The Competency Conundrum: Problems Courts Have Faced in Applying Different Standards for Competency to Be Executed
2001 I 54 Vand. L. Rev. 2441 I John L. Farringer IV
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I. Introduction
That he's mad, 'tis true: 'tis true 'tis pity, And pity 'tis 'tis true.
-William Shakespeare1
Throughout Anglo-American legal history, there has been a general agreement, based on numerous rationales, that mentally incompetent inmates should not be executed for their crimes. The recurring problem, however, is how to define "incompetence" or "insanity." Legislatures and courts have sought to provide a commonsense definition, but in practice judges must confront highly technical terminology from the ever evolving field of psychiatry. Additionally, the definition must be flexible enough to apply to a variety of cases, while being universal enough to assure that all defendants are treated fairly and equally.
At hearings to determine a prisoner's competency to be executed, courts usually hear testimony from several qualified mental health experts, each offering his or her own version of an inmate's level of mental illness. In the end, however, judges must make the final determination of competency-a decision that literally decides an inmate's fate. Numerous articles and notes have addressed the general philosophical or moral problems with measuring competency to incur the death penalty. Some commentators view the problem from the perspective of psychiatrists or psychologists; others consider specific problems such as drug-induced competency. This Note will approach the problem from a different perspective that of the courts. By understanding the unenviable position in which current statutory and common law definitions place judges, it will become apparent that state legislatures, or perhaps the Supreme Court, need to provide more sensible standards for judges to use in determining competency to be executed.
Part II of this Note provides a brief explanation of the longstanding common law rule against executing the insane, as well as the traditional rationales for the rule. Additionally, Part II offers a summary of the Supreme Court's determination that the Eighth Amendment 9 prohibits executing the insane, as set forth in Ford v. Wainwright. The plurality in Ford examined the procedural requirements for determining competency to be executed, but did not provide a proper definition of "competency" to be used in such proceedings." Justice Powell's concurring opinion, on the other hand, found that the appropriate standard is whether the prisoner is aware of the punishment she is about to suffer and the reasons she is to suffer it. Finally, Part II provides a brief explanation of the American Bar Association's view that courts should also consider a prisoner's ability to assist counsel in her own defense.
Part III summarizes the current standards for measuring competency used in several key states, focusing on Florida, Tennessee, and Mississippi. The standards can generally be divided into two categories: the single-prong "cognitive" test, and the two-prong "assistance" test. Part IV then describes in detail three recent cases applying the various rules, all of which display the daunting task judges face in weighing conflicting expert testimony.
Part V of this Note discusses the numerous problems with these standards for measuring competency. The major concerns relate to defining when an execution is "imminent" so that a competency determination is appropriate, deciding which terminology to use in making this determination, and understanding the role of the judge in applying the testimony of mental health experts to the common language definition of competency provided in state statutes.
Finally, Part VI of this Note suggests that state legislatures need to be more meticulous with the exact language they use when defining "incompetency," specifically considering the language that expert witnesses will use. As a more uniform solution, this Note proposes that the Supreme Court complete what it initiated in Ford v. Wainwright by more specifically defining the applicable standard courts should use in determining a person's competency to face the death penalty.
II. The Rule Against Executing the Insane
A. Common Law Rule
The rule against executing the insane has long been a part of Anglo-American jurisprudence. Sir Edward Coke explained its origins in English common law: "By intendment of law the execution of the offender is for example ... but so it is not when a mad man is executed, but should be a miserable spectacle, both against law, and of extream inhumanity and cruelty, and can be no example to others." Other origins of the rule focused on the notion that an insane person might be unable to make an argument that her execution should be stayed. American courts have consistently applied this rule, and commentators have defended its application.
In the 1986 decision Ford v. Wainwright, the Supreme Court explicitly stated that the Eighth Amendment prohibits a state from inflicting the death penalty on a prisoner who is insane. To this day, no state allows the execution of someone determined to be insane.
This begs the question of how to define competency, especially since studies have shown that the pressures of sitting on death row result in a high degree of once sane inmates developing severe mental impairments. The situation has become more complex now that the rule against executing the insane has been extended to allow a person, found sane when convicted, to have her competency reassessed just prior to execution. Faced with such decisions, judges are in need of a well-crafted competency standard to use in their analysis of the prisoner's claims and the often conflicting expert testimony.
B. Rationales for the Rule
There are generally six rationales used to justify the rule against executing an incompetent person. These rationales were outlined by the Supreme Court in Ford v. Wainwright.
The first rationale holds that madness is punishment enough in itself. Commentators have criticized this rationale, however, because it logically means that an inmate's recovery subjects him or her to execution. Rather, if madness were punishment enough unto itself, the prisoner's sentence would be commuted and he or she would be released upon recovery. Furthermore, modern definitions of incompetency are not restricted to what traditionally was considered "madness."
The second rationale for not executing the insane is that imposing the death penalty on an incompetent person simply offends humanity in its cruelty. This reasoning has been used for hundreds of years, and closely resembles the Eighth Amendment's ban on cruel and unusual punishment. It is difficult, however, to separate this rationale from an argument against the death penalty in general.
The third justification for the rule is religious in nature, based on the notion that an incompetent person is unable to make peace with God, and therefore, should not have his or her life ended. As the Ford Court stated: "[I]t is uncharitable to dispatch an offender 'into another world, when he is not of capacity to fit himself for it." Even beyond the First Amendment's prohibition against the establishment of religion, however, there are numerous difficulties with basing a law in a pluralistic society on theological considerations.
The fourth rationale, taking a more modern tone, is based on the idea that an incompetent person might be unable to provide counsel with last minute information that would cause the court to vacate the sentence. In explaining its standard for determining competency, the American Bar Association expressed a similar concern: that allowing the execution of an incompetent person would erode the integrity of the criminal justice system. This rationale, however, has been criticized because an incompetent defendant has access to counsel who can make the necessary arguments on his or her behalf through numerous available avenues of appeal. Furthermore, it is simply unlikely that a defendant after both a trial and sentencing might suddenly remember helpful information.
The fifth rationale argues that execution of an incompetent person would have no deterrent effect on the population because it provides no example to competent people in society. Assuming that the death penalty does have a deterrent effect, there is no reason why the execution of someone who committed the act while sane, but has since become incompetent, will not deter someone contemplating a similar crime. As one commentator observed: "Presumably, the condemned inmate's incompetency would not negatively affect the public's awareness and understanding that the condemned inmate is being executed for the commission of a capital offense."
Finally, the sixth rationale for not imposing the death penalty on an incompetent person is that it does not serve the retributive purposes typically associated with the death penalty. The Ford Court stated that "the 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." If the inmate has no comprehension of why she is being put to death, then there can be no retributive value for society. This rationale, if accepted, is perhaps the most persuasive and explains why current standards require a comprehension by the inmate of what she has done and why she is being punished for it. Regardless of which rationale, if any, remains persuasive, the rule is now ingrained in the American legal system and accepted almost universally. The Ford Court's holding was clear, that "[w]hether 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."
