Competency for Execution

Competency for execution refers to a person’s ability to understand the reason, imminence, and finality of his or her execution. The evaluation of competency for execution is one of the most infrequently encountered, but arguably highest stakes, of forensic mental health evaluations. Because an evaluation of competency for execution is inextricably and proximally associated with the carrying out of a death sentence, the participation of mental health experts in such determinations has been the subject of ethical controversy in the professional community. This article reviews the conceptual framework of contemporary parameters of competency for execution in the United States and discusses challenges associated with competency for execution evaluations.

Conceptual Framework

Prohibiting the execution of mentally incompetent persons is a centuries-old social and religious value, embedded in English common law and subsequently early American jurisprudence. According to this value, executing a person who is so deranged as to not understand the reason, imminence, and finality of the execution robs the sanction of social dignity, meaningful retribution, and general deterrence, and deprives the person the opportunity to make peace with his Maker (e.g., repentance). In modern U.S. jurisprudence, two U.S. Supreme Court decisions have fundamentally framed and structured the conceptual parameters of competency for execution.

Ford v. Wainwright (1986)

Alvin Bernard Ford was convicted of capital murder and sentenced to death in 1974 for killing a police officer. Ford began to exhibit symptoms of schizophrenia several years after his trial. By 1982, he was experiencing paranoid and grandiose delusions, referring to himself as Pope John Paul III and asserting that he had appointed nine new justices to the Florida Supreme Court. The Ford Court ruled that execution of an “insane” person was prohibited as “cruel and unusual punishment” under the Eighth Amendment to the U.S. Constitution. The Court cited rationales from English common law precedents, but the ruling provided no operational definition or procedural prescription for determining competency for execution, beyond adequate due process, which Ford had not been afforded.

Justice Powell, in a concurring opinion, offered greater specificity. Also reasoning from common law precedents, Justice Powell cited a number of rationales against the execution of the insane: (1) preserving the defendant’s “ability to make arguments on his own behalf” that might stay the execution, (2) the execution of a “mad man” would be a “miserable spectacle,” (3) an execution in such a context “can be no example to others,” (4) the defendant would be sent into another world when he did not have “the capacity to fit himself for it,” that is, “most men and women value the opportunity to prepare mentally and spiritually, for their death,” and (5) the retributive goal of execution depends on the defendant’s awareness of the penalty’s existence and purpose. The concurring opinion concluded:

If the defendant perceives the connection between his crime and his punishment, the retributive goal of the criminal law is satisfied. And only if the defendant is aware that his death is approaching can he prepare himself for his passing. Accordingly, I would hold that the Eighth Amendment forbids the execution only of those who are unaware of the punishment they are about to suffer and why they are to suffer it.

Distilled, three elements of competency for execution are prescribed by Justice Powell. The defendant must be aware (1) that he is to be executed, (2) that his execution is imminent, and (3) the reason for his execution. Regarding the defendant’s ability to aid and assist in his own defense, Justice Powell found no constitutional requirement but offered that states were free to take a more “expansive view of sanity” than what he specified as the “constitutional minimum” under the Eighth Amendment. The competency for execution test as prescribed by Justice Powell in Ford v. Wainwright was generally interpreted to require only a factual, as opposed to rational, understanding of the three aforementioned essential elements.

Panetti v. Quarterman (2007)

In 1992, Scott Louis Panetti murdered the parents of his estranged wife. Panetti had a 10-year history of mental illness and psychiatric hospitalizations prior to this offense. At trial, Panetti, who represented himself, dressed in a Tom Mix cowboy outfit and attempted to subpoena John F. Kennedy, Jesus Christ, and Pope John Paul II. He was convicted of two counts of capital murder and sentenced to death.

As his execution date approached in 2004, Panetti’s appellate counsel raised his competence for execution. Panetti understood that the state of Texas said it wanted to execute him for murder. However, he had a delusion that the stated reason was a sham that the actual purpose of the execution was to prevent him from preaching the gospel.

In Panetti, the Court expanded the legal standard for competency for execution. The majority reasoned that both the individual and social retributive value of execution required that the condemned not only have a factual awareness of the state’s rationale for the execution but also a rational understanding of this.

