Barbara A. Ward *
* Law Clerk, United States Court of Appeals for the Tenth Circuit, Judge
Stephanie K. Seymour, Tulsa, Okla. B.A., 1979, Rutgers College; J.D.,
1985, Harvard Law School.
An earlier version of this Article was written for Dr. Alan A. Stone's
Psychiatry and the Law seminar at Harvard Law School. I wish to express my
gratitude to Dr. Stone and to Dr. Paul S. Appelbaum for their guidance and
support. I also would like to thank Greg Frizzell for a quick and
insightful eleventh-hour review.
... The Death penalty has been accompanied in
Anglo-American law by a rule proscribing the execution of mentally
incompetent capital inmates. ... Holding aside the issue of different
standards of competency for different stages of legal proceedings, inmates
who are insane when they arrive on death row provide living indictments of
the mental health and legal systems' failure to deal adequately with the
criminally insane. ... He argued that reprieve from execution while insane
was not solely a matter of executive discretion but was instead subject to
due process safeguards which require that the inmate have at least the
right to make a presentation on his own behalf. ... On the other hand, if
the rationale for the rule against executing the incompetent is that
society's demand for retribution is not satisfied by executing an
incompetent, pathetic prisoner, the standard of competency should be lower
and the evaluation procedures less stringent. ... Moral as well as legal
issues surround the psychiatrist's participation in certifying an inmate
as incompetent, treating him, and then recertifying him as competent
because recertification brings about the reinstitution of the death
The death penalty has been historically limited by a
proscription against executing the mentally incompetent. Today, courts up
to the Supreme Court of the United States are considering whether inmates
have a constitutional right to be spared from execution while they are
incompetent. An issue which remains even if the right is not
constitutional but only statutory is who should determine whether a
condemned prisoner is competent for execution and, if incompetent, who
should treat him. Psychiatrists in particular are confronted with the
dilemma of reconciling their ethical obligation to treat the mentally ill
with the realization that restoring an inmate to competency helps to bring
about his execution. In this Article, Barbara A. Ward explores the legal
and ethical dimensions of this problem in the context of the most
compelling moral issue in the American criminal justice system -- capital
There are times when law and justice are themselves on trial. n1
[*35] The Death penalty has been accompanied
in Anglo-American law by a rule proscribing the execution of mentally
incompetent capital inmates. Although many explanations have been offered,
there is no agreement as to the rule's purpose. Thirty-five of the
forty-one states with a death penalty embody the rule in
a variety of statutory and common law formulations. n2 Generally, when an
inmate under a capital sentence is found incompetent, his execution must
be stayed and he must be transferred to a hospital for treatment. When he
has recovered, he is again subject to execution. The state procedures vary
widely. Some of the critical differences relate to the following factors:
who may raise the question of competence, what kind of process is then
due, who examines the [*36] inmate and with what degree of
thoroughness, what standard of competence is to be applied, who makes the
decision, and what procedures surround the question of restoration to
The purpose of this Article is to discuss issues that are raised in law
and psychiatry as a result of the prohibition against executing the
incompetent. The purpose of the death penalty, the
rationales for the competency rule, and the standards of competency for
execution are discussed. It will be argued that the justifications for
capital punishment should suggest why some inmates receive the death
penalty and others are exempted. The principles underlying the
requirement of competence for the death penalty, in turn,
should determine the level of impairment needed before a prisoner is
spared from execution. The principles and rationales underlying the
requirement of competency for execution should also determine the level of
procedural protections to be afforded an inmate who claims he is
incompetent for execution. However, because there is no social consensus
as to the purpose of capital punishment, there can be no consensus about
why the incompetent are exempt, what the standard of competency should be,
or what procedural protections should be provided.
Also addressed are due process issues surrounding an inmate's claim of
incompetency in light of recent advances made in treating mental illnesses
with chemical therapy. The acute psychotic reactions which may result from
the stress of death row confinement may be treatable with antipsychotic
drugs. n3 Considerations of informed [*37] consent, the right
to refuse treatment, and the standards of competency for each assume a
special importance in this context. Questions have been raised as to
whether psychiatrists ethically should take part in such proceedings.
Other questions addressed include whether the psychiatric examiner is
qualified and disinterested, whether the psychiatric evaluation is
adversarial, and what the appropriate standards are regarding the extent
of the psychiatric evaluation.
I. The Problem: Insanity on Death Row
The years 1967 to 1977 witnessed a de facto moratorium on executions in
the United States. n4 In 1972, the Supreme Court vacated the sentences of
three capital defendants in Furman v. Georgia, n5 holding that the
sentences violated the eighth and fourteenth amendments by inflicting
cruel and unusual punishment. The Court's concern with the arbitrary and
discriminatory infliction of the death penalty prompted
state legislatures to refine their capital sentencing statutes. Four years
after Furman, the Court upheld the first group of the revised death
penalty statutes -- those of Florida, Georgia, and Texas -- in
Gregg v. Georgia, n6 and the majority of states proceeded to enact new
capital punishment laws. Slowly, the newly condemned inmates began to be
executed; finally, in 1984, the rate of execution rose dramatically, with
more than twenty prisoners executed, more than twice as many in that one
year than in the previous twenty years combined. n7 The tedious appeals
process meant that murderers were condemned to death faster than the
judicial system could dispose of their cases, and the nation's death row
population swelled. As of May 1, 1986, there were 1,714 inmates on death
row. n8 Now, with some prisoners having been on death row for as long as a
decade, the states have begun to encounter the phenomenon of some
condemned inmates asserting that their prolonged confinement under
sentence of death has left them mentally incompetent.
Over thirty years ago, Justice Frankfurter wrote, "In the history of
murder, the onset of insanity while awaiting execution of a [*38]
death sentence is not a rare phenomenon." n9 The physical and
psychological pressures besetting capital inmates have been widely noted.
n10 Prisoners on death row must live with the knowledge of their impending
death. n11 Justice Brennan, concurring in Furman v. Georgia, n12 noted
that "mental pain is an inseparable part of our practice of punishing
criminals by death, for the prospect of pending execution exacts a
frightful toll during the inevitable long wait between the imposition of
sentence and the actual infliction of death." n13 Courts and
commentators have argued that the extreme psychological stress
accompanying death row confinement is an eighth amendment violation in
itself or is an element making the death penalty cruel
and unusual punishment. n14
Capital inmates, segregated from the general prison population, exist in a
milieu apart from that of their noncapital comrades. n15 Death row
residents typically experience a lack of exercise, poor diet, close
quarters, social isolation, no educational or work programs, strained
family relations, and family visits which are infrequent and burdened with
security restrictions. n16 These conditions [*39] are
sufficiently different from those in the general prison population to
warrant civil rights litigation challenging prison conditions peculiar to
death row. n17
Although comprehensive empirical data is lacking, a handful of social
scientists have performed limited studies of death row residents. In a
frequently cited article, Bluestone and McGahee reported a study of
eighteen men and one woman on death row in the Sing Sing Correctional
Facility. n18 Although the conditions of the inmates' confinement might be
expected to produce severe depression and anxiety, those symptoms were
conspicuously absent. Using projective tests, n19 the authors determined
that the most prominent defense mechanisms n20 used to repel stress
reactions were denial, projection, and obsessive rumination. The most
common form of denial n21 employed was isolation of affect. n22 A second
form of denial involved minimizing the gravity of the situation and
expecting a successful appeal. One prisoner manifested a third and extreme
form of denial, delusionally believing that a pardon had been granted. n23
Projection n24 typically assumed the form of persecutory [*40]
delusions, n25 with at least three subjects considering themselves
persecuted by specific groups in the community. n26 Obsessive rumination
n27 was employed by inmates who coped with painful emotions by thinking
furiously about other things, such as appeals, religion, or philosophy.
n28 Of the thirteen prisoners profiled in the article, six showed
delusional tendencies. n29
Bluestone and McGahee studied death row inmates over relatively short
intervals, whereas Gallemore and panton n30 examined capital prisoners in
North Carolina using a sequential study. This technique enabled them to
assess psychological adaptation over extended periods of confinement.
Gallemore and Panton evaluated eight men upon their admission to death row
and periodically reevaluated them for at least two years. The examiners
used a variety of testing techniques, including extensive social
histories, psychiatric interviews, and psychological testing, such as the
Minnesota Multiphasic Personality Inventory (MMPI) n31 and the Beta [*41]
Intelligence Test. n32 Follow-up psychiatric interviews and repeat MMPI
assessments disclosed that three men became significantly less functional
with obvious deterioration while five appeared to adjust adequately over
time. n33 Gallemore and Panton noted that ego defense mechanisms seemed to
"harden" with the passage of time on death row. Most of the
inmates described a lessening of anxiety over time and alluded to a point
of psychological "acceptance" of their circumstances. n34
Drawing firm conclusions from these two isolated studies is impossible.
The projective tests used by Bluestone and McGahee may have probed more
deeply than the battery of psychological tests employed in the Gallemore
and Panton study. n35 Both samples were small, making it impossible to
generalize from the results. However, the eventual acceptance described by
Gallemore and Panton does comport with other, less scientific findings.
