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The media has credited the Supreme Court of the United States with banning execution of the insane as evidenced by the following headlines:
“Executing the Insane Is Against the Law of the Land. So Why Do We Keep Doing It?”
“Insanity can shield you from being put on trial, found guilty or executed”
“Constitution sometimes prohibits executing the insane Justices say.”
“Executing the Insane Violates the Constitution”
All of these headlines are wrong!
These headlines illuminate the persistent confusion that is created by the law defining insanity in such way that is inauthentic and which refuses to allow any inference of insanity to be made from incompetency to stand trial. The Supreme Court has been instrumental in cultivating all of this confusion.
It happens to be the case that the court has in actuality banned execution, not of the insane, but on the basis of incompetency within a specific context, and under a definition wholly devised by The Court – which is something in the same spirit of the law but operationally different from incompetency to stand trial…a murky, evasive, standard that is so low as to be morally reprehensible, one that can inflict punishment for emerging from being “locked in” to a state of consciousness/neurocognitive disorder as a result of pharmaceutical treatment. This basis for The Court’s ruling does not so much seek to protect the condemned individual as it does to protect the retributionist from being deprived of the satisfaction derived from inflicting psychological pain and suffering on the condemned. Herein, the purported protection of the condemned on the basis of the Eighth Amendment is a pretension of noblesse oblige (in that The State and all of its innocent citizens are possessed of the privilege of sanity) and a mockery of the Constitution. Think about it, the Supreme Court using the 8th Amendment – which is meant to disallow cruel and unusual punishment, to ensure that suffering does occur when the punishment takes place. Astounding! It would be less cruel to allow a person to remain in a state of psychosis (neurologically detached from reality – a type of death of the self).
It is the case that the court requires that the condemned understand that The State is about to kill him or her and that they have a rational understanding of why they are going to be killed. Insanity – which the Supreme Court has left to the 50 states to define for themselves, and for some to abolish entirely.
Moreover, it would have to be assumed that any persons exempted from capital punishment on the basis of such a ruling would had to have become insane sometime after conviction (at least in the states that permit an insanity defense) given that insanity should have exempted the accused from conviction in the first place. Now, there is the question of what definition of insanity would be used in a determination of fitness to be killed by The State? If the Supreme Court would have banned Capital punishment of the insane, then they might have to define insanity – and moreover, would probably have to invent yet another inauthentic definition of Insanity that is valid only in the context of capital punishment.
This new page will display content about some sentinel rulings of the Court that have allowed the criminal justice system to indulge in the most hideous abuses of people afflicted with severe neurogenic dysmentation/neurobehavioral illness.
There are brilliant legal minds among the nine justices of our highest court, yet some of the most unjust decisions affecting people afflicted with neurobehavioral illness reflect the work of technicians rather than intellectuals in the law. (Just in case anyone errors in finding a particular political philosophy to be in harmony with being a technician in the law, let it be known that to call a professional, especially a high ranking one a technician…is a slur). We human beings will fail to understand who we are until we come to terms with how these neurological disorders affect human mentation, consciousness and behavior. Until then, we will continue to be primitives living within the trappings of modernity. The Supreme Court has had too many opportunities to elevate us out of this moral abyss and too many times, they have failed.
First up and in the workshop, Clark v. Arizona, a reprehensible decision by the Court with the only redemption being the dissent written by Justice Kennedy.
There will be forthcoming commentary about Arizona’s insanity defense that will be posted elsewhere and linked to on this page. The commentary will examine the content of a paper written by a law scholar on the topic of the history of the insanity defense and Arizona’s particular approach to it. This page is reserved for content pertaining to the rulings of the Court so a commentary on this paper would be out of place here.
The paper posits that “The history of insanity reform in Arizona suggests that legislators could probably have placated the public—eager for harsh justice after a series of questionable insanity acquittals—with a scheme that emphasized pure restraint and retribution against mentally-disordered offenders to the detriment of other values. To this Due Justice Project has to say: To the extent that legislators yield to the pitchfork mob in curtailing the insanity defense, a greater responsibility needs to be accepted and borne by the Supreme Court to protect this nation’s most vulnerable citizens from injustice. The problem with the Court is that they are no less skeptical of this defense than ordinary citizens.
The paper is an interesting read, however, some of the philosophical articulations exemplify the sort of shockingly quixotic reasoning that is produced when high intellect filters through lack of depth perception into neuropsychiatric illness (similar to what is observed in some of the Supreme Court’s rulings).
Next Up, Sell v. United States.
This first commentary is an external document. It is a scholarly review of the case. A rhetorical commentary by DueJusticeProject will follow at a future date.