¹ Dobbs v. Jackson Women’s Health Organization, 142 S. Ct. 2228 (2022) (finding that there is no constitutional right to abortion).

² Roe v. Wade, 410 U.S. 113 (1973) (finding, in contrast, that there is a constitutional right to abortion).

³ See the report by the Brennan Center for Justice in Larissa Jiminez, 60 Days After Dobbs: State Legal Developments on Abortion (Aug. 24, 2022).

⁴ Id.; see, e.g., Planned Parenthood South Atlantic v. State, 882 S.E. 2d 777, 785 (S.C. 2023) (finding that South Carolina anti-abortion statute violates South Carolina’s state constitution).

⁵ See, e.g., Gerald N. Rosenberg, The Hollow Hope: Can Courts Bring About Social Change? 420-29 (2d ed. 2008) (arguing that Supreme Court decisions often provide reformers symbolic victories and the illusion of substantive change); Christopher Smith, Law and Symbolism, 1997 Det. C.L. Mich. St. U. L. Rev. 935, 946 (“The series of Supreme Court decisions barring discrimination by race and gender in peremptory challenges to potential jurors created the illusion that constitutional law provided protection against discrimination in the jury selection process”).

⁶ See, e.g., Ronald H. Rosenberg, The Non-Impact of the United States Supreme Court Regulatory Takings Cases on the State Courts: Does the Supreme Court Really Matter?, 6 Fordham Env’t L. J. 523, 555-56 (1995) (discussing developments after Supreme Court decisions in Nollan v. California Coastal Commission, 483 U.S. 825 (1987), Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992), and Dolan v. City of Tigard, 512 U.S. 374 (1994)).

⁷ Jackson v. Indiana, 406 U.S. 715 (1972).

⁸ Id. at 738.

⁹ See Michael L. Perlin, “Wisdom Is Thrown into Jail”: Using Therapeutic Jurisprudence to Remediate the Criminalization of Persons with Mental Illness, 17 Mich. St. U. J. Med. & L. 343, 359 (2013) (discussing research around the poor implementation of Jackson as presented in Bruce Winick, Restructuring Competency to Stand Trial, 32 UCLA L. Rev. 921, 941 (1985)); see also Ellen C. Wertlieb, Individuals with Disabilities in the Criminal Justice System: A Review of the Literature, 18 Crim. Just. & Behav. 332, 336 (1991) (discussing similar deficiencies in the implementation of Jackson); Grant Morris & J. Reid Meloy, Out of Mind? Out of Sight: The Uncivil Commitment of Permanently Incompetent Criminal Defendants, 27 U.C. Davis L. Rev. 1, 8-9, 33-78 (1993) (updating Winick’s research comprehensively throughout Part II of the article and commenting in both the introduction and the conclusion that, a decade after Winick’s article, Jackson remained “ignored [and] circumvented”); Michael L. Perlin, “For the Misdemeanor Outlaw”: The Impact of the ADA on the Institutionalization of Criminal Defendants with Mental Disabilities, 52 Alabama L. Rev. 193, 204 (2000) (discussing both Winick’s research, and its thoroughly comprehensive update by Morris & Meloy); Andrew R. Kaufman, Bruce B. Way & Enrico Suardi, Forty Years After Jackson v. Indiana: States’ Compliance with “Reasonable Period of Time” Ruling, 40 J. Am. Acad. Psychiatry & L. 261, 261-64 (2012) (updating the same body of literature around Jackson’s poor implementation); Aaron J. Kivisto, Megan L. Porter Staats & Robert Connell, Development and Validation of a Typology of Criminal Defendants Admitted for Inpatient Competency Restoration: A Latent Class Analysis, 44 Law & Hum. Behav. 450 (2021) (discussing the empirical research update presented by the 2012 Kaufman, Way & Suardi article).

¹⁰ Lauren Kois et al., Combined Evaluations of Competency to Stand Trial and Mental State at the Time of the Offense: An Overlooked Methodological Consideration?, 41 Law & Hum. Beahv. 217, 218 (2017).

¹¹ See generally Panetti v. Quarterman, 551 U.S. 930 (2007).

¹² Id. at 956; see also id. at 960 (noting defendant’s submission “that he suffers from severe, documented mental illness that [was] the source of gross delusions preventing him from comprehending the meaning and purpose of the punishment to which he has been sentenced.

¹³ See generally Ford v. Wainright, 477 U.S. 399 (1986).

¹⁴ Ford was a fractured opinion that left multiple questions as to its scope and to the definition of “insane” in these situations. See generally, 3 Michael L. Perlin & Heather Ellis Cucolo, Mental Disability Law: Civil And Criminal (2017) (spring 2023 update), §§ 17-4.1.3 to 17-4.1.5, §§ 17-69 to 17-88.

¹⁵ Peggy M. Tobolowsky, To Panetti and Beyond—Defining and Identifying Capital Offenders Who Are Too “Insane” to Be Executed, 34 Am. J. Crim. L. 369, 429 (2007).

¹⁶ See, e.g., Michael L. Perlin & Talia Roitberg Harmon, “Insanity is Smashing up Against My Soul”: The Fifth Circuit and Competency to be Executed Cases after Panetti v. Quarterman, 60 U. Louisville L. Rev. 557, 558-60 (2022) (detailing the non-implementation of Panetti in the Fifth Circuit); Michael L. Perlin, Talia Roitberg Harmon & Haleigh Kubiniec, “The World of Illusion Is at My Door”: Why Panetti v. Quarterman is a Legal Mirage, 59 Crim. L. Bull. 273, 274-75 (2023) (detailing the non-implementation of Panetti in all other federal circuits).

¹⁷ See Perlin & Harmon, supra note 16, at 558 (concluding that, in the Fifth Circuit, Panetti “has been paid little more than lip service, and that persons with profound mental disabilities are still subject to execution (and in some cases, have been executed)”); see also Perlin, Harmon & Kubiniec, supra note 16, at 276 (noting that, in the other federal circuits, there was only one case (later vacated) in which Panetti had been successfully relied upon, namely Madison v. Commissioner, Alabama Dep’t of Corrections, 851 F.3d 1173 (11th Cir. 2017), vacated, 879 F.3d 1298 (11th Cir. 2018)).

¹⁸ See Tobolowsky, supra note 15, at 407-17.

¹⁹ See Michael L. Perlin, “Good and Bad, I Defined These Terms, Quite Clear No Doubt Somehow”: Neuroimaging and Competency to be Executed after Panetti, 28 Behav. Sci. & L. 671, 687-8 (2010) (predicting (incorrectly) that neuroimaging would become prevalent in Panetti cases). A recent search <“Panetti v. Quarterman” & neuroimaging /s panetti > revealed no such cases (search done, September 22, 2022).

²⁰ Our national federal survey revealed that only two defendants were successful in Panetti challenges in other levels of the court system: one in the Ohio state court system (see State v. Awkal, Memorandum of Opinion and Order, Case No. CR-276801 (Jun. 15, 2012) (unreported; copy at ECF No. 1574-1, Page ID, 69496-508), as cited in In re Ohio Execution Protocol Litigation, 2018 WL 3207419 (S.D. Ohio 2018), and one at the district court level in California, Stanley v. Davis, No. C-07-4727-EMC, 2015 WL 435077 (N.D. Cal. Feb. 2, 2015), discussing prior proceedings and ordering, at *6, “supplemental mental health examination of [defendant], focused on the issue of whether [defendant] is permanently incompetent to be executed.”

²¹ See infra Part III A(B)2(a).

²² By “threshold success” we mean that the defendant met the “substantial threshold burden of establishing incompetency to be executed” that would require a hearing to determine competency under Panetti. See, e.g., Druery v. State, 412 S.W.3d 523, 527 (Tex. Ct. Crim. App. 2013).

²³ In some cases, more than one reason was listed.

²⁴ See, e.g., Perlin & Harmon, supra note 16, at 566-69; Perlin, Harmon & Kubiniec, supra note 16, at 280-82.

²⁵ See Perlin & Harmon, supra note 16, at 579-97; see also Perlin, Harmon & Kubiniec, supra note 16.

²⁶ “The total number of states without the death penalty is twenty-three. Additionally, three states have gubernatorial moratoria on the death penalty, see State by State, Death Penalty Info. Ctr., http://deathpenaltyinfo.org/state-and-federal-info/state-by-state (accessed on January 4, 2023).

²⁷ See infra Part IV for a discussion of the meaning and significance of this school of legal thought.

²⁸ Oliver Trager, Keys To The Rain: The Definitive Bob Dylan Encyclopedia 22-23 (2004).

²⁹ See Ballad in Plain D, bobdylan.com [https://perma.cc/Y972-AUQF] (last accessed Apr 22, 2023).

³⁰ Panetti v. Quarterman, 551 U.S. 930, 936 (2007).

³¹ Id. at 936-37.

³² Id. at 936-37. At his trial, Panetti, who wore a purple cowboy outfit, applied for more than 200 subpoenas, requesting testimony from, amongothers, John F. Kennedy, the Pope, and Jesus Christ. Brief for Petitioner at 11-16, Panetti v. Quarterman, 551 U.S. 930 (2007) (No. 06-6407), as quoted in Katie Arnold, The Challenge of “Rationally Understanding” a Schizophrenic’s Delusions: An Analysis of Scott Panetti’s Subsequent Habeas Proceedings, 50 Tulsa L. Rev. 243, 251 (2014).

³³ Panetti, 551 U.S. at 937.

³⁴ Id.

³⁵ Panetti v. Dretke, 448 F. 3d 815 (5th Cir. 2006), aff’g 401 F. Supp. 2d 702, 711 (W.D. Tex. 2004).

³⁶ Panetti, 551 U.S. at 962.

³⁷ The Court reviewed the testimony that demonstrated the defendant’s “fixed delusion” system. Id. at 954-55. It also approved of expert testimony that had pointed out that “an unmedicated individual suffering from schizophrenia can ‘at times’ hold an ordinary conversation and that ‘it depends [whether the discussion concerns the individual’s] fixed delusional system’). Id. at 955.

³⁸ Id. at 956–57. In an additional holding in Panetti, the Court found error in the trial court’s failure to provide the defendant an adequate opportunity to submit expert evidence in response to the report filed by the court-appointed experts, id. at 949, thus depriving him of his “constitutionally adequate opportunity to be heard,” Id. at 952.

³⁹ Perlin & Harmon, supra note 16. This piece, the first of the trilogy being completed here, was also the third in a trilogy of articles by two of the co-authors here (MLP & TRH) with different third authors on how the Fifth Circuit applied Supreme Court precedent in cases involving the application of the adequacy-of-counsel doctrine of Strickland v. Washington, 466 U.S. 668 (1984), see Michael L. Perlin, Talia Roitberg Harmon & Sarah Chatt, “‘A World of Steel-Eyed Death”: An Empirical Evaluation of the Failure of the Strickland Standard to Ensure Adequate Counsel to Defendants with Mental Disabilities Facing the Death Penalty, 53 U. Mich. J.L. Reform 261 (2020), and the decision barring execution of persons with intellectual disabilities, in Atkins v. Virginia, 536 U.S. 304 (2002), see Michael L. Perlin, Talia Roitberg Harmon & Sarah Wetzel, Man Is Opposed to Fair Play”: An Empirical Analysis of How the Fifth Circuit Has Failed to Take Seriously Atkins v. Virginia, 11 Wake Forest J.L.& Pol’y 451 (2021).

