Competence to be Executed and Participate in/Waive Appeals
Introduction to Competence in Capital Cases
Adjudicative Competence vs. Decisional Competence:
Previously, the course discussed adjudicative competence.
For competence regarding execution, participation, and waiver of appeals, decisional competence is crucial.
Decisional competence is defined as the competence to make a particular decision.
Parens Patriae Authority:
When an individual is deemed unable to care for themselves, the state assumes parens patriae authority.
This is Latin for "state as parent."
Origin: In Western society in the mid-$19^{th} century, a principle emerged that human dignity demands respect for individual autonomy unless compelling reasons override it.
Application: The state should only invoke parens patriae authority to intervene in an individual's life if they lack the capacity to make specific decisions or perform specific acts concerning the issue.
Forensic Neglect: Decisional competence, despite its importance in topics like execution and waiver of appeals, is often a neglected issue in forensic contexts.
Origins of the Prohibition Against Executing Incompetent Individuals
The prohibition against executing those deemed incompetent originates in common law.
Ford v. Wainwright (1986):
A landmark Supreme Court decision that upheld the Eighth Amendment's ban on cruel and unusual punishment, prohibiting the execution of the "insane."
Justice Powell suggested that the Eighth Amendment forbids the execution of individuals unaware of their punishment and its purpose.
Many states adopted policies consistent with Powell's view.
Example (Florida): Requires defendants to understand the death penalty, including its nature and effect, prior to execution.
Broader Standards from Professional Organizations:
The American Bar Association (ABA), the American Psychiatric Association, and the American Psychological Association endorse a broader standard for this competency.
Their joint resolution exempts individuals with mental disorders or disabilities that impair their understanding of the punishment's nature and purpose.
Argument: If the competence requirement serves a retributive purpose, offenders should possess more than a superficial understanding; they should be able to internalize society's decision to impose this ultimate punishment.
Panetti v. Quarterman (Two Decades After Ford):
The Supreme Court concluded that an individual meeting Powell's test might still be incompetent if their awareness of the crime and punishment bears little or no relation to the understanding of those concepts shared by the community as a whole.
Example: Panetti understood his execution and the state's reason, but due to a mental disorder, he believed the actual reason was related to his religious preachings. The court suggested this could still render him incompetent.
Despite Panetti's contribution to defining execution competence, Ford v. Wainwright remains the leading case regarding court procedures for determining competence in this context.
Legal Tests and Procedures
ABA's Criminal Justice Mental Health Standards Recommendations:
An independent evaluation of competence.
Presence of counsel at the hearing.
A "preponderance of the evidence" standard (> 50% likelihood) for demonstrating incompetence, which establishes a presumption of competence.
Competency in Post-Conviction Proceedings:
The ABA resolution addresses competency in proceedings such as habeas corpus.
Definition of Competence: In this context, competence is defined as a significant impairment in understanding or communicating pertinent information that could assist counsel in validating the conviction or the sentence.
Restorability of Competence:
Jackson v. Indiana: Suggested that if an incompetent person is deemed unrestorable, the death sentence should be commuted.
Ryan v. Gonzalez: The Supreme Court rejected the position from Jackson v. Indiana, stating that a stay of execution is inappropriate if there is no reasonable hope for competence restoration.
Decisional Competence for "Volunteer Death Row Inmates":
The ABA resolution proposes a decisional competence rule for individuals with mental disorders or disabilities that significantly impair their capacity to make a rational decision to forego or terminate post-conviction proceedings.
These inmates may waive appeals due to extreme depression or irrational thought processes.
In such cases, the court should permit a "next friend" to initiate or pursue remedies to set aside the conviction or death sentence.
However, if the individual is competent to make this decision, the Supreme Court has clarified that the waiver is valid if it is knowing, intelligent, and the individual realizes the importance of the decision.
Evaluation Issues in Capital Cases
Three Main Competence Issues (Arising After Conviction and Sentence):
The defense may object that the defendant is incompetent to assist counsel in post-conviction proceedings.
A defendant may waive the right to post-conviction hearings.
Whether the defendant is competent to be executed at the time the death warrant is signed (the primary focus of this section).
Principal Focus of Competence Evaluation: The individual's cognitive functioning, specifically their rational capacity to understand the death sentence and the reasons for its imposition.
Structured Professional Judgment Tools (for Comprehensive Inquiry):
Elbert's Competency to be Executed Rating Instrument:
Comprises 12 items: 8 inquiries related to functional legal abilities and 4 clinical inquiries.
Functional Legal Abilities: Assess the examinee's ability to identify the impending event and understand the sentence of death.
Clinical Inquiries: Relate to the examinee's ability to perceive reality in the present and their self-serving versus self-defeating motivation.
Significant Limitation: Sample questions are not provided for all identified areas, including the inquiry regarding the ability to work with an attorney.
Interview Checklist for Evaluations of Competency for Execution:
Similar to Elbert's, but delves deeper into the same domains.
Comprises four parts:
Part 1: Directs examiners' attention to the examinee's understanding of punishment reasons and the specific punishment.
Part 2: Focuses on the examinee's ability to appreciate and reason about the pending sentence.
Part 3: Facilitates a systematic inquiry of capacities related to communicating with counsel, mainly concerning decisional competence issues or appeals.
Part 4$$: Systematically inquires about capacities relating to communication with counsel, addressing the limitation identified in Elbert's measure.
General Recommendations for Clinicians:
Neither instrument yields a quantitative index of capacities, nor were they designed to.
They help identify the content of execution competence, clinical interview, and judgment about inmates' impairments.
Clinicians should focus on recent, informative information.
Interviews should assess current emotional, behavioral, and cognitive functioning to identify any psychological deficits.
Hayes v. Murphy (10th Circuit): Required evaluations to be performed away from death row, including extended close observation in a proper setting, which is essential for all psychiatric and psychological evaluations.
Ethical Considerations for Examiners: Examiners must recognize sensitive ethical issues that may arise. Their personal beliefs, particularly regarding the death penalty and capital punishment, could compromise their ability to conduct a valid and objective assessment.
Treatment Issues and Ethical Dilemmas
Ethical Dilemma: The treatment of individuals on death row presents a complex ethical challenge.
Conflicting Views on Treatment:
National Association (NMA): Advocates for providing necessary medical treatment to prisoners regardless of their legal status.
Bonnie's Perspective: Believes that clinicians should only provide treatment if prisoners are competent to make the decision to receive it.
If an inmate's desires are unclear, they refuse treatment, or they are deemed incompetent, Bonnie considers treatment unethical.
He likens such treatment to administering lethal injections itself.
Implications of Bonnie's View: This approach would make it difficult to execute many individuals adjudicated incompetent or those whose competence could only be restored through psychiatric treatment.
Concerns: Commuting death sentences could incentivize prisoners and their attorneys to feign or "manufacture" incompetence as a final defense. Conversely, executing incompetent individuals is explicitly prohibited by Ford v. Wainwright.
This creates a narrow and challenging ethical space, demanding careful navigation.
Discussion Question (Speaker's Proposal): Given the debate surrounding the treatment of death row inmates, what would be a proposed solution to this ethical dilemma, especially concerning cases where medication is required? What is the rationale behind such a solution, particularly given their status as death row inmates?