Moreover, in Perry v. Louisiana, 498 U.S. 38 (1990), the Court used that decision to bolster Louisiana's attempts to forcibly medicate a prisoner in order to make him death-eligible. If one agrees that the death penalty is a just penalty for one who has committed a capital crime, and that the reason that mentally ill defendants should not be executed is because they lack competence, then it does not seem unethical to allow them to be forcibly medicated in order to be competent. After all, in that scenario, avoiding medication could be likened to any other attempt to avoid punishment. Moreover, an organic physical disorder that arose after conviction, but that would have prevented a defendant from committing a crime, would not be sufficient reason not to execute a person on death row. However, forced medication, especially for court appearances, may violate a defendant's Fifth Amendment right to present a defense. After all, if a defendant's defense is based on insanity, or he intends to rely upon a mental illness as one of his mitigating factors, then forcing him to present himself in a medicated state before the factfinder deprives him of a meaningful element of his defense.

In addition, the above arguments rest upon the assumption that these mental illnesses have all arisen in post-conviction settings, because our justice system theoretically embraces the notion that people who were insane at the time of the commission of the crime should not face criminal convictions, but, instead, be diverted into civil commitments or other proceedings, designed to get them assistance and make them "healthy." In addition, our criminal justice system purports to ensure that defendants are competent to stand trial, which would ensure that they are able to participate in their own defenses and not fall prey to the very problems that make the execution of the mentally ill morally questionable, even for advocates of the death penalty. The problem is that those assumptions are simply not warranted.

In fact, for the first time, the Supreme Court's decision in Panetti v. Quarterman, 127 S. Ct. 2842 (2007) seemed to recognize that the criminal justice system simply was not giving adequate consideration to capital defendants' mental statuses. According to Richard Bonnie, the Panetti litigation:

exposes the utter failure of the criminal justice system to take adequate account of the effects of severe mental illness in capital cases, specifically by failing to assure a fair defense for defendants with mental disabilities, by failing to give morally appropriate mitigating effect to claims of diminished responsibility at the time of the crime, and by failing to correct these deficiencies in post-conviction proceedings. Indifference to claims of incompetence on the eve of execution is only the last link in a long chain of indifference and neglect. (Bonnie, 2007).

The history of Panetti dramatically illustrates how mental illness can impact a defendant in all stages of the criminal process. Panetti had a lengthy and well-documented history of mental illness, including more...

Moreover, though he was medicated, it does not appear that Panetti was able to assist in his own defense. However, after an initial mistrial, Panetti was found competent to stand trial. Panetti decided that his schizophrenia was cured and stopped taking his medication. Despite his attorneys' protests, Panetti managed to convince the trial court to allow him to waive his right to counsel and represent himself.
Despite the fact that Panetti engaged in clearly irrational behavior, such as subpoenaing Jesus Christ and John F. Kennedy, the trial court never revisited the issue of Panetti's competency. Furthermore, the trial court failed to consider whether there was a difference between competency to stand trial and competency to represent oneself, though logic would suggest a large gap between the two standards. In fact, the "measure of capacity should be more particularized in this context, taking into account the stakes of proceeding without counsel and the jeopardy to which the unrepresented defendant is exposed." (Bonnie, 2007). That Panetti was probably incompetent to represent himself seems clear because, within two months of receiving his death sentence, the same trial court that found him competent to represent himself "found him incompetent to waive the appointment of counsel to represent him in post-conviction proceedings." (Bonnie, 2007).

While Panetti's scenario clearly demonstrates an incompetent defendant, one of the serious issues plaguing the mentally ill is an equation of mental illness with incompetence. Once mentally ill defendants are found incompetent to stand trial, they are not set free and allowed to continue their lives. On the contrary, they are confined, frequently indefinitely, to mental institutions for treatment. Furthermore, the period of confinement can actually make it less likely, rather than more likely, that the defendant will eventually be acquitted, because it makes it more difficult for a defendant to prepare a defense, locate witnesses, and secure evidence. (Fentiman, 1986).

Clearly, there is no easy solution to the moral dilemma that surrounds the execution of the mentally ill. While the legal system has established awareness of the death penalty and the reason that it is being used as a minimum standard, it is clear that such a minimum does not fully reflect modern views on mental illness. Clearly, seriously mentally ill people are being denied a meaningful opportunity to present their own defenses. As a result, even if society fails to conclude that the execution of the mentally ill violates the Eighth Amendment, it seems clear that many mentally ill defendants have not received due process of law, making their convictions and sentences unconstitutional.