Skip to main content

Advertisement

SpringerLink
Log in

Belief and Death: Capital Punishment and the Competence-for-Execution Requirement

  • Original Paper
  • Published:
Criminal Law and Philosophy Aims and scope Submit manuscript

Abstract

A curious and comparatively neglected element of death penalty jurisprudence in America is my target in this paper. That element concerns the circumstances under which severely mentally disabled persons, incarcerated on death row, may have their sentences carried out. Those circumstances are expressed in a part of the law which turns out to be indefensible. This legal doctrine—competence-for-execution (CFE)—holds that a condemned, death-row inmate may not be killed if, at the time of his scheduled execution, he lacks an awareness of his impending death or the reasons for it. I argue that the law of CFE should be abandoned, along with the notion that it is permissible to kill the deeply disturbed just so long as they meet some narrow test of readiness to die. By adopting CFE, the courts have been forced to give independent conceptual and moral significance to a standard for competence that simply cannot bear the weight placed upon it. To be executable, CFE requires that a condemned prisoner meet a standard demonstrating an awareness of certain facts about his death. Yet this standard both leads to confusing and counter-intuitive results and is unsupported either by the reasons advanced by the courts on its behalf or by any of the standard theoretical justifications of criminal punishment. If executing the profoundly psychotic or delusional is wrong the law needs a better account of the wrong done when prisoners like Ford are killed. I suggest wherein that wrong might be located.

This is a preview of subscription content, log in via an institution to check access.

Access this article

Log in via an institution

Price excludes VAT (USA)
Tax calculation will be finalised during checkout.

Instant access to the full article PDF.

Similar content being viewed by others

Notes

  1. A notable exception is Cholbi (2005).

  2. While philosophical analyses of CFE are few, there is a more substantial law review literature. See, e.g., Arrigo & Tasca (1999); Bonnie (2007); Devens (2010); Farringer (2001); Harding (1994); Jones (2004); Kirchmeier (2010); Orpen (2003); Schopp (1991); Studen (2009); and Tobolowsky (2007).

  3. Ford v. Wainwright 477 U.S. 399 (1986).

  4. See Atkins v. Virginia 536 U.S. 304 (2002).

  5. Though it is sometimes incautiously expressed as a constitutional ban on executing the “insane,” eligibility to assert a claim of incompetence-for-execution is not dependent upon having raised at trial a defense of NGRI. The distinction between CFE and insanity is drawn, for example, by the American Bar Association in its Standards for Criminal Justice: Mental Health: Part V—Competence and Capital Punishment, which set out tests for identifying the “incompetent to be executed,” rejecting the term “insane” because “it conjures up visions of beastlike derangement.” ABA (1989) 7–5.6.

  6. All states in the U.S. ban execution of the incompetent by statute, as do some international legal sources. For citations, see Kirchmeier (2010).

  7. Singleton v. Norris 319 F.3d 1018 (2003). The Court in Singleton extended the reach of a prior ruling, Washington v. Harper (484 U.S. 210 [1990]) to all death row inmates. Harper was a non-capitally sentenced prisoner involuntarily medicated to control symptoms of mental illness. For a defense of the ruling in Singleton, see Latzer (2003).

  8. It is worth noting that the courts seem to have adopted an atypical use of the term “competence” in this context. Normally we think of someone’s competence in connection with performing a certain task or fulfilling a role, as in “he is competent to consent for surgery” or “she is competent to drive a car.” Under CFE, however, “competence” carries a meaning closer to “fitness to undergo something,” and it is this sense that I shall deploy in the remainder of what follows.

  9. Tobolowsky gives the common law equivalent: “[T]he common law standard of insanity for purposes of the execution ban was ‘whether the defendant [was] aware of the fact that he had been convicted and that he was to be executed’.” Tobolowsky (2007, p. 374). Evidently, satisfaction of this standard did not constitute a strict ban on execution but rather could be invoked by the “’judge in his discretion’” to reprieve the condemned. Tobolowsky (2007, p. 375).

  10. Subsequent courts and commentators have taken Powell’s formulation of the standard of competence to express the rule behind the Court’s Ford holding. The Court in Panetti v. Quarterman followed Powell’s formulation of the standards for CFE, though it gave an expanded interpretation of those standards. See Panetti v. Quarterman 551 U.S. 930 (2007), p. 957.

