Full opinion text
MEMORANDUM OPINION AND ORDER TOM S. LEE, District Judge. This matter comes before the court on the Motion of Petitioner to Determine Competency to be Executed while Being Treated with Anti-Psychotic Medication and Request for Ford/Panetti Competency Hearing Date. The court held a hearing on this Motion on June 25-26, 2009, at which the parties presented evidence and testimony regarding James Billiot’s current mental state. Having heard the testimony and reviewed the exhibits and pleadings submitted by counsel, the court is of the opinion, for the reasons that are more fully set forth below, that Billiot has established that his mental condition has deteriorated to a point where he can not be executed under Eighth Amendment standards. Therefore, he is entitled to habeas relief on this issue. HISTORY James Billiot has been convicted of capital murder in the deaths of his mother, stepfather and half-sister, which occurred in November 1981. He has been sentenced to death. His initial Petition for Writ of Habeas Corpus was filed in this court in May 1986, claiming, among other things, that he was incompetent to be executed by reason of insanity. A month later, the United States Supreme Court issued its opinion in Ford v. Wainwright, 477 U.S. 399, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986), holding that the Eighth Amendment prohibits execution of the insane. In light of Ford, this court held the petition in abeyance until Billiot could exhaust his insanity claim in state court. Billiot then sought post-conviction relief from the Mississippi Supreme Court on that claim. That court granted Billiot’s request for an evidentiary hearing on his competency allegations, citing both Ford and Miss. Code Ann. § 99-19-57(2)(l972 & Supp. 2008). Billiot v. State, 515 So.2d 1234, 1235-36 (Miss.1987). The statute, as it existed at that time, stated, in pertinent part: 2(a) If it is believed that a convict under sentence of death has become insane since the judgment of the court, the following shall be the exclusive procedural and substantive procedure. The convict, or a person acting as his next friend, or the commissioner of corrections may file an appropriate application seeking post-conviction relief with the Mississippi Supreme Court. If it is found that the convict is insane, as defined in this subsection, the court shall suspend the execution of the sentence. The convict shall then be committed to the forensic unit of the Mississippi State Hospital at Whitfield. The order of commitment shall require that the convict be examined and a written report be furnished to the court at that time and every month thereafter, stating whether there is a substantial probability that the convict will become sane under this subsection within the foreseeable future and whether progress is being made toward that goal. If at any time during such commitment the appropriate official at the state hospital considers the convict is sane under this subsection, such official shall promptly notify the court to that effect in writing and place the offender in the custody of the commissioner of corrections. The court shall thereupon conduct a hearing on the sanity of the convict. The finding of the circuit court is a final order appealable under the terms and conditions of the Mississippi Uniform Post-Conviction Collateral Relief Act. (b) For the purposes of this subsection, a person shall be deemed to be insane if the court finds that the convict does not have sufficient intelligence to understand the nature of the proceedings against him, what he was tried for, the purpose of his punishment, the impending fate which awaits him, and a sufficient understanding to know any fact which might exist which would make his punishment unjust or unlawful and the intelligence requisite to convey that information to his attorneys or the court. Id. at 1236. (With minor stylistic changes, this statute continues to apply to inmates under a sentence of death whose competence is in question.) The Circuit Court of Harrison County conducted an evidentiary hearing on November 14, 1988, and found that Billiot was competent, under existing law, to be executed. Six experts testified during that hearing — Dr. Robert McKinley, Dr. Michael Whelan and Dr. William Johnson for Billiot; and Dr. Henry Maggio, Dr. Donald C. Guild and Dr. Charlton Stanley for the State. In determining the framework for its analysis of that testimony, the trial court reviewed both the Mississippi statute and Ford, stating, “[T]he two tests or standards can be read together without doing violence to either and the Court applies this combined standard to the present case.” Considering the experts’ testimony, the court recognized that the majority of them believed Billiot to be suffering from paranoid schizophrenia, but it held that the diagnosis, alone, would not prevent Billiot from being competent to be executed. The court’s ultimate conclusion on Billiot’s competence follows: The only expert to state that Billiot was not presently competent to be executed was Dr. William Johnson. Dr. McKinley offered no opinion. The other experts stated that Billiot was competent at the time they examined him. The fact that these examinations have taken place at differing times over several years and in each instance he has been competent forces the Court to the conclusion that Billiot is presently sane and competent to be executed under the Mississippi statute because the Court finds as fact that Billiot does possess sufficient intelligence to understand the nature of the proceedings against him, what he was tried for, the purpose of his punishment, the impending fate which awaits him, and has a sufficient understanding to know any fact which might exist which would make his punishment unjust or unlawful and the intelligence requisite to convey such information to his attorneys or this court. The Court further finds that Billiot is also sane under the criteria set forth in Ford v. Wainwright, supra, in that he is aware of the punishment he is about to suffer and why he is going to suffer the punishment of death. Billiot v. State, No. 18-761; DP-38, Findings of Fact and Conclusions of Law 39-40 (Cir. Ct. of Harrison County, Miss. May 10,1989). This decision was appealed to the Mississippi Supreme Court, which approved the legal standard used by the trial court and held that the evidence presented there was sufficient to support that court’s conclusion. Billiot v. State, 655 So.2d 1, 12-15 (Miss.1995). The court rejected arguments attacking both the procedure by which the trial court reached its decision and its interpretation of the Mississippi statute. Id. at 16. The Mississippi Supreme Court also noted that Billiot had attacked the lower court’s proceedings by arguing that he had been improperly medicated with anti-psychotic drugs prior to his competency evaluations. Id. at 16-17. However, because Billiot had not objected to the medication at the hearing, but only in the proposed Findings of Fact and Conclusions of Law that were later submitted, the court held that the argument had been waived. Id. After the Mississippi Supreme Court held that Billiot was competent to be executed, he returned to this court and amended his Petition for Writ of Habeas Corpus to include his claims relative to the state court’s competency evaluation. Those claims have not yet been addressed by this court, although his remaining claims were considered. Most of those claims were rejected in a Memorandum Opinion and Order entered on March 19, 1997, in which this Court held that Billiot’s case should be remanded to the Mississippi Supreme Court because the instruction given on the “heinous, atrocious and cruel” aggravating circumstance was constitutionally invalid. The State appealed that denial, and the Fifth Circuit reversed and remanded for a harmless error analysis. Billiot v. Puckett, 135 F.3d 311, 320 (5th Cir.1998). On August 14, 2003, this court denied relief on all issues but the Ford claim and certified that denial for interlocutory appeal. The Fifth Circuit refused to consider that appeal in an unpublished opinion. Billiot v. Epps, 107 Fed.Appx. 385 (5th Cir.2004). Therefore, resolution of the competency claim is properly before this Court. PROCEDURAL STATUS Billiot’s Ford claim was stayed indefinitely in this court’s 2003 Memorandum Opinion and Order. In its opinion denying an interlocutory appeal, the Fifth Circuit determined that the Ford claim “is the only obstacle to a final judgment....” 