For example, Professor Robert Johnson from American University interviewed
death row prisoners and discerned a pattern of shock, denial, and
depression coupled with "a fatalistic belief that the person is a
pawn in a process that will coldly and impersonally result in his
death." n36 The final statements of executed criminals, moreover,
often evince a certain resignation and psychological acceptance of their
fate even though they may maintain their innocence, denounce the perfidy
of the criminal justice system, or attack the morality of capital
[*42] Although the physical and psychological pressures of
death row confinement have been widely noted, noticeably absent from these
findings have been data demonstrating whether the various mental and
behavioral abnormalities existed prior to death row confinement or
directly resulted from the conditions of death row confinement. The facts
in two Florida cases, Ford v. Wainwright n38 and Alvord v. State, n39
suggest a positive correlation between death row confinement and mental
incompetency. In the former case, Alvin Ford is purported to have become
psychotic only after living on death row for several years. n40 In the
latter case, Gary Alvord, although regarded as mentally ill since he was
seven years old, has allegedly suffered increased impairment since living
on death row. n41
It has been estimated that as many as fifty percent of Florida's death row
inmates become intermittently insane:
They go in and out. Like most people with mental illness, they have crisis
periods, and other periods when they can function. A lot depends on
stress, bad diet, lack of medication, lack of exercise . . . . Unless you
can manipulate the environment, they can only deteriorate.
Some of these people are much too crazy to help their attorneys prepare
appeals. They might have been able to assist their attorneys at trial
time, three years, five years, earlier, but now they are totally
psychotic, irrational. It doesn't take an expert to tell [*43]
that. . . . We see them become catatonic, curl up in the fetal position
and suck their thumbs, and the prison system gives them I.V.s and says
they are faking insanity. Five to ten percent of the inmates go so far
over the edge that we can never bring them back. We watch this happen to
them. We saw it happen to Ford. n42
Ford, his attorneys allege, was not psychotic prior to December 1981. n43
Gradually, he began to lose touch with reality, first believing that
announcers at a Jacksonville radio station talked to him over the air. His
delusions became increasingly persecutory and grandiose, although he had
interludes of clarity.
On October 20, 1983, after two psychiatrists reported that Ford was a
paranoid schizophrenic and incompetent for execution, Ford's lawyers
invoked section 922.07, Florida Statutes, to determine his competency. n44
Governor Bob Graham appointed a commission of three psychiatrists to
examine Ford to "determine whether he [understood] the nature and
effect of the death penalty and why it [was] to be
imposed upon him." n45 By December 1983, Ford's mental condition had
deteriorated; he became uncommunicative and began to speak in a
fragmented, code-like fashion. n46 His behavior at a press conference
prior to his scheduled execution in June 1984 was a pathetic illustration
of his condition. n47
Two of the three psychiatrists appointed by the Governor to examine Ford
found him suffering from psychosis n48 and the third [*44]
found him suffering from a "severe adaptational disorder." n49
All three, however, found him competent for execution under Florida law. A
psychiatrist who examined Ford at the request of his attorneys diagnosed
him as suffering from "schizophrenia, undifferentiated type, acute
and chronic." n50 Similarly, a defense psychiatrist who reviewed the
evaluations found symptoms consistent with a diagnosis of paranoid
Gary Alvord, in contrast, has been in and out of mental hospitals for most
of his life, having been diagnosed as a paranoid schizophrenic at an early
age. n52 Even so, the allegations submitted on Alvord's behalf indicate
that prior to 1984 Alvord generally "appeared competent and
rational." n53 Yet by 1983, after almost ten years on death row,
Alvord's condition had deteriorated, and he was totally unable to assist
his lawyers. n54 As his next friend petition alleged:
[H]e refuses to discuss any aspect of his case with counsel, based upon
his stated belief that counsel is in league with the State - and the
Polish government - to force him to take his own life. At the same time he
believes that his body is in Poland and that he is immortal.
. . . When discussing his beliefs, his mood ranges from irrational and
agitated to flat and unaffected. There is often inappropriate laughing or
crying. He has come to believe that Hitler is trying to destroy the Polish
race and that he is being tortured [*45] because he knows of
the world-wide plot against the Polish people. n55
In late 1984, following a series of appeals in which Alvord's lawyers had
unsuccessfully petitioned both the Florida Supreme Court and federal
district court on alternative grounds for post-conviction relief, n56
Alvord's attorney requested that Governor Graham invoke the procedures of
section 922.07, Florida Statutes, to examine Alvord's mental condition.
n57 On November 26, 1984, the panel of psychiatrists appointed by Governor
Graham found Alvord incompetent for execution under Florida law, n58 the
first time that such a finding had been made regarding a Florida inmate
since the 1940's. n59 Alvord was moved from death row to a hospital, where
presumably he will remain until his recovery.
The recent case of Groseclose ex rel. Harries v. Dutton n60 poignantly
illustrates the physical and psychological stresses of death row
confinement. Capital inmates wishing to waive post-conviction [*46]
remedies must do so voluntarily and competently, n61 and it was alleged by
third parties that because of inhumane prison conditions Ronald Harries
was incompetent voluntarily to waive these remedies. Harries was diagnosed
by his psychiatrist as suffering from manic-depressive illness, an
emotional disorder characterized by extreme mood shifts ranging from
euphoria to depression. n62 According to this diagnosis, when certain
prison activities were curtailed, Harries entered a depressive stage
lasting about a year and a half. n63 During his depressive stage, Harries
wanted to waive his post-conviction remedies. Another psychiatrist
examining Harries found that he suffered from sensory deprivation, likely
resulting from deplorable living conditions including "limited, if
not cramped, living space within the cell, poor ventilation resulting in
extremely warm temperatures, no direct sunlight, little direct access to
other people and limited opportunities for proper exercise." n64 The
state's psychiatrists found that while Harries suffered from sensory
deprivation, it did not affect his competency to make a valid waiver. n65
Harries testified that he decided not to pursue any available
post-conviction remedies because it would mean he would have to live on
death row "for six to ten years under deplorable conditions."
n66 Finding the conclusions of Harries' psychiatrist more credible and
convincing than the testimony of the state's psychiatrists, n67 the
federal district court held that the conditions of death row confinement
caused Harries involuntarily to waive his post-conviction remedies. The
court was convinced by "assertions of death-row inmates like Ronald
Harries, that they would rather be executed than endure such
The Harries court perceptively recognized the need to evaluate inmates
upon admission to death row and periodically thereafter. Such examinations
can aid in determining whether subsequent deterioration results from
longstanding, chronic mental illness or [*47] from acute
reactions to the inmate's situation. n69 The question whether the illness
is acute or chronic has social, legal, and psychiatric ramifications
regarding the problem of competency for execution. If most of the
incompetent death row inmates were found to be "situationally
psychotic," n70 rather than having a severe mental illness as might
be defined in the American Psychiatric Association's "Diagnostic and
Statistical Manual of Mental Disorders" (referred to as DSM-III),
then wide-ranging correctional reforms should be demanded. Additionally,
if confinement on death row were found to induce acute psychosis, then the
medical profession might more willingly gravitate toward a Kubler-Ross n71
approach and provide a more humane death row environment through
counseling designed for a population facing death by execution. n72
If, however, the condemned psychotic population were found to be
suffering, in the main, from chronic mental illness, the contours of the
problem would shift. Holding aside the issue of different standards of
competency for different stages of legal proceedings, inmates who are
insane when they arrive on death row provide living indictments of the
mental health and legal systems' failure to deal adequately with the
criminally insane. Alvord is a prime example of this failure. His medical
history catalogs numerous escapes from mental hospitals and institutions
for the criminally insane and, finally, a leave of absence granted despite
progress notes consistently indicating his propensity for violence. n73 In
December 1972, he failed to return from that leave and, six months later,
he was wanted in Florida for the strangulation murders of three women --
the crime for which he was ultimately sentenced to death. n74 As Dr. Alan
Stone has noted, psychiatry should not be the [*48] scapegoat
for the failures of the criminal justice systems and the unwillingness of
society to take moral responsibility for crime. n75 Reform of the mental
health and criminal justice systems is needed if the psychotic capital
population is comprised mainly of the chronically mentally ill.
In the final analysis, even with empirical data, distinctions between
inmates suffering from situational psychosis triggered by death row
confinement and those with longstanding mental illness may be of limited
use in competency evaluations. Although Alvord lived in mental
institutions for most of his life, he allegedly was usually rational until
the stress of death row and his impending execution catapulted him into
psychosis. n76 If a portion of the death row population is marginally
mentally ill to start with, then it is reasonable to expect that a number
of inmates will deteriorate when faced with the deplorable conditions on
death row and their imminent death. This deterioration, although expected,
tends to collapse the distinction between chronic and acute mental
illness, making analysis problematic at best.
II. The Rationales for the Competency Rule, the Purpose of the Death
Penalty, and the Standard of Competency for Execution
The rule against executing the incompetent cannot be separated from the
justifications for capital punishment because the justifications should
suggest why the incompetent are exempt. n77 Unless society reaches an
agreement on the justifications for capital punishment, there will be no
consensus on the reasons for exempting the incompetent.
The rationale for exempting the incompetent from execution should, in
turn, inform the standard of competency for execution. Because competency
for execution is a moral as well as medical and legal concept, the
standard of competency for any legally relevant [*49] action
must depend upon the basic policy or principle underlying the requirement
that an individual be competent to perform or be exempted from that
Similarly, the rationale for the rule should determine the procedures for
deciding whether a capital inmate is competent for execution. Before the
level of due process to be accorded an incompetent capital inmate can be
determined, it is necessary to know the purpose and significance of the
A. Rationales for the Competency Rule
Although a fair amount has been written about competency for execution, no
new rationales for the rule have been suggested beyond the traditional
common law explanations cataloged by Justice Frankfurter in Solesbee v.