⁴⁰ See Perlin, Harmon & Kubiniec, supra note 16.

⁴¹ Important background: prior to Panetti, we know that that the Fifth Circuit had not found a single death row defendant (of an n of at least 360) to be incompetent to be executed in the two decades since the court had decided Ford v. Wainwright, 477 U.S. 399 (1986). See Michael L. Perlin, “Merchants and Thieves, Hungry for Power”: Prosecutorial Misconduct and Passive Judicial Complicity in Death Penalty Trials of Defendants with Mental Disabilities, 73 Wash. & Lee L. Rev. 1501, 1534-35 (2016) (quoting Petition for Writ of Certiorari, Panetti, No. 06-6407, 2006 WL 3880284, at *26). As noted above in note 14, Ford was its earlier incompetency-to-be-executed case, where it concluded, for the first time, that the Eighth Amendment did prohibit the imposition of the death penalty on an “insane” prisoner. Ford, 477 U.S. at 405-10.

⁴² Panetti v. Stephens, 863 F.3d 366 (5th Cir. 2017). Litigation in Panetti continues. See Ex parte Panetti, No. WR-37,145-05, 2021 WL 2560138 (Tex. Ct. Crim. App. 2021), denying his then-most recent application for a writ of habeas corpus.

⁴³ Perlin & Harmon, supra note 16, at 579-80. See Billiot v. Epps, 2010 WL 1490298 (S.D. Miss. 2010) (Panetti claim granted), and Aldridge v. Thaler, No. H-05-608 WL 1050335 (S.D. Tex. 2010) (same).

⁴⁴ See Madison v. Commissioner, Alabama Dep’t of Corrections, 851 F.3d 1173 (11^th Cir. 2017), vacated, 879 F.3d 1298 (11^th Cir. 2018), discussed in this context in Perlin, Harmon & Kubiniec, supra note 16, at 276. Defendants were also successful in two other cases discussed here in which there was federal system litigation: Stanley v. Davis, 2015 WL 435077 (N.D. Cal. 2015), and State v. Awkal, Memorandum of Opinion and Order, Case No. CR-276801 (Jun. 15, 2012) (unreported; copy at ECF No. 1574-1, Page ID, 69496-508), as cited and discussed in In re Ohio Execution Protocol Litigation, 2018 WL 3207419 (S.D. Ohio 2018).

⁴⁵ Perlin, Harmon & Kubiniec supra note 16, at 277, referring to research reported on in Perlin & Harmon, supra note 16.

⁴⁶ Perlin, Harmon & Kubiniec, supra note 16, at 302.

⁴⁷ E.g., Nooner v. State, 438 S.W.3d 233, 237 (Ark. 2014); Roberts v. State, 592 S.W.3d 675, 685 (Ark. 2020); Taylor v. State, 262 S.W.3d 231,254 (Mo. 2008); State v. Neyland, No. WD-12-014 2013 WL 3776602, *24 (Ohio Ct. App. 2013). The ripeness doctrine teaches that there is a constitutional limitation on the power of the judiciary; it prevents courts from declaring the meaning of the law in a vacuum and from constructing generalized legal rules unless the resolution of an actual dispute requires it. See, e.g., New York Civil Liberties Union v. Grandeau, 528 F.3d 122, 130-31 (2d Cir. 2008).

⁴⁸ 536 U.S. 304 (2002). See, e.g., Williams v. Cahill ex. rel. County of Pima, 303 P.3d 532, 534 (Ariz. Ct. App 2013) (Eckerstrom, J., dissenting); Lard v. State, 595 S.W.3d 355, 359 (Ark. 2020); King v. State, 23 So.3d 1067, 1071 (Miss. 2009); Murphy v. State, 54 P.3d 556, 1293 (Okla. Crim. App. 2002); Commonwealth v. Sanchez, 36 A.3d 24, 57 (Pa. 2011).

⁴⁹ These are the twenty-five non-death penalty cases: (1) People v. Martin, 272 Cal.Rptr.3d 363 (Cal. Ct. App. 2020); (2) People v. Strike, 258 Cal.Rptr.3d 482 (Cal. Ct. App. 2020); (3) People v. Barba, No. B185940, 2012 WL 172449 (Cal. Ct. App. 2012); (4) People v. Barba, 155 Cal.Rptr.3d 707 (Cal. Ct. App. 2013); (5) People v. Cormier, No. B2213193, 2011 WL 3525408 (Cal. Ct. App. 2011); (6) People v. Rios, 101 Cal.Rptr.3d 713 (Cal. Ct. App. 2009); (7) People v. Zayas, No. E048865, 2010 WL 3530426 (Cal. Ct. App. 2010); (8) People v. Hernandez, No. F057090, 2010 WL 3506888 (Cal. Ct. App. 2010); (9) People v. Miller, 114 Cal.Rptr.3d 629 (Cal. Ct. App. 2010); (10) People v. Colon, No. F056334, 2010 WL 612245 (Cal. Ct. App. 2010); (11) Ford v. U.S., 931 A.2d 1045 (D.C. Ct. App. 2007); (12) Book v. Doublestar Dongfend Tyre Co., Ltd., 860 N.W.2d 576 (Iowa 2015); (13) University of Michigan Regents v. Titans Ins. Co., 794 N.W.2d 570 (Mich. 2010); (14) Willbanks v. Department of Corrections, 522 S.W.3d 238 (Mo. 2017); (15) State v. Gaw, 285 S.W.3d 318 (Mo. 2009); (16) State v. Hughes, 272 S.W.3d 246 (Mo. 2008); (17) State v. Ruiz, 179 A.3d 333 (N.H. 2018); (18) Willemsen v. Invacare Corp., 282 P.3d 867 (Or. 2012); (19) Adams v. State, No. 03-14-00180-CR, 2016 WL 110627 (Tex. Ct. App. 2016); (20) Crenshaw v. State, No. 02-08-00304-CR, 2011 WL 3211258 (Tex. Ct. App. 2011); (21) Crenshaw v. State, 424 S.W.3d 753 (Tex. Ct. App. 2014); (22) Crosby v. Commonwealth, No. 0847-08-2,2009 WL 3819217 (Va. Ct. App. 2009); (23) Ferguson v. Commonwealth, 663 S.E.2d 505 (Va. Ct. App. 2008); (24) State v. AU Optronics Corp., 328 P.3d 919 (Wash. Ct. App. 2008); (25) State v. Venegas, 228 P.3d 813 (Wash. 2010).

⁵⁰ Most of these dealt with the principle that, when there is no majority opinion, the narrower holding controls. See e.g., Book v. Doublestar Dongfend Tyre Co., Ltd. 860 N.W.2d 576, 592 (Iowa 2015), citing Panetti, 551 U.S. at 949; Willemsen v. Invacare Corp., 282 P.3d 867, 873 (Or. 2012) (same); State v. AU Optronics Corp, 328 P.3d 919, 927 n. 19 (Wash. App. 2014) (same). See also University of Michigan Regents v. Titans Ins. Co., 794 N.W.2d 570, 571 (Mich. 2010) (on the difference between incompetency and insanity in a case dealing with the tolling of statutes of limitations in tort actions). Other cases dealt with issues such as the law of “successor petitions” and a defendant’s right to expert testimony. See infra notes 80-81.

⁵¹ At the time of this writing (autumn-early winter 2022), Shinn has only been cited in two law review articles: one anticipatorily (noting the grant of certiorari, and adding that the then-upcoming decision “will reveal much about the current Court’s attitude towards habeas proceduralism,” Cal Barnett-Mayotte, Beyond Strickland Prejudice: Weaver, Batson, and Procedural Default, 170 U. Pa. L. Rev. 1049, 1086 n. 225 (2022), and one subsequent to the decision, ominously noting the court’s language, that “[T]he attorney is the petitioner’s agent when acting, or failing to act, In furtherance of the litigation, and the petitioner must bear the risk of attorney error.” Shinn v. Ramirez, 142 S.Ct. 1718, 1733 (2022), see Marco Maldonado et al., You Have the Right to Remain Powerless: Deprivation of Agency by Law Enforcement and the Legal and Carceral Systems, 95 St. John’s L. Rev. 999, 1009 n. 27 (2021).

⁵² Shinn, 142 S. Ct. at 1718.

⁵³ Id. at 1727. This opinion has been excoriated in a recent bar journal article. See Cary Sandman, Supreme Court Turns a Blind Eye to Wrongful Convictions, Guts 6th Amendment Rights to Effective Counsel, 94 N.Y. St. B.J.17, 17 (Oct. 2022).

⁵⁴ Michael L. Perlin & Heather Ellis Cucolo, “Take the Motherless Children off the Street”: Fetal Alcohol Syndrome and the Criminal Justice System, 77 U. Miami L. Rev. 561, 586 (2023).

⁵⁵ Perlin, Harmon & Kubiniec, supra note 16, at 308.

⁵⁶ See e.g., Stephen B. Bright, Will the Death Penalty Remain Alive in the Twenty-First Century?: International Norms, Discrimination, Arbitrariness, and the Risk of Executing the Innocent, 2001 Wis. L. Rev.1, 18 (2001).

⁵⁷ Stephen B. Bright, Death by Lottery—Procedural Bar of Constitutional Claims in Capital Cases Due to Inadequate Representation of Indigent Defendants, 92 W. Va. L. Rev. 679, 695 (1990)). One of the co-authors (Perlin) discusses this at greater length in Mental Disability and the Death Penalty: The Shame of the States 124-27 (2013).

⁵⁸ Perlin & Harmon, supra note 16.

⁵⁹ Perlin, Harmon & Kubiniec, supra note 16.

⁶⁰ Thus, as we discuss subsequently, five defendants were found incompetent by state courts (Steven Kenneth Staley, George Banks, Marcus Druery, Michael Dean Overstreet and Abdul Akwal), and only two in published opinions (Staley v. State, 420 S.W.3d 785 (Mo. 2013); Commonwealth v. Banks, 29 A.3d 1129 (Pa. 2011)), and four in federal courts (see Madison v. Commissioner Alabama Department of Corrections, 851 F.3d 1173 (11^th Cir. 2017), vacated, 879 F.3d 1298 (11^th Cir. 2018), in light of the Supreme Court’s decision in Dunn v. Madison, 138 S.Ct. 9 (2017); Stanley v. Davis, 2015 WL 435077 (N.D. Cal. 2015); Aldridge v. Thaler, 2010 WL 1050335 (S.D. Tex. 2010); Billiot v. Epps, 2010 WL 1490298 (S.D. Miss. 2010). See Overstreet v. State, 877 N.E.2d 144 (Ind. 2007), further proceedings at Overstreet v. State, 993 N.E.2d 179 (Ind. 2013); Druery v. State, 412 S.W.3d 523 (Tex. Crim. App. 2013); Staley v. State, 420 S.W.3d 785 (Tex. Crim. App. 2013); State v. Awkal, Memorandum of Opinion and Order, Case No. CR-276801 (Jun. 15, 2012) (unreported; copy at ECF No. 1574-1, PageID 69496-508), as discussed in In re Ohio Execution Protocol Litigation, 2018 WL 3207419 (S.D. Ohio 2018)); Commonwealth V. Banks, 943 A.2d 230 (Pa. 2007), further proceedings at Commonwealth v. Banks, 29 A.3d 1129 (Pa. 2011).

⁶¹ See infra text accompanying notes 85-89.

