In May 2013, the U.S. Court of Appeals for the Eleventh Circuit rejected an appeal by John Errol Ferguson, a Florida prisoner who has been on death row for more than three decades. Mr. Ferguson, a prisoner with a 40-year history of mental illness and a diagnosis of paranoid schizophrenia, was scheduled to be executed in October of 2012. His execution was halted at the last minute when the Eleventh Circuit granted a stay to allow time for Mr. Ferguson, represented by a team of volunteer attorneys from Hogan Lovells, to pursue an appeal.
Hogan Lovells argued that executing Mr. Ferguson would be unconstitutional under the U.S. Supreme Court’s decision in Panetti v. Quarterman, which established that no person should be executed if he lacks a “rational understanding” of the reasons for and consequences of his punishment. On appeal, the Eleventh Circuit considered whether the Florida Supreme Court correctly applied U.S. Supreme Court precedent when it evaluated Mr. Ferguson’s claims under the older and more permissive Ford standard of competence, which requires only that the prisoner have a “factual awareness” of his execution and the reason for it.
Shortly before the scheduled October 2012 execution, a Florida trial court held a hearing regarding Mr. Ferguson’s competency. During that hearing, experts testified that he believes he will be physically brought back to life after his death as the “Prince of God” to fight a communist conspiracy to take over the United States. Mr. Ferguson also believes, perhaps inconsistently, that he has “special powers” that will prevent his death. The state court found that these delusions are genuine, but it said that “[t]here is no evidence that Ferguson’s belief as to his role in the world and what may happen to him in the afterlife is so significantly different from beliefs other Christians may hold so as to consider it a sign of insanity.” It held that Mr. Ferguson was aware of the fact of his execution and therefore competent under the Ford analysis. The Florida Supreme Court subsequently affirmed this decision, using the same standard for analysis.
On May 21, 2013, the Eleventh Circuit ruled that the competency standard applied by the Florida Supreme Court was not inconsistent with the Panetti standard, even though it relied on the earlier Ford decision. It said that just because the state court “used the terms ‘awareness’ and ‘understanding’ interchangeably . . . does not mean that it failed to heed the holding of Panetti.” This finding appeared to disregard the explicit words of the Florida Supreme Court, which rejected the Panetti standard as “not add[ing] anything to Florida’s determination of insanity to be executed.” The Eleventh Circuit, which typically defers to state courts regarding factual findings, then held that although Mr. Ferguson suffers from mental illness, he has a rational understanding of his execution and the reasons for it, and he is therefore competent to be executed.
Mr. Ferguson’s volunteer attorneys have appealed the decision and have filed a petition for certiorari at the United States Supreme Court.