Balkcom. n79 The sheer number of rationales may indicate that the rule was
designed to address social concerns which are now obsolete. n80 However,
an exploration of the purported rationales reveals that the confusion
surrounding the rule results not from the obsolescence of its original
purpose but rather from persisting moral dilemmas surrounding capital
As a general matter, the rule requiring competency for execution is part
of a pattern in the criminal law requiring competency to commit a crime,
n81 stand trial, n82 plead, n83 be sentenced, n84 and to waive
post-sentencing review in a capital case. n85 Sparing a defendant from an
unfair trial or plea, however, and sparing one who has exhausted his
remedies at law are fundamentally different. Mental illness arising after
trial, plea, or sentencing does not raise the question of guilt or the
propriety of punishment.
One rationale for the rule, proffered by Blackstone and Hale, is [*50]
that a competent prisoner might have been able to make allegations which
would stay judgment or execution. n86 It is unlikely, however, that a
defendant who recently became incompetent might suddenly remember
something that he would not have recalled earlier in the proceedings. n87
This rationale, moreover, is overbroad because perfectly sane inmates,
given enough time, might be able to develop new defenses or devise better
appeals. n88 Rarely may a defendant reopen his trial. n89
A second rationale, suggested by Blackstone and others, is that madness is
punishment in itself. n90 This rationale fails by its own terms because
the inmate's recovery subjects him to execution. n91 That critique,
however, is more appropriately an explanation of why the rationale is
untenable today as opposed to at common law, for then many such inmates,
probably incurable anyway, had their sentences commuted to life. n92
Nonetheless, the rationale can be challenged on other grounds because it
fails to account for temporary psychotic deterioration which can be
expeditiously cured with neuroleptic drugs.
A third rationale, essentially theological, is that an incompetent person
is unfit to make peace with God: "[I]t is inconsistent with Religion,
as being against Christian Charity to send a great Offender quick, as it
is stil'd, into another World, when he is not of a capacity to fit himself
for it." n93 This reasoning survives in judicial opinions. For
example, Justice Frankfurter, responding to the argument that increased
due process would give rise to endless litigation, remarked that it would
be far better for the state to accommodate possibly unmeritorious claims
than to "have on its conscience a single execution that would be
barbaric because the victim was in fact, though he had no opportunity to
show it, mentally unfit to meet his destiny." n94 Similarly, in
Musselwhite v. [*51] State, n95 the Supreme Court of
Mississippi stated that it is a "part of due process that there be
available to [a capital inmate] as a rational person avenues toward . . .
spiritual consolation." n96 This theological rationale is supported
by the writings of Saint Thomas Aquinas n97 but rebutted by Archbishop
William Temple, who dismissed the view that "eternal destiny depends
in any degree on the frame of mind you were in at the particular moment
[of death] rather than on the general tenor of the life." n98 These
divergent views illustrate the difficulty of advancing a theological
justification for the competency rule in a pluralistic society. n99
Moreover, if the rationale itself is to inform the standard of competency,
then an inmate's realization of his moral guilt arguably should be a
component of the competency test. n100 The first amendment n101 problems
raised by such a standard cannot be gainsaid. From the psychiatric
perspective, a sociopath n102 would never realize his moral guilt and
could never be executed, n103 though sociopathy probably is not a category
of mental illness which should exempt an inmate from execution. More to
the point, why should psychiatry be involved in assessing moral guilt at
A fourth rationale for the rule is that executing an insane person has no
value of general deterrence as distinguished from specific deterrence or
incapacitation, which would surely be accomplished by executing even the
insane. The general deterrence debate is as heated in this context as in
the context of capital punishment itself. Executing an incompetent, Coke
wrote, cannot serve as an example to others. n104 In an equally ancient
rebuttal, Hawles remarked that "the End of Punishment is the striking
a Terror into [*52] others, but the execution of a Madman had
not that effect; which is not true, for the Terror to the living is equal,
whether the Person be mad or in his senses." n105 More than two
centuries later, Weihofen concurred when he wrote, "[I]f the purpose
[of exempting the incompetent from execution] is to serve as an example to
others, the demonstration that not even supervening insanity will halt the
execution of one who commits a capital crime will . . . make the in
terrorem effect so much the stronger." n106 A more contemporary
explanation is based upon general criminal law rationales. A person about
to break the law cannot foresee that he will become insane after
sentencing; rather, he relies on not being apprehended or does not care if
he is apprehended. n107 Thus, exempting an inmate who becomes insane after
sentencing should not substantially dilute the deterrent effect of the death
penalty, and life would not be taken unnecessarily. n108 However,
if the only rationale for not executing the mentally incompetent is to
prevent the unnecessary taking of life, this reasoning must be flawed
because it assumes that the death penalty has deterrent
value, a risky proposition at best. n109
A fifth explanation of the rule has been based on humanitarian grounds,
that the execution of an insane person is "a miserable spectacle,
both against Law, and of extreme inhumanity and cruelty . . . ." n110
This rationale has been labeled as "nothing less than an oblique
attack on the death penalty itself." n111 As
Weihofen notes, the quintessential issue in executing the incompetent is
whether it is "less humane to execute a guilty criminal while he is
insane than it is to postpone the execution until we make sure that he
understands what we mean to do to him -- and then kill him." n112
Justice Traynor put this formulation most bluntly:
Is it not an inverted humanitarianism that deplores as barbarous the
capital punishment of those who have become insane after trial and
conviction, but accepts the capital punishment for [*53] sane
men, a curious reasoning that would free a man from capital punishment
only if he is not in full possession of his senses? n113
The humanitarian rationale, however, could have force if the threshold of
competency for execution were low, akin to a "wild beast"
standard. n114 Few would contest that it would be "inverted
humanitarianism" to compel an inmate to relinquish a well-organized
defense mechanism by which he acknowledged his impending execution but fit
it into a scenario he could live with. n115 Contrast that situation,
however, with a patently psychotic or mentally retarded individual with
little awareness of his predicament. This scenario is analogous to the
situation in Superintendent of Belchertown State School v. Saikewicz, n116
in which the Supreme Judicial Court of Massachusetts held that the probate
court and guardian ad litem could withhold radical chemotherapy from a
terminally ill, profoundly retarded sixty-seven-year-old man. In making
this determination, the court reasoned in part that:
'If he is treated with toxic drugs he will be involuntarily immersed in a
state of painful suffering, the reason for which he will never understand.
Patients who request treatment know the risks involved and can appreciate
the painful side-effects when they arrive. They know the reason for the
pain and their hope makes it tolerable.' n117
. . . .
. . . Saikewicz would have no comprehension of the reasons for the severe
disruption of his formerly secure and stable environment occasioned by the
chemotherapy. He therefore would experience fear without the understanding
from which other patients draw strength. n118
A rejection of the humanitarian rationale assumes that the execution
[*54] will be carried out eventually. Thus, the rationale has
greater force where a death sentence is commuted to a life sentence.
Likewise, the humanitarian rationale is sufficient for antideath penalty
advocates who would favor the elimination of a death sentence for any
The sixth explanation for the rule is based on retribution. Retribution
may be defined simply as "the application of the pains of punishment
to an offender who is morally guilty." n120 The retributive theory of
competency for execution is predicated upon an assumption that every wrong
act must be avenged by a punitive act of equal quality. Presumably,
killing an insane person does not satisfy the societal interest in
reprisal for the previous wrong as well as does killing a sane person.
Therefore, imposing the death penalty on incompetent
prisoners exacts a punishment less valuable than the crime itself. n121 In
Radelet and Barnard's view, only if the primary goal of capital punishment
is retribution does the exemption of the incompetent make sense:
Because of the immense suffering caused by the prisoner's criminal
actions, he is to suffer in anticipation of his death, and this goal
cannot be achieved if the prisoner does not appreciate his impending fate
because of mental illness. The mental illness prevents the inmate from
suffering in anticipation of death more than he already does in living
with the illness. n122
The force of the retributive rationale, and a suggestion of how it relates
to the standard of competency for execution, emerged in Musselwhite v.
[T]here is agreement among the examining physicians that at the time of
the hearing the petitioner had lost awareness of his precarious situation.
Amid the darkened mists of mental collapse, there is no light against
which the shadows of death may be cast. It is revealed that if he were
taken to the electric chair, he would not quail or take account of its
The retributive theory of punishment underlying this reasoning [*55]
was partially responsible for the court's decision to stay the execution
of a convicted murderer on the ground of insanity.
The element of the retributive theory which requires the inmate to be
competent so that society can satisfy its subjective desire for justice
has been explained from different perspectives. Put generally, if
retribution is "an expression of society's moral outrage," n125
then this societal goal "may be frustrated when the force of the
state is brought to bear against one who cannot comprehend its
significance." n126 This principle has been explained in
[T]his theory justifies the death penalty as a vicarious
punishment for crimes committed vicariously; punishment gives the
law-abiding a release. For the psychological explanation to have basis,
however, the public must be able to identify with the prisoner, and this
they cannot do if he is insane. But, the rationale based on the
retributive theory, in its several variations, lasts only so long as the
prisoner remains insane. Once he recovers his sanity, the reason for the
rule disappears. n127
One commentator, Ehrenzweig, agrees that one of the purposes of
retribution is to counteract society's subconscious impulses for violence
because failure to punish one who violates the code of conduct threatens
our own repressive, superego-based mechanisms. n128 He would not agree,
however, that society needs to identify with the person to be punished in
order for the penalty to serve as a vicarious punishment for crimes
committed vicariously. Rather, he asserts that the various insanity
defenses will succeed or fail depending on whether society consciously
desires to copy the crime. n129 Ehrenzweig argues essentially that the
questions raised by the different insanity defenses cannot be answered
unless we know why we punish. n130
If the rule against executing the incompetent is designed to satisfy
society's demand for retribution, then the standard of competency for
execution should be low: retribution is served if the inmate [*56]
recognizes the fact of his crime and the reasons for his punishment. The
ultimate arbiter of competency under a retributory rationale should be a
jury, which is uniquely able to implement such a standard of competency
and which, comporting with society's demand for retribution, must confront
the inmate in an open forum and assess his fitness for execution.