C. Ford v. Wainwright
In Ford v. Wainwright, the Supreme Court explicitly held that the Eighth Amendment prohibits the execution of insane inmates. The Ford Court addressed the competence of a man convicted of murder and sentenced to death in Florida. After the governor of Florida found the inmate competent to be executed, his attorney filed a petition for habeas corpus, challenging whether the statutory procedures Florida followed in determining the inmate's competency to 'be executed violated procedural due process.' The Supreme Court found that the procedures did violate due process and remanded the case.
The Florida statute in question required a panel of three psychiatrists to examine the inmate and determine whether Ford had "the mental capacity to understand the nature of the death penalty and the reasons why it was imposed upon him." The panel was then to report to the governor, who would make the final judgment of competency. The Court did not consider whether Florida's definition of incompetency was appropriate; rather, it only examined the procedures required by the statute. Petitioner Ford argued that the Eighth Amendment and the Due Process Clause required a formal evidentiary hearing be held to determine his competency. Without requiring a full evidentiary hearing, the Court held that Florida's procedure failed to achieve even the minimal degree of reliability that is required to protect any constitutional interest. The Court found three major deficiencies in the Florida procedure: (1) its failure to include the prisoner in the truth-seeking process; (2) its denial of any opportunity to challenge the panel of state-appointed psychiatrists' opinions; and (3) the placement of the decision wholly within the executive branch. Thus, the Florida statute, the Court held, did not have adequate procedural assurances of accuracy.
Although the majority of the Court failed to develop an appropriate standard for determining competency, Justice Powell addressed this issue. Despite his concurring in the judgment, Justice Powell asserted that Justice Marshall's majority opinion erred in seemingly requiring some sort of full scale "sanity trial." Rather, Justice Powell emphasized that the inmate seeking a post-conviction finding of incompetence will have already been judged competent to stand trial and found guilty of the crime. Since the subsequent claim of insanity is made against the background of these prior competency determinations, it would be proper for a state to presume the petitioner is competent and require a substantial threshold showing of insanity by the accused merely to trigger any hearing process. After outlining the justifications for the rule against executing an incompetent inmate, Justice Powell explicitly accepted the Florida competency standard: whether the prisoner is aware of the punishment she is about to suffer and why she is to suffer it. Several states, he acknowledged, maintained a
broader definition of insanity whereby a defendant could not be executed unless he is able to assist in his own defense. Although Justice Powell thought this "assistance prong" of a competency test was unnecessary because of recent expansions in both the right to counsel and the availability of federal and state collateral review, he noted that "[s]tates are obviously free to adopt a more expansive view of sanity in this context than the one the Eighth Amendment imposes as a constitutional minimum." The Court has apparently accepted Justice Powell's definition of competency to stand trial, although only in passing dicta. Furthermore, because Justice Powell represented the fifth and decisive vote in favor of the judgment, his opinion reflects the narrowest grounds for the Court's judgment, and is controlling on both the state and lower federal courts.
Concurring in part and dissenting in part, Justice O'Connor agreed with Justice Rehnquist's dissent that the Eighth Amendment did not create a substantive right not to be executed while insane. Justice O'Connor reasoned that society has a right to punish those validly convicted, and that requiring too much of a state in determining competency after a trial creates problems of false claims and deliberate delays. She noted, however, that Florida law had created such a protected liberty interest; thus, some minimal procedural protections were required by due process. Additionally, because under the majority's holding a prisoner has the right to suspend execution during a determination of incompetency, Justice O'Connor feared that this interest in competency, by definition, can never be conclusively and finally determined: an inmate can claim at the very moment of execution that she has become insane since the previous determination, no matter how recently it took place.
D. ABA Standards for Criminal Justice
In contrast to Justice Powell's opinion in Ford, the American Bar Association ("ABA") has suggested a much broader definition of competency. In its Standards for Criminal Justice, the ABA states that convicts who have been sentenced to death, but who are currently found to be mentally incompetent, should have their execution stayed. The ABA Standards define competency in terms of whether the convict (1) can understand the nature of the pending proceedings, (2) can understand what he or she is being tried for, (3) can understand the reason for the punishment, (4) can understand the nature of the punishment, and (5) has sufficient capacity to recognize and convey to his or her attorney any fact which would make the punishment unjust or unlawful. The main component of the ABA Standards not found in Justice Powell's definition of competency in Ford is the "assistance prong": whether the prisoner has the ability to assist counsel in his or her defense by recognizing and understanding any fact which might be relevant or exculpatory. Several commentators have defended the inclusion of this "assistance prong," and historically it has been considered part of the determination of competency to be executed. Furthermore, Justice Marshall has suggested that there are strong arguments for including an assistance prong that Justice Powell erroneously overlooked in his Ford concurrence.
The ABA commentary also explains that it uses the term "incompetent," instead of the Ford Court's term "insane," to avoid confusion with the use of "insanity" in the criminal context to denote mental nonresponsibility and "beastlike derangement." Additionally, the ABA includes mental retardation, which often is not associated with the term "insane," in its definition of incompetence. Finally, the ABA makes clear that its standard is meant to stay an execution for "any incompetence ... not just incompetence that developed subsequent to sentencing... [because of] [t]he possibility of a defendant having a severe mental disability that was not detected or correctly evaluated at trial." This notion is in direct opposition to Justice Powell's argument in Ford against including an "assistance prong" in the test for competency.
III. Current States' Standards
Rather than looking at every state's standard, this Note will discuss standards in a few states that are representative of typical state standards. Generally, states have adopted standards resembling either Justice Powell's definition in Ford or the ABA Standards. Justice Powell's formulation of incompetency in Ford will be termed the "single-prong" test: whether the defendant understands why he or she was sentenced to death and comprehends this impending punishment. The ABA Standard formulation will be termed the "two-prong" test: including both Justice Powell's "cognitive" prong and the "assistance prong" of being able to assist counsel in any future proceedings.
A. By Statute
- Single-Prong Test
The majority of states that have statutorily defined competency to be executed have adopted definitions similar to Justice Powell's single-prong test. Because it was the focus of the decision in Ford v. Wainwright, Florida's statute, and cases applying it, will be used as an example of such a statute. Florida law states, rather rhetorically, that "[a] person under sentence of death shall not be executed while insane to be executed." Insanity with regard to undergoing execution is defined as lacking the mental capacity to understand the fact of the impending execution and the reason for it. Some states that have adopted similar standards use the term "incompetent" instead of "insane." - Two-Prong Test
Two states, however, have statutorily adopted the broader two-prong test endorsed by the ABA. In Mississippi, the statute defines a convict as "insane" if he or she does not have "sufficient intelligence to understand" the nature of the proceedings against him or her, what he or she was tried for and the purpose of the punishment, the impending fate awaiting, 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 such information to his attorneys or the court." Similarly, Missouri law states that no person shall be condemned to death if, because of a mental illness or defect, he or she lacks the capacity to understand" the nature and purpose of the punishment about to be imposed or "arguments for executive clemency or reasons why the sentence should not be carried out." Additionally, two states have used the two-prong test in their general definitions of incompetent to proceed," which are applied to death penalty cases as well.