107 Fed.Appx. at 387. A footnote in the opinion suggested that the Ford claim is premature because no execution date has been set. The court also suggested that the claim should be dismissed without prejudice, so that the requirements for an appeal could be satisfied. Id. at n. 1. However, this court has declined to dismiss that claim, reasoning that state law requires that an execution date be set as soon as any stay of execution granted by a state or federal court is lifted. Billiot v. Epps, No. Civ. A. 1:86cv549(L), 2005 WL 2877731 at *2 (S.D.Miss.2005). Thus, a finding by this Court that Billiot is competent would require that this Court’s stay be lifted, and his execution would then be imminent. So that Billiot’s remaining claim can be resolved and this case move forward toward a resolution, this court required the parties to prepare for a hearing on Billiot’s mental status. Id. At issue throughout the course of determining Billiot’s competence is the effect of medication on his evaluations, which requires a balancing of the State’s right to medicate him and his right to refuse such medication. In 1993, Billiot appeared before the Sunflower County Circuit Court for a hearing to determine the legality of the Mississippi Department of Corrections’ forcing medication upon him, which resulted in the entry of a Consent Decree in early 1995. According to the Decree, the parties “agreed that Mr. Billiot suffers from a chronic schizophrenic disorder and it is medically appropriate and necessary to medicate Mr. Billiot with psychotropic medication.” A procedure was agreed upon by which Billiot could be medicated. Later that year, apparently in accordance with this procedure, MDOC held a forced medication administrative hearing. During that hearing, prison medical officials testified that Billiot’s condition was deteriorating and recommended that he be given anti-psychotic medication, even against his will. Medication issues continued to arise in the context of conducting Ford evaluations, which further delayed the resolution of Billiot’s Ford claims. His attorneys argued that the evaluations should occur while Billiot was not medicated; however, the State argued that, given his condition while not medicated, failing to medicate Billiot might actually violate the Eighth Amendment’s prohibition against cruel and unusual conditions of confinement. In an effort to proceed toward a resolution of this matter without requiring that Billiot’s medication be taken away, this Court ordered that Billiot be evaluated while under his current medication regime, with all medical records provided to his counsel and the State ordered to report any change in his medication. In so doing, this Court reserved ruling on certain issues, as follows: In making this ruling, the Court specifically declines to rule at this time whether it can, or should, order that Billiot’s medication be stopped for the purpose of a competency evaluation. The Court likewise declines to decide whether Billiot is being medicated as part of a treatment program, or primarily for the purpose of impacting the determination of competency. The Court also withholds a ruling on whether Billiot is taking medication voluntarily. Should the Court determine that Billiot is incompetent to be executed even while medicated, then these more complex issues may be avoided. To assist this court in making this determination, Billiot has been evaluated by four experts who interviewed him in late 2007 and early 2008. In June of this year, those experts and Mr. Billiot appeared before this court to give testimony and evidence on the sole issue of whether Billiot, while taking anti-psychotic medication, is currently incompetent to be executed under federal law. STANDARD OF REVIEW Respondents argue that this court should defer to the state court’s 1989 finding that Billiot is competent to be executed and that, therefore, a further evidentiary hearing is improper. The Court rejects that contention, for several reasons. First, Billiot’s original petition was filed in 1986, prior to the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. 104-32, 110 Stat. 12144 (effective as of April 24, 1996). His Amended Petition was filed in August, 1996; however, this Court specifically held, in its Order permitting the amendment, that it was to be considered as part of the original petition. This is, therefore, a pre-AEDPA case, in which the more stringent standards of review in the amended version of 28 U.S.C. § 2254 do not apply. Lindh v. Murphy, 521 U.S. 320, 326-36, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). While a presumption of correctness applies to the state court’s findings of fact, under pre-AEDPA law, this Court may review questions of law or mixed questions of fact and law de novo, granting no deference to state court adjudications. Thompson v. Keohane, 516 U.S. 99, 111-12, 116 S.Ct. 457, 133 L.Ed.2d 383 (1995). A competency determination made by a state court is a factual issue. See Demosthenes v. Baal, 495 U.S. 731, 110 S.Ct. 2223, 109 L.Ed.2d 762 (1990). However, the standard by which competency is evaluated is a legal issue. See, e.g., Indiana v. Edwards, — U.S. -, 128 S.Ct. 2379, 2387-88, 171 L.Ed.2d 345 (2008) (establishing standard for judging competence to conduct own defense); Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960) (per curiam); Drope v. Missouri, 420 U.S. 162, 171, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975) (establishing standard for judging competence to stand trial). A compelling reason exists in this case to discount the state court’s opinion. Specifically, given that the issue here is Billiot’s present competence to be executed, this court is of the opinion that a presumption of correctness should not apply to a finding of competence made on the basis of medical testimony given twenty years ago. Respondents admitted as much at the beginning of the recent hearing, where, although arguing that a full and fair hearing occurred in state court, their counsel went on to state, “[W]e would say that we think that the inquiry here is a discrete inquiry of whether or not Mr. Billiot is presently competent to be executed, and not whether he was competent ten years ago, twenty years ago, or five years ago.” (Transcript of June 25-26 hearing, p. 4) Additionally, the court notes that one factor in the