A retributory explanation for the rule is the only persuasive traditional
rationale. Equally persuasive, however, is an alternative theory which may
be labeled the tacit clemency rationale. This theory essentially holds
that the number of death penalties imposed should be
decreased in various ways in order to abate the net impact of the death
penalty. Underlying this idea is a humanitarian notion that
society accepts the death penalty but conceals a certain
ambivalence about its ultimate justice or humanity. Society expresses this
ambivalence by covertly seeking to abate the net impact of the death
penalty. One method of reducing the number of executions is to
erect barriers such as the requirement of competency. If the purpose of
competency is to grant tacit clemency, then the standard of competency for
execution should be complex, allowing psychiatric input and with it the
perception of scientific precision. The procedures for assessing
competency should be more invisible than those in an open forum,
comporting with the covert nature of the rationale.
The common law rationale that a condemned person must be prepared to meet
his Maker incorporates similar humanitarian notions which comport with
this postulate of ambivalent societal guilt. It can be argued that society
wants a clean conscience, which might not be the case if it executes an
incompetent person. An example of this phenomenon occurred in Ceylon in
1976 when a capital inmate lapsed into a drug-induced coma after
attempting suicide. The government proceeded with the hanging, producing
public furor. n131 Although such outrage is often explained as reflecting
society's "lack of retributory satisfaction," n132 it is equally
explainable as disclosing societal guilt at having a death penalty
in the first place. It is easier, perhaps, to justify capital punishment
when it is imposed on a purportedly competent adult than when it is
inflicted on the mentally or physically helpless.
The often stated rationale that a condemned inmate must be able to assist
his attorney is similarly explainable under the tacit [*57]
clemency theory as a fairness idea, which has been labeled the "image
of fair play" rather than fair play itself.
[T]he state would at least want to go through the ritual of evaluating
mentally ill prisoners for competence so that an image is presented that
the prisoner had a fair chance to contest the impending execution. Public
support for the death penalty might diminish if citizens
believed the state's powers were being launched against prisoners who
could not offer a sane defense. n133
Fair play and the image of fair play, however, are not necessarily
inconsistent if both are seen as evincing society's ambivalence about the death
penalty. Executing only the competent enables society to minimize
the inherent barbarity of capital punishment; paradoxically, society
thereby grafts dignity onto the death penalty. When
inmates proceed to the electric chair with calm resignation, society must
breathe a collective sigh of relief. A culture which executes rational
adults who have played all their cards can do so with much more confidence
than one which blithely leads the comatose or mentally impaired to their
Finally, although the retributory explanation and the tacit clemency
theory are not necessarily mutually exclusive, absent societal agreement
about the purposes of the death penalty and the reasons
the incompetent are exempt, there is no a priori reason why one model is
more appropriate than the other. Exposing these unspoken rationales might
force society to confront its moral intuitions about the purposes of
punishment and the ultimate justice of the death penalty
in the modern world.
B. The Legal Principle of Competency
The fundamental notion underlying the principle of competency is
personhood. The question, in any context, is whether an individual should
be recognized as a person with a legally, socially, or medically
cognizable voice. It is not surprising, therefore, that a capital inmate
must be competent for execution, however anomalous the concept may seem.
This requirement is eminently consistent with the retributory rationale
for the death penalty. If those who break the social
contract deserve punishment only if they are responsible, society
recognizes the malfeasor as an accountable agent meriting criminal
sanction. The punishment represents society's [*58]
recognition of the act or crime and the responsibility, or personhood, of
the lawbreaker. Hegel articulated this notion when he wrote that
"punishment is regarded as containing the criminal's right and hence
by being punished he is honoured as a rational being." n134 Freedman
distinguishes medical from legal competency. n135 The former, he asserts,
is a functional concept measured by one's ability to participate in
relationships and productive activity. Legal competency, in contrast, is
situation specific. One may be competent to contract with a house painter
but not to contract for futures on the commodities exchange. The
difference is that a person is able to understand the contingencies and
variables involved in one transaction but not in the other. Additionally,
Freedman distinguishes the conceptual and policy levels involved in
competency determinations. n136 While a policy may be addressed through
political and legislative accommodation, a concept is less malleable
because it represents a moral choice or value judgment of what is
important about a particular activity. n137 In the death penalty
context, competency for execution depends on why society desires execution
in the first place.
According to Freedman, competency is both empirical and moral. Some
individuals are clearly incompetent, but many more are "marginally
competent;" that is, competent to make some decisions or to take
responsibility for some actions, but not others. Because a legal standard
of competency is situation specific, it tends to collapse into a policy
judgment rather than an empirical or functional competency test. n138 For
example, in the areas of civil commitment and the right to refuse
treatment, this policy judgment often assumes a paternalistic cast.
Although in the death penalty context this kind of policy
judgment would be something of an inverted paternalism, it does comport
with some of the traditional rationales for the rule, such as the notion
that no one should meet his Maker while incompetent, and that one should
be able to consult with his attorney and assist in last-minute efforts for
Competency, therefore, cannot be determined without reference to the
activity for which it is required, n139 and a fortiori, to the moral
values underlying the requirement of competency for a particular activity.
By the same token, because competency is a legal standard, a practical,
empirical component is necessary for evenhanded implementation. Thus, the
rationale for the rule that an individual must be competent for execution
requires an understanding or recognition of why the incompetent are exempt
from execution. This rationale, in turn, must generate a legal standard of
competency which can be implemented with objectivity and reviewability;
otherwise, a person's subjective opinion about the death penalty
will influence the standard of competency required for execution. The
rationale and the standard of competency, in turn, must dictate the
procedures by which competency is evaluated. n140 Briefly, if the
prohibition against executing the incompetent is rooted, unconsciously or
otherwise, in society's distaste for the death penalty,
then procedures to ensure the effectiveness of the rule will be more
stringent than if the rationale is that retribution is not achieved by
executing an insane person.
C. Standards of Competency for Execution
In 1950, Justice Frankfurter opined in Solesbee v. Balkcom n141 that the
legal problems raised by insanity arising in the death cell "happily
do not involve explorations of the pathological processes which give rise
to the conflict between so-called legal and medical insanity." n142
Unfortunately, this does not seem to be the case today.
The test of insanity for execution at common law has been disputed by
commentators. Hazard and Louisell state that the test appears to have been
"whether the defendant is aware of the fact that he has been
convicted and that he is to be executed." n143 Others have argued
that the standard could only have been the kind of insanity recognized
when the rule was originally developed, [*60] that is, a
"kind of obvious frenzy or imbecility" n144 which may be labeled
a "wild beast" standard.
The standards of competency for execution in the states today n145 are
varied and problematic in their possible interpretations. In twenty-two
states, the inmate simply must be "insane" or some equivalent
formulation. n146 Possibly, in those states the legal definition of
insanity for other purposes would be extended to the execution context.
n147 In one state, the test is whether the inmate understands the nature
and effect of the death penalty and why it is to be
imposed upon him. n148 Two states require that the inmate also be able to
consult with his attorney. n149 Four states employ a broad standard that
the inmate must have sufficient intelligence to understand the nature of
the proceedings against him, what he was tried for initially, the purpose
of his punishment, and his impending fate; to know any facts which might
make his punishment unjust or illegal; and to be able to convey that
information to his [*61] attorney. n150 Another broad test
used in one state is that an inmate is incompetent for execution if as a
result of a mental disease or defect either he is unable to comprehend the
nature of the proceedings against him or the punishment prescribed, or he
is unable to assist his attorney in his defense. n151 One particularly
obtuse standard is whether an inmate's mental illness has "so
lessened his capacity to use his customary self-control, judgment and
discretion as to render it necessary or advisable for him to be under
care." n152 Lastly, one state may retain what amounts to a "wild
beast" standard, that is, "a state of general insanity, the
mental powers being wholly obliterated." n153
Holding aside the problem of who implements the standard of competency and
what the standard would be in light of the rule's rationale, the initial
difficulty is that the standards themselves may be essentially
incomprehensible. Radelet and Barnard's critique of the Florida standard
presents a comprehensive discussion of this problem. n154 For example, it
is unclear what is meant by "understand[ing] the nature and effect of
the death penalty and why it is to be imposed." n155
Differentiating cognitive from affective understanding and appreciation is
difficult in all psychiatric settings; in the context of the death
penalty, it is particularly problematic. As an illustration, the
psychiatrist examining Arthur Goode found that, while he had an
intellectual understanding of his impending execution, he lacked an
emotional appreciation of it. n156 Whether or [*62] not Goode
was competent for execution, the cognitive and affective poles of the
"understanding" criterion raise a provocative ethical question.
Isolation of affect is an effective defense mechanism. n157 Is it not more
inhumane to deny an inmate this comforting defense than to insist that he
quail and tremble at the prospect of his impending death? Some would argue
that this quailing and trembling is precisely what pushes a person to come
to terms with his life and to make peace with God. Thus, absent any
societal consensus as to the permissible range of answers, an examining
psychiatrist, when asked to determine whether an inmate understands the
nature of the death penalty, is faced with a troublesome
decision. The "nature and effect of the death penalty"
criterion is subject to as many possible explanations as the ambiguous
"understanding" criterion. For example, some people find the death
penalty unjust and immoral. Others believe that capital inmates
are executed because they are societal scapegoats. n158 However,
specifying a range of permissible explanations for the nature and effect
of the death penalty would clarify the Florida statute.