B. By Common Law
In states that lack a statutory definition of incompetence to undergo the death penalty, courts have often provided a definition. In Van Tran v. State, the Tennessee Supreme Court adopted Justice Powell's "cognitive test" from Ford, holding that, under Tennessee law, a prisoner is not competent to be executed if the prisoner lacks the mental capacity to understand the fact of the impending execution and the reason for it. Conversely, in South Carolina, the state supreme court adopted the two-prong test after noting that the General Assembly had failed to define the level of competency required for execution. The court held that the first prong was whether an inmate can understand the nature of the proceedings, what he or she was tried for, the reason for the punishment, or the nature of the punishment. The second prong, according to the court, was the assistance prong: whether the prisoner possesses sufficient capacity or ability to communicate rationally with counsel. The Supreme Court of Washington has similarly adopted the two-prong test, holding that "[w]hat is required is that they [the inmate] understand they have been sentenced to death for murder and be able to communicate rationally with counsel." The Washington court limited the rule, however, by adding that "to be 'able to assist' in post-conviction proceedings, the defendants need not be able to think of new issues for counsel to raise, nor must they necessarily be able to recall the events surrounding the crime."
IV. Application of These Standards in Actual Cases
There are several problems with applying the standards adopted by the states. Some of these problems have been discussed by Justices or other judges, others asserted by commentators, and still others will be brought forth in this Note. In order to illustrate these problems, the factual backdrop of three specific cases will be discussed in this part of the Note, concentrating on three states that have recently decided the issue of competency to be executed. After laying out the facts and outcomes of these decisions, Part V will discuss the problems individually, both in the abstract and by referring back to these case studies and other judicial decisions.
A. Coe v. State
In March 2000, the Supreme Court of Tennessee denied Robert Glen Coe's claim that he was incompetent to be executed. Coe was convicted in 1981 of the aggravated rape, aggravated kidnapping, and first-degree murder of an eight-year-old girl. Coe was sentenced to death, and the Tennessee Supreme Court affirmed the conviction. Initially, the court found that the case was ripe because Coe's execution date was "imminent." Based on the single-prong "cognitive" standard set forth in Van Tran v. State, the court then reviewed whether Coe lacked the mental capacity to understand the fact of his impending execution and the reason for it. The factual basis for the review was the competency hearing that had been ordered by the trial judge. The testimony of the four mental health experts appointed by the trial judge, two for each side, were discussed in detail in the opinion." Coe's first expert witness was James Ray Merikangas, M.D., whom the trial court accepted as an expert witness in the fields of neurology, neuropsychiatry, and psychiatry." Dr. Merikangas based his testimony on a review of appellant's records, a physical examination of the appellant, a magnetic resonance imaging (MRI) test revealing brain abnormalities, and a positron emission tomogram (PET) scan of appellant's brain." His personal contact with Coe consisted of a single visit for a total of ninety minutes. In Dr. Merikangas's opinion, Coe had congenital brain damage, maldevelopment, and probably some acquired brain damage." He diagnosed Coe as a chronic paranoid schizophrenic, and found in his interview that Coe had delusions, hallucinations, peculiarities of thinking, and disorders of movement. According to Dr. Merikangas, Coe was not malingering, and the conclusion by the state's mental health experts that Coe was malingering was based on "junk science."
Under the Van Tran single-prong standard, Dr. Merikangas admitted that Coe was "aware" that he was going to be executed and knew why he was sentenced to die. However, he emphasized that, in his opinion, there is a distinction, between "awareness" and "understanding," opining that appellant's belief that he would be reincarnated after death demonstrated that he did not fully "understand" the consequence of death. Thus, Dr. Merikangas found Coe incompetent to be executed. Furthermore, in his opinion, Coe would become even less competent as the time of his execution drew near. On cross-examination, Dr. Merikangas stated that he based his finding of incompetency on the fact that Coe was a paranoid schizophrenic, although he admitted that one could be schizophrenic and still be competent to be executed.
The second expert to testify on behalf of Coe was Dr. William Davis Kenner III, who was accepted by the trial court as an expert in the field of psychiatry. Dr. Kenner based his testimony on four separate personal interviews. After the first visit, Dr. Kenner found Coe to be schizophrenic and incompetent. After the second interview, however, Dr. Kenner found Coe competent because he was no longer exhibiting psychotic symptoms. At the third interview, Coe did not remember the second visit, which had occurred the previous night. Besides this memory loss, Coe told a story about his childhood completely inconsistent with the history he had given previously. Furthermore, Coe became agitated when asked about the death penalty and asked to be returned to his cell.
Based on this third visit, Dr. Kenner began to suspect that Coe suffered from dissociative identity disorder ("DID"). At the fourth interview, Dr. Kenner discovered that another inmate had threatened Coe prior to the third interview, and concluded that the stress from this threat had caused the period of separate identity he had observed. Dr. Kenner also diagnosed Coe as suffering from generalized anxiety disorder, schizoaffective disorder (bipolar type), poly-substance abuse, learning disorder, reading disorder, and schizoid personality disorder' with antisocial features. Dr. Kenner also found Coe not to be malingering and questioned the effectiveness of the tests used by the state's experts to find that he was malingering. Explaining the effect of DID on his diagnosis, Dr. Kenner explained that Coe's condition would vacillate depending on stress levels, so that he may be competent on a good day, but incompetent on a bad day. In Dr. Kenner's opinion, to a reasonable degree of medical certainty, the stress from the approaching execution date would cause Coe to dissociate, rendering him incompetent to be executed. On cross-examination, Dr. Kenner admitted that, at the time of his fourth interview, Coe was competent to be executed under the Van Tran single-prong standard.
The State's first expert witness was Daryl Bruce Matthews, M.D., Ph.D., whom the trial court accepted as an expert in the field of forensic psychiatry. Dr. Matthews reviewed Coe's detailed psychiatric history and conducted a five-hour psychiatric evaluation of him. Coe told Dr. Matthews that he knew the difference between life and death and believed he had a soul that would go somewhere after death. After noting that Coe had already chosen a method of execution, Dr. Matthews recounted that when he asked Coe what happened upon a finding of incompetence, Coe said, "[T]hey give you drugs to make you well and then they kill you." Dr. Matthews concluded that Coe was aware of why he was convicted, although he minimized the seriousness of the offense and continued to profess his innocence. Dr. Matthews diagnosed Coe as suffering from pariphilia, poly-substance dependence in a controlled environment, adjustment disorder with mixed anxiety and depressed mood, nicotine dependence, malingering, possible neuroleptic-induced Parkinsonism, noncompliance with medical treatment, antisocial personality disorder, borderline personality disorder, and schizotypal personality disorder. After disagreeing with any diagnosis of Coe as schizophrenic or suffering from DID, Dr. Matthews found Coe competent to be executed under Van Tran. On cross-examination, Dr. Matthews admitted that he had never treated a patient with DID, and that he was skeptical that the disorder existed at all. Dr. Matthews also admitted that Coe could possibly become psychotic in the future.