⁶² See Perlin, Harmon & Kubiniec, supra note 16, at 292.

⁶³ This number was obtained by adding the 2748 cases we found in the Fifth Circuit (see Perlin & Harmon, supra note 16, at 578) the 2554 cases we found in the other circuits (see Perlin, Harmon & Kubiniec supra note 16, at 282) and the fifty-seven we found in state courts (see infra text accompanying notes 65-89).

⁶⁴ Panetti v. Quarterman, 551 U.S. 930 (U.S. 2007).

⁶⁵ Westlaw provided a list of eighty-two case opinions that cited Panetti; Nexis Uni provided eighty-six. One of the four case opinions not cited by Westlaw was a duplicate of another in that cohort (Powers v. State, 2022 Miss. LEXIS 179 (Miss. 2022)). As a result, three case opinions by Nexis Uni were added to the results provided by Westlaw: Powers v. State, 2022 Miss. LEXIS 179 (Miss. 2022); Tex. v. Robertson, 2013 Tex. Dist. LEXIS 21143 (Tex. 2013); and Colo. v. Holmes, 2013 Colo. Dist. LEXIS 1625 (Colo. 2013).

⁶⁶ State v. Awkal, 2012 WL 3776355 (Ohio Ct. App. 2012) (defendant’s finding of incompetency by a state court citing Panetti was only recorded in the federal case opinion of In re Ohio Execution Protocol Litigation, 2018 WL 3207419 (S.D. Ohio 2018)).

⁶⁷ See Perlin, Harmon & Kubiniec, supra note 16, at 275 n.9.

⁶⁸ “Valid” in this instance refers to case opinions where the court considered Panetti on the merits. It does not suggest that the court found the claim to be substantively valid.

⁶⁹ State v. Awkal, 2012 WL 3776355 (Ohio Ct. App. 2012) (defendant was found incompetent to be executed by the Cuyahoga County Court of Common Pleas in 2012 but did not cite Panetti in this state case opinion. Awkal could only be found to have cited his incompetency claim to Panetti in the federal case opinion of In re Ohio Execution Protocol Litigation, 2018 WL 3207419 (S.D. Ohio 2018). This is why Awkal was not found in the lists provided by Westlaw and Nexis Uni.).

⁷⁰ Panetti v. State, 2014 WL 6764475 (Tex. Crim. App. 2014).

⁷¹ Overstreet v. State, 877 N.E.2d 144 (Ind. 2007), further proceedings at Overstreet v. State, 993 N.E.2d 179 (Ind. 2013); Commonwealth v. Banks, 943 A.2d 230 (Pa. 2007), further proceedings at Commonwealth v. Banks, 29 A.3d 1129 (Pa. 2011); ex parte Green, 2010 WL 11566377 (Tex. Crim. App. 2010), further proceedings at Green v. State, 3744 S.W.3d 434 (Tex. Crim. App. 2012); Mays v. State, 2015 WL 1332834 (Tex. Crim. App. 2015), further proceedings at Mays v. State, 476 S.W.3d 454 (Tex. Crim. App. 2015); Mays v. State, 2019 WL 2361999 (Tex. Crim. App. 2019).

⁷² Ferguson v. State, 112 So.3d 1154 (Fla. 2012); Greene v. Kelley, 2018 WL 5668890 (Ark. 2018); Ward v. Hutchinson, 558 S.W.3d 856 (Ark. 2018); Gore v. State, 120 So.3d 554 (Fla. 2013); State ex rel. Clayton v. Griffith, 457 S.W.3d 735 (Mo. 2015); State ex rel. Middleton v. Russell, 435 S.W.3d 83 (Mo. 2014); State ex rel. Cole v. Griffith, 460 S.W.3d 349 (Mo. 2015); State ex rel. Barton v. Stange, 597 S.W.3d 661 (Mo. 2020); State v. Brooks, 2011 WL 5517300 (Ohio Ct. App. 2011); Bedford v. State, 957 N.E.2d 336 (Ohio Ct. App. 2011); Cole v. Trammell, 358 P.3d 932 (Ok. Crim. App. 2015); Allen v. State, 265 P.3 754 (Ok. Crim. App. 2011); State v. Haugen, 266 P.3d 68 (Or. 2011); State v. Irick, 320 S.W.3d 284 (Tenn. 2010); Battaglia v. State, 537 S.W.3d 57 (Tex. Crim. App. 2017); Druery v. State, 412 S.W.3d 523 (Tex. Crim. App. 2013); Basso v. State, 2014 WL 467514 (Tex. Crim. App. 2014); Staley v. State, 420 S.W.3d 785 (Tex. Crim. App. 2013); State v. Awkal, Memorandum of Opinion and Order, Case No. CR-276801 (Jun. 15, 2012) (unreported; copy at ECF No. 1574-1, PageID 69496-508).

⁷³ Two other cases found the Arkansas statute governing competency-to-be-executed determinations to be unconstitutional under Panetti. See infra text accompanying notes 143-47, discussing Ward v. Hutchinson, 558 S.W.3d 856 (Ark. 2018), and Greene v. Kelly, 2018 WL 5668890 (Ark. 2018).

⁷⁴ On the meaning of “ripeness” for constitutional purposes, see supra note 48.

⁷⁵ Nooner v. State, 438 S.W.3d 233 (Ark. 2014); Taylor v. State, 262 S.W.3d 231 (Mo. 2008); State v. Neyland, 2013 WL 3776602 (Ohio Ct. App. 2013); Powers v. State, 2022 Miss. LEXIS 170 (Miss. 2022).

⁷⁶ Atkins v. Virginia, 536 U.S 304 (U.S. 2002) (violation of Eighth Amendment to subject persons with intellectual disabilities to the death penalty). Two of the co-authors (MLP & TRH) and a third co-author have previously examined interpretations of Atkins in the Fifth Circuit. See Perlin, Harmon & Wetzel, supra note 41.

⁷⁷ Williams v. Cahill ex. Rel. County of Pima, 303 P.3d 532 (Ariz. Ct. App. 2013); Lard v. State, 595 S.W.3d 355 (Ark. 2020) (this case also cited Moore v. Texas, 139 S.Ct. 666 (U.S. 2019), a case that expanded and clarified Atkins); King v. State, 23 So.3d 1067 (Miss. 2009); Murphy v. State, 281 P.3d 1283 (Ok. Ct. App. 2012); Commonwealth v. Sanchez, 36 A.3d 24 (Pa. 2011); Texas v. Robertson, 2013 Tex. Dist. LEXIS 21143 (Tex. 2013); Lizcano v. State, 2010 WL 1817772 (Tex. Crim. App. 2010).

⁷⁸ Foley v. Beshear, 462 S.W.3d 389 (Ky. 2015); Colorado v. Holmes, 2013 Colo. Dist. LEXIS 1625 (Colo. 2013); State v. Turnidge, 374 P.3d 853 (Or. 2016); Hugueley v. State, 2011 WL 2361824 (Tenn. Crim. App. 2011); Turner v. State, 422 S.W.3d 676 (Tex. Crim. App. 2014); Secret v. Commonwealth, 619 S.E.2d 234 (Va. 2018); State v. Motts, 707 S.E.2d 804 (S.C. 2011); Reid v. State, 2011 WL 3444171 (Tenn. Crim. App. 2011) and Reid ex rel. Martiniano v. State, 396 S.W.3d 478 (Tenn. 2013); In re Friend, 489 P.3d 309 (Cal. 2021). Notably, Friend relied on Panetti for successive petitions in this case opinion, but one of his unexhausted claims in his state habeas corpus petition argued it is unconstitutional to execute someone with organic brain damage; on the relationship between traumatic brain injury and Panetti-based claims, see infra text accompanying notes 295-98.

⁷⁹ Colorado v. Holmes, 2013 Colo. Dist. LEXIS 1625 (Colo. 2013); State v. Turnidge, 374 P.3d 853 (Or. 2016); Reid v. State, 2011 WL 3444171 (Tenn. Crim. App. 2011), further proceedings at Reid ex rel. Martiniano v. State, 396 S.W.3d 478 (Tenn. 2013); State v. Motts, 707 S.E.2d 804 (S.C. 2011).

⁸⁰ Hugueley v. State, 2011 WL 2361824 (Tenn. Crim. App. 2011); Turner v. State, 422 S.W.3d 676 (Tex. Crim. App. 2014).

⁸¹ In re Friend, 489 P.3d 309 (Cal. 2021).

⁸² Foley v. Beshear, 462 S.W.3d 389 (Ky. 2015); Secret v. Commonwealth, 619 S.E.2d 234 (Va. 2018).

⁸³ People v. Martin, 272 Cal.Rptr.3d 363 (Cal. Ct. App. 2020); People v. Strike, 258 Cal.Rptr.3d 482 (Cal. Ct. App. 2020); People v. Barba, 2012 WL 172449 (Cal. Ct. App. 2012), further proceedings at People v. Barba, 155 Cal.Rptr.3d 707 (Cal. Ct. App. 2013); People v. Cormier, 2011 WL 3525408 (Cal. Ct. App. 2011); People v. Rios, 101 Cal.Rptr.3d 713 (Cal. Ct. App. 2009); People v. Zayas, 2010 WL 3530426 (Cal. Ct. App. 2010); People v. Hernandez, 2010 WL 3506888 (Cal. Ct. App. 2010); People v. Miller, 114 Cal.Rptr.3d 629 (Cal. Ct. App. 2010); People v. Colon, 2010 WL 612245 (Cal. Ct. App. 2010); Ford v. U.S., 931 A.2d 1045 (D.C. Ct. App. 2007); Book v. Doublestar Dongfend Tyre Co., Ltd., 860 N.W.2d 576 (Iowa 2015); University of Michigan Regents v. Titans Ins. Co., 794 N.W.2d 570 (Mich. 2010); Willbanks v. Department of Corrections, 522 S.W.3d 238 (Mo. 2017); State v. Gaw, 285 S.W.3d 318 (Mo. 2009); State v. Hughes, 272 S.W.3d 246 (Mo. 2008); State v. Ruiz, 179 A.3d 333 (N.H. 2018); Willemsen v. Invacare Corp., 282 P.3d 867 (Or. 2012); Adams v. State, 2016 WL 110627 (Tex. Ct. App. 2016); Crenshaw v. State, 2011 WL 3211258 (Tex. Ct. App. 2011), further proceedings at Crenshaw v. State, 424 S.W.3d 753 (Tex. Ct. App. 2014); Crosby v. Commonwealth, 2009 WL 3819217 (Va. Ct. App. 2009); Ferguson v. Commonwealth, 663 S.E.2d 505 (Va. Ct. App. 2008); State v. AU Optronics Corp., 328 P.3d 919 (Wash. Ct. App. 2008); State v. Venegas, 146 Wash.App.1053 (Wash. Ct. App. 2008).

⁸⁴ See infra Part III B 2 c. (6) for further discussion on this important issue.

⁸⁵ The Eighth Amendment of the United States Constitution forbids the imposition of cruel and unusual sentences. See generally Michael J.Z. Mannheimer, When the Federal Death Penalty Is “Cruel and Unusual,” 74 U. Cin. L. Rev. 819 (2006).