What constitutes an acceptable explanation may be illuminated by referring
to an operative theory of competency. If the unifying principle of
competency is the notion of personhood, and explanation should be
acceptable so long as "recognizable reasons" are given.
Recognizable reasons are those which consist of acceptable premises and
conclusions related to those premises even if the evaluator does not
necessarily agree with them. As Freedman notes, such an approach
simultaneously preserves both individual autonomy and ensures that the
inmate is provided the medical care which he desperately needs. n159
Freedman's approach suggests a solution to some of the problems raised by
Radelet and Barnard. If an inmate's understanding of the death
penalty is so inaccurate that he believes it will never be
inflicted upon him, n160 then his proffered reasons [*63]
would not be recognizable. An example of this kind of thinking was
displayed by Ford, who, before he became uncommunicative, believed he was
on death row only because he chose to be there, and that he would not be
executed because the case of "Ford v. State" had outlawed
capital punishment. n161
Other capital inmates have been examined by Bluestone and McGahee. One
such inmate developed a highly effective defense mechanism by which his
criminality "became not only justifiable, but even respectable. He
rationalized his crimes by emphasizing the hypocrisy and perfidy of
society on the one hand and by comparing himself with policemen and
soldiers and others who live honorably 'by the gun' on the other."
n162 In fact, this defense mechanism proved so successful that when the
inmate's execution appeared imminent, he declined an opportunity to seek
executive clemency, choosing instead to continue his martyr's role.
Another prisoner developed "a poorly elaborated paranoid system"
in which he supposedly was betrayed and framed by his girlfriend and a
co-defendant. Yet, "despite the looseness of his persecutory
thinking, it was accompanied by a clear-cut elevation in his mood and
reduction of anxiety." n163
The defense mechanisms reported by Bluestone and McGahee, however
delusional or denial-based, provided the inmates with recognizable reasons
for their executions. Were the inmate required to understand the nature
and effect of the death penalty and why it was to be
imposed, despite their delusional thinking, these inmates would be
competent for execution. To hold them to a more stringent standard would
force them to recognize their guilt and moral turpitude, a different test
which would create evaluation problems. For example, inmates who are
sociopaths are unable to feel remorse; therefore, they could never pass
such a competency test.
This discussion illustrates the importance of the nexus between the
rationale for the rule exempting the incompetent from execution and the
standard of competency. To attempt to formulate a standard of competency
for execution is to stumble in the dark unless one first understands why
the incompetent are exempt. It is impossible to know why the incompetent
are exempt unless one knows why capital punishment is imposed in the first
Commentators have proposed different tests to correspond with [*64]
the different stated rationales for the rule. For example, Weihofen has
If the reason for refusing to execute an insane convict is that "he
who sins must suffer," then ability to appreciate his impending fate
is important, to make sure that he will suffer the torture of realizing
what is about to happen to him. But if the purpose of capital punishment
is not vengeance, but only to rid society of an undesirable member,
insanity would seem to be irrelevant for it does not make him any the less
undesirable. . . . [So too] if the purpose of the rule is to enable the
condemned man to prepare himself for the next world, a realization of his
moral guilt should be added to the test. If the reasoning is that he
should have an opportunity to suggest matters in extenuation, make
arguments for executive clemency or offer other reasons why the sentence
should not be carried out, then the test should be ability to recollect
and to present any reasons. n164
Although Weihofen was unable to form an opinion about the rule's
rationale, others have done so and have formulated a standard of
competency suggested by that rationale. Ford's attorneys argued to the
United States Court of Appeals for the Eleventh Circuit that a
consult-with-counsel element should be added to Florida's requirement that
the inmate understand the nature and effect of the death penalty
and why it is to be imposed upon him. They asserted that a
consult-with-counsel element is necessary because "executing the
presently incompetent violates the eighth amendment in part because it
takes advantage of the prisoner's mental disorder to foreclose his final
right to challenge his sentence." n165 Thus, Ford's counsel favor a
test identical to the competency-to-stand-trial standard -- that is, an
examination of whether the inmate has "sufficient present ability to
consult with his lawyer with a reasonable degree of rational understanding
and whether he has a rational as well as factual understanding of the
proceedings against him." n166
While the consult-with-counsel component may appear to be the ultimate
legalistic argument, the tests for competency at other criminal
proceedings are similarly cognitively and legally grounded. For example,
the test for competency to plead is whether the accused [*65]
understands the nature of the plea. n167 The test for sanity prior to
sentencing is whether the defendant can understand the nature of the
proceedings or exercise his right to allocution. n168 Both of these stages
involve punishment, but nowhere is it required that the defendant have an
affectively based appreciation of his crime or that he demonstrate his
understanding of why he is to be punished. He must merely understand the
nature of the proceedings against him. These tests contain an implicit
requirement that the inmate understand, at least on an intellectual level,
that he must pay for his crime. This idea has substantial philosophical
support. Hobbes, a social contractualist, insisted that those who break
the rules must pay, and a person who is insane at the time of punishment
is not being effectively punished or paying his social debt. n169
Expanding upon Hobbes' theory and other philosophical underpinnings of
punishment, it follows that executing the incompetent "would water
down the tie that retributionists feel between responsibility and desert.
A widespread acceptance of finding the insane guilty, and of punishing the
insane could only have the long-range effect [of] eroding the claim that
the responsible are responsible and owe a debt." n170 Once again, the
retributory rationale seems to be a major basis for the rule.
Feltham argues that because the insanity which triggers the execution
competency rule has to be supervening, at least at common law, competency
tests for prior procedural stages are inapposite: "The tests for the
common law as to execution must require a lesser, or at least a different
degree of insanity to that required by the former tests." n171 He
continues that "perhaps the most convincing purpose for which the
rule has been said to exist in modern circumstances is that punishment
should not be inflicted upon a person incapable of comprehending the
reason why he is punished." n172 This comports with philosophical
tradition but does not [*66] explain why capital punishment is
different from incarceration. The test Feltham favors is the test of In re
After sentence of death, the test of insanity is whether the prisoner has
not "from the defects of his faculties, sufficient intelligence to
understand the nature of the proceedings against him, what he was tried
for, the purpose of his punishment, the impending fate which awaits him, a
sufficient understanding to know any fact which might exist which would
make his punishment unjust or unlawful, and the intelligence requisite to
convey such information to his attorneys or the court." n173
While this standard requires a high level of cognitive ability, it still
does not fully account for the retributory rationale. Arguably, such acute
cognitive understanding necessarily implies that the inmate will
concomitantly suffer in anticipation of his fate. Suffering, however, does
not ineluctably follow understanding, particularly when one considers the
phenomenon of sociopathy and the elaborate defenses the human psyche is
capable of constructing to protect itself from anxiety, guilt, and
depression. Cognitive awareness must be a component of the standard of
competency for execution so that an inmate who has not exhausted his
post-conviction remedies can assist in his appeals. The Supreme Court has
mandated that a capital inmate must be competent to waive post-sentencing
review. In Rees v. Peyton, n174 the Court held that the standard of
competency to waive post-conviction review is "whether [the
defendant] has capacity to appreciate his position and make a rational
choice with respect to continuing or abandoning further litigation or on
the other hand whether he is suffering from a mental disease, disorder, or
defect which may substantially affect his capacity in the premises."
n175 The question of volunteering for execution has been called the
"Gilmore issue" after the Supreme Court held that Gary Gilmore
n176 was competent to waive post-sentencing review. The Court found that
Gilmore had "made a knowing and intelligent waiver of any and all
federal rights he might have asserted . . . and, specifically, that the
State's determinations of his competence knowingly [*67] and
intelligently to waive any and all such rights were firmly grounded."
The Rees and Gilmore standards for competency to waive postsentencing
review raise collateral issues n178 which, while related to this
discussion, are not concerned with its central thesis. Nonetheless, the
Gilmore issue may illuminate the execution competency question because the
Supreme Court has mandated that a capital inmate wishing to waive
post-conviction review must do so rationally, knowingly, and
intelligently, and with appreciation of his position. The state's
determination of the inmate's competency, moreover, must be based on
firmly grounded reasons. n179 The Gilmore standard, thus, supports the
recognizable reasons criterion for evaluating competency. n180 If the
Court has recognized in one posture that recognizable reasons aid the
determination of competency, this concept could be extended to evaluations
of competency for execution, such as Florida's criterion of whether an
inmate understands the nature and effect of the death penalty
and why it is to be imposed upon him.
What, then, should be the standard of competency for execution? If the
rule is designed to ensure society's demand for retributory satisfaction,
the standard should be low. Certainly, the inmate must understand the
nature and effect of the death penalty and why it is to
be imposed upon him, for this recognition is the essence of retribution.
Although the distinction between cognitive [*68] and affective
understanding muddies the waters, insisting upon affective appreciation
would automatically exempt sociopaths from execution as well as inhumanely
require the obliteration of psychological coping mechanisms. Pure
cognitive understanding, therefore, satisfies society's urge for
retribution. If a tacit clemency theory underlies the rule, then the
standard of competency for execution should be higher, corresponding in
complexity with the complexity of the rationale. Accordingly, the standard
of In re Smith, n181 which imposes many requirements and raises
substantial interpretive and evaluative questions, is one appropriate test
under the tacit clemency theory. Absent societal consensus on the purposes
of the death penalty and the exemption of the
incompetent, there is no reason why one of these standards of competency
is more appropriate than the other.