The State's second expert, Daniel A. Martell, Ph.D., was accepted by the trial court as an expert in the field of psychology. Dr. Martell based his testimony on nine and one-half hours of interviewing and testing over two days, as well as a review of many documents pertaining to Coe. During the interview, Dr. Martell found Coe to be oriented to the world around him, able to describe accurately his own identity, location, and the month and year. Dr. Martell also found that Coe expressed his thoughts coherently and logically, although he appeared paranoid at times. Coe denied having visual hallucinations, but claimed to have experienced both auditory and olfactory hallucinations. Dr. Martell found that Coe was malingering mental illness, based on some psychological tests he administered. In his opinion, Coe was competent to be executed under Van Tran. He found that Coe understood he was going to die and knew the reason why he was sentenced to die, although he continued to profess his innocence.
Coe then called two rebuttal witnesses, Dr. John Pruett and Dr. James Walker. Dr. Pruett was the attending physician at Riverbend Maximum Security Institution from 1994 to 1997 and had seen Coe every two or three months during that time. Dr. Pruett testified that Dr. Kenner's observations of Coe's changes in behavior were consistent with DID, but did not offer his own opinion as to Coe's present mental competency to be executed. Dr. Walker was accepted as an expert in the field of forensic neuropsychology and had examined Coe over two days, giving the same battery of tests as Dr. Martell. Although the tests produced similar results, Dr. Walker did not find Coe to be malingering, especially because he took every available opportunity to deny he had any psychosis. Dr. Walker would not diagnose Coe with DID, but recognized all of the other mental health experts' diagnoses as reasonable. Although he refused to express an opinion about whether Coe met the Van Tran standard for competency, he admitted that Coe was aware of his impending execution and why it had been imposed on him. Dr. Walker disagreed with Dr. Kenner's assertion that Coe's mental-state would deteriorate as the execution date approached.
Although he did not testify, Coe's own behavior at the competency hearing consisted of inappropriate comments to the judge and other court personnel, as well as generally disruptive behavior. After screaming obscene and profane comments and threats in the courtroom and spitting at the Assistant Attorney General, Coe was gagged, and, when that proved ineffective, eventually removed from the courtroom. The trial judge noted that throughout these tirades, Coe was obviously aware of his situation, and even interjected his own logical and coherent responses to questions asked of witnesses. In particular, Coe repeatedly warned the trial judge that whatever he ruled would be overturned at the federal level, showing an awareness of his impending execution and legal situation.
After comparing the vastly different opinions of all of these expert witnesses, the Tennessee Supreme Court found that the evidence fully supported the trial court's finding that Coe was presently competent to be executed because he was aware of his impending death and the reasons for it. The court affirmed the trial court's decision, and directed the Warden of the Riverbend Maximum Security Institution to carry out Coe's execution.
B. Provenzano v. State
In May 2000, the Supreme Court of Florida decided Provenzano v. State, affirming the circuit court's finding that Provenzano was competent to be executed under Florida's single-prong "cognitive test." The circuit court had held an evidentiary hearing on Provenzano's competency to be executed, which was the basis of the appeal. The court had found that Provenzano had a delusional belief that he was Jesus Christ and had "mental health problems of some degree." Nevertheless, the Florida Supreme Court agreed with the circuit court that Provenzano "[did] not lack the mental capacity to understand the fact of his pending execution and the reason for it." One justice dissented, noting that the circuit judge found that Provenzano did not rationally accept the reasons for his execution, but that such acceptance was not required for competency to be executed. The dissent noted that this case went further, however, because Provenzano's rejection of the reasons for his execution was based on a delusional belief. Provenzano was found to believe that the reason for his execution was not because he murdered another human being, but because he was Jesus Christ. According to the dissent, Provenzano was unable to connect his execution to the crime of which he was convicted, so he should have been held incompetent to be executed.
This case is illustrative of the extent to which an inmate can have mental health problems, and even delusions, but still be found competent to be executed based on current standards. It also displays the degree to which competent and fair judges can disagree on just how competent an inmate must be in order to be executed.
C. Billiot v. State
The Supreme Court of Mississippi affirmed the trial court's finding that an inmate was competent to be executed under the state's two-prong test in Billiot v. State. James E. Billiot was convicted of capital murder and sentenced to death. The Mississippi Supreme Court held that Billiot was entitled to an evidentiary hearing to determine whether he was competent to be executed. After eight different expert witnesses testified at this hearing, the trial court found Billiot competent to be executed.
At the competency hearing, Billiot first called Dr. Donald Guild, a psychiatrist who had examined Billiot seven months before the hearing, as an adverse witness. Dr. Guild did not make a definitive diagnosis, but found Billiot was not psychotic or suffering from paranoid schizophrenia. Still, Dr. Guild concluded that Billiot met the criteria for anti-social personality disorder. He found Billiot was in touch with reality at that time, but stated that competency is time dependent: "It does not mean that he could not have been crazy in the past or in the future .... [A] man can be competent one time and then three months later, it's very possible that he will become incompetent." Dr. Guild testified as to the specific criteria upon which he relied in making his determination, including whether Billiot understood the reason why he was being executed. Another psychologist, Dr. Charlton S. Stanley, had examined Billiot along with Dr. Guild and was also called by Billiot as an adverse witness. Although he agreed with Dr. Guild that competency is perishable, Dr. Stanley found Billiot competent to be executed. Dr. Stanley stated that, in order to be competent to be executed, the prisoner must understand his impending fate and understand the finality of that; that you can't have some sort of crazy idea that they can't kill you."
Billiot next called Dr. Robert L. McKinley, a psychiatrist who had examined Billiot several times. 209 After his second examination in 1987, Dr. McKinley stated in a report that "[Billiot] definitely has beyond the shadow of a doubt a chronic schizophrenic disorder." At an examination -a year later, Dr. McKinley prescribed for Billiot a second anti-psychotic, anti-schizophrenic medication "to calm down his nerves." At the time of the hearing, Dr. McKinley maintained that Billiot was unquestionably schizophrenic, but would not render an opinion as to his competency to be executed because he would want to evaluate Billiot on the day of the hearing to make such a finding. He emphasized that individuals with schizophrenia can have their thinking rapidly change, because the disease "is characterized by exacerbation and remissions or relapses and remissions." Dr. McKinley admitted that someone can be a paranoid schizophrenic and still be competent to be executed, but also emphasized that during periodic remissions of the illness, a person can appear totally normal.
