The Eighth Amendment to the U.S. Constitution prohibits cruel and unusual punishment, which, according to the U.S. Supreme Court decision in Ford v. Wainwright (1986), includes the execution of the insane. Thus, it is unconstitutional to execute condemned inmates who become incompetent while on death row while they remain in an incompetent state. Statutes set forth by those states that permit the death penalty often do not include specific guidelines for evaluating competency for execution, and when guidelines do exist, they vary widely. When the issue of an inmate’s competency for execution arises, mental health professionals are called on to assist the court in the evaluation of competency for execution and for restoring competency in those found incompetent. Given the nature of the consequences involved, these practices often present ethical challenges and are controversial in nature.
Competency for execution, called by some commentators the “last competency” for its temporal proximity to the final resolution of an inmate’s legal proceedings, is raised as an issue far less often than competency to stand trial but is no less important. The legal system in the United States and many other countries has as one of its bases the presumption of competence. That is, all defendants are presumed competent unless this issue is called into question by one of the parties to a legal proceeding. The competence of a criminal defendant may arise as an issue at any point in the legal proceedings, from as early as initial arrest and interrogation, throughout the entire legal process, and finally to the time of sentencing or, for those who have been sentenced to the ultimate penalty of death, the time of execution. Just as an incompetent defendant is not allowed to proceed to trial, so too an incompetent defendant/inmate is prohibited from being sentenced or executed. The rationale against executing incompetent individuals is that, among other things, it is inhumane, neither deterrence nor retribution is accomplished, and incompetent individuals are unable to assist in appealing their sentence.
The issue of the constitutionality of executing incompetent individuals was heard by the U.S. Supreme Court in 1986 in Ford v. Wainwright. The Court in Ford held that the Eighth Amendment, which bans cruel and unusual punishment, prohibits the execution of an “insane” (mentally incompetent) person. The Court reasoned that (a) execution of the insane would offend humanity, (b) executing the insane would not serve to set an example and would not reaffirm the deterrence value believed to exist in capital punishment, (c) any individual who is believed to be insane is also believed unable to prepare “spiritually” for death, (d) madness itself is punishment and, therefore, negates the punishment value of execution, and (e) no retributive value is believed to be served by executing the mentally incompetent.
The Court in Ford also ruled that when questions of competency for execution were raised, due process entitled a defendant to an evidentiary hearing. Furthermore, the Court stated that this evidentiary hearing is required only when defendants make a “high threshold showing” that their competency to be executed is in question. The justices, however, did not define the precise nature of the “high threshold.” Moreover, the justices could not agree on the specific fact-finding procedures to be used in case such a threshold is met: Some agreed that a full “panoply” of trial-type procedures was required, others argued that a more relaxed hearing was acceptable if due process was ensured, and still others argued that the most minimal “pro forma” procedures were acceptable.
In addition to being divided on the fact-finding procedures, the Court also failed to specify a proper legal test of incompetence within the execution context. Only Justice Powell, in his concurring opinion, addressed the issue of the legal test for competency for execution, stating 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” (p. 2608). Furthermore, he concluded that the proper test of competency should be whether defendants can comprehend the nature, pendency, and purpose of their execution. Justice Powell argued that the retributive goal of criminal law is satisfied only when defendants are aware of the connection between their crime and its punishment and defendants can only prepare for death if they are aware that it is pending shortly. Furthermore, Justice Powell asserted that the states were free to adopt “a more expansive view of sanity” that included the “requirement that the defendant be able to assist in his own defense” (p. 2608).
Despite the charge given to individual states to develop procedures to ensure that the insane would not be executed, many states do not provide specific guidelines for evaluating competency for execution, and those guidelines that do exist vary widely. The decision in Ford established that it was unconstitutional to execute the insane and set the stage for psychological evaluations of death row inmates whose mental status for execution is questionable; however, the Ford Court left open two critical issues. First, the Court did not specify the necessary fact-finding procedures to enforce the Ford decision. Second, the Court failed to specify the proper legal test to be implemented in cases of competency for execution.
Although it is not legally binding, the American Bar Association, in the ABA Criminal Justice Mental Health Standards (1989), has also provided a legal test for determining competency for execution. This test reads as follows:
A convict is incompetent to be executed if, as a result of mental illness or mental retardation, the convict cannot understand the nature of the pending proceedings, what he or she was tried for, the reasons for the punishment, or the nature of the punishment. A convict is also incompetent if, as a result of mental illness or mental retardation, the convict lacks sufficient capacity to recognize or understand any fact which might exist which would make the punishment unjust or unlawful, or lacks the ability to convey such information to the court. (p. 290)
Assessment of Competency for Execution
Competency for execution, more than any other area within the field of forensic assessment, has been fraught with controversy and debate regarding whether, and to what extent, mental health professionals should become involved in this type of evaluation. Indeed, the personal outcome for the inmate who serves as the evaluee in this type of evaluation weighs heavily in this debate.