III. Evaluating a Claim of Insanity
Areas of concern regarding the evaluation of an insanity claim include
questions as to who may bring the claim, the degree of due process to be
afforded, who is to evaluate the claim, and the role psychiatrists play in
that evaluation. Psychiatric participation involves both legal and ethical
A. The Eighth Amendment, Due Process, and Competency for Execution
Although the law in every state with a death penalty
forbids the execution of an incompetent person, n182 no court has decided
the issue under the eighth amendment. n183 The Supreme Court has
considered the question four times. n184 but has decided it on due process
grounds and has never reached the eighth amendment issue. Because these
cases preceded the incorporation of the eighth amendment into the due
process clause, n185 it is fair to say that they [*69] no
longer control the question of whether executing the incompetent is
constitutionally prohibited. This Term the eighth amendment and due
process questions are again before the Supreme Court in Ford v.
While it is beyond the scope of this Article to explore whether executing
the incompetent violates the eighth amendment, n187 a brief discussion of
these cases is warranted. In constitutional law the nature of the right
determines what process is due; therefore, it is necessary to examine
briefly the legal dilemmas underlying the issue which has dominated
litigation over competency for execution: the degree of process due an
inmate who claims to be incompetent for execution. These eighth amendment
and due process questions profoundly affect legal and psychiatric issues
such as how a claim of insanity is initially evaluated, who may raise such
a claim, whether a denial of the claim is appealable, how extensive the
evaluations of the purported incompetency must be, who evaluates the
inmate and by what standard, the adversarial character of the evaluation,
who ultimately decides the question, the degree of deference to medical
opinion, the reliability of psychiatric examinations conducted in a prison
setting, and the implementation of the legal standard of competency by the
evaluators and trier of fact. These problems in turn raise grave ethical
questions concerning whether psychiatrists should participate in the
competency determination at all and, if so, to what extent.
In 1897, the Supreme Court first considered the question of competency for
execution in Nobles v. Georgia. n188 Nobles involved an attack on a state
procedure which mandated that a claim of post-sentencing insanity was to
be evaluated by the sheriff, who would then initiate an inquiry by a
twelve-member jury and report the verdict to the sentencing court. The
inmate, Nobles, asserted that the claim of insanity had to be determined
by a jury in an ordinary [*70] judicial proceeding with all
common law trial safeguards. The Court rejected the challenge, reasoning
that such a procedure would give the inmate control over the execution,
with its indefinite postponement depending "solely upon his fecundity
in making suggestion after suggestion of insanity, to be followed by trial
upon trial." n189 The linchpin of the decision was that the exemption
of the incompetent from execution was not a right but a mere privilege:
"He has had the benefit of a jury trial, and it is now the court only
which must be satisfied on the score of humanity." n190 Thus, because
at common law the inmate had no absolute right to a jury trial on the
issue of supervening insanity, the matter was purely one of legislative
regulation. n191 Accordingly, the Court ruled that Georgia's procedure did
not deny the inmate due process.
The next significant n192 consideration by the Supreme Court came in 1950
in Solesbee v. Balkcom. n193 Solesbee involved another due process
challenge to Georgia law. This time, the inmate claimed he was entitled to
notice and an adversarial hearing at which he could have counsel,
cross-examine witnesses, and present his own evidence. He further argued
that if the governor entrusted the final decision to an administrative
board, its findings must be subject to judicial review. The Court upheld
the Georgia Supreme Court's finding that the procedure did not deny the
inmate due process and compared the procedure to a reprieve or grant of
clemency, powers generally vested in the executive and free from judicial
review. According to the Court, the Georgia procedure was "motivated
solely by a sense of 'public propriety and decency' -- an 'act of grace'
which could be 'bestowed or withheld by the State at will' and therefore
not subject to due process requirements." n194 As in Nobles, the
Court was concerned with the danger of repeated claims of insanity by a
sane inmate, n195 which could have the effect of staying the execution
indefinitely. In his famous dissent, Justice Frankfurter rejected the
analogy to sentencing and gubernatorial reprieves. He argued that reprieve
from execution while insane was [*71] not solely a matter of
executive discretion but was instead subject to due process safeguards
which require that the inmate have at least the right to make a
presentation on his own behalf. n196
The last of the major Supreme Court cases, Caritativo v. California, n197
decided in 1958, involved a challenge to a statute which vested in the
prison warden sole responsibility for initiating a judicial proceeding to
determine an inmate's sanity. The California Supreme Court had held that
unless the warden initiated a sanity inquiry, the courts lacked
jurisdiction to consider the inmate's sanity or to review the warden's
determination. n198 The Supreme Court upheld this decision in a
one-sentence opinion, citing Solesbee. n199 Justice Frankfurter again
dissented, joined by Justices Brennan and Douglas. Without asserting that
the due process clause required a formal adversarial hearing or judicial
proceeding, Justice Frankfurter suggested that "some procedure be
established for assuring that the warden give ear to [such a claim]."
n200 He noted that, because the initial evaluation by the warden was both
final and ex parte, the due process clause required a better opportunity
for a hearing. n201
Alvin Ford's attorneys argued that both eighth amendment and due process
jurisprudence have changed so dramatically in the past thirty years n202
that Solesbee and its progeny no longer dictate what process is due an
inmate claiming post-sentencing insanity. n203 The thrust of their due
process argument n204 is that the Solesbee cases were decided when the
protections of the due process clause applied only to rights, and not
privileges. n205 In the 1970's, however, [*72] the Court
repudiated the concept that constitutional rights turn upon whether a
governmental benefit is classified as a right or privilege n206 and
instead, in Mathews v. Eldridge, endorsed a more flexible test balancing
three separate factors:
[F]irst, the private interest that will be affected by the official
action; second, the risk of an erroneous deprivation of such interest
through the procedures used, and the probable value, if any, of additional
or substitute procedural safeguards; and finally, the [g]overnment's
interest, including the function involved and the fiscal and
administrative burdens that the additional or substitute procedural
requirement would entail. n207
In Ford, the state argued that the Florida procedure of a gubernatorial
determination of sanity satisfies these due process demands. n208 However,
Ford's counsel argued that not only do the procedures not satisfy Mathews
but also that "the extraordinarily weighty individual interest at
stake in death penalty cases justifies heightened due
process protections so that safeguards which might suffice in less
sensitive contexts will not meet the mark here." n209 A life
interest, they argued, deserves stricter scrutiny than a mere property or
liberty interest and, because the Supreme Court has recognized execution
as a "qualitatively different" penalty, n210 heightened due
process protections are required for death sentences. n211
B. Raising an Insanity Claim
The initial questions regarding the assertion of an insanity claim involve
who may raise such a claim and how, who evaluates the initial claim and by
what standard, and whether a denial of further [*73] review is
At common law, there was no established procedure for raising an insanity
claim. If a suggestion of insanity was made to the court, the judge could,
in his discretion, hold a preliminary hearing and impanel a jury if the
inmate had established a prima facie case. n212 While some states have
retained this common law procedure, n213 most states have promulgated
specific statutory directives. Overwhelmingly, the warden, sheriff, or
prison superintendent is the initiator and initial evaluator of the claim.
n214 Two states name the court or judge, n215 two states name the
governor, n216 one state specifies a broad range of parties, n217 and in
many states it is simply unclear. n218 "Reasonable grounds" and
"good reason" are typical standards by which insanity claims
must be evaluated. n219 Because these terms are undefined, it is unclear
whether the reviewing party may be compelled to make a sanity inquiry. In
most jurisdictions, the question is unsettled as to whether mandamus will
lie against a reviewing party who refuses to pursue the claim. n220
[*74] C. Evaluating the Claim
Once the inmate's sanity is in question, the next step is to determine the
means by which the claim is to be evaluated. In those states retaining the
common law rule, presumably the reviewing court has discretion over the
appropriate procedure. n221 Once again, state statutes vary widely.
Although the vast majority of state procedures require or imply that
psychiatrists, physicians, or other medical experts will examine the
inmate to form an opinion as to competency for execution, n222 they
contain widely varying degrees of specificity regarding the thoroughness
of the examinations, their adversarial character, the independence of the
evaluators, and whether the findings must be in writing. In four of the
sixteen states providing for psychiatric or medical examinations, the
examining body is the ultimate arbiter of competency. n223 In the
remaining [*75] twelve states, the ultimate decision-maker is
the court, n224 the governor, n225 the governor and council, n226 or a
jury. n227 In two states, the inmate is examined by an undefined
"commission." In one of those states, the commission is the
ultimate decision-maker; in the other, it is the governor. n228 In three
states, the inmate is evaluated by state hospital officials who make the
final determination. n229 Lastly, three states have statutory provisions
which appear to mimic the common law practice that the court will evaluate
and decide the issue, and may in its discretion impanel a jury or conduct
a hearing. n230
Many state statutes are silent as to the conduct of the hearings. Several,
such as Florida's, are clearly ex parte. n231 Some statutes are silent as
to defense participation in the proceedings; however, because of their
judicial character, they allow or require some adversarial character. n232
Only four states have provisions explicitly [*76] favoring
defense advocacy in competency proceedings. n233
The burdens of production and of proof in the proceedings rest with the
prisoner. This comports with the civil nature of these proceedings. n234
Presumably the inmate must prove his case by a preponderance of the
D. Psychiatric Participation in Evaluating Insanity Claims
Heated debate surrounds the role of psychiatrists and other mental health
professionals in these insanity inquiries. It appears that many of the
problems arise out of the lack of procedural safeguards and the
imprecision of the statutorily mandated procedures. One contributing
factor is the absence of a coherent, intelligible, or workable standard of
competency for the psychiatrist to apply. This void raises the question of
whether psychiatrists should offer diagnoses or prognoses regarding
sanity. Another arena of debate is the dubious reliability of psychiatric
examinations performed in a prison setting. The ultimate question,
perhaps, is whether and to what extent psychiatrists ethically may
participate at all in such proceedings.