  11. That the law is focused upon what the condemned believes about his death is demonstrated by the key measures mental health professionals use to assess competence-for-execution, all of which specifically address doxastic states. Condemned inmates are asked to relate their “beliefs about what it actually means to receive a sentence of death … about what it would mean for him/her to be dead … about transformations or changes that will happen to him/her after execution,” and so on. See Zapf, P.A., Boccaccini, M.T., Brodsky, S.L. (2003, pp. 118–119).

  12. Other defendants have allegedly failed to believe both P1 and P2. George Banks purportedly told his captors that “Jesus Christ has forgiven [his] sins and vacated [his] sentence” and that his continued incarceration was the result, not of his crimes, but of a conspiracy mounted by various demons together with “the Islamic government of the United States.” See “George Banks—30 Years Later,” CitizensVoice.com, http://citizensvoice.com/news/george-banks-30-years-later-1.1377475. Accessed 27 June 2013.

  13. As Latzer makes clear, a prisoner’s chemically-induced awareness of the facts referred to in P1 and P2 need not be permanent, under Ford, to qualify as CFE. See Latzer (2003, p. 9).

  14. In the oral argument in Panetti, Justice Roberts raised a similar case. See Transcript of Oral Argument in Panetti v. Quarterman 551 U.S. 930 (2007), p. 20.

  15. Brief for Petitioner, Panetti v. Quarterman 551 U.S. 930 (2007), p. 20.

  16. In their joint amicus brief, the American Psychological Association and American Psychiatric Association argued that “persons in Panetti’s condition cannot rationally understand the reasons for their execution,” and urged the court to adopt the standard that a prisoner is incompetent where he or she “has a mental disorder that significantly impairs his or her capacity to understand the nature and purpose of the punishment, or to appreciate the reason for its imposition in the prisoner’s own case.” Brief of Amici Curiae in Support of Petitioner at 3, Panetti v. Quarterman 551 U.S. 930 (2007). “Appreciate,” we are told “approximates the term ‘rationally understand’,” but the brief, like Justice Kennedy, does not further elaborate.

  17. Walton v. Johnson 440 F.3d 160 (2006), p. 164.

  18. Coe v. Tennessee 17 S.W.3d 193 (2000).

  19. See, for example, Boonin (2008, pp. 17–18; 51).

  20. Both Justices Roberts and Souter, during oral argument in Panetti, expressed the concern that a rational understanding standard means the condemned prisoner agrees that he is guilty. See Transcript of Oral Argument in Panetti v. Quarterman 551 U.S. 930 (2007), pp. 24; 52.

  21. This raises issues I won’t pursue here: for example, is it possible medically to treat condemned offenders so that they can assent to P1 and P2? If so, is this competence “synthetic” or “artificial” in some way (as is sometimes alleged)? What would this mean? And is restoring competence in this way sufficient to allow the execution to go forward? For an exploration of these issue, see Farringer (2001); Harding (1994); Daugherty (2001); Hensl (2004). (See also Radden (1989) for a discussion of the context of competency to stand trial). Moreover, if there can be non-pathological causes for a prisoner’s failure to assent to P2, then the “restoration” of competence might require non-chemical means of altering mental states, bringing it about that the inmate gives assent to the right propositions. Recall the inmate who is utterly convinced that God will simply not permit the execution to happen, that he will leave the death chamber alive. What would it mean to “restore” his competence to die? Could prison authorities, for example, attempt to “educate” the prisoner about the falsity of his religious convictions? Suppose he holds fast to his beliefs and refuses to budge? Can he thereby forestall his execution indefinitely?

  22. See Parfit’s Reasons and Persons for a detailed exposition of these arguments.

  23. Notice that even if Parfit’s view, properly understood, does not entail this result, a sincere belief that it does seems sufficient to bring about my failure to assent to P2, making me ineligible to die (until of course someone convinces me that I’m misreading Parfit).

  24. See also Tobolowsky (2007, p. 373).

  25. See also Tobolowsky (2007, pp. 372–373), Schopp (1991).

  26. Brief for Petitioner, Panetti v. Quarterman 551 U.S. 930 (2007), p. 45.

  27. During oral argument Panetti’s counsel made this claim central to his presentation. See Transcript of Oral Argument in Panetti v. Quarterman 551 U.S. 930 (2007), p. 19.

