Oklahoma is expected to continue its series of more than two dozen executions on Thursday, when it is scheduled to put to death Benjamin Cole, a 57-year-old man convicted for the murder of his 9-month-old daughter.
But in the two decades since the crime, the death row inmate’s declining mental condition – magnified by his exposure as a child to drugs and alcohol, substance abuse issues and physical and sexual abuse – has deteriorated so much that Cole is not competent to be executed, his attorneys argued in a clemency petition.
Their assertions put front and center a longstanding question in the debate over capital punishment: how it should apply to those who suffer from mental illness. The issue is key in a number of inmates’ cases, according to their attorneys, as Oklahoma officials plan through 2024 to carry out 25 executions, a spree critics have also condemned amid the state’s history of botched lethal injections.
The US Supreme Court on Wednesday denied Cole’s request for a stay of execution after the state parole board last month declined to recommend clemency. Meanwhile, the inmate’s lawyers have asked a state appeals court to compel the inmate’s warden to refer his case for review to the district attorney to initiate a competency hearing.
The facts of Cole’s case obligate the state to spare his life, his attorneys in recent months told parole board members, though the arguments failed. They pointed to “evolving standards of decency,” including public polling that shows disapproval for executions of the mentally ill.
“At this moment,” the attorneys wrote, “Oklahoma has the opportunity to exhibit courage, to follow these standards, and to be on the right side of history by prohibiting the execution of Benjamin Cole, a severely mentally ill and physically infirm person.”
The US Supreme Court in a 1986 ruling found the execution of the severely mentally ill to be unconstitutional, with Justice Thurgood Marshall writing, “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.” And in Oklahoma, state law makes it illegal to execute someone found to be insane.
Cole, who has been diagnosed with schizophrenia and has a brain lesion associated with Parkinson’s disease, lives in a largely “catatonic” state, hardly speaking to anyone, including his own lawyers, according to his clemency petition. After years of near-total isolation in the Oklahoma State Penitentiary, he uses a wheelchair and exists in what one clinical psychologist described in the clemency request as his own “mental universe,” not understanding the legal proceedings surrounding his imminent execution.
“Benjamin Cole is incapacitated by his mental illness to the point of being essentially non-functional,” his attorney, Tom Hird, said in a statement after an Oklahoma judge this month ruled Cole was competent to be executed.
“His own attorneys have not been able to have a meaningful interaction with him for years, and the staff who interact with him in the prison every day confirm that he cannot communicate or take care of his most basic hygiene. He simply does not have a rational understanding of why Oklahoma seeks to execute him.”
Oklahoma Attorney General John O’Connor praised the parole board’s September vote in a statement, noting Cole’s conviction and sentence have been upheld on appeal and rejecting questions about Cole’s mental illness.
“Although his attorneys claim Cole is mentally ill to the point of catatonia, the fact is that Cole fully cooperated with a mental evaluation in July of this year,” the attorney general said September 27. “The evaluator, who was not hired by Cole or the State, found Cole to be competent to be executed and that ‘Mr. Cole does not currently evidence any substantial, overt signs of mental illness, intellectual impairment, and/or neurocognitive impairment.’
“I am grateful that the Board denied Cole’s request for executive clemency. Our thoughts and prayers are with the other members” of the slain infant’s family.
Cole was found guilty of the brutal murder of his daughter, Brianna Victoria Cole, on December 20, 2002, per the attorney general’s office, when her cries interrupted him while playing a video game.
Cole grabbed his daughter’s ankles while she was on her stomach and forced them up to her head, breaking her spine and causing her to bleed to death, according to a probable cause affidavit. Cole then returned to his video game as his daughter died, O’Connor said.
Cole admitted in a taped confession to causing his daughter’s fatal injuries, his clemency petition said, telling police he would “regret his actions for the rest of his life.”
Before his trial, prosecutors offered him a plea deal that would have resulted in a life sentence without parole. But Cole, his mental state already deteriorating, refused to accept it – a “complete act of irrationality against self-interest,” his petition said.
Cole wanted the case to go to trial because, he told his lawyers, it was “God’s will” and “his story … would transform Rogers County, and it would allow God to touch hearts and allow Benjamin to walk away from it all a free man.”
Cole had yet to be diagnosed with schizophrenia, but his trial attorneys twice called for competency evaluations, arguing his religious delusions rendered him irrational and, as a result, he did not understand the legal proceedings. Still, he was found competent to stand trial.
Cole’s attorneys today contend his lawyers at trial, along with the judge and bailiff, recognized the prevalence of his mental illness as the man sat in the trial “literally not moving a muscle for hours on end with a Bible opened in front of him on the table,” according to the petition. Cole did not testify and was sentenced to death.
Cole’s struggles with his mental health date back to his early childhood, growing up in a junkyard surrounded by “rampant” drug and alcohol abuse, his petition said. Encouraged by the adults in his life, Cole began to drink as a young child, it said, and one of Cole’s brothers testified they would get high huffing gasoline by the time Cole was 10 years old. Cole also endured years of verbal, physical, and sexual abuse, the petition claimed.
Cole graduated high school, but around that time he began exhibiting “all of the marks of a person beginning to struggle with serious mental illness,” the clemency petition said, noting 18 is the typical age when early-adult onset severe mental illnesses like schizophrenia first emerge.
Cole became “isolated and withdrawn,” and a stepsister said he was depressed and didn’t have many friends, the petition said. He spent long periods unemployed, and though he joined the Air Force in 1986, he struggled with substance abuse, exhibited “impulse control problems” and was discharged the following year.
It was around this time Cole’s first wife accused him of abusing their son, and Cole was convicted and sentenced to two years in prison for aggravated child abuse, the petition said. That marriage ended, as did Cole’s second, and when he met Brianna’s mother in 1998, he was living either under a bridge or in a tent in Claremore, Oklahoma.
When their daughter was born, the petition said, Cole couldn’t keep a job and was “drinking heavily.”
Cole’s condition has gotten worse in the years since his trial, years in which teams of post-conviction attorneys struggled to meaningfully communicate with him as a small parade of psychologists and psychiatrists evaluated his declining mental state, the petition states.
One diagnosed Cole with paranoid schizophrenia in 2008, finding his mental condition had deteriorated as he went untreated for almost 20 years.
That doctor also said Cole was “convinced” any discussion about his case “would undermine his faith in Jesus and undermine his current ‘saved’ status,” the petition states. Those beliefs underscore what his lawyers describe as an “implacable reticence” that interferes with their ability to work with him on his case.
His clemency petition details visits by attorneys and doctors who found Cole dirty and “unkempt” in complete darkness inside his cell, which he reportedly almost never leaves. Corrections officers and his case manager have told Cole’s attorneys he keeps the lights off at almost all times and has no regard for his personal hygiene, per the petition.
In 2015, Cole mailed his mother some of his hair and a tooth, and in 2019 he handed one of his attorneys a packet with two more of his teeth and a note the attorneys understood as a request to mail the teeth to his mother – both instances his clemency petition said exemplify his sharp decline.
Additionally, per his petition, a physician who reviewed an MRI performed on Cole this year found a lesion on his brain that “would be highly consistent” with Parkinsonism.