Discussing this topic is complicated by the differing state standards for
evaluating competency. As noted, in some states, evaluation by a panel of
experts provides a conclusive determination of competency. In others, the
medical evaluation is merely preliminary to a more formal judicial inquiry
or to an ultimate decision by an executive. The following analysis notes
these distinctions when relevant but, in the main, simply highlights some
of the difficulties inherent in any psychiatric evaluation of competency
for execution. Compounding these problems is the troubled yet necessary
relationship between law and psychiatry, particularly in death
penalty cases. n236 The issues which most frequently arise in
this context include the problem of informed consent, conflicts of
interest, whether the evaluators are subject to cross examination, whether
[*77] the defense can offer its own experts, whether the
psychiatrists should offer ultimate opinions, and whether psychiatrists
can apply standards of competency which are undefined or incoherent.
1. Informed Consent
It has been argued that due process requires that a capital inmate receive
notice and a hearing regarding his insanity evaluation, n237 but that
traditional forms of notice are of little value to an insane prisoner who
acts alone. A genuinely insane person can be expected neither to
comprehend fully the manner in which a sanity investigation will be
initiated, nor to understand or challenge the nature of the sanity inquiry
while it is conducted. n238
The appointment of counsel might protect the inmate's due process
interests, n239 but this analysis ignores the reality that the inmate's
counsel typically will raise the insanity claim in the first place. Lack
of counsel is not peculiar to the execution competency situation but is
endemic in the capital inmate population. Perhaps a more central concern
should be the issue of informed consent. A true incompetent will not
understand the process, nature, purpose, or consequences of an insanity
evaluation. Ultimately, if the psychiatrists find the inmate competent for
execution, a new death warrant will issue in due course. The problem then
is the method and scope of informed consent. A psychiatrist is ethically
bound to "fully describe the nature and purpose and lack of
confidentiality of the examination to the examinee at the beginning of the
examination." n240 Informed consent assumes heightened importance in
capital cases. In Estelle v. Smith, n241 the Supreme Court held that a
defendant being evaluated for competency to stand trial must be informed
before the evaluation that he has a right to remain silent and that his
statements can be used either for or against him for sentencing purposes.
n242 In Smith, a psychiatrist who had examined [*78] the
defendant for competency to stand trial testified against him at the
capital sentencing stage, although they had not had contact since the
initial examination. The Court held that when a psychiatrist testifies for
the prosecution at the capital sentencing phase, he becomes an agent of
the state, entitling the examinee to full protection under the fifth and
sixth amendments. n243 Because a psychiatrist examining an inmate for
competency to be executed, like the psychiatrist in Smith, does not have a
"neutral" status, a fortiori, the same protections prescribed in
Smith should be afforded in an execution competency examination. The
psychiatrist should explicitly inform the inmate that the results of the
examination may be used against him and that the inmate has the right to
refuse the examination. n244
The question becomes more complex, however, when one considers that such
an examination probably would not be taking place absent serious questions
concerning the inmate's competency. While competency for execution and
competency to give informed consent are not the same, under many execution
competency standards they are similar. The American Psychiatric
Association (APA) Task Force on Sentencing recommended that informed
an explanation that the psychiatrist is not functioning in a traditional
medical role, but is serving as an agent of the court (or of the defense
or prosecution) for the purpose of gathering data that may be relevant to
the sentencing decision. The circumstances under which information
divulged during the evaluation may be disclosed to the prosecution or the
court should be made explicit. Finally, psychiatrists should explain, as
best they can, how the defendant may be helped or harmed by the
information in the report. n245
The APA Task Force concluded, however, that when it appears the defendant
is incompetent to give informed consent, "the psychiatrist should
stop the examination, inform the party who requested [*79] the
evaluation of the defendant's condition, and allow the legal system to
arrive at a solution to the problem." n246 Thus, the APA sentencing
guidelines, while helpful to the issue of competency for execution,
provide no conclusive guidance. Two minimal criteria do emerge, however,
and they should provide a baseline for informed consent for an examination
of competency for execution. First, the defense attorney should be given
notice of such examinations and the opportunity to be present. n247
Second, the inmate and his counsel should be informed of the possible
consequences of the examination, namely, that a finding of competency
could result in the reissuance of a death warrant.
2. The Examiners and the Examination
Problems arise when one considers the possible conflicts of interest of
examiners and the exact nature of their task. What is the extent of the
examination? What conclusions are demanded and to what degree of
certainty? To what extent are the psychiatric opinions subject to checks
and balances, such as cross-examination and testimony by adversarial
psychiatrists? To what degree is any psychiatric examination necessarily
limited when it takes place in a prison setting? Underlying these specific
concerns is the general recognition by the Supreme Court and others that
psychiatric diagnoses are subject to a substantial degree of uncertainty.
a. Conflicts of Interest
At minimum, to make a proper determination of competency for execution,
qualified and disinterested examiners must be employed. Even in those
states using psychiatrists or other medical personnel, however, the
examiners generally are appointed by a state agent. The pool from which
the examiners are selected is crucial; frequently it is either mandated
that the examiners be state-employed or they end up being state-employed
anyway. Radelet and Barnard report that, in Florida, "[o]f the three
commissions of [*80] psychiatrists appointed by the governor
in the first six months of 1984, one psychiatrist from the main state
mental hospital sat on all three, while another from the same institution
sat on two." n249 Thus, it is possible for the state to employ
psychiatrists who will find all prisoners competent for execution. The
lack of objectivity of the panel may be exacerbated if state employees
feel pressured to find prisoners competent, particularly in states like
Florida where the governor appoints the panel. The problem is further
compounded when one considers that state psychiatrists finding an inmate
incompetent for execution might subsequently be required to treat him in a
state or correctional hospital. n250
Some of these conflicts might be minimized if the examiners were selected
from a rotating list of psychiatrists willing to participate in such
examinations. Although the pool might be biased because psychiatrists
opposed to participation in the death penalty process
probably would opt out, this bias might be mitigated by the participation
of psychiatrists opposed to the death penalty but willing
to participate on other grounds. n251 Likewise, a rule that the
psychiatrists conducting such examinations would not subsequently have to
treat the inmate if he were found incompetent would alleviate possible
conflicts of interest.
A further issue in competency examinations is whether, and to what degree,
the psychiatric evaluation is adversarial. In a related posture, the
Supreme Court has underscored the importance of adversarialness when
psychiatrists participate in capital sentencing. In Gardner v. Florida,
n252 the Court held that a defendant's due process rights were violated
when his death sentence rested in part upon a presentence investigation
report which the defendant had no opportunity to deny or explain. n253
In Florida, as in many other states, defense counsel and the prosecutor
may be present at the examination, n254 but there is no provision for
advocacy. Indeed, in Florida the governor "has a publicly announced
policy of excluding all advocacy on the part of the condemned from the
process of determining whether a person [*81] under sentence
of death is insane." n255 Particularly in states where a panel of
examiners is appointed and its opinion is submitted to a factfinder in a
nonadversarial setting, fairness demands that some procedure exist for
challenging the examiners' findings.
A related question is whether indigent inmates are entitled to
court-appointed psychiatrists. Although it has been held in Georgia n256
and Illinois n257 that indigent inmates are not denied due process by
their inability to employ adequate psychiatric assistance for execution
competency proceedings, these decisions may have been undercut by a recent
Supreme Court decision. In Ake v. Oklahoma, n258 the Court held that where
an indigent defendant made a preliminary showing of insanity, he was
entitled to the assistance of a state-provided psychiatrist at the capital
sentencing stage if he could not otherwise afford one.
c. Extent of the Workup
Once an examining panel has been appointed, questions arise regarding the
extent of the psychiatric evaluation or workup and the level of certainty
the examiners must reach. These issues are related to the standard of
competency for execution because an incoherent or unworkable standard will
increase the unreliability of the examination.
No legal authority prescribes standards for the psychiatric workup
required for an execution competency examination. Related persuasive
authority indicates that the examination should be as complete as
possible. The APA Task Force recommends that psychiatric examinations for
sentencing purposes, particularly capital sentencing, should be eminently
thorough, including a complete psychiatric and medical history, a general
psychiatric evaluation and, if necessary, neurological examinations and
neuropsychological testing. n259 A heightened level of psychiatric
certainty is necessary in capital cases. The qualitative difference of the
death penalty requires a "corresponding difference
in the need for reliability [*82] in the determination that
death is the appropriate punishment in a specific case." n260 Whether
this mandate extends to the post-sentencing phase has not been decided,
although it has been urged that "a finding of competence [for
execution] requires more certainty, clarity, and comprehensiveness than a
finding of incompetence." n261 Certainly, it cannot be gainsaid that
a life interest is at stake. The only remaining question then must be
whether a capital inmate is different from a defendant who is merely at
risk of being sentenced to life imprisonment.
Cases in which inmates have refused to seek post-conviction relief in
anticipation of impending execution have mandated complete psychiatric
workups and high levels of certainty. In Gilmore v. Utah, n262 Justice
Marshall's dissent sharply criticized Chief Justice Burger's view, n263
expressed in his concurrence, that Gilmore competently, knowingly, and
intelligently waived post-sentencing review:
Less than five months have passed since the commission of the crime; just
over two months elapsed since the sentence was imposed. That is hardly
sufficient time for mature consideration of the question, nor does
Gilmore's erratic behavior . . . evidence such deliberation. No adversary
hearing has been held to examine the experts, all employed by the State of
Utah, who have pronounced Gilmore sane. n264
. . . .
