On the Death of John Ferguson
When the sun rose this morning you had every reason to believe that the Eighth Amendment precludes the execution of the insane. When the sun sets tonight you have no such reason to so believe.

Aug 5, 2013: Last week, Justice Antonin Scalia excoriated his colleagues on the United States Supreme Court for not always saying what they mean. Today, with a man's life on the line, with lower courts in full-flowered rebellion, and with a clear and present opportunity to decisively affirm their own precedent, those same justices demonstrated that they don't always mean what they say. The result is yet another shocking example of the hollowness of constitutional doctrine in the Roberts Court era.

Today, the Supreme Court allowed Florida to execute a patently insane man named John Ferguson, a man with 40 years worth of paranoid delusions chronicled by government doctors, a man who considered himself the "Prince of God." This Court allowed the execution to proceed even thought it has for decades purported to forbid the execution of prisoners who are considered too ill, too mentally incompetent, to comprehend the nature of what is being done to them. Not a single justice dissented from the Court's decision to effectively abandon the core of its Eighth Amendment jurisprudence. Not a single justice explained the retreat. Not one. Here is the one-paragraph denial of his petition for certiorari (i.e. "for review").

This is not a column about the death penalty and the wrongfully convicted. It is not a study in professed innocence or ineffective assistance of counsel. You'll find no lament here about racial injustice or jury bias. Ferguson brutally murdered people and deserved to be punished. But what happened here goes beyond the man. It goes to a system where the language of the law says one thing and the implementation of the law says another. It goes to a constitutional regime where we all pat one another on the back for our common decency-- we don't execute the mentally retarded, we don't execute the insane-- while executing the mentally retarded and the insane. The smugness of that, the hypocrisy of it, is breathtaking.

Gone along with Ferguson is the essence of Ford v. Wainwright, the 1986 decision in which the Court struck down an earlier Florida attempt to execute an insane man. "It is no less abhorrent today that it has been for centuries to exact in penance the life of one whose mental illness prevents him from comprehending the reasons for the penalty or its implications," Justice Thurgood Marshall wrote. Today, his successor on the bench, Justice Clarence Thomas, was silent as Ferguson was put to death. Today, among these justices, it evidently is "less abhorrent than it has been for centuries" to execute a man who believed, as Ferguson did, that he would rise up after his death to fight with Jesus against Communists.

Also gone along with Ferguson is the essence of Panetti v. Quarterman, the 2007 decision in which the Court struck down an effort by Texas to get around the justices' command in Ford. In Panetti, the Court made it clear that states could not take a narrow view in interpreting the extent of a condemned man's competency; that the Ford standard was to be extended, not narrowed, to spare incompetent defendants from being put to death. In Panetti, the Court stated:

    Both the potential for this recognition and the objective of community vindication are called into question, however, if the prisoner's only awareness of the link between the crime and the punishment is so distorted by mental illness that his awareness of the crime and punishment has little or no relation to the understanding shared by the community as a whole. A prisoner's awareness of the State's rationale for an execution is not the same as a rational understanding of it.

It was this new standard that both the Florida Supreme Court and the 11th U.S. Circuit Court of Appeals ignored or undermined in concluding that Ferguson was mentally competent to be executed. Let me put it another way. After the Supreme Court in 2007 broadened the constitutional standard in favor of mentally ill defendants, Florida and a federal appeals court ignored that broadened standard and applied a more restrictive test. They did precisely what the Court in Panetti said they couldn't do. And today the Court, without comment, permitted those lower courts to do so. Never mind saving Ferguson. Not a single justice sought to rescue Panetti.

When the sun rose this morning you had every reason to believe that the Eighth Amendment precludes the execution of the insane. When the sun sets tonight you have no such reason to so believe. The Court accomplished this dubious feat, this clear devolution in "standards of decency," this change in constitutional doctrine, without an oral argument, a complete round of briefing by the lawyers, or a single published decision. They simply refused to substantively rule on the merits of the case. As I wrote last week, this is not law but lawlessness; an abdication of the role of judges to abide by the standards they themselves set.

John Ferguson may have gone to his Maker believing in his addled mind that Florida executed him so that he could not "ascend to his rightful throne." But you and I both know that Florida executed him because it was willing to defy the High Court, because the 11th Circuit was willing to be overturned on appeal, and because the justices in Washington inexplicably countenanced those layers of judicial defiance. Maybe someday the justices will explain the timorous way in which they stepped back today from the ramparts of the "cruel and unusual" clause of the Eighth Amendment. Maybe they will explain why they so easily abandoned Ford and Panetti. Then again maybe not.

Courtesy: The Atlantic