Legal experts and policymakers file amicus brief cited in Fifth Circuit death penalty case

Client(s) The Constitution Project

In 2015, Jones Day filed an amicus curiae brief in the U.S. Court of Appeals for the Fifth Circuit, on behalf of a group of legal experts, conservative policymakers, and others opposed to the execution of a Texas death row inmate, Scott Panetti. In their brief, the amici argued that Mr. Panetti—who has a long history of severe mental illness that predates his crime—should be afforded adequate time and the assistance of counsel, investigators, and medical experts to prove whether he is competent to be executed. Notably, some of the amici support capital punishment, and others do not. But “[e]ven for those who favor a measured and just system of capital punishment,” their brief argued, “the execution of Panetti would be a moral scandal that would only undermine confidence in such a system.”

The district court had denied Panetti’s request for counsel and expert assistance and relied on seven year-old data to conclude that Panetti was still competent to be executed. On July 11, 2017, the Fifth Circuit reversed and directed the district court to grant Panetti’s requested relief.

Writing for the majority, Judge Patrick Higginbotham cited Jones Day’s brief to make two important points. First, Judge Higginbotham wrote, there is “no dispute” that Panetti has been and remains mentally ill. And in the years since his last competency determination, there is compelling the evidence, “as recounted by the amici,” that Panetti’s mental state had deteriorated. Second, Judge Higginbotham emphasized the underlying principle at stake: “There is no justification for executing the insane, and no reasoned support for it . . . .” This was evident from “only a glance at the brief of amici,” which discussed at length the due process and policy reasons behind that principle.

Panetti v. Davis, 863 F.3d 366 (5th Cir. 2017)