Checklist for Competency for Execution Evaluations

To date, very few instruments have been developed for the purpose of assisting evaluators in the assessment of competency for execution. One of the first—the Checklist for Competency for Execution Evaluations— is described in this research paper. The checklist consists of four sections that describe important and relevant psycholegal criteria to be considered in this type of forensic assessment. The purpose of the checklist is to guide evaluators through the interview portion of a competency for execution evaluation. At present, there is no available research that examines the reliability or validity of this checklist.

Evaluations of competency for execution are probably the least common type of criminal forensic evaluation conducted, simply because of the relatively small number of individuals who have been sentenced to death (as compared with the population of criminal defendants); however, the repercussions of this type of evaluation are literally a matter of life and death for the inmate whose competence has been questioned. Utmost care needs to be taken in conducting this type of evaluation.

In 2003, Patricia Zapf, Marcus Boccaccini, and Stanley Brodsky published a checklist to be used in the evaluation of competency for execution. This checklist was developed after a review of the available literature on criminal competencies, including a review of the available case law on competency for execution, and after conducting interviews with professionals involved in conducting evaluations of competency for execution.

The checklist is divided into four sections: (1) understanding the reasons for punishment, (2) understanding the punishment, (3) appreciation and reasoning (in addition to simple factual understanding), and (4) ability to assist the attorney. These four sections are representative of the legal criteria for competency for execution that have been set out in various jurisdictions.

Most jurisdictions model their statutes pertaining to competency for execution after the criteria set out in the decision by the U.S. Supreme Court in the case of Ford v. Wainwright (1986) and, therefore, only consider the prisoner’s ability to understand the punishment that is being imposed and the reasons why it is being imposed. The first two sections of the checklist parallel these two Ford criteria. The first section targets the offender’s understanding of the reasons for punishment—that is, his or her understanding of the crime and other conviction-related information. Specific topic areas include the offender’s understanding of the reasons why he or she is in prison; his or her place of residence within the prison; the crime for which he or she was convicted, including an explanation of the criminal act and victim-identifying information; the perceived justice of the conviction; and the reasons why other people are punished for the same offense and also any self-identified, unique, understandings of the offense and the trial that the offender might have.

The second section targets the offender’s understanding of the punishment: that is, that the punishment he or she is facing is death. Specific topic areas include the offender’s understanding of the sentence, the meaning of a sentence of death, what it means for a person to be dead, and the reasons for execution and also specific understandings about death from execution. Questions about death are asked from a number of different angles (e.g., the meaning of death, specific understandings about death from execution) so as to facilitate a thorough evaluation of any irrational beliefs or ideas that the offender may hold regarding death.

The literature on other types of competencies (e.g., competence to consent to medical treatment) indicates that there is often a relationship between the severity of the consequences (to the individual being assessed) and the stringency of the standard used to evaluate competence. Thus, given the gravity of the consequences in the particular instance of competency for execution, it seems appropriate and important to assess the offender’s appreciation and reasoning abilities (in addition to simple factual understanding). Therefore, the third section of the checklist lists topic areas specific to the assessment of an offender’s appreciation and reasoning abilities with respect to death and execution—areas that may go above and beyond the specific Ford criteria but that are arguably important to a comprehensive evaluation of competency for execution. Specific content areas in this section include the offender’s appreciation of the personal importance of the punishment and the personal meaning of death; the offender’s rationality or reasoning about the physical, mental, and personal changes that occur during and after execution; his or her beliefs regarding invulnerability; inappropriate affect; the offender’s acceptance of or eagerness for execution; and his or her beliefs against execution. Although the Ford criteria are often interpreted as dealing with the offender’s factual understanding, it appears justified that mental health professionals involved in competency for execution evaluations should also assess the offender’s appreciation and reasoning and leave it to the court to determine how to interpret the Ford (or other relevant) criteria in each specific case.

The last section of the checklist identifies issues related to the offender’s ability to assist his or her attorney. This section is especially relevant in jurisdictions that rely on criteria that are broader in nature than those outlined in Ford, such as the capacity to comprehend the reasons that might make the capital sentence unjust and to communicate these reasons effectively. Specific topic areas in this section include the identity of the offender’s attorney and the amount of time that the attorney has been working for the offender, the offender’s trust in the attorney, his or her awareness of the execution date, the status of the appeals, what the attorney is attempting to accomplish through the appeals, how the appeals will be processed and assessed, the actual substance of the appeals, important content that the offender may have withheld from the attorney, and any pathological reasons for not planning or discussing appeals.

References:

  1. Brodsky, S. L., Zapf, P. A., & Boccaccini, M. T. (2001). The last competency: An examination of legal, ethical, and professional ambiguities regarding evaluations of competence for execution. Journal of Forensic Psychology Practice, 1, 1-25.
  2. 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.
  3. Ford v. Wainwright, 477 U.S. 399 (1986).
  4. Heilbrun, K. S. (1987). The assessment of competency for execution: An overview. Behavioral Sciences and the Law, 5, 383-396.
  5. 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.

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