  28. “We may seriously question,” wrote the majority in Ford, “the retributive value of executing a person who has no comprehension of why he has been singled out and stripped of his fundamental right to life.” Ford v. Wainwright 477 U.S. 399 (1986). P. 409. Justice Powell himself invoked such views: “[O]ne of the death penalty’s critical justifications, its retributive force, depends upon the defendant’s awareness of the penalty’s existence and purpose.” Ford v. Wainwright 477 U.S. 399 (1986), p. 421.

  29. This general formulation disguises many distinctions and nuances I do not consider here—e.g. the distinction between so-called “negative” retributivist views, which hold that desert is merely a necessary condition of punishment, and “positive” views, which say that desert is a sufficient condition.

  30. See, e.g., Morris (1968); Murphy (1973); Davis (1992).

  31. See, e.g., Hampton (1992); Murphy and Hampton (1988).

  32. Duff develops this view most thoroughly in Duff (2001). But see also Duff (1992).

References

  • American Bar Association, Standards for Criminal Justice 3rd Ed. (1989): Mental Health—Addition to Part V: Competence and Capital Punishment. http://www.americanbar.org/publications/criminal_justice_section_archive/crimjust_standards_mentalhealth_blk.html. Accessed 10 July 2013.

  • Bruce A. Arrigo & Jeffrey J. Tasca, “Right to Refuse Treatment, Competency to Be Executed, and Therapeutic Jurisprudence: Toward a Systematic Analysis,” Law and Psychology Review 23 (1999): 1–47.

    Google Scholar 

  • Richard Bonnie, “Panetti v. Quarterman: Mental Illness, the Death Penalty, and Human Dignity,” Ohio State Journal of Criminal Law 5 (2007): 257–283.

    Google Scholar 

  • David Boonin, The Problem of Punishment (Cambridge: Cambridge University Press; 2008).

    Book  Google Scholar 

  • Brief for Amici Curiae in Support of Petitioner, Panetti v. Quarterman 551 U.S. 930 (2007). http://www.apa.org/about/offices/ogc/amicus/panetti.pdf. Accessed 10 July 2013.

  • Brief for Petitioner, Panetti v. Quarterman 551 U.S. 930. http://www.oyez.org/sites/default/files/cases/2000-2009/2006/2006_06_6407/briefs/petitioner/Brief%20for%20Petitioner%20Scott%20Louis%20Panetti.pdf. Accessed 10 July 2013.

  • Michael Cholbi, “Cruelty, Competency, and Contemporary Abolitionism,” in Austin Sarat (ed.) Crime and Punishment: Perspectives from the Humanities (Elsevier, 2005): 129–146.

  • Kacie McCoy Daugherty, “‘Synthetic Sanity’: The Ethics and Legality of Using Psychotropic Medications to Render Death Row Inmates Competent for Execution,” Journal of Contemporary Health Law and Policy (2001) 715–735.

  • Michael Davis, To Make the Punishment Fit the Crime (Boulder: Westview; 1992).

    Google Scholar 

  • Danielle Devens, “Competency For Execution in the Wake of Panetti: Shifting the Burden of the Government,” Temple Law Review 82 (2010): 1335–1368.

    Google Scholar 

  • R.A. Duff, Punishment, Communication, and Community (Oxford: Oxford University Press; 2001).

    Google Scholar 

  • R.A. Duff, “Alternative Punishments—or an Alternative to Punishment?,” in Wesley Cragg (ed.) Retributivism and its Critics (Stuttgart: Franz Steiner Verlag; 1992).

    Google Scholar 

  • John L. Farringer IV, “The Competency Conundrum,” Vanderbilt Law Review 54 (2001): 2441–2493.

    Google Scholar 

  • Jean Hampton, “Correcting Harms Versus Righting Wrongs,” UCLA Law Review 39 (1992): 1659–1702.

    Google Scholar 

  • Jean Hampton, “The Moral Education Theory of Punishment, Philosophy and Public Affairs 13 (1984): 208–238.

