Cecil Clayton lost 20 percent of his brain’s frontal lobe as a thirty-something saw mill worker after a piece of wood from a shattered log lodged in his skull and changed his life forever. Four decades later, the state of Missouri executed Clayton last week [March 17] for killing a police officer even as psychologists and judges clashed sharply over whether the brain-damaged death row inmate understood what was about to happen to him.
By the narrowest of margins, first the Missouri Supreme Court and then the U.S. Supreme Court rejected Clayton’s effort to get a full judicial examination of whether he was “competent to be executed.” Under Supreme Court precedent, the Eighth Amendment’s prohibition against cruel and unusual punishment bars the execution of “one whose mental illness prevents him from comprehending the reasons for the penalty or its implications.” Clayton went to his death without a full contemporaneous opportunity to show that he did not.
Admittedly, many people find the issue of mental competency for execution hard to grasp or accept. Chief Justice Warren E. Burger and the future chief justice William H. Rehnquist dissented when the Supreme Court established the constitutional rule against executing the insane in its 1986 decision, Ford v. Wainwright.
In the main opinion, however, Justice Thurgood Marshall found that 18th century common law prohibited executing someone who was insane, the Eighth Amendment constitutionalized the rule, and no U.S. state allowed the practice. And in a controlling concurrence, Justice Lewis F. Powell Jr. said due process required at the least an opportunity for a condemned inmate to present psychiatric evidence to counter any finding of sanity by a state-selected clinician.
Two decades later, the court followed up by ruling in Panetti v. Quarterman (2007) that Texas violated that requirement when it found an inmate competent to be executed without holding a hearing or allowing the inmate an opportunity to present evidence. Justice Anthony M. Kennedy wrote the majority opinion, joined by the court’s four liberals; four conservative justices dissented.
The history of Clayton’s case is procedurally complex. Clayton’s relatives testified at his trial that his personality changed dramatically after the 1972 saw mill accident. Two brothers recounted for the jury that Clayton’s marriage broke up, he began drinking to excess, and he became anti-social, impatient, and subject to violent outbursts.
Clayton was tried for shooting a police officer who tracked him to his girlfriend’s home after Clayton had gotten into an argument with her at a convenience store. At trial, his lawyer argued that Clayton was incapable because of his brain injury to form the intent needed to sustain a first-degree murder count. The jury rejected the argument and found him guilty. At the sentencing hearing, Clayton contended his mental illness was a mitigating factor, but the jury again rejected the argument and sentenced him to death.
In a post-conviction challenge, Clayton first raised the separate argument of his mental competency to assist in his defense and asked for a new trial because his court-appointed counsel had failed to raise the issue. But the Missouri Supreme Court ruled that a lawyer had no duty to investigate the issue if a client appeared able to understand the proceedings.
Clayton renewed his claim in a federal habeas corpus petition. The federal district court ordered a new psychiatric evaluation and heard conflicting evidence from the state’s psychiatrist and Clayton’s, but it ruled in 2006 that Clayton had been competent at trial and was competent based on the present evaluations.
Clayton tried again in January after the state scheduled his execution for March 17. He supported his habeas corpus petition before the Missouri Supreme Court, filed on March 10, with a new affidavit from his psychiatrist stating that his mental condition had deteriorated in prison because of the lack of any treatment and that he did not understand the impending execution.
Clayton asked for a full hearing, but the four justices in the majority would not hear of it. Evidently impatient with the delay and the last-minute filing, the court evaluated Clayton’s mental condition solely on the basis of the written record. “There is no evidence that he is not capable of understanding matters in extenuation, arguments for executive clemency or reasons why the sentence should not be carried out.’” Justice Paul Wilson wrote in the March 14 decision, quoting criteria from the Missouri statute.
Writing for three dissenters, Justice Laura Denvir Stith was put off instead by what she called Missouri’s “sudden rush of executions.” Clayton’s was to be the state’s 14th since November 2013. And she found the majority’s impatience unwarranted as well. The issue, she wrote, is “is whether he is sufficiently competent today to be executed.” Without a full hearing, she said the majority had “put the cart before the horse.”
The U.S. Supreme Court refused Clayton’s final effort to stay the execution pending a full hearing in an order issued late on the evening of March 17. Kennedy joined with the four conservatives in an action that undermined his own earlier opinion requiring a hearing on competency before an execution. The four liberal justices dissented but without opinion.
“For centuries, no jurisdiction has countenanced the execution of the insane,” Justice Marshall wrote back in 1986. In Clayton’s case, however, two courts of last resort did countenance a clear risk that a brain-damaged inmate was executed with only a diminished understanding of what was happening.