earlier finding of competency was the possibility that Billiot might be malingering, or exaggerating his symptoms. Dr. Guild, who testified at that hearing, specifically raised that possibility. Since then, numerous mental health professionals have examined Billiot, and none of them has offered that rationale for his behavior. Even the two experts who testified for Respondents during the hearing in this court believe that Billiot is not malingering. Moreover, the history of Billiot’s mental disorder, which is documented for over thirty years, shows sustained, consistent behaviors that support a finding that Billiot’s symptoms are not just real, but that they are becoming exacerbated with time. The experts who evaluated him for his earlier competency hearing obviously lacked this wealth of information. After consideration of all of these factors, this court has determined that the state court’s 1989 findings will be considered only in a historical context, as part of the continuing course of Billiot’s mental illness, which all of the experts have agreed is chronic. See, e.g., Thompson v. Bell, 580 F.3d 423, 436 (6th Cir.2009) (holding that, while the petitioner’s documented history of mental illness was not dispositive of the question of incompetence, “it is at least probative of the seriousness of his illness and whether it is chronic”) This court’s inquiry, then, will be limited to a determination of whether Billiot is presently incompetent to be executed, based on the current law and the evidence and testimony presented to the court in the hearing held on June 25-26, 2009. STANDARD FOR DETERMINING COMPETENCY The prohibition against execution of the mentally ill is based on ancient traditions of English common law. When Ford v. Wainwright, 477 U.S. 399, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986), was decided, no state permitted the execution of the insane. Id. at 408 n. 2, 106 S.Ct. 2595. Prior to Ford, however, the United States Constitution only provided procedural due process protection for the exemption from execution that was provided by state law. See, e.g., Phyle v. Duffy, 334 U.S. 431, 68 S.Ct. 1131, 92 L.Ed. 1494 (1948). Ford recognized that the Eighth Amendment also provides a restriction on a state’s substantive power to execute the mentally incompetent. Alvin Ford was convicted of murder and sentenced to death in the State of Florida. Well after his trial and sentencing, Ford began to exhibit bizarre behavior, based on his apparent belief in a wide-ranging conspiracy against him, which included the delusion that his family and friends had been taken hostage. His attorney ultimately invoked the procedures of Fla. Stat. § 922.07 (1985) to have Ford declared incompetent to be executed. In accordance with that statute, which prohibited execution of a prisoner unless he had “the mental capacity to understand the nature of the death penalty and the reasons why it was imposed upon him,” the Governor of Florida appointed three psychiatrists to examine Ford. Each of the psychiatrists concluded that Ford had a severe mental disorder, but all of them concluded that he was competent to be executed under Florida law. Based on those opinions, the Governor signed a death warrant for Ford’s execution, without further explanation. Ford, 477 U.S. at 402-04, 106 S.Ct. 2595. Two issues were before the Court in Ford: whether the Eighth Amendment prohibited the execution of the insane and whether the procedure employed by the Florida court to determine competency was constitutionally adequate. The Court’s ultimate determination in Ford’s favor on both issues was a plurality decision. Seven justices agreed that the Florida procedure was constitutionally inadequate; however, only four believed that a full evidentiary hearing was required. Justice Powell wrote separately to disapprove of Florida’s procedure, but he would have held that any procedure that provided an impartial officer and an opportunity for the prisoner to be heard was adequate. On the substantive issue, five justices agreed with the general principle that the execution of the insane, as proscribed in the common law and statutorily prohibited in all states, violated the Eighth Amendment; however, Justice Powell wrote separately on the issue of the definition of insanity. In his discussion of the historical context of the prohibition against executing the insane, Justice Marshall, writing for himself and three others, recognized several historical bases for the rule. He first cited Blackstone for the principle that a man who becomes insane after judgment, but before execution, should have his execution stayed, “[F]or peradventure, says the humanity of the English law, had the prisoner been of sound memory, he might have alleged something in stay of judgment or execution.” Id. at 406, 106 S.Ct. 2595 (quoting 4 W. Blackstone, “Commentaries,” 24-25). Other reasons were also offered in support of the common-law prohibition. The first was, “[T]he execution of an insane person simply offends humanity.” 477 U.S. at 407, 106 S.Ct. 2595. Second, Marshall noted, “[I]t provides no example to others and thus contributes nothing to whatever deterrence value is intended to be served by capital punishment.” Id. The third reason advanced was, “[I]t is uncharitable to dispatch an offender ‘into another world, when he is not of a capacity to fit himself for it.’ ” Id. (quoting Hawles, “Remarks on the Trial of Mr. Charles Bateman,” 11 How. St. Tr. 474, 477 (1685)). He identified as a fourth rationale, that “execution serves no purpose in these cases because madness is its own punishment....” 477 U.S. at 407, 106 S.Ct. 2595. Finally, Marshall recognized, “[T]he community’s quest for ‘retribution’ — the need to offset a criminal act by a punishment of equivalent ‘moral quality’ — is not served by execution of an insane person, which has a ‘lesser value’ than that of the crime for which he is to be punished.” Id. at 408, 106 S.Ct. 2595. Justice Marshall found all of these reasons to have continued “logical, moral, and practical force.... ” Id. at 409, 106 S.Ct. 2595. While not expressly adopting any of these rationales over another, Justice Marshall stated, “It is no less abhorrent today than 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.” Id. at 417, 106 S.Ct. 2595. He concluded, “Whether its aim be to protect the condemned from fear and pain without comfort of understanding, or to protect the dignity of society itself from the barbarity of exacting mindless vengeance, the restriction finds enforcement in the Eighth Amendment.” Id. at 410, 106 S.Ct. 2595. As Justice Powell noted in his concurrence, the determination of a prisoner’s sanity is not an issue that can be resolved by reference to historical facts. 477 U.S. at 426, 106 S.Ct. 2595. Instead, it is a “basically subjective judgment ... [that] depends substantially on expert analysis in a discipline fraught with ‘subtleties and nuances.’ ” Id. (quoting Addington v. Texas, 441 U.S. 418, 430, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979)). There is no “bright line” — no calculation or discrete measurement — for determining who is ineligible for execution. For this reason, the analysis is markedly different from that conducted in Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005) (prohibiting execution of individuals who were under eighteen when they committed the crime), or Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002) (prohibiting execution of mentally retarded individuals). Believing that Justice Marshall’s opinion had not set forth the meaning of insanity in this context, and that the historical arguments “do not provide a common answer when it comes to defining the mental awareness required by the Eighth Amendment as a prerequisite to a defendant’s execution,” Justice Powell wrote separately to address that issue. Id. at 418-19, 106 S.Ct. 2595. Justice Powell specifically discounted one historical theory for the prohibition against execution of the insane — that an insane prisoner could not adequately assist counsel in making arguments against his execution. In Justice Powell’s view, that justification has no force in modern practice, which provides far more extensive review of convictions and sentences — particularly death sentences — than did the common law, including not only direct appeal but ordinarily both state and federal collateral review, throughout all of which the defendant has access to counsel, and indeed, the right to effective assistance of counsel at trial and on appeal. Id. at 420, 106 S.Ct. 2595. Justice Powell thus considered it “unlikely indeed that a defendant today could go to his death with knowledge of undiscovered trial error that might set him free.” Id. Justice Powell agreed, however, that other rationales identified by Justice Marshall remained valid: The more general concern of the common law-that executions of the insane are simply cruel-retains its vitality. It is as true today as when Coke lived that most men and women value the opportunity to prepare, mentally and spiritually, for their death. Moreover, today as at common law, one of the death penalty’s critical justifications, its retributive force, depends on the defendant’s awareness of the penalty’s existence and purpose. Thus, it remains true that executions of the insane both impose a uniquely cruel penalty and are inconsistent with one of the chief purposes of executions generally. For precisely these reasons, Florida requires the Governor to stay executions of those who “d[o] not have the mental capacity to understand the nature of the death penalty and why it was imposed” on them. Fla.Stat. § 922.07 (1985 and Supp. 1986). Id. at 422, 106 S.Ct. 2595. Justice Powell observed that, in fact, while some states (including Mississippi) had more rigorous standards, prohibiting the execution of a defendant who is unable to assist in his own defense, “none disputes the need to require that those who are executed know the fact of their impending execution and the reason for it.” Id. And in his view, this was all the Eight Amendment required: Such a standard appropriately defines the kind of mental deficiency that should trigger the Eighth Amendment prohibition. If the defendant perceives the connection between his crime and his punishment, the retributive goal of the criminal law is satisfied. And only if the defendant is aware that his death is approaching can he prepare himself for his passing. Accordingly, I would hold that the Eighth Amendment forbids the execution only of those who are unaware of the punishment they are about to suffer and why they are to suffer it. Id. Subsequent opinions from lower courts assumed that Justice Powell’s definition of competence was controlling without much reference to the other language in Ford. See, e.g., Scott v. Mitchell, 250 F.3d 1011, 1014 (6th Cir.2001); Massie v. Woodford, 244 F.3d 1192, 1195 n. 1 (9th Cir.2001); Coe v. Bell, 209 F.3d 815, 825-26 (6th Cir.2000); Fearance v. Scott, 56 F.3d 633, 640 (5th Cir.1995); Rector v. Clark, 923 F.2d 570, 572 (8th Cir.), cert. denied, Rector v. Bryant, 501 U.S. 1239, 111 S.Ct. 2872, 115 L.Ed.2d 1038 (1991). In one case, Walton v. Johnson, 440 F.3d 160, 170 (4th Cir.2006), the court analyzed the effect of the plurality opinion by reference to the principle announced in Marks v. United States, 430 U.S. 188, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977). In Marks, the Court held, “When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, ‘the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds....’” 430 U.S. at 194, 97 S.Ct. 990 (quoting Gregg v. Georgia, 428 U.S. 153, 169 n. 15, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976)). The Walton court noted that the issue was not quite clear, since Justice Powell had specifically stated that the “Court’s opinion does not address ... the meaning of insanity.” 440 F.3d at 170 n. 10 (quoting Ford, 477 U.S. at 418, 106 S.Ct. 2595). Additionally, the Walton opinion recognized that Justice Marshall, in a dissent from the denial of certiorari in another case, Rector v. Bryant, 501 U.S. 1239, 1241-42, 111 S.Ct. 2872, 115 L.Ed.2d 1038 (1991) (Marshall, J., dissenting), argued forcefully that Ford left unsettled the parameters of mental disturbance that would prohibit execution. On the other hand, considering “the actual discussion of rationales and the overlapping agreement on one of the rationales in both the Ford plurality opinion and Justice Powell’s concurrence” and in light of the Supreme Court’s “acknowledgment of Justice Powell’s proffered test (albeit in dicta) as the appropriate standard” in Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989) (holding that the Eighth Amendment did not prohibit the execution of a mentally retarded inmate), overruled on other grounds by Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), the Walton court concluded that the Ford Court effectively adopted Justice Powell’s proffered two-part test as the constitutionally minimum standard for determining mental competence to be executed. 440 F.3d at 170. This was the state of the law when Scott Panetti’s case was decided. Panetti, who suffered from a fragmented personality, delusions and hallucinations, killed his estranged wife’s parents in front of his wife and their daughter. His habeas attorneys produced evidence that, while Panetti claimed to understand that the state wanted to execute him for the murders he committed, his mental illness had resulted in a delusion that the stated reason for his execution was a sham, and that the state actually intended to kill him to stop his preaching. Panetti v. Dretke, 401 F.Supp.2d 702, 708 n. 3 (W.D.Tex.2004). This claim had been presented in state court, resulting in the appointment of two experts to examine him. Id. at 704. Those experts concluded that Panetti was competent, and the state court ruled against Panetti without giving him an opportunity to rebut those opinions. Id. The district court that considered his claim held, first, that the state court opinion was not entitled to deference under AEDPA, as the proceedings in state court were constitutionally inadequate. 