⁸⁶ State v. Kahler, 410 P.3d 105 (Kan. 2018); State v. Kleypas, 382 P.3d 373 (Kan. 2016); State v. Jenkins, 931 N.W.2d 851 (Neb. 2019); State v. Lang, 954 N.E.2d 596 (Ohio 2011); Commonwealth v. Baumhammers, 960 A.2d 59 (Pa. 2008); People v. Mendoza, 365 P.3d 297 (Cal. 2016); State ex rel. Strong v. Griffith, 462 S.W.3d 732 (Mo. 2015).

⁸⁷ See Breton v. Warden, No. TSRCV034261S, 2011 WL 4424356, at *33 (Super. Ct. Conn. Aug. 15, 2011).

⁸⁸ See State v. Myers, 114 N.E.3d 1138, 1178 (Ohio 2018).

⁸⁹ People v. Ghobrial, 420 P.3d 179 (Cal. 2018); Roberts v. State, 592 S.W.3d 675 (Ark. 2020).

⁹⁰ We refer here only to cases with published opinions. It is possible there are other cases in which compliance with Panetti was urged (in which defendants may have been successful or unsuccessful) in which there were no published opinions.

⁹¹ To this date, the Panetti argument has never been successful in a state court case. In 2017, the 5th Circuit remanded to the state court for a hearing on this question. See Panetti v. Davis, 863 F.3d 366 (5^th Cir. 2017)), and the only reported state case after that. See Ex parte Panetti, 2021 WL 2560138 (Tex. Ct. Crim. App. 2021)) (denying a habeas writ based on different arguments).

⁹² Later, we discuss other cases in which there were concurrences or dissents urging a finding of incompetency under Panetti (or calling for further proceedings on that question) in addition to the Michael Overstreet case (discussed infra notes 95 & 116-22,). See, e.g., State v. Haugen, 266 P.3d 68 (Or. 2011) (discussed infra notes 130-36). We also discuss other cases that found state statutes governing incompetency determinations to be unconstitutional. See, e.g., Ward v. Hutchinson, 558 S.W.3d 856 (Ark. 2018) (discussed infra text accompanying notes 141-45).

⁹³ Commonwealth v. Banks, 29 A.3d 1129 (Pa. 2011); Staley v. State, 420 S.W.3d 785 (Tex. Ct. Crim. App. 2013).

⁹⁴ Banks remains in prison, as does Dreury. See 40 Years ago, George Banks became the first spree killer in Pa. to use an AR-15 when he killed his family in Luzerne County, McCall (Sept. 25, 2022), https://www.mcall.com/news/pennsylvania/mc-nws-george-banks-mass-killing-anniversary-20220925-5vywssomo5dgtbugkgdy6ajigy-story.html [https://perma.cc/6F8K-L6N7]; Marcus Druery Texas Death Row, MyCrimeLibrary (Apr. 14, 2021), https://mycrimelibrary.com/marcus-druery-texas-death-row/ [https://perma.cc/D5US-UUNL]. Presumably, Staley does, as well, though there has been neither reported litigation nor discoverable press references since October 2015. See Texas Court of Criminal Appeals Holds Forcible Medication for Death Row Prisoner Unauthorized, Prison Legal News (Oct. 19, 2015), https://www.prisonlegalnews.org/news/2015/oct/19/texas-court-criminal-appeals-holds-forcible-medication-death-row-prisoner-unauthorized/ [https://perma.cc/ZG9Q-ZYED].

⁹⁵ See Druery v. State, 412 S.W.3d 523 (Tex. Ct. Crim. App. 2013). There was another hearing in Druery’s case three years later, at which he was found to be incompetent (but which yielded no written materials available for view). See Texas Court Finds Marcus Druery mentally Incompetent, Spares Him From Execution, Death Penalty Information (Apr. 7, 2016), https://deathpenaltyinfo.org/news/texas-court-finds-marcus-druery-mentally-incompetent-spares-him-from-execution [https://perma.cc/E65P-92SK]. Druery was still on death row as of April 2021. See Marcus Druery Texas Death Row, MyCrimeLibrary (Apr. 14, 2021), https://mycrimelibrary.com/marcus-druery-texas-death-row/ [https://perma.cc/D5US-UUNL]. Indiana Supreme Court Justice Rucker wrote that he would find the defendant’s execution to be a violation of the Indiana state constitution’s “cruel and unusual punishment” clause on the theory that he saw “no principled distinction between the diminished capacities exhibited by Overstreet and the diminished capacities that exempt the mentally retarded from execution. Overstreet v. State, 877 N.E.2d 144, 175 (Ind. 2007). No other justice joined in this opinion, so the lower court decision denying post-conviction relief was affirmed. Id. In a subsequent proceeding, the defendant was given permission to file a successive petition for relief, as the court found that a forensic report submitted to it was “sufficient to permit [defendant to assert the claim that he is not currently competent to be executed.” Overstreet v. State, 993 N.E.2d 179, 180 (Ind. 2013). This decision was modified in a subsequent unreported decision, granting his petition and is noted in a subsequent Indiana case, In re Cooper, 78 N.E.3d 1098, 1099 (Ind. 2017) (“Overstreet’s successive PCR petition was litigated in St. Joseph County in 2014, and in November 2014 Judge Miller granted the petition”).

⁹⁶ See In Re: Ohio Execution Protocol Litigation, 2018 WL 3207419 (S.D. Ohio 2018) (Ohio Execution). That case is subtitled, “This Order relates to Plaintiff Abdul Awkal.” Awkal was found incompetent to be executed in State v. Awkal, Memorandum of Opinion and Order, Case No. CR-276801 (Jun. 15, 2012) (unreported; copy at ECF No. 1574-1, PageID 69496-508). See Ohio Execution, 2018 WL at *1. No copy of the state court opinion could be found.

⁹⁷ Staley v. State, 420 S.W.3d 785 (Tex. Ct. Crim. App. 2013).

⁹⁸ On what is called “synthetic competency” in the Panetti context, see Perlin & Harmon, supra note 16, at 592 & 602-03; Perlin, Harmon & Kibiniec, supra note 16, at 284-85.

⁹⁹ Staley, 420 S.W.3d at 786-7.

¹⁰⁰ Id. at 787.

¹⁰¹ Id. at 801. The court was split. See id. at 801 (Keller, J., dissenting for himself and two others), and 802 (Meyers, J., dissenting for himself and two others).

¹⁰² Commonwealth v Banks, 29 A.3d 1129 (Pa. 2011).

¹⁰³ Id. at 1136.

¹⁰⁴ Id.

¹⁰⁵ The state’s experts agreed that the defendant was not malingering and did suffer from fixed delusions. See id. at 1136. This conclusion is virtually unheard of in this area of litigation.

¹⁰⁶ Id. at 1146.

¹⁰⁷ Banks, 29 A.3d at 1146. The bold-face, all-caps font is in the opinion, a rare device in any published opinion.

¹⁰⁸ In this cohort, the court found in both cases that the defendants met the substantial threshold standard of incompetency to necessitate a hearing under Panetti. Id.

¹⁰⁹ Druery v. State, 412 S.W.3d 523 (Tex. Ct. Crim. App. 2013).

¹¹⁰ See Marcus Druery Texas Death Row, MyCrimeLibrary (Apr. 14, 2021), https://mycrimelibrary.com/marcus-druery-texas-death-row/ [https://perma.cc/D5US-UUNL].

¹¹¹ Overstreet v. State, 877 N.E.2d 144, 175 (Ind. 2007).

¹¹² See In re Cooper, 78 N.E.3d 1098, 1099 (Ind. 2017).

¹¹³ On other cases simply rejecting the categorical exemption argument, see infra Part III B 2 c (6).

¹¹⁴ The categorical exemption argument has been specifically rejected in multiple Panetti cases. See, e.g., People v. Mendoza, 365 P.3d 297 (Cal. 2016); State v. Jenkins, 931 N.W.2d 851 (Neb. 2019); People v. Ghobrial, 420 P.3d 179 (Cal. 2018).

¹¹⁵ Overstreet, 877 N.E.2d at 175. See also supra note 97, explaining the unique circumstances of that part of Justice Rucker’s opinion that supports a finding of incompetency.

¹¹⁶ 466 U.S. 668 (1984). See generally Perlin, Harmon & Chatt, supra note 41.

¹¹⁷ Overstreet, 877 N.E.2d at 152-67.

¹¹⁸ Id. at 168. Here, the defendant had argued that certain evidence was erroneously admitted, other was erroneously excluded, that there were errors in a rial transcript, and a subpoena was erroneously quashed.

¹¹⁹ Id. at 175. He relied in part on the fact that Indiana had, eight years before the Supreme Court’s decision in Atkins v. Virginia, 536 U.S. 304, 305 (2002), barred such executions, excepting the executions of persons with what was then referred to as “mental retardation.” Id., citing I.C. § 35–36–2–5(e) (1997 Supp.). Since its decision clarifying and supplementing Atkins in Hall v. Florida, 572 U.S. 701, 704-05 (2014), the Court has used the phrase “intellectual disability” rather than “mental retardation” in all subsequent future cases to conform with changes in the U.S. Code and in the then-most recent version of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM-5).

¹²⁰ Overstreet, 877 N.E.2d at 174, citing PruneYard Shopping Ctr. v. Robins, 447 U.S. 74, 81 (1980) and Cooper v. California, 386 U.S. 58, 62 (1967). In the context of mental disability law, on the question of reliance on state constitutional provisions in cases in which identical federal provisions have been rejected as grounds for relief, see Michael L. Perlin, State Constitutions and Statutes as Sources of Rights for the Mentally Disabled: The Last Frontier? 20 Loyola L.A. L. Rev. 1249 (1987).

¹²¹ Id.at 175. This opinion paralleled Justice Rucker’s dissent some five years earlier in Corcoran v. State, 774 N.E.2d 495, 503 (Ind.2002) (“A sentence of death for a person suffering from severe mental illness violates the Cruel and Unusual Punishment provision of the Indiana Constitution”).

¹²² In a fourth case, State ex rel. Strong v. Griffith, 462 S.W.3d 732 (Mo. 2015), Judge Teitelman dissented: “I would hold that the reasoning in Ford v. Wainwright, ,,, Atkins v. Virginia, …, and Roper v. Simmons … applies to individuals who, like Mr. Strong, were severely mentally ill at the time the offense was committed. Therefore, I would grant habeas relief and appoint a special master to more fully address Mr. Strong’s claims.”

¹²³ State v. Lang, 954 N.E.2d 596 (Ohio 2011).

¹²⁴ Roper v. Simmons, 543 U.S. 551, 578 (2005) (forbidding imposition of the death penalty on offenders who were under the age of 18 when their crimes were committed).

¹²⁵ Lang, 954 N.E.2d at 649 (Lundberg Stratton, J., concurring).

¹²⁶ 410 P.3d 105 (Kan. 2018), aff’d on other gds., 140 S.Ct. 1021 (2020).

¹²⁷ Id. at 138.

¹²⁸ 960 A.2d 59 (Pa. 2008).

¹²⁹ Id. at 106, 107 (Todd, J., concurring). In his opinion, Justice Todd cited Christopher Slobogin, What Atkins Could Mean for People with Mental Illness, 33 N.M. L. Rev. 293 (2003) (arguing the effects of mental retardation and serious mental illness are so similar as to eliminate a rational basis for distinguishing between the two categories of defendants), an article relied on by two of the authors in one of their prior Panetti articles. See Perlin, Harmon & Kubiniec supra note 16, at 303.