Next, Billiot called Dr. Michael Whelan, the director of the Department of Psychiatry at Parchman. Dr. Whelan performed a battery of tests on Billiot in the hospital in 1984 and had visited Billiot sporadically while he was on death row. In his report following the tests, Dr. Whelan found Billiot to have symptoms of delusion of reference, delusions of grandiosity, nihilism, and persecutory content. Dr. Whelan stated that Billiot was "firmly entrenched in a delusional system which [permitted] him to acknowledge the fact that he did indeed murder the Croll family, but which [permitted] an absolution of his guilt." Dr. Whelan also testified that the day before the hearing, he heard Billiot mention, while talking to Dr. McKinley, "something about demons and the devil overthrowing the kingdom and that he had been an angel." Dr. Whelan found Billiot competent to be executed in 1985, but would not render an opinion at the hearing without having examined Billiot within a few days of the hearing. 223 Dr. Whelan admitted on cross-examination that at the time of his last interview with Billiot, he found that Billiot understood his sentence and comprehended the finality of death. Furthermore, he found that Billiot was in touch with reality because he did not think he had any special powers that would prevent the state from executing him. Finally, Dr. Whelan stated that Billiot's condition was subject to change and that if he became "floridly psychotic," he could be incompetent for execution.
Billiot then called Dr. William Johnson, a professor of psychiatry at the University Medical Center, who interviewed Billiot around the same time as Dr. Guild and Dr. Stanley. Dr. Johnson, however, found that Billiot was not competent to be executed because he could not make a connection between his role in the crime and what the state had decided to do to him. He also testified that he had seen Billiot for one half-hour the morning before the hearing and found him still incompetent to be executed, as he was unaware of the proceedings against him--Billiot thought he could still plead not guilty to the crime. Dr. Johnson testified that Billiot thought the execution would not succeed "due to his powers and so on." Specifically, Dr. Johnson stated that Billiot knew that he was found guilty of capital murder and was sentenced to die, but that he typically could not relate the sentence to the crime. According to Dr. Johnson, Billiot sometimes denied committing the crime and thought he could still plead not guilty, while at other times he admitted to the murders, but said "there was an omen going around and that he had no choice but to commit the crime." Dr. Johnson found Billiot to be schizophrenic and suffering from delusions: "[H]e can take on the identities of other individuals, whether it be Jesus Christ, Pancho Villa or Lucifer, Attila the Hun, Julius Caesar, Napoleon. Finally, Dr. Johnson testified that someone suffering from paranoid schizophrenia with psychosis is not competent to be executed, while a paranoid schizophrenic without psychosis may or may not be competent to be executed. The distinction apparently was based on the fact that psychosis is considered a more severe mental impairment, especially when coupled with schizophrenia.
The State first called Dr. Henry A. Maggio, who had examined Billiot in 1982, finding him competent to stand trial, and in 1988, finding him competent to be executed. Dr. Maggio admitted that he conducted no formal psychological testing in determining that Billiot was not paranoid schizophrenic. He also agreed that schizophrenia fluctuates; thus, competency to be executed may come and go. The State then called Dr. Guild back to the stand, who stated that, in his opinion, Billiot was clearly competent to be executed when Dr. Guild interviewed him in 1988. As proof that Billiot was in touch with reality, Dr. Guild emphasized that, when asked to choose between forms of execution, Biliot could not choose and "was able to joke about it a little. Dr. Guild also found it very significant that Dr. Whelan had never actually seen Billiot in a "floridly psychotic" state. Finally, the State called Dr. Stanley back to the stand to testify that Billiot's scores on the Minnesota Multiphasic Personality Inventory Profile Test indicated characteristics of anti-social personality disorder, not paranoid schizophrenia. He also testified that Billiot in his interview admitted to not having any special powers. Dr. Stanley found Billiot competent to be executed, but admitted on cross-examination that competency is perishable and fluid.
The Mississippi Supreme Court found Billiot competent to be executed, noting that the only expert finding him presently incompetent was Dr. Johnson. The court found persuasive the fact that several experts conducting examinations at differing times over several years each had reached the same conclusion. The court did note, however, that Dr. Johnson had completed more recent and more extensive research on the issue of Billiot's insanity, and had found him incompetent.
V. Discussion of the Problems with the Current Standards
A. Multiple Examinations and "Imminence"
In her dissent in Ford v. Wainwright, Justice O'Connor pointed out one major problem with applying the rule against executing an incompetent person: "Regardless of the number of prior adjudications of the issue, until the very moment of execution the prisoner can claim that he has become insane sometime after the previous determination to the contrary." Justice O'Connor feared the potential for false claims and deliberate delays because the prisoner could suspend execution during an incompetency hearing, despite the fact that he or she was already validly convicted and sentenced under the law.
This problem is well illustrated in Coe v. Bell. In his testimony, Dr. Kenner stated that he twice found Coe competent to be executed, and twice found him incompetent to be executed. Dr. Kenner attributed this discrepancy to his diagnosis that Coe had DID, which causes a person to enter into another identity when faced with significant distress. Dr. Kenner opined that as execution drew near, Coe would become incompetent because he would dissociate, but both the state courts and the federal district court were skeptical of this diagnosis because there was proof that Coe looked forward to dying and saw it as a release. The Sixth Circuit specifically addressed this problem in its review of Coe's case. After noting Justice O'Connor's concerns, the court held that the Supreme Court in Ford did not mean to require the state to determine a prisoner's competency at the exact time of execution. Rather, the state must make its determination when execution is "imminent." In this case, Coe's competency determination was made while his execution was. less than two months away adequately imminent to satisfy due process.
This problem is also well illustrated in Billiot, where all doctors agreed that they would need to examine Billiot right before the hearing to make a determination of his present competency. Most notably, Dr. McKinley testified that individuals suffering from schizophrenia are subject to multiple remissions and relapses, sometimes appearing completely normal and other times having a break with reality. As one doctor in another case succinctly stated: with a paranoid schizophrenic prisoner, "there is no way of predicting [his or her] mental state on the day of execution." One court even went so far as to order that the prison officials keep the condemned prisoner under watch, retaining jurisdiction to stay execution if any officials determined that the prisoner was not competent to be executed when the moment of execution actually arrived.
If courts are to take the stance that the prisoner's execution must be "imminent" in order to determine competency, the question remains how to apply that standard: What does "imminent" mean? Should the definition depend on the type of mental illness from which the prisoner suffers? Must the experts who testify at the competency hearing have examined the prisoner in the days immediately preceding the hearing? Should courts take into consideration evidence that a prisoner will likely become more incompetent as the date of execution nears, or only determine his or her "present" competency to be executed?
