We need a new standard of mental competence, one that doesn’t allow for the execution of people who move between periods of sanity and insanity. (Sue Ogrocki/AP)
Susanna L. Blumenthal is Julius E. Davis professor of law and professor of history at the University of Minnesota. She is the author of "Law and the Modern Mind: Consciousness and Responsibility in American Legal Culture."

Before being sentenced to death by a Virginia court in June 2008 for the killings of a deputy sheriff and a hospital security guard, William Charles Morva was asked whether he had anything to say. He took the opportunity to make a short but potent statement that newspaper headlines described as “filled with defiance and delusion.”

Morva began by correcting the record as to his name, declaring it to be “Nemo. A slave name.” Then he turned the tables on those present, indicting “you people, your whole society” for “all the evil things you do to each other and to the whole planet, the whole Earth.” His final words came in the form of a prophecy. “You may kill me and that’s guaranteed. I can’t fight. There’s nothing more I can do, but there are others like me and I hope you know that and soon they’re going to get together. They’re going to sweep over the whole civilization and they’re going to wipe these smiles off of your faces forever.”

Today is the day set for Morva’s execution. Concerns about his grip on reality have only intensified in the years since his trial, culminating with a petition for clemency from Gov. Terry McAuliffe, along with a flood of letters from state legislators, national mental health advocates, international organizations and foreign governments, including the United Nations and the European Union. They all argued that jurors did not have the benefit of expert testimony to show that Morva suffered from a serious mental illness at the time he committed his crimes, a delusional disorder that can and should be treated as part of his prison term.

The case demonstrates the reckless cruelty of our current approach to mental illness and capital punishment, one rooted in America’s fatally incoherent jurisprudence of insanity, a body of law shot through with damning inconsistencies and contradictions.

The problem with this approach can be observed in the haphazard process by which Morva’s mind was assessed by the criminal justice system. While mental health professionals were involved in his capital trial, their examinations failed to comprehend the full extent of his family and medical history. The two experts who testified on his behalf during the penalty phase both characterized him as having a “superior IQ” and a schizotypal personality disorder.

That evidence, meant to mitigate Morva’s crimes, was folded into the state’s closing argument, portraying the defendant as an extremely intelligent and selfish man who would kill again. It was only after Morva had been sentenced to death, in the very last phases of the appellate process, that a psychiatrist was finally appointed by the court to conduct a fuller investigation. Only then was Morva found to have been suffering from a delusional disorder at the time of his crimes, “a major mental illness,” which had only grown more severe in the years he has been on death row.

From the standpoint of legal history, this set of forensic maneuvers is all too predictable. In the wake of the American Revolution, jurists built a republic of laws upon the Enlightenment science of the mind, presuming all men were endowed with reason and moral sense. Thus, they recast legal personhood in terms of sanity rather than status: Possessing a rational mind, not a noble lineage, was the key to citizenship.

In so doing, these jurists posited a certain relationship between mental competency and legal responsibility: A person’s ability to exercise a “rational liberty” established his liability for the consequences of his acts. There was, however, a fundamental problem with this legal formulation. After all, if rational and moral faculties were innate and universal, why were some led to commit acts that were, to others, patently irrational or downright evil? And to the extent there was a common sense about the dictates of reason, why did some people act in defiance of it?

Answers were readily supplied by a new cadre of medical men who claimed expertise in the diagnosis and treatment of “mental alienation.” Drawing on their clinical experiences, they suggested that many forms of deviance, conventionally attributed to moral depravity, were instead the product of physical diseases better treated in an insane asylum than a prison.

These doctors published their findings in elaborate treatises on the “medical jurisprudence of insanity,” arguing for revision of the common law of capacity, which narrowly defined insanity in terms of a “total deprivation of reason.” They urged legal recognition of partial forms of insanity, called “monomanias,” which could escape detection by the untrained eye, since the sufferer retained the ability to act rationally on subjects beyond the sphere of the “controlling delusion.”

Judges were at first receptive to this new medical psychology, but they began to have second thoughts as both civil and criminal court dockets swelled with capacity litigation. Parties regularly appeared before them flanked by medical experts and an army of lay witnesses who offered opposing portraits of the alleged incompetent. In case after case, members of the bench were tasked with the maddening enterprise of distinguishing true madness from mere eccentricity or perversity.

In the crucible of the courtroom, it is perhaps no wonder that judges attempted to bring order to these unruly proceedings by developing a relatively autonomous law of insanity that kept a pragmatic distance from both medicine and metaphysics. But as a practical matter, this has left defendants with severe mental illnesses vulnerable to the same punishments as those with full competency, leaving an entire class of people who are not fully competent potentially subject to the full punitive force of the law.

As the hour of Morva’s execution draws near, we have arrived at a moment of truth: Do we truly regard the execution of the insane as cruel and unusual? A line of Supreme Court cases has clearly held that the Eighth Amendment prohibits such punishment. But the court has left the standard of competency too vague to protect the very class of people it purports to protect from the death penalty: those who lack a rational understanding of the reasons for their execution. Legislative measures have been proposed in a number of states this year that would bar the use of the death penalty for those who suffered from a serious mental illness at the time of their offense, but it remains to be seen whether and when they will succeed.

In the meantime, in the absence of a clearly articulated set of rules and procedures, those with delusional disorders are often left to languish on death row without receiving medical attention, save a few summary evaluations that tend to treat their mental aberrations as evidence that they are either malingering or too dangerous to be spared the death penalty.

Unless and until we clarify what it means to be competent to be executed, death row inmates such as Morva deserve the benefit of the doubt. To proceed otherwise is to run the unacceptable risk of “killing one who has no capacity to come to grips with his own conscience or deity,” as Justice Thurgood Marshall wrote in his 1986 opinion in Ford v. Wainwright. His words bear repetition today as the state of Virginia and its governor stand on the verge of “exacting a mindless vengeance.”