¹³⁰ 266 P.3d 68 (Or. 2011). Haugen is discussed critically in Tung Yin, The Death Penalty Spectacle, 3 U. Denver Crim. L. Rev. 165, 166 (2013) (“[Haugen] goes beyond the theoretical into an actual absurdity”) (discussing presence of multiple teams of lawyers and the state’s role).

¹³¹ Haugen, 266 P.3d at 71. On the question of execution “volunteers,” see e.g., John H. Blume, Killing the Willing: “Volunteers,” Suicide and Competency, 103 Mich. L. Rev. 939 (2005).

¹³² Haugen, 266 P.3d at 79.

¹³³ This dissent was joined in by Justices De Muniz and Durham.

¹³⁴ Id. at 82.

¹³⁵ This dissent was joined in by Justices Walters and Durham.

¹³⁶ Id. at 86

¹³⁷ See, e.g., State ex rel Clayton v. Griffith, 457 S.W.3d 735, 754 (Mo. 2015) (Stith, J., dissenting) (for herself; Justices Draper and Teitelman concurring in her opinion) (defendant had a traumatic brain injury that resulted in the loss of 20 percent of his frontal lobe, id.).

¹³⁸ In the other, the dissenters concluded, “I believe Middleton’s right to due process is being grossly violated by this Court’s order summarily denying him a right to a hearing pursuant to … Panetti,” State ex rel. Middleton v. Russell, 435 S.W.3d 83, 87 (Mo. 2014), concluding that the majority “denied Middleton even a bare modicum of due process.” Id, (Draper, J., dissenting for himself, Justice Stith and Justice Teitelman). Here, the defendant maintained his innocence, although there was a dispute as to whether this was part of a delusional thought system, see id. at 85.

¹³⁹ State ex rel. Cole v. Griffith, 460 S.W.3d 349, 362 (Mo. 2015) (Stith J., dissenting).

¹⁴⁰ We follow this section with a brief discussion of recent state-level statutory developments and initiatives.

¹⁴¹ 558 S.W.3d 856 (Ark. 2018).

¹⁴² Id. at 865.

¹⁴³ Ark. Code Ann. § 16-90-506(d)(1).

¹⁴⁴ Ward, 558 S.W.3d at 865, citing Ford, 477 U.S. at 426.

¹⁴⁵ Id., citing Ford and Panetti. On the same day, the Court also decided Greene v. Kelly, 2018 WL 5668890 (Ark. 2018), in which it relied on its opinion in Ward, holding that the statute in question was facially unconstitutional under both the Arkansas and US constitutions, id. at * 7. The Arkansas legislature subsequently rewrote the statute in question so as to comport with the Panetti standard. See Ark. Code Ann. § 16-90-506(d) and (d)(1)(A)(i)(a) (2019):

¹⁴⁶ See supra text accompanying notes 146-47, discussing Ward v. Hutchinson, 558 S.W.3d 856 (Ark. 2018), and Greene v. Kelly, 2018 WL 5668890 (Ark. 2018) (finding, as it existed at that time, to be unconstitutional).

¹⁴⁷ See Tex. Crim. Pro. Art. 46.05. It does not appear that this statutory change had any impact on the judges in the Battaglia case.

¹⁴⁸ See Okla Stat. 22 § 1005.1 (repealing a law that had made the prison warden—in effect, the executioner—“the gatekeeper who decides whether to seek a competency trial.” See Cole v. Farris, 54 F.4th 1174, 1182 (10^th Cir. 2022).

¹⁴⁹ See Ky. Stat. § 532.140.

¹⁵⁰ Ohio Stat. § 2929.025 (A) and (D)(1).

¹⁵¹ Ohio’s law is limited to those defendants with such mental illnesses that “significantly impaired their judgment, capacity, or ability to appreciate the nature or their conduct.” Id., (A)(1)(b)(i) & (ii). Connecticut had enacted a similar law, Conn. Gen. Stat. § 53a-46a(g), but that statute was recognized as invalid after Connecticut abolished its death penalty. See State v. Coltherst, 266 A.3d 838 (Conn. 2021).

¹⁵² Indiana, South Dakota, Texas, Tennessee, Florida, Indiana, North Carolina and Virginia. See At Least Seven States Introduce Legislation Banning Death Penalty for People with Severe Mental Illness, Death Penalty Information Ctr. (Feb. 3, 2017), https://deathpenaltyinfo.org/news/at-least-seven-states-introduce-legislation-banning-death-penalty-for-people-with-severe-mental-illness [https://perma.cc/T6MZ-XXAG]. For discussion of the progress of such bills in Indiana, Texas, Tennessee, South Dakota and Florida, see Rebecca Beitsch, States Consider Barring Death Penalty for Severely Mentally Ill, PEW (Apr. 17, 2017), Pew Trusts, https://www.pewtrusts.org/en/research-and-analysis/blogs/stateline/2017/04/17/states-consider-barring-death-penalty-for-severely-mentally-ill [https://perma.cc/9Q4W-XEJR ]. Most recently, such bills have been approved by the Kentucky House of Representatives and the South Dakota Senate. See Kentucky and South Dakota Advance Bills to Bar Death Penalty for People with Severe Mental Illness, Death Penalty Information Ctr. (Feb. 23, 2022), https://deathpenaltyinfo.org/news/kentucky-and-south-dakota-advance-bills-to-bar-death-penalty-for-people-with-severe-mental-illness [https://perma.cc/FG3N-ERBD].

¹⁵³ Tobolowsky notes that “neither the judicial ‘inquiries’ in Missouri…nor the jury proceedings in…Oklahoma expressly include presentation of evidence or argument by the offender.” Tobolowsky, supra note 15, at 413-14. Since Missouri’s statute has remained unchanged and the changes to Oklahoma’s statute still do not expressly state a right for the offender to be heard, her finding that Missouri and Oklahoma do not meet the constitutional requirement of Ford and Panetti still appears to be accurate.

¹⁵⁴ There is a wide range of statutes (and non-statutes). Missouri allows any of the individuals notified of an offender believed to be incompetent-to-be executed to appoint a physician to conduct an examination of the offender prior to the circuit courts inquiry. See Vernon’s Ann. Mo. Stat. § 552.060. Those parties entitled to notification listed in the statute are the Governor, the Director of the Department of Mental Health, the state attorney, and the attorney general. (Note that the defense is not once expressly stated they are entitled to appointing their own mental health expert to conduct an examination.); Fla. Stat. § 922.07 names the Governor as the decision-maker, who relies on the testimony of three psychiatrists that he appoints. Fla. R. Crim. P. 3.811, 3.812 permits the offender to file another incompetent-to-be-executed claim to the circuit court in the even the Governor makes a finding of competency, and no experts are appointed in these proceedings. In Arkansas, the Division of Aging, Adult, and Behavior Health Services of the Department of Human Services is required to inquire into the mental health condition of the offender. An independent mental health evaluation is “reasonable allow[ed],” but not required. Ark. Code Ann. § 16-90-506 (2006). At common law, Tennessee requires the court to appoint an expert for both the defense and the state. See Van Tran v. State, 6 S.W.3d 257, 269 (Tenn. 1999), abrogated on other grounds, State v. Irick, 320 S.W.3d 284 (Tenn. 2010). Indiana, Pennsylvania, and Oklahoma do not clearly state how experts should be appointed.

¹⁵⁵ In our article on Panetti cases in the Fifth Circuit, we found that allegations of malingering played a far greater role. See Perlin & Harmon, supra note 16, at 585-90.

¹⁵⁶ See infra Part III(B)(2)(c)(6).

¹⁵⁷ State ex rel. Clayton v. Griffith, 457 S.W.3d 735 (Mo. 2015); State ex rel. Cole v. Griffith, 460 S.W.3d 349 (Mo. 2015);State ex rel. Barton v. Stange, 597 S.W.3d 661 (Mo. 2020); Cole v. Trammell, 358 P.3d 932 (Ok. Crim. App. 2015);Ex parte Green, 2010 WL 11566377 (Tex. Crim. App. 2010), further proceedings, Green v. State, 3744 S.W.3d 434 (Tex. Crim. App. 2012); Mays v. State, 2015 WL 1332834 (Tex. Crim. App. 2015); Mays v. State, 476 S.W.3d 454 (Tex. Crim. App. 2015), further proceedings, Mays v. State, 2019 WL 2361999 (Tex. Crim. App. 2019); Battaglia v. State, 537 S.W.3d 57 (Tex. Crim. App. 2017).

¹⁵⁸ Mays v. State, 2019 WL 2361999 (Tex. Ct. Crim. App. 2019).

¹⁵⁹ Woods is the president of the of the International Academy of Law and Mental Health, teaches mental health and the law at University of California Berkeley Law School, is a member of the San Francisco District Attorney Post Conviction Unit Innocence Committee, and has also taught at the University of California, Davis, Morehouse School of Medicine, the University of Washington-Bothell, and California State University- Sacramento. See George Woods, Berkeley Law, https://www.law.berkeley.edu/our-faculty/faculty-profiles/george-woods/#tab_profile [https://perma.cc/K7BU-Z6Y8].

¹⁶⁰ Id. at *9.

¹⁶¹ Id. at *17.

¹⁶² Id. at *6. The opinion recounts some of the more salient aspects of Agharkar’s interview with Mays: Mays believed that his “food was being poisoned,” that “pepper gas” was being pumped through the vents in his cell, and that “ozone in the atmosphere” was making him tired and unable to think clearly. Mays complained of arm pain, headaches, and stomachaches. He reported that he had been hearing the voice of God speaking directly to him since he was an infant. He said that he did not take medication given to him in prison because it made him hallucinate. When Mays noticed during the interview that some numbers were printed on Agharkar’s shirt, he thought they represented “some hidden message or code that [Agharkar] was not sharing with him.” Mays told Agharkar that he had been awarded a patent on his design for an invention, which he described as a “renewable energy source” that would be delivered “directly to consumers” and “would essentially put the big gas or electric companies out of business.” Mays stated that the prison warden was being pressured by the power companies to execute him because they would lose “billions of dollars” if his idea came to fruition. He also believed that the State wanted to execute him to save money on his medical expenses. Id. at *5.

¹⁶³ Id. at *14.

¹⁶⁴ See supra text accompanying note 164 (findings by Dr. Agharkar), and Mays, 2019 WL 2361999, at *9 (defendant suffered from “a Major Neurocognitive Disorder, dementia form in nature” as well as a “psychotic disorder,” findings by Dr. Woods).

