Attorneys ask court to spare Scott

5/11/2001

COLUMBUS - Attorneys for death-row inmate Jay Scott asked the Ohio Supreme Court yesterday to halt his Tuesday execution, saying society's standards have changed over the last two decades about carrying out the death penalty against those with severe mental illnesses.

But several of the justices, including Andy Douglas of Toledo, reacted skeptically about whether they had any grounds to strike down part of Ohio's death-penalty law or part ways with the U.S. Supreme Court.

The justices asked several questions that indicated their imminent decision could serve as a map for death-penalty cases involving inmates with severe mental illnesses.

Scott, 48, is on death row for the 1983 murder and robbery of an elderly Cleveland woman who owned a delicatessen. On April 17, he was set to become the first person executed in Ohio against his will since 1963.

But 81 minutes before the execution by injection, a state appeals court in Cleveland asked for a delay and the Ohio Supreme Court agreed.

Ohio's death-penalty law mirrors a 1986 U.S. Supreme Court decision that said executing the insane is unconstitutional. The standard is whether the condemned understands the death penalty and why it is being carried out. A Cuyahoga County trial judge and state appeals court have ruled that Scott is competent to be executed.

Tim Sweeney, an attorney representing Scott, told the state Supreme Court justices that Scott deserves a hearing on whether he is insane.

But even if he is not insane, Scott should not be executed because “evolving standards of decency” show that society does not want to execute those with severe mental illnesses, Mr. Sweeney said. Scott's attorneys and the state agree that Scott suffers from schizophrenia, diagnosed after his 1984 conviction.

“Don't we have a case that's treatable?” asked Chief Justice Thomas Moyer.

Mr. Sweeney said Scott was taking medication for schizophrenia in November, but he had psychotic behavior and was placed on a suicide watch for five days at the Mansfield Correctional Institution, where death row is housed.

But Justice Deborah Cook asserted that Scott's attorneys had not produced any evidence showing there is a likelihood that Scott is insane. She also noted that two federal appeals courts in the West have declined to bar the execution of those with severe mental illness as “cruel and unusual punishment.”

Justice Cook questioned how the high court would determine how “standards of decency” have evolved about executing the mentally ill.

Mr. Sweeney replied: “Science tells us that people suffering from schizophrenia have a biological disorder and it does not go away.”

But state Solicitor David Gormley said the U.S. Supreme Court did not declare executing the insane unconstitutional in 1986 until every state adopted laws banning the practice.

Justice Paul Pfeifer questioned whether Ohio has to “wait for all the states south of the Mason-Dixon line to catch up to the rest of the world, or should we look at this question?”

A former state senator, Justice Pfeifer helped write Ohio's death-penalty statute that took effect in 1981, but he has raised concerns about capital punishment over the last few years.

Mr. Gormley said he saw no sentiment in the Ohio General Assembly to bar the execution of those with severe mental illnesses.

“Schizophrenia is terrible, but that's not the issue,” he said.

Mr. Sweeney asked the high court to delay Scott's execution until the U.S. Supreme Court rules in a North Carolina case whether it is “cruel and unusual punishment” to execute a mentally retarded person. Justice Pfeifer noted that government generally has “afforded more protection for the mentally ill” than those with mental retardation.

If the Ohio Supreme Court does not block Scott's execution, an appeal will be filed with the U.S. Supreme Court, Mr. Sweeney said.