Standards for competency for execution evaluations should parallel those that apply to other types of forensic evaluations. That is, the standardized procedures that are used during the evaluation should be described to the subject of the evaluation as well as in the examiner’s report, assessment measures should be relevant to the referral issue(s), and the examiner should have a sound and sophisticated conceptualization of the relevant criteria for being not competent for execution. In addition, the knowledge base of examiners should cover three domains: general legal competencies, forensic assessment methodologies, and execution-related substantive content. Finally, collateral information should be gathered. This might include (but would not be limited to) information regarding life history, psychological history and disorders, deterioration-related data, previous and current written reports, and interviews with persons who have had extensive opportunities to observe the evaluee.
Detailed information on conducting evaluations of competency for execution is beyond the scope of this research paper, but the interested reader is referred to the references suggested below for further information on this topic.
Given the low base rate of incompetence for execution, there is less opportunity to conduct this type of evaluation and, therefore, even less opportunity to conduct research using a sample of inmates found incompetent to be executed or even referred for evaluations of competency for execution. As a result, the literature and commentary in this area are less well developed than they are with respect to other types of competencies (such as competency to stand trial). As was the case in the context of assessing competency to stand trial, the first assessment instruments to assist evaluators in the evaluation of competency for execution have taken the form of checklists of items that serve to structure the evaluation. While the first checklists for evaluating competency to stand trial were developed in the mid-1960s, the first checklists for evaluating competency for execution have only recently been developed. The interested reader is referred to the checklists developed by Kimberley Ackerson, Bruce Ebert, and Patricia Zapf (all cited below).
Treatment for Restoration to Competency
Given the amount of debate and controversy surrounding the role of mental health professionals in the assessment of competency for execution, it is obvious that even more controversy surrounds the role of the mental health professional in the treatment of those inmates found incompetent, for the purpose of restoring their competence to be executed. This is a complex issue about which commentators have written on both sides. Some believe that it is never permissible to provide treatment for the purpose of restoring an individual to competence when the result is execution, whereas others have indicated that this may be permissible if the incompetent inmate had expressed a desire to be restored to competence at an earlier time when the inmate was competent. In addition, others have provided further commentary regarding the situation where an inmate has indicated a preference for death by electing to undergo treatment to restore competence for the purpose of execution, calling into question the rationality of that individual. What complicates matters further is that some professional bodies, such as the American Medical Association, have put forth statements indicating that providing such treatment is considered ethically unacceptable, thus putting physicians and psychiatrists who work for the prison and correctional systems, and who are expected to treat incompetent inmates for the purpose of restoring them to competence, in the difficult situation of having to reconcile how to perform the duties required by their employers while upholding the ethical requirements of their profession. Obviously, there is no easy answer.
Research on Competency for Execution
There has been a dearth of empirical research on competency to be executed. Part of the explanation for this may be the fact that only a handful of individuals have made successful claims of incompetency to be executed. In addition, this particular type of competency tends to evoke strong emotion in individuals, which in turn may affect the motivation of involved professionals to conduct research in this area. The limited amount of empirical research that has been conducted has been confined to surveys. No research to date has examined the issue of competency to be executed in a sample of offenders sentenced to death.
- Ackerson, K. S., Brodsky, S. L., & Zapf, P. A. (2005). Judges’ and psychologists’ assessments of legal and clinical factors in competence for execution. Psychology, Public Policy, and Law, 11, 164-193.
- American Bar Association. (1989). Criminal justice mental health standards. Washington, DC: Author.
- Brodsky, S. L., Zapf, P. A., & Boccaccini, M. T. (2005). Competency for execution assessments: Ethical continuities and professional tasks. Journal of Forensic Psychology Practice, 5, 65-74.
- Ebert, B. (2001). Competency to be executed: A proposed instrument to evaluate an inmate’s level of competency in light of the Eighth Amendment prohibition against the execution of the presently insane. Law and Psychology Review, 25, 29-57.
- Ford v. Wainwright, 477 U.S. 399 (1986).
- Heilbrun, K. S. (1987). The assessment of competency for execution: An overview. Behavioral Sciences and the Law, 5, 383-396.
- Zapf, P. A., Boccaccini, M. T., & Brodsky, S. L. (2003). Assessment of competency for execution: Professional guidelines and an evaluation checklist. Behavioral Sciences and the Law, 21, 103-120.