¹⁶⁵ There are two other aspects of the Mays case that are worthy of further consideration. First, to some extent, the trial court discredited Dr. Woods because he “noted concerns” about the witness’s objectivity because he observed him passing notes to counsel during the hearing. Id. at *15. But this is directly contrary to the teaching of Ake v. Oklahoma, that mandated that the State provide the defense with “access to a competent psychiatrist who will conduct an appropriate [1] examination and assist in [2] evaluation, [3] preparation, and [4] presentation of the defense.” Ake v. Oklahoma, 470 U.S. 68, 83 (1975); McWilliams v. Dunn, 137 S.Ct. 1790, 1792 (2017) (expert witness must “help … the defense evaluate the [assigned doctor’s] report [and defendant’s] medical records and translate these data into a legal strategy.” It should be noted that there is a spirited debate in the forensic psychology community as to whether this conflicts with the Specialty Guidelines for Forensic Psychologists (see e.g., Kirk Heilbrun & Stephanie Brooks, Forensic Psychology and Forensic Science: A Proposed Agenda for the Next Decade, 16 Psychol. Pub. Pol’y & L. 219 (2010)), discussed at length in a thread that one of the authors (MLP) initiated on the PsyLaw List listserv (“Looking for some thoughts,” all emails and postings on file with the author). However, Dr. Woods is a psychiatrist, and, in any event, these Guidelines would be inapplicable to him. Second, there was significant discussion in the Mays opinion as to the significance of a checklist that appeared in this article: Patricia A. Zapf, Marcus T. Boccaccini & Stanley L. Brodsky, Assessment of Competency for Execution: Professional Guidelines and an Evaluation Checklist, 21 Behav. Sci.& L. 103 (2003). Although the trial judge had “ordered the experts to use Sections I, II, and III of the checklist ‘to assist [them] in conducting their evaluations and as the basis for framing the conclusions that shall be set forth in their written reports,” Mays, 2019 WL 2361999, at *4 (quoting trial court transcript in part), Dr. Arghakar testified that “although he utilized the checklist provided by the trial judge, he did not ask Mays every question contained within it… [as h]e did not think it was ‘a good idea clinically’ or ‘useful forensically’ to ask closed-ended questions.” Id. at *5. Dr. Woods also expressed criticism of some aspects of the checklist, believing that “anything that derives from that checklist may be problematic because it had been peer-reviewed but not researched or validated.” Id. at * 8. On the other hand, the state’s witness, Dr. J. Randall Price, believed that it was the “best practice” to use checklists in evaluations. Id. A close reading of the opinion makes it clear that the court believed that deviation from this checklist made the defense witnesses less credible. One of the creators of the checklist had written in an email to one of the authors (MLP) that her “main argument” would be “that there should not be a lower standard for competency for execution than there is for competence to stand trial.” (Email, Dr. Patricia Zapf to author, Dec. 15, 2022; on file with author). It should be noted that this checklist has not been updated since it was created in 2003 (four years before the Panetti decision; see Zapf email), and has been cited one other time. See Madison v. Commissioner, Alabama Department of Corrections, 851 F.3d 1173 (11^th Cir.2017), vacated in 879 F.3d 1298 (11^th Cir. 2018), following the Supreme Court’s reversal in Madison v. Alabama, 138 S.Ct. 943 (2018). In short, nothing about this checklist should have led the court to devalue the defense experts’ partial use of it.

¹⁶⁶ 537 S.W.3d 57 (Tex. Ct. Crim. App. 2017). Two of the authors (MLP & TRH) have previously written about the subsequent federal cases in Battaglia, in which the Fifth Circuit affirmed a district court ruling denying the defendant expert funding for a mitigation specialist who would have offered evidence to show that the defendant was not malingering. See Perlin & Harmon, supra note 16, at 583-84. In those cases, the Fifth Circuit affirmed a district court ruling denying the defendant expert funding for a mitigation specialist who would have offered evidence to show that the defendant was not malingering. See, e.g., Battaglia v. Davis, No. 3:16-CV-1687-B, 2018 WL 550518, at *2 (N.D. Tex. Jan. 24, 2018)(stay of execution denied). This application was rejected because it, allegedly, came “too late to produce evidence that may be presented to the state court in making the adjudication in question.” Id. at *6.

¹⁶⁷ Battaglia, 537 S.W.3d at 82. Further, all three experts also agreed that they “found no evidence of malingering.” Id.

¹⁶⁸ Id. at 83.

¹⁶⁹ Id. at 86.

¹⁷⁰ Id. at 84.

¹⁷¹ Id.

¹⁷² Id.

¹⁷³ Id. at 97 (Alcala, J., dissenting).

¹⁷⁴ Id. at 109 (Alcala, J., dissenting).

¹⁷⁵ Id. at 91.

¹⁷⁶ Id. at 86.

¹⁷⁷ 597 S.W.3d 661 (Mo. 2020).

¹⁷⁸ Id. at 666.

¹⁷⁹ On the interrelationship between traumatic brain injury and the death penalty, see Alison J. Lynch, Michael L. Perlin & Heather Ellis Cucolo, “My Bewildering Brain Toils in Vain”: Traumatic Brain Injury, The Criminal Trial Process, and the Case of Lisa Montgomery, 74 Rutgers L. Rev. 215 (2021).

¹⁸⁰ Barton, 666 S.W.2d at 666.

¹⁸¹ Id. at 667.

¹⁸² Id. at 666.

¹⁸³ State ex rel Clayton v. Griffith 457 S.W.3d 735 (Mo. 2015).

¹⁸⁴ Id. at 745.

¹⁸⁵ Id. at 746 (emphasis added). For other cases that focused on what the courts considered concessions by defense experts, see State v. Irick, 320 S.W.3d 284 (Tenn. 2010), and Cole v. Trammel, 358 P.3d 932 (Okla. Ct. Crim. App. 2015).

¹⁸⁶ See Clayton, 457 S.W.3d 735; Cole v. Griffith, 460 S.W.3d 349 (Mo. 2015); Middleton v. Russell, 435 S.W.3d 83 (Mo. 2014); Green v. State, 374 S.W.3d 434 (Tex. Ct. Crim. App. 2012); Gore v. State, 120 So.3d 554 (Fla. 2013); Mays v. State, 2019 WL 2361999 (Tex. Ct. Crim. App. 2019); Battaglia v. State, 537 S.W.3d 57 (Tex. Ct. Crim. App. 2017).

¹⁸⁷ In four of the Fifth Circuit cases (including one involving the same defendant as in this grouping, see Green v. Thaler, 699 F.3d 404, 407 (5th Cir. 2012)), this was a prevailing issue, as it was in seven of the cases from the other circuits. See Perlin, Harmon & Kubiniec, supra note 16, at 285.

¹⁸⁸ See id., at 289-92.

¹⁸⁹ Id. at 307. Dr. Logan is a member of the American Academy of Psychiatry and Law, former chief of staff of the Division of Law and Psychiatry at the Menninger Clinic in Kansas, and a published author in a pre-eminent law/behavioral science journal. See Perlin, Harmon & Kubiniec, supra note 16, at 289, citing email from Karl Menninger, Esq., to co-author MLP), July 19, 2022 (on file with author), and William Logan, The Description and Classification of Presidential Threateners, 2 Behav. Sci. & L. 151 (1984).

¹⁹⁰ 435 S.W.3d 83 (Mo. 2014).

¹⁹¹ Id. at 84.

¹⁹² Id. Logan had concluded that the defendant showed symptoms of “psychosis” and “cognitive disorder, panic disorder, depression, anxiety and bipolar disorder.” Id. at 88.

¹⁹³ “Nothing in Dr. Logan’s statement even approaches a substantial threshold showing that Middleton suffers from such delusions” [similar to the ones from which Panetti was suffering]. Id. at 85. The dissent in Middleton notes pointedly that Dr. Logan’s opinion was “a preliminary one… due in large part to the absence of additional materials and input from DOC staff directly familiar with Middleton’s behavior.” Id. at 87 (Draper, J., dissenting).

¹⁹⁴ Panetti was a profoundly mentally ill defendant with “severe, documented mental illness.”551 U.S. at 960. He represented himself at trial in a purple cowboy suit, subpoenaed figures such as Jesus Christ and John F. Kennedy, and inhabited a delusional world in which various actors in the system conspired against his alter-ego, “Sarge.” Hannah Robertson Miller, A “Meaningless Ritual”: How the Lack of a Post-conviction Competency Standard Deprives the Mentally Ill Effective Habeas Review in Texas, 87 Tex. L. Rev. 267, 298 (2008).

¹⁹⁵ 460 S.W.3d 349 (Mo. 2015).

¹⁹⁶ Id. at 352.

¹⁹⁷ Id. at 359.

¹⁹⁸ Id. at 358-59.

¹⁹⁹ Id. at 368.

²⁰⁰ 457 S.W.3d 735 (Mo. 2015).

²⁰¹ Id. at 748.

²⁰² Id. at 747.

²⁰³ Id. at 748.

²⁰⁴ Id.

²⁰⁵ The defendant had requested such a hearing, which was turned down by the majority. See id. at 754 (Stith, J., dissenting).

²⁰⁶ Id. at 759 (Stith, J., dissenting). The dissent also argued that the defendant had shown reasonable grounds to believe he was intellectually disabled, and thus entitled to a separate hearing under the rule of Atkins v. Virginia, 536 U.S. 304 (2002); see Perlin, Harmon & Wetzel, supra note 41 . Clayton, 457 S.W.3d at 755 (Stith, J., dissenting).

²⁰⁷ See supra note 165.

²⁰⁸ See supra text accompanying notes 117-23.

²⁰⁹ 374 S.W.3d at 434 (Tex. Ct. Crim. App. 2012). For later developments in Green’s case in the federal courts, see Perlin & Harmon, supra note 16, at 582-83.

²¹⁰ Green, 374 S.W.2d at 437.

²¹¹ Id.

²¹² Perlin & Harmon, supra note 16, at 583. On the issue of witness credibility, see also Gore v. State, 120 So.3d 554 (Fla. 2013). There, the court discredited the defense expert for not conducting a thorough review of the defendant’s medical records, and for relying too heavily on the defendant’s self-reporting of symptoms. Id. at 557. The expert had focused in his report on statements by the defendant regarding organ harvesting and Satan worshippers in coming to his conclusion, id.

²¹³ In our research that was limited to the Fifth Circuit Panetti cases, we found that malingering was the reason raised for rejecting the defendant’s arguments in three of nine cases.

²¹⁴ Battaglia v. State, 537 S.W.3d 57 (Tex. Ct. Crim. App. 2017). Battaglia was one of the cases in the Fifth Circuit cohort as well. See Perlin & Harmon, supra note 16, at 583, on the question of the right to have a mitigation expert funded.

²¹⁵ Gore v. State, 120 So.3d 554 (Fla. 2013).

²¹⁶ The litigation path in this case was long and winding. In a district court decision in Battaglia that preceded the litigation on the Panetti issue discussed here, the defendant unsuccessfully argued a Strickland claim on the merits. See Battaglia v. Stephens, No. 3-09-CV-1904-B, 2013 WL 5570216 (N.D. Tex. 2013). Subsequently, the Fifth Circuit did find that the defendant’s counsel had “abandoned” him in the context of a state competency proceeding, and then appointed new counsel and stayed execution. Battaglia v. Stephens, 824 F.3d 470, 473-75 (5th Cir. 2016). There was no discussion of counsel adequacy in the context of the defendant’s Panetti claims. Later, after a further stay of execution, the state court ruled that the defendant was competent to be executed in the case under discussion here. See Battaglia v. State, 537 S.W.3d 57 (Tex. Crim. Ct. App. 2017). Two of the co-authors (MLP & TRH) discuss this in Perlin & Harmon, supra note 16, at 505-06 n. 312.

²¹⁷ See infra note 280.

²¹⁸ Womack was, for many years, an employee of the Federal Bureau of Prisons (as discussed in the opinion in question, see Battaglia, 537 S.W.3d at 86. See Curriculum Vitae James R. Womack Ph.D., BALANCE: Forensic & General Psychological Servs. Inc., http://www.balanceforensic.com/jw_cv.htm [https://perma.cc/MQS2-ZAE2].

²¹⁹ Battaglia, 537 S.W. 3d at 64, 82

²²⁰ Id. at 82.

²²¹ Id.

²²² Id. at 89.

