to change the sentence for Raymond Riles from death to life in prison because of Riles’ schizophrenia. Marcus is one of the attorneys for Riles, who had lingered on death row for more than 45 years. He was first convicted in 1976, two years before the Supreme Court ruled that juries should consider mitigating evidence—such as severe mental illness—in their deliberations. During his trial, Riles’ defense attorneys argued for an insanity defense, but the prosecution insisted that he was faking his symptoms. His case subsequently entered a lengthy appeal process that stranded him in death row’s solitary cells for decades.
On June 9, just days after the legislative session ended with HB 140 still stalled in the Senate, Riles was resentenced to life in prison.
If a bill like HB 140 had been law when Riles was first sentenced, Marcus says, Riles would likely have been sentenced to life without parole in the initial trial. “In theory, not every murder is a capital murder,” Marcus says. “It’s completely discretionary.” A prosecutor must determine whether they want to charge a murder as aggravated assault, murder, or capital murder—the latter opens a door to the death penalty, which is also generally more expensive. “The prosecutor has to decide it’s really worth it. It’s worth it to spend an extra million dollars on this case to give this guy a lethal injection as opposed to put him in prison 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 gathered a coalition of criminal justice, mental health, and faith-based advocates to support HB 140 and similar measures. He says these bills have been stymied in large part because “there’s a sentiment in our Legislature—a strong sentiment—that policy makers and others should back the blue.” Those registered in opposition to HB 140 this session are primarily law enforcement entities: the Smith County District Attorney’s Office, the Tarrant County Criminal District Attorney, the Dallas Police Association, the Houston Police Officers’ Union (HPOU), the Texas Municipal Police Association, and the Game Warden Peace Officers Association.
Asked for comment, the Tarrant County DA’s office stated that their opposition derives from a sentiment that capital cases already consider diminished capacity in trials, and that HB 140 would have created an undue defense. Ray Hunt, from the HPOU, stated that he respects juries and trusts the current system. Yet Marcus says juries assigned to death penalty cases—which are required to undergo additional screening—tend to be skeptical of mental illness as a mitigating factor when considering the crime.
Hansch says he is optimistic that a bill like HB 140 will pass eventually. The intention behind the death penalty, Toon notes, is to create a sense of justice to the victim and to bring the person who committed the crime to a reckoning. “People with severe mental illness,” she says, “may die never knowing what happened, what they did. So where is the justice in that? I don’t believe that’s justice.”