Perlin on Panetti

New on SSRN: Michael L. Perlin, Insanity is Smashing Up Against My Soul: Panetti v. Quarterman and Questions That Won't Go Away. The abstract:

In Panetti v. Quarterman, the US Supreme Court expanded upon and clarified its earlier decision in Ford v. Wainwright, barring the execution of persons with mental disabilities who do not have a rational understanding of the reasons he is to be executed. The Panetti decision, however, has a second holding that may be equally important: that the failure to provide a defendant an adequate opportunity to submit expert evidence in response to the report filed by the court-appointed experts thus deprived him of his constitutionally adequate opportunity to be heard.

Both of these holdings leave open multiple questions that will likely be explored in subsequent cases (how severe does a mental illness have to be to qualify under this standard? how closely will it monitor the extent to which lower courts implement the new standard? To what extent does this decision augur a new level of comfort with expert testimony in other sorts of criminal proceedings). However, the Court chose not to address the question that many observers had thought was at the core of the case: whether a defendant can be medicated so as to make him competent to be executed? Does the Court's decision to not confront this question mean that it will never deal with such a case?

In this discussion of Panetti, I offer some possible answers to these questions.