If the execution is not found to be "imminent," then the Ford claim will presumably be dismissed as not ripe. 266 If, however, the execution is found imminent, should courts deny all subsequent reviews of the prisoner's mental health, even under extreme circumstances? If not, do the administrative costs and monopolization of judicial time warrant such multiple competency determinations? If a competency hearing is allowed in the days preceding the execution, how can the fundamental principle of thorough judicial review be maintained? As one court pointed out, this produces a conundrum: if a stay is granted to determine competency once execution is imminent, then the execution date must be postponed until such determination is made. Ironically, the court continued, the stay itself would moot the reason for the stay because the execution would no longer be imminent. As these concerns illustrate, significant problems exist in the current framework for determining the imminence of an execution.
B. Terminology
There is much discussion in various opinions about what level of competency Ford requires: "awareness," "understanding," "knowledge," "comprehension," or "realization." By way of example, in his concurring opinion in Ford, Justice Powell, at different points, used the terms "awareness," "understands," and "perceives the connection." State statutes have shown similar differences in terminology. This imprecision leaves courts and expert witnesses to try to distinguish between these different levels of competency.
Again, the Coe decisions offer an excellent illustration of the problem. One of Coe's claims on appeal to the Tennessee Supreme Court was that the trial court mistakenly required only that he be "aware" of the fact of his impending execution and the reason for it, rather than actually have an "understanding" of those facts. Indeed, Dr. Merikangas made just such a distinction: "I agree that [Coe] is aware of an execution. My point is that he does not have the mental capacity to understand." Dr. Merikangas based this assertion on his opinion that Coe had a delusional belief that when executed he would "simply be in another place in the same body, [would] visit his ex-wife and child . . . [would] maybe temporarily be one of these balls of fire that speaks to people." The Tennessee Supreme Court, however, cited Van Tran v. State in holding that a prisoner is only incompetent to be executed if he or she is "unaware" of the punishment and the reason they are to suffer it. The Coe court stated that "awareness" and "understanding" should not be ascribed the technical meanings they may have in the field of psychology in determining competency to be executed. The court based this holding on the fact that, in Ford, Justice Powell used various terms when describing the Eighth Amendment competency standard "as synonyms" for the same level of competency. Thus, Coe's attempt to distinguish understanding from awareness was rejected. This reliance on the common definition of the words, rather than their technical meaning in the field of psychology, is curious considering the basis for the court's finding that Coe was competent was almost entirely the testimony of psychologists and other mental health experts. There does not appear to be a sound basis for a court to decide that a mental health expert's distinction between understanding and comprehension is not relevant to a competency determination.
The Sixth Circuit also addressed Coe's claim that the trial court impermissibly relied on his "knowledge" that he was to be executed, rather than his "comprehension of the sentence and its implications." In his petition, Coe relied on Justice Marshall's statement in the plurality for Ford that a prisoner should be able to "comprehend the nature of the penalty." The court pointed out that Justice Marshall never actually set forth what he thought the standard should be, so it could not "conclude he meant to do so with this one statement."
This terminology problem is also illustrated in the Florida Supreme Court's decision in Provenzano v. State. The court found that the case was "troubling" because Provenzano clearly had some mental health problems. Nevertheless, the court found that the Eighth Amendment only requires that a defendant "be aware" of the punishment she is about to suffer and why she has been sentenced. The court then agreed with the trial court that Provenzano "[did] not lack the mental capacity to understand" these facts. The court apparently found no problem in using the terms "awareness" and "understanding" interchangeably.
The dissent in Provenzano, on the other hand, focused on Provenzano's delusions in determining the level of his acceptance of his impending execution. This dissenting justice noted that the trial judge struggled with what the competency standard should be, ultimately finding that Provenzano did not need to have a "rational acceptance" of the reasons for his execution because a maintenance of innocence is "a fairly normal human reaction." This decision was inappropriate, according to the dissenting justice, because Provenzano's rejection of the reasons for his execution was based on a delusional belief that he was being executed because he was Jesus Christ. As he noted, Justice Powell in Ford stated that a prisoner must be able to connect the execution to the crime for which he or she was convicted. If a prisoner like Provenzano does not realize why he is being executed, then the retributive purpose behind the death penalty is not served.
The dissent in Provenzano quoted extensively from the reasoning in another Florida case, Martin v. Dugger. The Martin court stated that if a prisoner does not appreciate the connection between his crime and punishment, imposing the death penalty would violate the Eighth Amendment. The court further held that such an execution would be inconsistent with both the deterrence and "channeling of anarchy" rationales behind the death penalty. Thus, the court held, the prisoner must appreciate the connection between his crime and punishment both subjectively and objectively. In other words, the court must determine whether the defendant's logical connection between the crime and execution is consistent with that of ordinary human experience.
The Fifth Circuit seemed to reject such a requirement of a rational understanding of execution and the reasons for it in Barnard v. Collins. The court noted that the prisoner established through experts that his perception of the reason for his conviction and pending execution was "at times distorted by a delusional system in which he attributes anything negative that happens to him to a conspiracy of Asians, Jews, Blacks, homosexuals, and the Mafia." Nevertheless, the court found that the experts did not establish that the prisoner lacked knowledge of his impending execution and the reason for it, as required under Ford. Similarly, in Garrett v. Collins, the prisoner argued that he was not fully aware of the consequences of the death penalty because he believed his dead aunt would protect him from the effects of the sedative and toxic agents used. The court held that "this belief of hope" does not prevent execution under Ford because Garrett knew that "when that needle goes into his arm that it's possible for him to suffer death."
Whether a defendant who does not think that she will actually die is "aware" of her impending fate is a related issue, as illustrated in Garrett and Billiot. In Singleton v. State, the Supreme Court of South Carolina found such a belief sufficient to support a finding of incompetency to be executed. The court held that, because of his reliance on "protective genes," Singleton was completely unaware that he was capable of dying in the electric chair.
As these cases make clear, current standards for determining competency to be executed simply do not adequately distinguish between a prisoner's awareness, knowledge, and comprehension of their impending fate. Often, expert witnesses do distinguish between these levels of awareness. Is mere awareness all that is required by the Eighth Amendment? If so, how can a court decide that a prisoner who thinks she is being punished for some other reason, or will not actually die, is really aware of her execution and the reason for it, although clearly not comprehending it?
C. Other Problems
- Conjunctive or Disjunctive?
The district court in Coe v. Bell noted an additional problem resulting from vague standards for determining competency. Coe raised a claim that Tennessee's standard for competency set forth in Van Tran violated the Eighth and Fourteenth Amendments because it was a "conjunctive standard that requires a petitioner to prove both an 'unawareness' of the execution, as well as an 'unawareness' of the reason for the execution." Since the defendant bears the burden of showing his or her incompetency to be executed, this fact would mean that someone aware of the punishment, but unaware of the reasons for it, would still be competent for execution. The court stated that this assertion "may technically be true," but that as applied in that case it was not an issue because Coe was found to be aware of both the impending execution and the reasons for it. There is reason to believe this problem could be at issue in future decisions, however, because such vagueness permeates several states' standards. For example, both Florida and Texas use conjunctive standards, while Arizona and Missouri use disjunctive standards.