401 F.Supp.2d at 705-06. The court then struggled with the question of whether Panetti was incompetent under the rationale of Ford. According to the district court, Justice Powell’s opinion defined competence as perceiving the connection between the crime and the punishment, thereby satisfying the retributive goal of the death penalty. Id. at 709. In order to satisfy that goal, however, the prisoner’s perception must include not just factual knowledge of the reason for execution, but also his understanding, or, as Justice Powell stated, “[T]he Eighth Amendment forbids the execution only of those who are unaware of the punishment they are about to suffer and why they are to suffer it.” Id. at 709-10, quoting Ford, 477 U.S. at 422, 106 S.Ct. 2595 (emphasis added). The district court reviewed Fifth Circuit precedent on this issue, however, and concluded that the appellate court had not adopted Justice Powell’s reasoning in its entirety, but only adopted his standard in a limited sense. “[T]he Fifth Circuit has, without any discussion of the potential broader import of the statement, apparently interpreted Justice Powell’s use of the concept of ‘awareness why’ to require no more than knowledge of the required factual predicate for an execution.” Id. at 710 (citing Fearance v. Scott, 56 F.3d 633, 640 (5th Cir.1995); Barnard v. Collins, 13 F.3d 871, 876 n. 2 (5th Cir.1994); Garrett v. Collins, 951 F.2d 57, 59 (5th Cir.1992); Lowenfield v. Butler, 843 F.2d 183, 187 (5th Cir.1988)). Panetti had argued that he would be held incompetent using Justice Powell’s reasoning, but the district court’s dissection of the Ford opinions compelled a conclusion that Justice Powell’s concurrence was not controlling, in that the opinion of the other four justices in the majority “specifically declined to reach a holding on the question of what standard should be used to determine incompetency for the purposes of the Eighth Amendment.” 401 F.Supp.2d at 710. For this reason, the district court held, “[T]he Powell concurrence does not operate as binding Supreme Court precedent on what standard governs competency to be executed.” Id. Examining Fifth Circuit precedent, the district court concluded that the “retributive goal” requirement of Justice Powell’s concurrence had not been adopted. “Ultimately, the Fifth Circuit test for competency to be executed requires the petitioner know no more than the fact of his impending execution and the factual predicate for the execution.” Id. at 711. Panetti was aware that he was convicted for the murders of his in-laws and that he was to be executed. Although there was evidence demonstrating that Panetti did not appreciate the connection between the murders and his execution, under controlling Fifth Circuit precedent, his lack of understanding did not exempt him from the death penalty. Id. at 709-12. On appeal, the Fifth Circuit declined to rule on the issue of whether the state’s procedure for reviewing Panetti’s claim was adequate and entitled to deference. Panetti v. Dretke, 448 F.3d 815, 817 (5th Cir.2006). However, on the issue of competence, the court reviewed its earlier decisions and concluded that the standard for competence to be executed in the Fifth Circuit required only that an inmate to be aware of his punishment and why he is to suffer it. Id. at 819-21. Holding that “awareness” was not synonymous with “rational understanding,” the court found Panetti competent to be executed. Id. The Supreme Court reversed. Panetti v. Quarterman, 551 U.S. 930, 127 S.Ct. 2842, 168 L.Ed.2d 662 (2007). Addressing a jurisdictional issue, the Court held that Panetti’s petition was not “second or successive,” within the meaning of 28 U.S.C. § 2244, as it held that the statute did not apply to bar Ford claims “filed when the application is first ripe.” Id. at 947, 127 S.Ct. 2842. Turning to the issue of whether Florida’s procedure to determine competence was entitled to deference, the Court discussed the split of opinions in Ford as to what was constitutionally required in a state competency proceeding. Applying Marks, 430 U.S. at 193, 97 S.Ct. 990, the Court held that Justice Powell’s opinion on that issue, which “offered a more limited holding,” constituted clearly established law and set the minimum standard for such a proceeding. 551 U.S. at 949, 127 S.Ct. 2842. Even under Justice Powell’s standard, however, the Texas procedure was constitutionally inadequate. Id. at 950-52, 127 S.Ct. 2842. The process having been inadequate under Ford, and Justice Powell’s opinion constituting clearly established law, the state court's opinion was not entitled to deference under AED-PA. Id. at 953-54, 127 S.Ct. 2842 Then the Court considered whether Panetti’s delusions made him incompetent to be executed under Ford. Although it recognized that the application of the Eighth Amendment to the issue of executing the insane resulted from a plurality opinion, the Court neither referenced Marks nor deferred to Justice Powell’s concurrence. Id. at 957-59, 127 S.Ct. 2842. Instead, the Court acknowledged that Ford did not provide a precise standard for competency. “The four-Justice plurality discussed the substantive standard at a high level of generality; and Justice Powell wrote only for himself when he articulated more specific criteria.” Id. at 957, 127 S.Ct. 2842. Characterizing Justice Marshall’s opinion as “the opinion of the Court,” the Panetti Court recited these reasons from Ford as the foundation for the constitutional prohibition against executing mentally incompetent prisoners: [T]oday, no less than before, we may seriously question the retributive value of executing a person who has no comprehension of why he has been singled out and stripped of his fundamental right to life.... Similarly, the natural abhorrence civilized societies feel at killing one who has no capacity to come to grips with his own conscience or deity is still vivid today. And the intuition that such an execution simply offends humanity is evidently shared across this Nation. Faced with such widespread evidence of a restriction upon sovereign power, this Court is compelled to conclude that the Eighth Amendment prohibits a State from carrying out a sentence of death upon a prisoner who is insane. Panetti, 551 U.S. at 957, 127 S.Ct. 2842 (quoting Ford, 477 U.S. at 409-10, 106 S.Ct. 2595). According to the Court, the prohibition rested upon reasons recognized at common law and recited in “the controlling portion” of Justice Marshall’s opinion in Ford. 551 U.S. at 958, 127 S.Ct. 2842. One of those reasons was the failure of such an execution to serve any retributive purpose. Id. In most cases, imposition of the death penalty “has the potential to make the offender recognize at last the gravity of his crime and to allow the community as a whole ... to affirm its own judgment that the culpability of the prisoner is so serious that the ultimate penalty must be sought and imposed.” Id. This effect is questionable, however, “if the prisoner’s mental state is so distorted by a mental illness that his awareness of the crime and punishment has little or no relation to the understanding of those concepts shared by the community as a whole.” Id. at 958-59, 127 S.Ct. 2842. Retribution was not the only rationale to be considered, however, as the Court went on to state, “[T]he other rationales set forth by Ford fail to align with the distinctions drawn by the Court of Appeals.” Id. at 959, 127 S.Ct. 2842. Later in the opinion, the Court repeated that the “principles set forth in Ford are put at risk” by the Fifth Circuit’s interpretation of the competence standard. Id. Likewise, the Court held, the Fifth Circuit’s interpretation “find[s] no support elsewhere in Ford, including in its discussions of the common law and the state standards.... ” Id. (emphasis added). Thus, it held, it was “error to derive from Ford, and the substantive standard for incompetency its opinions broadly identify, a strict test for competency that treats delusional beliefs as irrelevant once the prisoner is aware the State has identified the link between his crime and the punishment to be inflicted.” Id. This language indicates