²²³ Id. at 84

²²⁴ Id.

²²⁵ Id. at 93-94.

²²⁶ John Parry & Eric Y. Drogin, Mental Disability: Law, Evidence, and Testimony 243 (2007). This category, of course, includes Dr. Womack.

²²⁷ Dustin B. Wygant et al., Association of the MMPI-2 Restructured Form (MMPI-2-RF) Validity Scales with Structured Malingering Criteria, 4 Psych. Inj. & L. 13, 18 (2011).

²²⁸ Tayla T. C. Lee et al., Examining the Potential for Gender Bias in the Prediction of Symptom Validity Test Failure by MMPI-2 Symptom Validity Scale Scores, 24 Psych. Assessment 618, 621 (2012). Both the Wygant study (see Wygant, supra note 229) and the Lee study are discussed in this context in Gerald Young, Malingering, Feigning, and Response Bias in Psychiatric/Psychological Injury: Implications for Practice and Court 44-45 (2014), and in Gerald Young & Eric Drogin, Psychological Injury and Law I: Causality, Malingering, and PTSD, 3 Mental Health L. & Pol’y J. 373, 408 (2013). See Perlin & Harmon, supra note 16, at 601-02 and n. 351-53 (discussing this exact issue). In the other malingering case, the court discredited the defense expert, finding that the defendant’s delusional-appearing statements regarding “organ harvesting and the illuminati were a goal oriented attempt…to feign a delusion to avoid execution.” Gore, 120 So.3d at 558. Interestingly, while the court also relied on the state’s witnesses use of the Miller Forensic Assessment of Symptoms Test and the Mini–Mental State Examination–2 test to support their conclusion that the defendant was malingering, id., there is no indication in the reported opinion that defense counsel ever challenged these findings or offered any evidence as to the over-reporting of malingering discussed supra.

²²⁹ Ferguson v. State, 112 So.3d 1154 (Fla. 2012); State ex rel. Clayton v. Griffith, 457 S.W.3d 735 (Mo. 2015); State ex rel. Cole v. Griffith, 460 S.W.3d 349 (Mo. 2015); State v. Brooks, 2011 WL 5517300 (Ohio Ct. App. 2011); Cole v. Trammell, 358 P.3d 932 (Ok. Crim. App. 2015); State v. Irick, 320 S.W.3d 284 (Tenn. 2010).

²³⁰ Significantly, the American Psychiatric Association removed this category from its Diagnostic and Statistical Manual-5 in 2013. The major symptoms of schizophrenia (which is the classification in use today) are delusions, hallucinations, disorganized or incoherent speech, disorganized or unusual behavior, and negative symptoms.

²³¹ See, for a helpful lay description, Paranoid Schizophrenia, Cleveland Clinic, https://my.clevelandclinic.org/health/diseases/23348-paranoid-schizophrenia [https://perma.cc/SLZ4-KDYQ]. Such delusions suggest “a disordered reasoning process especially likely to generate irrational and impulsive judgments.” See E. Lea Johnston, Delusions, Moral Incapacity, and the Case for Moral Wrongfulness, 97 Ind. L.J. 297, 344 n. 324 (2022).

²³² Ferguson v. State, 112 So.3d 1154, 1157 (Fla. 2012).

²³³ Id.

²³⁴ Id.

²³⁵ State v. Irick, 320 S.W.3d 284, 288 (Tenn. 2010).

²³⁶ Id. at 292.

²³⁷ State v. Brooks, 2011 WL 5517300, *4 (Ohio Ct. App. 2011). The opinion tells us only that the defendant had “persecutory delusions that he has been framed.” Id. at *2.

²³⁸ 460 S.W.3d 349 (Mo. 2015).

²³⁹ Id. at 359.

²⁴⁰ Perlin, Harmon & Kubiniec, supra note 16, at 303, relying on arguments previously advanced in, inter alia, Leona Deborah Jochnowitz, Whether the Bright-Line Cut-Off Rule and the Adversarial Expert Explanation of Adaptive Functioning Exacerbates Capital Juror Comprehension of the Intellectual Disability, 34 Touro L. Rev.377 (2018); Marla Sandys et al., Capital Jurors, Mental Illness, and the Unreliability Principle: Can Capital Jurors Comprehend and Account for Evidence of Mental Illness?, 36 Behav. Sci. & L. 470, 479 (2018); Ronald J. Tabak, Executing People with Mental Disabilities: How We Can Mitigate an Aggravating Situation, 25 St. Louis U. Pub. L. Rev. 283, 283–84 (2006); John H. Blume & Sheri Lynn Johnson, Killing the Non-Willing: Atkins, the Volitionally Incapacitated, and the Death Penalty, 55 S.C. L. Rev. 93 (2003); Christopher Slobogin, What Atkins Could Mean for People with Mental Illness, 33 N.M. L. Rev. 293, 313 (2003), and Robert Batey, Categorical Bars to Execution: Civilizing the Death Penalty, 45 Hous. L. Rev.1493, 1552–55 (2009).

²⁴¹ Perlin et al., supra note 16, at 303.

²⁴² 462 S.W.3d 732 (Mo. 2015).

²⁴³ 543 U.S. 551 (2005).

²⁴⁴ 536 U.S. 304 (2002).

²⁴⁵ Strong, 462 S.W.3d at 736-37.

²⁴⁶ Id. at 737.

²⁴⁷ Id. at 738.

²⁴⁸ Id. at 739. The full dissent can be found supra note 124. Judge Teitelman’s dissent is noted in the discussion of other dissents in categorical exemption cases supra, at text accompanying notes 177-85.

²⁴⁹ 931 N.W.2d 851 (Neb. 2019).

²⁵⁰ Id. at 881.

²⁵¹ Id.

²⁵² 382 P.3d 373 (Kan. 2016).

²⁵³ See ABA Recommendation Number 122A, at 671, discussed in Kleypas, 382 P.2d at 336.

²⁵⁴ Kleypas, 382 P.2d at 336. See also State v. Kahler, 410 P.3d 105, 130 (Kan, 2018), aff’d on other gds, 140 S.Ct. 1021 (2020) (“We find this issue controlled by our decision in Kleypas and see no reason to revisit that holding”).

²⁵⁵ People v. Mendoza, 365 P.3d 297, 337 (Cal. 2016).

²⁵⁶ In addition to the cases discussed below, see also supra notes 254-56, discussing Kleypas, and Kahler. In at least one of these other cases, see State v. Lang, 954 N.E.2d 596, 640 (Ohio 2011), the majority merely said: “Lang attacks the constitutionality of Ohio’s death-penalty statutes. This claim is summarily rejected.” And in Commonwealth v. Bauhammers, 960 A.2d 59 (Pa. 2008), there is no mention of the categorical exemption argument.

²⁵⁷ 877 N.E.2d 144 (Ind. 2007).

²⁵⁸ Id. at 178 (Boehm, J., concurring in result).

²⁵⁹ See Perlin & Harmon, supra note 16; Perlin, Harmon & Kubniec, supra note 16.

²⁶⁰ See generally Michael L. Perlin., “I’ve Got My Mind Made Up”: How Judicial Teleology in Cases Involving Biologically Based Evidence Violates Therapeutic Jurisprudence, 24 Cardozo J. Equal Rts. & Soc’l J. 81, 93-95 (2018) [hereinafter Perlin, Mind Made Up]; Michael L. Perlin & Alison J. Lynch, “In the Wasteland of Your Mind”: Criminology, Scientific Discoveries and the Criminal Process, 4 Va. J. Crim. L. 304, 357 (2016), for fuller expositions. It also distills the work that one of the co-authors (MLP) has done on this topic for the past 30 years, beginning with Michael L. Perlin, What Is Therapeutic Jurisprudence?, 10 N.Y.L. Sch. J. Hum. Rts. 623 (1993). Two of the authors (MLP & TRH) discuss the implications of therapeutic jurisprudence in their earlier articles on implementation of Strickland v. Washington (see Perlin, Harmon & Chatt, supra note 41), Atkins v. Virginia (see Perlin, Harmon & Wetzel, supra note 41), and Panetti (see Perlin & Harmon, supra note 16 ), all in the Fifth Circuit, as well as on Panetti in all other federal circuits (see Perlin, Harmon & Kubiniec supra note 16).

²⁶¹ Michael L. Perlin, “And My Best Friend, My Doctor, Won’t Even Say What It Is I’ve Got”: The Role and Significance of Counsel in Right to Refuse Treatment Cases, 42 San Diego L. Rev.735, 751 (2005); see also David Wexler, Therapeutic Jurisprudence: Restructuring Mental Disability Law, 10 N.Y.L. Sch. J. Hum. Rts. 759 (1993).

²⁶² Bruce J. Winick, Foreword: Therapeutic Jurisprudence Perspectives on Dealing with Victims of Crime, 33 Nova L. Rev. 535, 535 (2009); see David B. Wexler, Practicing Therapeutic Jurisprudence: Psycholegal Soft Spots and Strategies, in Dennis P. Stolle et al., Practicing Therapeutic Jurisprudence: Law as a Helping Profession 45 (2000).

²⁶³ Perlin, Mind Made Up, supra note 262, at 94 (citing Bruce J. Winick & David B. Wexler, The Use of Therapeutic Jurisprudence in Law School Clinical Education: Transforming the Criminal Law Clinic, 13 Clinical L. Rev. 605, 605-07 (2006)).

²⁶⁴ Id. (citing Bruce Winick, A Therapeutic Jurisprudence Model for Civil Commitment, in

Involuntary Detention & Therapeutic Jurisprudence: International Perspectives on Civil Commitment 23, 26 (Kate Diesfeld & Ian Freckelton eds., 2003)).

²⁶⁵ See generally Michael L. Perlin, “Pistol Shots Ring Out in the Barroom Night”: Bob Dylan’s “Hurricane” as a Course (or Exam) in Criminal Procedure, 48 Am. J. Crim. L. 253, 279 (2021).

²⁶⁶ See Amy Ronner, The Learned-Helpless Lawyer: Clinical Legal Education and Therapeutic Jurisprudence as Antidotes to Bartleby Syndrome, 24 Touro L. Rev. 601, 627 (2008).

²⁶⁷ Michael L. Perlin & Naomi M. Weinstein, “Said I, ‘But You Have No Choice”’: Why a Lawyer Must Ethically Honor a Client’s Decision About Mental Health Treatment Even if It Is Not What S/he Would Have Chosen, 15 Cardozo Pub. L. Pol’y & Ethics J. 73, 115 (2016-17).

²⁶⁸ See Michael L. Perlin, “Striking for the Guardians and Protectors of the Mind”: The Convention on the Rights of Persons with Disabilities and the Future of Guardianship Law, 117 Penn St. L. Rev. 1159, 1186 (2013); Heather Ellis Cucolo & Michael L. Perlin Promoting Dignity and Preventing Shame and Humiliation by Improving the Quality and Education of Attorneys in Sexually Violent Predator (SVP) Civil Commitment Cases, 28 Fla J. L. & Pub. Pol’y 291 (2017); Michael L. Perlin, “Have You Seen Dignity?”: The Story of the Development of Therapeutic Jurisprudence, 27 N.Z.U. L. Rev. 1135 (2017) [hereinafter Perlin, Have You Seen Dignity], for a discussion on the relationship between dignity and therapeutic jurisprudence in general.