The difference between a conjunctive and disjunctive standard cannot be overstated. If a prisoner must prove both that she does not understand that she will soon be executed, and that she does not understand why she was sentenced to death, then that burden will rarely be met. All a state would have to do is prove one or the other and the execution would proceed, no matter how deficient the prisoner's understanding with regard to the other part of the test. If, however, the standard is disjunctive, then it is the prisoner who must only prove a lack of understanding of either the impending execution or the reasons for it. Based on the rationales behind the rule against executing the insane and the fact that the prisoner bears the burden of proof, a disjunctive standard is more logical. Most likely, Justice Powell in Ford meant that a person is only competent if the state proves both awareness of execution and awareness of the reason for it. It is awkward to phrase the test from the standpoint of the state, however, and then place the burden on the prisoner. A clearer and more just test would provide that a prisoner should not be executed if she can prove that she is unaware either of her impending fate or the reasons for it. - "Insane" or "Incompetent"?
At least one commentator has noted that, although the terms "incompetent" and "insane" have been used interchangeably to describe those protected under Ford, "not only are these terms archaic, but they are also an imprecise means of initially identifying the members of the group that Ford envisions protecting." In fact, "insanity" is not generally recognized as a psychological diagnosis at all. After noting the wide range of choices for terms, the author notes that "[u]ltimately, the decision as to which term or phrase to adopt will be contingent upon the manner in which Ford should be interpreted." Upon this author's reading of Ford, the most appropriate term might be "severe mental impairment." Given a court's reliance on mental health experts to determine competency to be executed, the choice of terminology can prove extremely important. - Subjective Judicial Judgment
Most often, several experts offer competing testimony on the issue of the prisoner's competency to be executed. In fact, these experts sometimes admit that the diagnoses of other mental health experts, although different from their own, are reasonable. As Justice Powell noted in Ford, "[T]he competency determination depends on expert analysis in a discipline fraught with 'subtleties and nuances.'" Nevertheless, the question of the prisoner's sanity "calls for a basically subjective judgment." Since the ultimate decision rests with the judge, she should be given a more detailed definition of "competency to be executed" than is presently given under Ford or the applicable state statute.
In Weeks v. Jones, the Eleventh Circuit commended the trial judge, who "ultimately had to determine Weeks's competency to be executed," for directly intervening to ask the prisoner questions to assist in his competency determination. The questioning, according to the trial judge, was "for the purpose of gaining insight into his mental processes, of trying to determine how his mind was operating, and of 'probing into his mind and how he views the world and what he knows and [ ] how he perceives things.'" It is arguable that such judicial intervention is an appropriate means of aiding a judge in his ultimate decision, especially if there is conflicting expert testimony based on technical psychological terminology. On the other hand, it is also arguable that such a determination of mental health should be left completely to experts. If the latter is true, then how is the judge to decide among competing experts? The answer probably lies in statutorily defining "incompetency to be executed" with the actual language the judge will hear from the expert witnesses in mind. - Evidence of Pre-sentence Mental State
Courts have also struggled with the issue of whether, under a hearing for present competency to be executed, evidence of the prisoner's mental state before his or her sentencing should be considered relevant. For example, in Garrison v. State, the Colorado Supreme Court remanded the case for another competency hearing because the trial judge refused to admit evidence of Garrison's mental state before his sentencing. The prisoner offered such evidence not to prove his mental condition at an earlier time, but to shed light on his current mental condition by showing a family history of mental illness, which supported his theory that his present incompetence "was not an 'over night thing,' but rather the logical culmination of a long, drawn-out process of mental deterioration.'' Should such evidence of prior mental illnesses always be admitted in a competency hearing, or only when it is shown to be relevant to the issue of current competency to be executed?
VI. Possible Solutions to the Problem
A. The Current Requirement of Mental Health Experts
Most states, in order to comply with Ford, require courts to appoint a panel of doctors once there is a threshold showing of incompetence. If the prisoner offers only lay opinions instead of expert testimony, his or her Ford claim is unlikely to succeed. In fact, courts tend to rely on nonexpert testimony only if there is some action by the prisoner himself or herself showing that they are competent. Thus, although the judge makes the ultimate decision in any judicial proceeding, she will inevitably be forced to decide between competing expert opinions. The experts will, of course, disagree since each side will present mental health experts whose diagnoses aid their own cause. In fact, the basis of the Ford plurality's finding that Florida's procedure did not comport with due process was that the lower court's decision was based solely on state-appointed psychiatrists, without allowing the prisoner to offer his own experts. As a result, the judge typically listens to several expert witnesses, who testify as to their psychiatric determinations, and then decides whom to believe.
These requirements set up a pattern of reliance on expert testimony in deciding competency to be executed. The testimony of these experts, however, necessarily consists of the use of psychiatric methods to make a professional opinion as to the prisoner's mental health. Often, the experts do not even make a finding of "competency to be executed," but testify as to some specific mental problem from which the prisoner suffers. The judge is left with the daunting task of translating psychiatric terminology into layman's language of "competency to be executed." In order to make this choice, the judge must ponder obscure medical diagnoses. For example, the trial judge in Coe v. State was bombarded by numerous descriptions of the prisoner's mental health problems: "schizophrenic," "dissociative identity disorder," "psychotic," "schizoaffective disorder (bipolar type)," "antisocial personality disorder," "schizotypal personality disorder," "pseudologica fantastica," and "mild dementia of unknown etiology," among others. This job is made even more difficult by the specific distinctions about competency as to which mental experts testify. These distinctions may result in different outcomes depending on which expert the judge actually understands at the hearing, rather than on which expert's analysis is most rigorous.
Often, the judge expresses discomfort in making a decision in the face of substantial medical evidence of genuine mental disorders, but still finds competency because the burden of proof is on the prisoner to show his or her incompetence by a preponderance of the evidence. For example, in Billiot v. State, each of the doctors agreed that a person could be schizophrenic and incompetent to be executed, or schizophrenic and competent to be executed. The doctors, however, disagreed on which of these situations described the prisoner, and the court was forced to choose among witnesses it had accepted as experts. This problem is acute considering that the judge is usually a layperson who, despite substantial effort, simply cannot be qualified to evaluate a medical expert's testimony for its scientific validity. The judge is ultimately left deliberating over which expert witness was the most persuasive. The decision, perhaps unintentionally, may well depend on the expert witness's personality, approach, or articulation, rather than on sound medical judgment.