that the Court in Panetti intended to do more than to simply include a delusional state as a factor that could fit an accused within the narrow test enunciated by Justice Powell. Although Panetti held that a delusional state could prevent an inmate from having a rational understanding of his fate, the Court refused to adopt Justice Powell’s definition or to enunciate “a rule governing all competency determinations.” Id. at 960-61, 127 S.Ct. 2842. Instead, the opinion appears to open the analysis of competence to consideration of the other common law factors recognized by Justice Marshall as relevant to this issue. A determination of mental illness is necessarily subjective, and the legal definition of competence is not precise. It is not surprising, therefore, that lower courts were left by the Panetti opinion without a specific measure of incompetence to be executed. They were not, however, left completely without guidance from the Supreme Court on how a competency analysis should be undertaken: The underpinnings of petitioner’s claims should be explained and evaluated in further detail on remand. The conclusions of physicians, psychiatrists, and other experts in the field will bear upon the proper analysis. Expert evidence may clarify the extent to which severe delusions may render a subject’s perception of reality so distorted that he should be deemed incompetent. Cf. Brief for American Psychological Association, et al., as Amici Curieae 17-19 (discussing the ways in which mental health experts can inform competency determinations). And there is precedent to guide a court conducting Eighth Amendment analysis. See, e.g., Roper v. Simmons, 543 U.S. 551, 560-564, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005); Atkins v. Virginia, 536 U.S. 304, 311-314, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002); Ford, 477 U.S., at 406-410, 106 S.Ct. 2595. Id. at 962, 127 S.Ct. 2842. Although the Court in Panetti declined to set forth a specific definition of incompetence applicable in all cases, as the district court observed on remand in Panetti the Supreme Court made clear in its opinion in Panetti that, “in the Eighth Amendment context, ‘insanity’ does have a baseline definition: the test for competence to be executed involves not only a prisoner’s factual awareness of the crime, the impending execution, and the state’s reason for executing the prisoner, but also some degree of ‘rational understanding’ of the connection between the crime and the punishment.” Panetti v. Quarterman, No. A-04-CA-042-SS, 2008 WL 2338498, *31 (W.D.Tex. March 26, 2008) (quoting Panetti 127 S.Ct. at 2861). However, the Court’s citations to Roper, Atkins and Ford suggest that Eighth Amendment analysis of a defendant’s competence to be executed must include consideration of society’s current perception of capital punishment and the effect of that perception on the determination of what constitutes cruel and unusual punishment in the context of competence to be executed. As the Court recognized in Atkins, “A claim that punishment is excessive is judged not by the standards that prevailed in 1685 when Lord Jeffreys presided over the ‘Bloody Assizes’ or when the Bill of Rights was adopted, but rather by those that currently prevail.” 536 U.S. at 311, 122 S.Ct. 2242. More recently, the Court reasoned that the Eighth Amendment’s scope must continue to evolve, “because ‘[t]he standard of extreme cruelty is not merely descriptive, but necessarily embodies a moral judgment. The standard itself remains the same, but its applicability must change as the basic mores of society change.’ ” Kennedy v. Louisiana, — U.S. -, 128 S.Ct. 2641, 2649, 171 L.Ed.2d 525 (2008) (quoting Furman v. Georgia, 408 U.S. 238, 382, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972) (Burger, C.J., dissenting)). In Ford, the Court summarized the “ancestral legacy” against execution of the insane and concluded that it had “not outlived its time. Today, no State in the Union permits the execution of the insane.” 477 U.S. at 408, 106 S.Ct. 2595. In Atkins, the Court reviewed recent legislation by the states to determine whether “evolving standards of decency” indicated a trend toward exempting mentally retarded offenders from execution. 536 U.S. at 312-13, 122 S.Ct. 2242. Similarly, in Roper, the Court looked at the evolution of the law prohibiting the execution of juveniles since the time that it earlier held such executions constitutional. 543 U.S. at 562-65, 125 S.Ct. 1183. In each of these cases, the Court decided that there was “objective indicia of consensus” sufficient to hold that the Eighth Amendment should be extended to exempt certain classes of offenders from punishment by death. On the whole, then, it can surely be said that there is a trend toward narrowing the class of inmates against whom the death penalty may be imposed consistent with the Eighth Amendment’s prohibition against cruel and unusual punishment. As to whether this existence of this trend supports a conclusion that “evolving standards of decency” suggest a broader definition of incompetence than the baseline definition recognized in Panetti is another matter. At the time Ford was decided, forty-one states had the death penalty or statutes governing execution procedure. Ford, 477 U.S. at 408 n. 2, 106 S.Ct. 2595. Since Ford, the number of death penalty states has dropped from forty-one to thirty-six states, of which two (New York and Illinois) have death penalty statutes, but are not permitting execution at this time. Of the remaining thirty-four states, sixteen have a definition of competence similar to Justice Powell’s formulation that is either contained in legislation or has been adopted by common law. Five states have no statutory or common law definition of incompetence to be executed. Two states require the accused to understand the reasons for his death sentence “and its implication.” Eleven other states mandate, by statute or by common law, that an inmate is competent to be executed only when he can communicate with counsel or assist in his defense. In the court’s opinion, these numbers do not reflect a broader definition of incompetence than that identified in Panetti. Obviously, the national debate over the death penalty now includes a discussion of whether it should be imposed, in addition to when it is justified (owing perhaps to financial considerations and advanees in forensic science); and, society’s perspective on execution appears to be moving more toward exclusivity, being reserved for those situations in which its punitive goals are best served. However, in the court’s opinion, this trend does not suggest that society’s perspective on the appropriate standard for gauging incompetence has changed, or “evolved”, since Panetti was decided. Rather, the question remains whether the defendant has a rational understanding of his conviction, his impending execution, and the relationship between the two. BILLIOT’S MEDICAL HISTORY Although the parties agreed at the hearing that Billiot’s previous diagnoses were not dispositive of the issue of whether his current mental state exempted him from execution, they also concurred that the earlier medical records provided a context in which to examine his claim of current incompetence. Specifically, the Court is of the opinion that the records are important to evaluate whether Billiot’s current manifestation of mental disorder is genuine, as well as providing