²⁶⁹ Michael L. Perlin, “Who Will Judge the Many When the Game is Through?”: Considering the Profound Differences between Mental Health Courts and “Traditional” Involuntary Civil Commitment Courts, 41 Seattle U. L. Rev. 937, 962 (2018). On dignity and compassion in this context in particular, see Michael L. Perlin, “In These Times of Compassion When Conformity’s in Fashion”: How Therapeutic Jurisprudence Can Root out Bias, Limit Polarization and Support Vulnerable Persons in the Legal Process, 10 Texas A&M L. Rev. 219, 228 (2023).

²⁷⁰ Carol Sanger, Decisional Dignity: Teenage Abortion, Bypass Hearings, and the Misuse of Law, 18 Colum. J. Gender & L. 409, 415 (2009), as quoted in Michael L. Perlin & Heather Ellis Cucolo, “Something’s Happening Here/But You Don’t Know What It Is”: How Jurors (Mis)Construe Autism in the Criminal Trial Process, 82 U. Pitt. L. Rev. 585, 617-18 (2021).

²⁷¹ Michael L. Perlin & Alison J. Lynch, “She’s Nobody’s Child/The Law Can’t Touch Her at All”: Seeking to Bring Dignity to Legal Proceedings Involving Juveniles, 56 Fam. Ct. Rev. 79, 88-89 (2018).

²⁷² Anthony Hopkins & Lorana Bartels, Paying Attention to the Person: Compassion, Equality and Therapeutic Jurisprudence, in The Methodology and Practice of Therapeutic Jurisprudence 107 (Nigel Stobbs, Lorana Bartels & Michel Vols eds., 2019). See also, in the context of TJ, Nigel Stobbs, Compassion, the Vulnerable and COVID-19, 45 Alt. L.J. 81, 81 (2020) (also quoted in David C. Yamada, Therapeutic Jurisprudence: Foundations, Expansion, and Assessment, 75 U. Miami L. Rev. 660, 682 (2021) (“Compassion is a virtue, value, or disposition to act which can be held by individuals or groups …. Compassion is generally defined as having two elements. First is empathy—the capacity to sense that another is suffering, and to know what it might feel like to be subjected to that kind of suffering …. The second element of compassion is a felt need to try and alleviate that sensed suffering of others.”).

²⁷³ Nigel Stobbs, Compassion, the Vulnerable and COVID-19, 45 Alt. L.J. 81, 81 (2020).

²⁷⁴ Perlin & Harmon, supra note 16, at 599-600.

²⁷⁵ Id. at 600-01.

²⁷⁶ Id. at 601-02

²⁷⁷ Id. at 602-03.

²⁷⁸ “Ordinary common sense” is “a powerful unconscious animator of legal decision making that reflects ‘idiosyncratic, reactive decision-making,’ and is a psychological construct that reflects the level of the disparity between perception and reality that regularly pervades the judiciary in deciding cases involving individuals with mental disabilities.” Perlin, Harmon & Chatt, supra note 41, at 281 (citing, inter alia, Michael L. Perlin, Psychodynamics and the Insanity Defense: “Ordinary Common Sense” and Reasoning, 69 Neb. L. Rev. 3, 22–23, 29 (1990), and Richard K. Sherwin, Dialects and Dominance: A Study of Rhetorical Fields in the Law of Confessions, 136 U. Pa. L. Rev. 729, 737–38 (1988)).

²⁷⁹ Perlin & Harmon, supra note 16, at 604.

²⁸⁰ Perlin, Harmon & Kubiniec, supra note 16, at 300.

²⁸¹ Id. at 50-51. See generally on a closely related question, Perlin, Harmon & Chatt, supra note 41 (discussing the Fifth Circuit’s global failure to correct violations of Strickland v. Washington, 466 U.S. 668 (1984) (on adequacy of counsel)).

²⁸² Perlin, Harmon & Kubiniec, supra note 16, at 301, citing Perlin & Lynch, supra note 262, at 333-34 (discussing, inter alia, the research reported in Nicholas Scurich & Adam Shniderman, The Selective Allure of Neuroscientific Explanations, 9 Plos One (Sep. 10, 2014), http://journals.plos.org/plosone/article?id=10.1371/journal.pone.0107529 [https://perma.cc/97DW-X F85]).

²⁸³ See generally Michael L. Perlin, “The Borderline Which Separated You from Me”: The Insanity Defense, the Authoritarian Spirit, the Fear of Faking, and the Culture of Punishment, 82 Iowa L. Rev. 1375, 1419 (1997)(“The legal system selectively, teleologically, either accepts or rejects social science evidence depending on whether or not the use of that data meets the system’s a priori needs. In cases where fact-finders are hostile to social science teachings, such data often meets with tremendous judicial resistance, evidenced by the courts’ expression of their skepticism about, suspicions of, and hostilities toward such evidence.”)

²⁸⁴ Heuristics are a cognitive psychology constructs that refers to the implicit thinking devices that individuals use to simplify complex, information-processing tasks, the use of which frequently leads to distorted and systematically erroneous decisions and causes decision-makers to “ignore or misuse items of rationally useful information. Perlin & Weinstein, supra note 269, at 86, citing, inter alia, Michael J. Saks & Robert F. Kidd, Human Information Processing and Adjudication: Trial by Heuristics, 15 Law & Soc’y Rev. 123 (1980-81). The confirmation bias causes us to focus on information that confirms our preconceptions. Perlin, supra note 43, at 1524 n. 94, citing Heather Ellis Cucolo & Michael L. Perlin, Preventing Sex-Offender Recidivism Through Therapeutic Jurisprudence Approaches and Specialized Community Integration, 22 Temp. Pol. & Civ. Rts. L. Rev. 1, 38-39 (2012) (quoting Eden B. King, Discrimination in the 21st Century: Are Science and the Law Aligned?, 17 Psychol. Pub. Pol’y & L. 54, 58 (2011)).

²⁸⁵ Alafair S. Burke, Improving Prosecutorial Decision Making: Some Lessons of Cognitive Science, 47 Wm. & Mary L. Rev. 1587, 1594 (2006)).

²⁸⁶ King, supra note 286, at 58; see also John T. Jost & Mahzarin R. Banaji, The Role of Stereotyping in System-Justification and the Production of False Consciousness, 33

Brit. J. Soc. Psych. L. 1 (1994); Amos Tversky & Daniel Kahneman, Availability: A Heuristic for Judging Frequency and Probability, 5 Cognitive Psychol. 207 (1973).

²⁸⁷ Perlin, supra note 262, at 95.

²⁸⁸ Perlin & Lynch, supra note 262, at 344. See generally Perlin, supra note 285, at 1419. The legal system selectively, teleologically, either accepts or rejects social science evidence depending on whether or not the use of that data meets the system’s a priori needs. In cases where fact-finders are hostile to social science teachings, such data often meets with tremendous judicial resistance, evidenced by the courts’ expression of their skepticism about, suspicions of, and hostilities toward such evidence.

²⁸⁹ David L. Faigman, “Normative Constitutional Fact-Finding:” Exploring the Empirical Component of Constitutional Interpretation, 139 U. Pa. L. Rev. 541, 549 (1991).

²⁹⁰ 2019 WL 2361999. *9 (Tex. Ct. Crim. App. 2019).

²⁹¹ Id. at *6. See supra note 164 for a full recounting of the defendant’s delusional thoughts.

²⁹² Id. at 15, discussed supra note 167.

²⁹³ Elsewhere, one of the authors (MLP) has concluded that courts’ teleological decisions in the area of malingering law--employing outcome-determinative reasoning, in which social science that enables judges to satisfy predetermined positions is privileged, while data that would require judges to question such ends are rejected--violate TJ. Perlin, supra note 262, at 82.

²⁹⁴ Traumatic brain injury (TBI) is “a disruption in the normal function of the brain that can be caused by a bump, blow, or jolt to the head, or penetrating head injury.” Injury Prevention & Control: Traumatic Brain Injury Prevention, Ctrs. for Disease Control & Prevention, https://www.cdc.gov/injury/stateprograms/topic_traumatic-brain-injury.html (last visited Dec. 24, 2022) [PERMA CC]. The effects of such an injury may be lifelong. Concussion and Traumatic Brain Injury Prevention Program, Ct.gov, https://portal.ct.gov/DPH/Health-Education-Management--Surveillance/The-Office-of-Injury-Prevention/Concussion-and-Traumatic-Brain-Injury-Prevention-Program [https://perma.cc/P5BC-K87R] (last visited Dec. 19, 2022). The effects “can include [impairments related to] thinking or memory, movement, sensation (e.g., vision or hearing), or emotional functioning (e.g., personality changes, depression).” Id.; see generally Lynch, Perlin & Cucolo, supra note 181, at 220. On TBI in the death penalty context, see id. at 245-46.

²⁹⁵ Id. at 245.

²⁹⁶ Id.

²⁹⁷ Long v. State, 271 So.3d 938, 947 (Fla.), cert. denied, 139 S.Ct. 2635 (2019).

²⁹⁸ 597 S.W.3d 661 (Mo. 2020). See supra text accompanying notes 179-84.

²⁹⁹ Barton, 666 S.W. 2d at 666.

³⁰⁰ 457 S.W. 3d 735 (Mo. 2015).

³⁰¹ Id. at 737.

³⁰² Perlin & Lynch, supra note 262, at 354 n. 171.

³⁰³ Id. at 354.

³⁰⁴ Colleen M. Berryessa, Judicial Stereotyping Associated with Genetic Essentialist Biases Toward Mental Disorders and Potential Negative Effects on Sentencing, 53 Law & Soc’y Rev. 202, 209 (2019), as discussed in Lynch, Perlin & Cucolo, supra note 181, at 268.

³⁰⁵ Perlin & Lynch, supra note 262, at 352-53. See also Michael L Perlin & Alison J. Lynch, “My Brain Is So Wired”: Neuroimaging’s Role in Competency Cases Involving Persons with Mental Disabilities, 27 B.U. Pub. Int. L.J. 73, 88-95 (2018).

³⁰⁶ See Lynch, Perlin & Cucolo, supra note 181.

³⁰⁷ See supra text accompanying notes 117-23.

³⁰⁸ If the universe is reported cases, then the only successes were Staley and Banks. If including cases in which defendants were ultimately successful (although not in reported opinions: see Overstreet, Druery, and Akwal), then the number changes from two to five.

³⁰⁹ It is also important to consider the pernicious way that “sanism” (prejudice of the same quality and character of other irrational prejudices that bear upon racism, sexism, homophobia and ethnic bigotry) infects the entire death penalty process. See e.g., Michael L. Perlin, The Sanist Lives of Jurors in Death Penalty Cases: The Puzzling Role of Mitigating Mental Disability Evidence, 8 Notre Dame J. L., Ethics & Pub. Pol’y 239, 257 (1994); John W. Parry, The Death Penalty and Persons with Mental Disabilities: A Lethal Dose of Stigma, Sanism, Fear of Violence, and Faulty Predictions of Dangerousness, 29 Mental & Physical Disability L. Rep. 667 (2005).

³¹⁰ See Perlin & Harmon supra note 16, at 579-80 (noting that there were just two such cases finding for defendants in the district courts in the states that comprise the Fifth Circuit).

³¹¹ See Perlin, Harmon & Kubiniec, supra note 16, at 276.

³¹² See Ballad in Plain D, bobdylan.com, https://www.bobdylan.com/songs/ballad-plain-d/ [https://perma.cc/6NR5-9BN4].