    Google Scholar 

  • Roberta M. Harding, “‘Endgame’: Competency and the Execution of Condemned Inmates,” Saint Louis Univ. Public Law Review 14 (1994): 105–143.

    Google Scholar 

  • Kursten B. Hensl, “Restored to Health to Be Put to Death,” Villanova Law Review 49 (2004): 291–328.

    Google Scholar 

  • Lisa N. Jones, “Casenote: Singleton v. Norris,” Creighton Law Review 37 (2004): 431–470.

    Google Scholar 

  • Jeffrey L. Kirchmeier, “The Undiscovered Country: Execution Competency and Comprehending Death,” Kentucky Law Journal 98 (2010): 263–299.

    Google Scholar 

  • Barry Latzer, “Between Madness and Death: The Medicate-to-Execute Controversy,” Criminal Justice Ethics 22 (2003): 3–14.

    Article  Google Scholar 

  • Herbert Morris, “Persons and Punishment,” The Monist 52 (1968): 475–501.

    Article  Google Scholar 

  • Jeffrie G. Murphy and Jean Hampton, Forgiveness and Mercy (Cambridge: Cambridge University Press; 1988).

    Google Scholar 

  • Jeffrie G. Murphy, “Marxism and Retribution,” Philosophy and Public Affairs 2 (1973): 217–243.

    Google Scholar 

  • Cynthia A. Orpen, “Following in the Footsteps of Ford: Mental Retardation and Capital Punishment Post-Atkins,” University of Pittsburgh Law Review 65 (2003): 83–102.

    Article  Google Scholar 

  • Derek Parfit, Reasons and Persons (Oxford: Oxford University Press, 1986).

    Book  Google Scholar 

  • Jennifer Radden, “Chemical Sanity and Personal Identity,” Public Affairs Quarterly 3 (1989): 64–79.

    Google Scholar 

  • Robert F. Schopp, “Wake Up and Die Right: The Rationale, Standard, and Jurisprudential Significance of the Competency to Face Execution Requirement,” Louisana Law Review 51 (1991): 995–1046.

    Google Scholar 

  • Julia Spring, “Singleton’s Story: Choosing Between Psychosis and Execution,” Hastings Center Report 35, 3 (2005): 30–33.

    Article  Google Scholar 

  • Gary R. Studen, “Panetti V. Quarterman: Solving the Competency Dilemma by Broadening the Concept of Rational Understanding in Competency-to-Be-Executed Determinations,” Seton Hall Law Review 39 (2009): 163–190.

    Google Scholar 

  • Peggy M. Tobolowsky, “To Panetti and Beyond—Defining and Identifying Capital Offenders Who Are Too ‘Insane’ To Be Executed,” American Journal of Criminal Law 34 (2007): 369–431.

    Google Scholar 

  • Transcript of Oral Argument in Panetti v. Quarterman 551 U.S. 930. http://www.supremecourt.gov/oral_arguments/argument_transcripts/06-6407.pdf. Accessed 10 July 2013.

  • P.A. Zapf, M.T. Boccaccini, S.L. Brodsky, “Assessment of Competency for Execution: Professional Guidelines and an Evaluation Checklist,” Behavioral Sciences and Law 21 (2003): 103–120.

    Article  Google Scholar 

  • H. Zonana, “Conundrums and Controversies in Mental Health and Illness: Physicians Must Honor Refusal of Treatment to Restore Competency by Non-Dangerous Inmates on Death Row,” Journal of Law, Medicine, and Ethics 38 (2010): 764–773.

    Article  Google Scholar 

Download references

Author information

Authors and Affiliations

  1. Department of Philosophy, California State Polytechnic University, Pomona, 3801 W. Temple Ave, Pomona, CA, 91768, USA

    David M. Adams

Authors
  1. David M. Adams
    View author publications

    You can also search for this author in PubMed Google Scholar

Corresponding author

Correspondence to David M. Adams.

Rights and permissions

Reprints and permissions

About this article

Cite this article

Adams, D.M. Belief and Death: Capital Punishment and the Competence-for-Execution Requirement. Criminal Law, Philosophy 10, 17–30 (2016). https://doi.org/10.1007/s11572-014-9293-6

Download citation

  • Published:

  • Issue Date:

  • DOI: https://doi.org/10.1007/s11572-014-9293-6

Keywords

Search

Navigation