insight into his long-term prognosis. Billiot was born on June 10, 1961, and testimony at his 1983 murder trial revealed that his difficulties began early in life. His parents apparently divorced when he was very young, and, when he was about five years old, his mother began dating Wallace Croll. When Billiot was about seven, his mother and Croll married. Croll had three sons of his own, and he and Billiot’s mother, Audrey, had a son and a daughter. According to his aunt, Helen Stevenson, Billiot’s childhood was very unhappy, and his mother and stepfather both mistreated him. He often went from his mother’s house to his aunt’s or his grandparents’ to stay. By the time that he was a teenager, Billiot was living on the streets. Billiot displayed symptoms of mental disturbance in early adolescence, and, a few years before the murders, he told family members that he was Jesus Christ. The Honorable Walter Gex, currently a District Judge in this District, represented Billiot in an early commitment proceeding, and he later testified that he remembered some religious involvement on Billiot’s part — evidenced by Billiot’s thinking that he was either Jesus Christ or the devil. Henry Cook, who was the master at that proceeding, recalled Audrey Croll’s testifying that Billiot would appear in her room at night with a knife, saying that he was there to release the devil from his side. She also reported that he had written letters saying he was Jesus. In 1975, Billiot was admitted to the East Louisiana State Hospital. In December, 1978, he was admitted to the East Mississippi State Hospital for treatment of substance abuse. No signs of psychosis or retardation were noted, although Billiot self-reported mental disturbances dating from the time he was fourteen or fifteen. In January, 1979, he was re-admitted to that hospital, where he was diagnosed with antisocial personality disorder and mixed substance dependence. In July of that year, Billiot was sent to the Mississippi State Hospital, after his mother reported that he had been having hallucinations and believed himself to be Jesus Christ. One doctor found no evidence of psychosis, and Billiot was discharged. However, a psychiatrist and a psychologist who examined him at that time believed that Billiot suffered from paranoid schizophrenia, with religious delusions and threats of combative behavior. They also believed that Billiot was a danger to himself or others and was in need of hospitalization. By August 13, 1979, Billiot was again admitted to the East Mississippi State Hospital for drug treatment. Hospital records indicated that he had been admitted to Charity Hospital in New Orleans three months earlier, after stating that he had access to a gun and wanted to kill someone in self-defense. On August 15, he was again diagnosed as having antisocial personality disorder and multiple drug dependence; later that day, Billiot tried to hang himself. While the discharge report noted no signs of psychosis, the prognosis was extremely poor. Other than a followup visit to the Gulf Coast Mental Health Center in September, 1979, there are no other mental health records for Billiot before the murders on November 26, 1981. After he was arrested, Billiot was returned to the Mississippi State Hospital for evaluation of an insanity defense and his competence to stand trial. In January, 1982, Dr. Henry Maggio and Dr. Leonard Ball interviewed him. At that time, Billiot admitted to being at his parents’ home at the time of the murders, but said that he saw the devil actually kill them, after which he took money from his mother and stepfather and drove away in their car. Dr. Maggio diagnosed Billiot as paranoid schizophrenic, without psychosis, although he was delusional. However, he found Billiot to be aware and goal directed and competent to stand trial. Dr. Ball was one of the physicians who had recommended, in 1979, that Billiot not be released, and his diagnosis of paranoid schizophrenia did not change after the 1982 evaluation. Dr. A.G. Anderson, the Director of Forensic Psychiatry at the State Hospital, diagnosed Billiot with a schizophreniform disorder. It was his opinion that Billiot was not a paranoid psychotic person at the time of his examination, although Dr. Anderson believed that “he may have undergone a schizophreniform disorder type illness at or about the time of the crime.... ” However, Dr. Anderson concluded that Billiot was responsible for his crime and competent to stand trial. He related that a vote had been taken among the mental health professionals who had dealt with Billiot at the State Hospital, and the majority agreed with him, although the vote was not unanimous. Billiot was also given a psychological evaluation, performed by Dr. William Johnson. In addition to other tests, Johnson administered the MMPI. Dr. Johnson interpreted Billiot’s results as follows: On the MMPI, Mr. Billiot’s profile was one of “faking good” based on elevations in the L and K scales. The interpretation of this response pattern is that he attempted to portray himself as being well adjusted. However, on the clinical scales Mr. Billiot scored highest on the Paranoid and Schizophrenia scales. This pattern of scores is most consistent with the diagnosis of paranoid schizophrenic by one who is trying to make himself appear well adjusted. Johnson believed that Billiot was not criminally responsible, noting that, while Billiot could provide a detailed account of the events that occurred on the day of the murder, he “was operating under a delusional system” and could not conform his behavior to “conventional standards of right and wrong.” He concluded that, on the day of the crime, “Mr. Billiot acted under an irresistible impulse as a result of his delusional system with a diminished capacity to appreciate the consequences of his actions.” However, Johnson concluded that Billiot was competent to stand trial, so long as he was given “specific instructions regarding his courtroom behavior and how to assist his attorney....” A deputy at the Harrison County Jail, where Billiot was confined prior to his conviction, said that he would refer to himself as different people, including Hitler and General Lafitte. Billiot also expressed a belief in werewolves. Billiot’s mental disturbances continued after his conviction and move to the Mississippi State Penitentiary at Parchman, where he was initially diagnosed as having an anti-social personality. After repeated requests for psychiatric evaluation, Billiot received a neuropsychological evaluation on March 16,1984, by Dr. Michael Whelan. His impressions were that Billiot suffered from: (1) higher cortical dysfunction mild and bilateral; (2) mixed substance abuse (by history); and (3) schizophreniform disorder versus schizotypal personality disorder. Dr. Whelan saw Billiot again a few months later and noted that, while not psychotic, Billiot “does process very strange thought patterns.” Those thoughts included the belief that he was engaged in spiritual warfare with the devil. In January, 1987, Billiot asked Dr. Whelan to give him Mellaril, an anti-psychotic. Dr. Whelan refei'red the request to Dr. Robert McKinley, a psychiatrist. Dr. McKinley agreed to prescribe the drug, stating, “Since he has requested Mellaril, an accepted drug for the treatment of schizophrenia, and he definitely has beyond the shadow of a doubt a chronic paranoid schizophrenic disorder, it seems to me both