B. Carefully Crafted Statutory Definitions
One possible remedy to this problem is for states to more carefully define "incompetent to be executed" in their statutes. A legislature, unlike a court, can spend ample time hearing ideas from both legal experts and various medical experts and organizations to come up with a standard that will aid the judge in his or her final legal determination of competency. Such a legislative act would also result in a more uniform application of the standard for competency to be executed, as well as ensure that no incompetent persons are executed. Since judges most often rely on expert testimony to reach their conclusions, one approach would be to use actual medical terminology in the statutory definition. Given the broad range of medical terms, however, it is certainly not possible or desirable to make a list of specific disorders that will qualify for "incompetency to be executed." Nevertheless, a legislature can at least produce a more descriptive definition of what is meant by "understanding" or "awareness." In the end, the final decision will still lie in the subjective judgment of a judge. Yet, if the expert witnesses whom the judge hears were given a medical definition of "incompetence" to use in their examination of the prisoner, the judge would be left with less conflicting testimony. Such an approach would not only preserve justice, but the prisoner, the judge, and society as a whole could feel more confident that the principle announced in Ford has been upheld.
There might be some problems with this approach, which would, essentially, by statute require judicial dependence on expert psychiatric witnesses. Are these experts making factual findings or essentially drawing legal conclusions? Should expert witnesses really be the ultimate decisionmakers? As noted above, however, courts are already relying substantially on mental health experts. If they are going to do so anyway, then the law should give expert witnesses a clearer definition with which to work. Furthermore, any fear that psychiatrists will take over the role of the judge exudes a lack of confidence in the adversarial system. As the Ford plurality held, both parties should be able to offer their own experts and present arguments at a competency hearing. Below is a suggestion of how a more carefully crafted statutory formulation might be expressed:
(A) A person shall be found incompetent to be executed if, as a result of a severe mental impairment, he or she does not understand: (1) that he or she is going to be executed; (2) that this execution is imminent; (3) that this execution will lead to his or her death; or (4) the reason the state is executing him or her.
If the preponderance of the evidence demonstrates a lack of understanding of any one of these factors, the execution shall be stayed. The person alleging incompetency shall bear the burden of proving incompetency.
(B) For purposes of this section, "to understand" shall mean to grasp the meaning of an event or situation and its significance in the same manner as would an average person facing execution. If a person understands that execution is imminent and that he or she was found guilty at trial of a crime punishable by death, but he or she does not rationally understand that these two events are causally connected, the person shall be found incompetent to be executed. Mere knowledge or awareness of an impending execution, without a rational understanding of the reasons for it, is not sufficient to find competency to be executed. Evidence from an expert witness that the person is so deluded that he or she simply cannot relate the crime to the punishment is evidence of such lack of a rational understanding. The person need not admit guilt or accept the judgment of the court to be determined competent to be executed. His or her beliefs about what will happen to him or her after death are not relevant to the determination of competency.
(C) A person sentenced to death is entitled to a judicial determination of his or her competency to be executed if a judge determines that there has been a threshold showing of incompetency. A determination of competency to be executed shall be made at a competency hearing held when the execution is imminent. At this competency hearing, the court shall provide both the prosecution and the defense an opportunity to present expert testimony based on physical examinations, testing, or personal interviews of the inmate, as well as allow for arguments by counsel. The court shall allow up to four (4) mental health expert witnesses to testify for each party.
(D) For purposes of this section, "imminent" shall mean that the execution is to occur within thirty (30) days from the time of the competency hearing.
(E) At the judge's discretion, upon a showing by a preponderance of the evidence that the person suffers from a mental disorder that is likely to become more severe as the time of execution draws near, a supplemental competency hearing shall be held within three (3) days of the date of execution. In the event that the state supreme court hears an appeal of this supplemental competency determination, the execution shall be stayed. If the supreme court affirms a determination of competency, the execution shall proceed within three (3) days from the date of the supreme court's judgment.
(F) All final determinations of competency to be executed shall be made by a judge, but substantially based on the testimony of witnesses who are accepted by the court as experts in the field of mental health.
C. The Supreme Court Solution
If state legislatures are unwilling or unable to set forth more well-defined standards for determining competency to be executed, then it is time for the United States Supreme Court to finish the task that it began in Ford v. Wainwright, and give a more descriptive definition of what the Eighth Amendment requires with regard to executing an incompetent inmate. Since the rule against executing an incompetent person is based on the Eighth Amendment, and the procedures to determine such competency must comply with the Due Process Clause, action by the Supreme Court would not be inappropriate. Although the Court would be unlikely to use scientific terminology, a majority could at least give more than a one sentence standard for defining competency to be executed, especially considering the finality and seriousness of the issue of capital punishment. As one court succinctly stated, "Ford v. Wainwright is a precedential quagmire. More careful use of the terms "understanding," "awareness," and "knowledge" would be the first step in this standard.
The problem with the Supreme Court solution was noted by Justice Powell in Ford: "States are obviously free to adopt a more expansive view of sanity in this context than the one the Eighth Amendment imposes as a constitutional minimum." Nevertheless, the Supreme Court could define the constitutional minimum standard more carefully and fully, and provide the states with a thoughtful discussion of the issues involved in determining competency to be executed. At the very least, such an approach would result in more uniform standards and applications of those standards among the different states.
VII. Conclusion
The rule against executing an incompetent person is firmly ingrained in the American legal system. The Supreme Court officially adopted this stance in Ford, although only Justice Powell's concurring opinion offered a definition of what it means to be incompetent to be executed. A majority of states have accepted Justice Powell's single-prong test from Ford: whether the inmate understands her impending execution and the reasons for it. Other states have adopted a two-prong test, which includes both Justice Powell's "cognitive" prong, as well as an "assistance" prong requiring that the inmate be able to assist counsel in her own defense. These vague definitions, when applied to actual cases, have proven to be fraught with difficulties.
Courts generally require a competency determination to be made while the execution is "imminent," but they face significant difficulties in deciding what this term means. This problem is exacerbated by the fact that prisoners can continue until the day of execution to claim that they have become incompetent since the previous competency hearing. Courts have also struggled with what level of comprehension the statutes require: understanding, knowledge, awareness, or rational comprehension. When confronted with multiple mental health experts, who each use different medical terms to describe the prisoner's exact mental problems, the judge is left with the unenviable task of reaching a conclusion. How should she apply these medical terms to the common language definition of incompetency to be executed? Does it ultimately come down to which mental health expert made the most appealing presentation at the competency hearing?
This Note suggests that state legislatures help solve these problems by carefully crafting a more comprehensive definition for determining competency to be executed. In the alternative, the Supreme Court should finish what it started in Ford v. Wainwright, and provide a definition of competency to be executed that can be applied more uniformly across the country. In the very least, the Court could provide some guidance for judges who are duty-bound to decide whether or not an inmate is executed. Currently, these judges are often left sifting through a medical dictionary in an attempt to translate a psychologist's testimony into a judicial decision and an opinion explaining that decision. A clearer definition of competency to be executed would aid both mental health experts and judges in deciding Ford claims.
There is no question that this issue is of paramount importance. Time should be spent to ensure that the rule against executing the insane is being applied properly in actual cases. State legislatures and the Supreme Court owe such an effort not just to prisoners facing death, but to a society yearning for a restored conscience.