Evaluation of Competency for Execution

As mentioned earlier, the evaluation of competency for execution is a high-stakes forensic mental health evaluation. Some of the controversy and challenges surrounding competency for evaluations is due to jurisdictional and U.S. Supreme Court ambiguity regarding the specific abilities that constitute competency for execution, sparse research on competency for execution evaluations, inconsistency in prevailing evaluation procedures, and limited forensic instruments for assessing competency for execution.

Acknowledging these challenges, the gravity of the determination creates a professional obligation for competency for execution evaluations to be objective, conceptually informed, well memorialized, multisourced, and broad in focus. The following 10 recommendations, distilled from the scholarly literature on competency for execution, promote these goals:

1. Evaluations of competency for execution require a strong commitment to objectivity and an absence of bias regarding the death penalty or its imposition.
2. Competency for execution evaluators should be familiar with the Ford and Panetti decisions, the case law and legal criteria for competency for execution in the relevant jurisdiction, and scholarly literature regarding competency for execution.
3. Competency for execution evaluators should consider competency in the broadest terms (e.g., factual awareness, rational understanding, and capacity to aid and assist), leaving to the courts to determine what is applicable. Notably, the competency for execution evaluators in Panetti addressed deficits in his rational understandings, though only factual awareness appeared to be required under Ford and the statute.
4. Operationalizing the inquiry to illuminate the continuum of competency purposes discussed in Ford (e.g., mentally and spiritually prepare for death) is not a simplistic endeavor. Competency for execution evaluators should explore and describe nuances in the defendant’s understandings and capacity. Competency for execution evaluators may find that utilizing competency for execution checklists and rating scales from the scholarly literature facilitate this effort.
5. Response style. The assessment should include consideration of whether the defendant is feigning or exaggerating symptoms of psychological disorder or cognitive deficiency. Instruments such as the Structured Interview of Reported Symptoms, first and second editions and the Miller Forensic Assessment of Symptoms Test address the former, while instruments such as the Test of Memory Malingering and the Validity Indicator Profile illuminate the latter.
6. As with all forensic mental health evaluations, the competency for execution evaluator should advise the defendant of the nature and purpose of the evaluation, who retained the evaluator, the distribution of the evaluation data and findings, and the possible outcomes from the evaluation.
7. Multiple interviews. Psychological disorders may vary in symptom severity and associated rationality. For this reason, the competency for execution evaluator should interview the defendant on more than one occasion. It may also be helpful for the evaluator to inspect the defendant’s cell and observe the defendant’s behaviors in his or her death row cell.
8. Multiple sources: The evaluation should include multiple data sources. Contemporaneous collateral observers should be interviewed, including line and medical correctional staff, other death row inmates, chaplains, appellate counsel, and persons having had recent visitation or phone interactions with the defendant. Observation of the interaction between the defendant and his appellate counsel should also be considered. Recent and historical death row logs and mental health records should be reviewed. If available, copies of recent correspondence as well as recordings of recent phone and/or visitation conversations should also be reviewed. Some scholars recommend personality and intellectual testing in evaluating competency for execution, while others conclude that such testing is too detached from functional capabilities to inform the issue.
9. The evaluation should be well memorialized so that other evaluators, attorneys, and the courts can scrutinize the parameters of the inquiry and the defendant’s responses.
10. Descriptive report. The report of the competency for execution evaluation should include detailed descriptions of sources and information as well as transparency in how this information was synthesized and analyzed. The descriptive illumination, as opposed to conclusion, is likely to be most helpful in educating and facilitating the determination of the court.

References:

1. Ackerman, 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.
2. Ford v. Wainwright, 477 U.S. 399 (1986).
3. Panetti v. Quarterman, 551 U.S. 930 (2007).
4. Zaph, P. A. (2016). Competency for execution. In R. Jackson & R. Roesch (Eds.), Learning forensic assessment: Research and practice (International perspectives on forensic mental health; 2nd ed.). New York, NY: Routledge, Taylor & Francis Group.