rational, ethical and responsible to prescribe Mellaril____” Apparently, Billiot took Mellaril for only a short period of time before deciding that he did not like its effects. For several months thereafter, he demanded medication of his own choosing. In February, 1988, he was brought back to see Dr. McKinley, who recorded, “He obviously is schizophrenic.” Billiot asked for anything but Mellaril, so Dr. McKinley prescribed Trilafon. On July 24, 1988, Billiot was stabbed multiple times by another inmate. He was taken to the Bolivar County Hospital, where he arrived in guarded condition, due to puncture wounds in his lungs, stomach, liver, pancreas, spleen and right kidney, as well as superficial stab wounds to both shoulders. Billiot underwent surgery for his injuries and was later discharged to the Mississippi State Penitentiary Hospital for further recovery. Upon his discharge back to the Maximum Security Unit, he was given another prescription for Mellaril. In November, 1988, the Circuit Court of Harrison County held the competency hearing for Billiot that was described earlier in this opinion. The conclusions of the experts who testified have already been summarized; however, some of the details of their testimony are relevant to understanding the course of Billiot’s mental illness. Dr. McKinley, who had described Billiot as “obviously schizophrenic” in the medical records, reported that Billiot had bizarre delusions and disorganized thinking. He also testified that Billiot’s condition was chronic, and “he’s not likely to get well.” Dr. Whelan reported that, in 1985, he reported that Billiot was “firmly entrenched in a delusional system which permits him to acknowledge the fact that he did indeed murder the Croll family, but which permits an absolution of his guilt.” Despite his opinion at that hearing that Billiot was competent to be executed, Dr. Whelan admitted that his symptoms of schizophrenia could exacerbate to the point where he became “floridly psychotic” and incompetent. Dr. Whelan also read from his report of Billiot’s stabbing by an inmate named Harper, which said, “[Sjecurity staff relate that James was constantly talking to demons and spirits throughout the night and because he wouldn’t be quiet, Harper decided to silence him.” Dr. Guild, who testified that Billiot was competent and believed that he was malingering, admitted that the testimony of the experts had raised the possibility in his mind that Billiot might actually have paranoid schizophrenia. As discussed in an earlier section, the Circuit Court found Billiot competent to be executed, by an Order entered in May, 1989. After that point, Billiot’s condition continued to deteriorate, such that the Department of Corrections felt it necessary to forcibly medicate him. He brought a lawsuit against department officials in state court, seeking an order preventing such medication and requesting damages for past administration of psychotropic drugs. A hearing was held in that case in the Circuit Court of Sunflower County in October, 1993. At that hearing, Dr. Stanley Russell testified on behalf of the Department of Corrections. Dr. Russell had first treated Billiot in 1989, shortly after the stabbing incident, and he described him as psychotic, stating, “He was hallucinating, delusional, was having difficulty sleeping at night, was keeping himself and other inmates on the tier awake, was rattling the bars, and was complaining about demons hurting him. He was grossly out of contact with reality at the time.” Billiot was non-compliant with his medication, and Dr. Russell and Dr. Whelan told him that he would be forcibly injected if he failed to take his pills orally. Billiot did not comply, and, in Dr. Russell’s opinion, became a threat to himself, both because he self-inflicted wounds and because other inmates began to threaten him. During that time, Russell characterized Billiot as not being competent to make a decision about his medication. Russell remembered Billiot’s saying that he could not be hurt because he had been around since the thirteenth century. Billiot cried out and complained that demons were getting in his cell and causing him trouble. He “looked like a hunted animal when you would see him in his cell.” The lawsuit was concluded by the entry of a Consent Judgment and Order in January, 1995. The Judgment recites that the parties agree that Billiot suffered from a chronic schizophrenic disorder, making it medically appropriate to treat him with psychotropic medication. The parties also agreed that it would be cruel and inhuman to refrain from medicating him, and Billiot waived his claim for damages. To prevent arbitrary forcible medication, the parties agreed that the Department of Corrections would institute a policy that must be followed before inmates were forcibly medicated. which included review by a Special Hearing Committee. Consonant with that policy, such a hearing was held for Billiot on April 28, 1995. The hearing transcript reflects that Billiot gave inappropriate answers to certain questions and laughed throughout the examination. After the interview, Dr. Whelan stated that Billiot was “in a very deteriorating condition, his cognitive processes are quite disturbed, his judgment is extremely impaired, his affect inappropriate, he is very incoherent to what would be expected in a normal discussion. He laughed throughout the evaluation, I think he is seriously mentally ill.” The other members of the Committee concurred, and Dr. McKinley added, “His thought content is delusional and he doesn’t seem to grasp or comprehend what we are talking about here.” It was decided that Billiot would be forcibly medicated. Billiot was given Haldol shortly after the evaluation. By May 15, 1995, Dr. McKinley reported some improvement. However, on May 19, Dr. Whelan reported on his visit with Billiot, as follows: Initially, James refused to talk. He kept a sheet pulled over his head and was mute. It was apparent to this writer that his sheet was wet and his jump suit was wet also. I believe that he had soaked his sheet and his jump suit in the toilet and the smell of urine was strong, so I assume that he soaked his jump suit and the sheet to to [sic] toilet, when it was still at least, partially filled with urine and then he put the jump suit back on and covered himself up with the sheet. By June 19, Dr. Whelan reported that Billiot was more intact cognitively, and his appearance had also improved. He continued to improve to the point where he was permitted to take his medication orally. By November 8, 1995, he was reported to be disheveled, and his room was dirty, suggesting that he had become non-compliant once more. On March 5, 1996, Dr. Russell visited Billiot and reported that Billiot talked to him, but Russell could not understand what he was saying. Apparently, Billiot was not taking his medication, and Russell stated, “whether he takes it or not is out of my control.” Medical records for the next few years indicate that Billiot’s condition was unchanged. In September, 1998, a note states that he “remains delusional and paranoid.” A year later, he was observed scruffy and naked in his messy cell. On June 15, 2000, he was found naked and in a fetal position, unwilling or unable to talk. The next day, Dr. Clyde Glenn, a psychiatrist with the Department of Corrections, reported that Billiot was up and spoke with him, although he was non-coherent and markedly psycho