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.