As The Chief Justice notes, the opinion of the Prison Psychiatrist, the
only doctor who has considered Gilmore's competency since the waiver
decision was publicly announced, was based on a review of Gilmore's
medical records and a one-hour interview. n265
Similarly, in Hays v. Murphy, n266 the Tenth Circuit held that substantial
questions of the prisoner's competency to waive his post-conviction review
had been raised, and that the psychiatric evaluations were insufficient to
determine "the critical question of competency." n267 The
prisoner, Thomas (Sonny) Lee Hays, had been examined for thirty minutes on
death row by four mental health [*83] professionals. In
declaring this evaluation inadequate to determine the validity of the
waiver, the court noted the brevity of the interview, the fact that only
one of the examiners had had previous contact with Hays, the absence of
psychiatric and psychological testing, and the absence of progress notes
relating Hays' mental condition over time. n268 Lastly, the Tenth Circuit
noted both the inappropriateness of conducting a psychiatric examination
on death row and the coercive impact of the death row environment on an
inmate's will to live:
[T]he atmosphere on death row where the interview occurred did not provide
a clinical setting conducive to an accurate determination in such an
inquiry. Dr. Baker stated "[t]he atmosphere in that place [death row]
is such that I can well understand why somebody would despair of
living," and Dr. Beller said "it was quite noisy and we would
get close in order to ask the man questions and to hear his
The examiner's comment raises two issues. First, death row is not an
appropriate setting for competency evaluations. These evaluations should
be conducted in a neutral, noncoercive environment. Second, the doctor's
comment reiterates the point that the very stress of death row confinement
can not only lead to mental aberrations, but also create a risk that an
inmate's decision to forego post-sentencing review may be effectively
If psychiatrists are to participate in this process, at the very least
their findings should be written, setting forth the reasons for their
conclusions. These need not be ultimate opinions on whether a prisoner is
competent for execution. Written findings give the examination
retrospective accountability. While two states explicitly provide that the
findings of the examining body and the reasons for those findings must be
in writing, n271 the typical legislative directive requires only that the
examiners report their findings "in [*84] writing"
or in a report. n272 Ford and Alvord poignantly illustrate the dangers of
a lack of accountability. The three psychiatrists who found Ford competent
for execution based their opinions on a half-hour examination with about
ten people present. They reported their findings in conclusory letters
ranging in length from one to three pages. n273 The commission which found
Alvord incompetent for execution set forth its finding in a terse,
one-paragraph letter which simply tracked the language of the statute:
"Mr. Alvord does not understand the nature and effect of the death
penalty and he does not understand why it should be imposed upon
him." n274 This lack of accountability undermines both the reputation
of the psychiatric profession and public support for the rule against
executing the incompetent. In those jurisdictions providing for open
cross-examination of experts, this problem may be substantially cured.
3. Ethics of Psychiatric Participation
The most troubling question facing medical professionals in the capital
punishment context is whether they should ethically participate at all.
Doctors take an oath to preserve life, yet paradoxically they have been
intimately involved with the death penalty process -- by
issuing death certificates following executions, examining an inmate's
neck to determine the optimal rope length for hanging, examining and
counseling death row inmates, and resuscitating condemned inmates who
attempt suicide. Doctors have also been asked to administer the death
penalty through lethal injections. Yet, the problems of
psychiatrists in the execution competency posture are qualitatively
different. While competent inmates in the capital prison population would
have died anyway, psychiatric participation in this process may help
effectuate an execution [*85] which might not otherwise have
occurred. The ethical issues in the examination or certification and
treatment stages are distinct: While the examining psychiatrist may save
an inmate temporarily from execution by finding him incompetent, the
treating psychiatrist helps bring about an execution which would not have
occurred but for the treatment.
Radelet and Barnard have identified four positions which are useful models
for analyzing the ethical dilemmas facing examining psychiatrists. First,
under the principled approach, it is argued that "this arena is no
place for a psychiatrist to function and that all psychiatrists should
refuse to participate." n276 The argument that it is better to
participate than to allow nonliberal thinkers to dominate the field is not
sufficient moral justification for complicity in this activity. Under the
principled approach any psychiatric participation is opposed. The problem
with the principled approach is that it would produce nonrepresentative
participation by psychiatrists who are not opposed to the death
penalty or to medical participation in its processes. n277
Because the statutes and procedures are already in place, n278 it is
preferable that liberal thinkers participate rather than surrender by
default to hired guns. This is the consequentialist approach. One of the
drawbacks of the consequentialist position is that, in practice, it may
produce professional dishonesty on personal or political grounds. For
example, psychiatrists opposed to the Vietnam War may have issued
psychiatric exemptions more liberally than those not opposed. Similarly,
psychiatrists favoring legalized abortion before Roe v. Wade n279 may have
authorized abortions as medically necessary more freely than those
opposed. The benefits of the consequentialist position have been
emphasized in capital sentencing and appeals because participation may
save a defendant from death. n280 The execution competency posture,
however, may be different because an inmate who has been sentenced to
death is in a less favorable position than one who has not yet been
sentenced or one who has not exhausted his remedies. Thus, notwithstanding
[*86] his beneficent intentions, the psychiatrist may be
facilitating the inmate's execution. On the other hand, psychiatric
participation may produce a temporary stay. Once the principled approach
is bypassed and the consequentialist basis accepted, psychiatrist can
argue for increased safeguards to ensure fairness. Radelet and Barnard
believe the strongest ethical objection to physician participation in the
execution competency process is the absence of procedural safeguards. n281
This ethical dilemma would be alleviated with procedures ensuring that
psychiatrists' opinions could be challenged by equally credible
psychiatrists. n282 This analysis evinces a professional concern:
psychiatrists are asked to participate in this process, and refusal would
be both morally wrong and professionally unwise. The need, therefore, for
increased due process protections is crucial.
The version of the consequentialist position advanced by the National
Medical Association (NMA) is perhaps the most extreme of the genre. While
the NMA does not support or oppose capital punishment, it does advise
psychiatrists to evaluate and treat inmates who are incompetent for
execution, on the ground that failure to do so "would constitute a
failure to perform a psychiatrist's duty, i.e., provide evaluation and
treatment to the mentally ill." n283 The NMA views the death
penalty as a jurisprudential issue and not a medical one.
Furthermore, it asserts that inmates facing execution deserve the same
kind of psychotherapy as a terminally ill patient. n284 Distinguishing
medical and psychiatric issues from legal and political issues may be
viewed as avoiding the essential and difficult questions. Alternatively,
it may simply evince the ultimately pragmatic view which underlies the
The third ethical posture may be termed the empirical approach. This
argument is that psychiatrists should examine the prisoner and report the
degree of mental disorder or impairment but should avoid the ultimate
question of competency for execution. n285 This approach is similar but
not identical to a previously advocated approach that "psychiatrists
will not be expected to draw legal conclusions, but are instead to
determine whether the prisoner's condition [*87] satisfies
more factual, medical standards." n286
The fourth ethical position may be termed the psycholegal approach. Under
this approach, the psychiatrist should examine the prisoner, arrive at a
diagnosis using DSM-III criteria, and render an opinion regarding
competency for execution. n287 This method was used in Ford, where
psychiatrists used medical terminology and offered a legal opinion based
on the statutory standard of competency. Two of the state psychiatrists
and the three defense psychiatrists found Ford psychotic. All three
members of the commission nevertheless found him competent for execution.
n288 Though the importance of more thorough examinations cannot be
overstated, even the kind of workup done in a teaching hospital would not
cure the failings of the psycholegal approach. There is a moral and
epistemological abyss between a DSM-III diagnosis and an opinion on
whether a prisoner is competent for execution because competency is a
moral or normative as well as empirical concept. The psycholegal model
asks psychiatrists to make a leap of faith from a medical or functional
diagnosis to a legal and moral opinion about an inmate's fitness to
receive the death penalty. n289
All of these positions -- the principled, the consequentialist, the
empirical, and the psycholegal approaches -- are controversial. An
ultimate preference depends upon one's moral and political position on the
death penalty, colored perhaps by professional concerns.
Mental health professional organizations may be forced into the
consequentialist position because refusal to participate might be
interpreted as an abdication of their professional duty. As long as the
rule against executing the incompetent persists in American jurisdictions,
psychiatrists and psychologists will be called upon to participate. Given
a desire not to abdicate responsibility in this area, perhaps the most
defensible model is the empirical position. Using this approach, the
examiners would make the usual DSM-III diagnoses, carefully avoiding
opinions or language suggestive of an opinion on the ultimate question of
competency for execution.
[*88] E. Who Should Determine Competency For Execution?
We have seen that the requirement of competency for a particular activity
depends upon society's moral values. This underlying moral rationale
should form a legal standard of competency for that activity which can be
implemented evenhandedly. The rationale and the standard of competency, in
turn, should dictate the procedures by which competency is evaluated.
If the prohibition against executing the incompetent is rooted,
consciously or unconsciously, in society's distaste for the death
penalty, then the procedures society will demand to ensure the
rule's effectiveness will be more stringent than if the rationale were
based upon retribution. The procedures, moreover, will tend to be more
invisible if the underlying motivation is society's ambivalence about the death
penalty. If the prohibition against executing the incompetent is
explained as a tacit clemency device, the most appropriate forum for
evaluating insanity claims is an administrative board. Composing this
panel mainly of mental health professionals would cloak its findings in
scientific mystification befitting society's denial of its true motives.
This reasoning underlies a suggestion that an administrative board hear
insanity claims with the aid of psychiatric evaluation. n290 Implicit in
this theory is an express repudiation of a formal adjudicatory forum:
The prisoner's entitlement to remain alive while insane should depend
entirely on medical opinion that is unlikely to be illuminated by a judge
or jury. The addition of a judge or jury only increases the likelihood of
arbitrary rejection of the medical opinion and of erroneous evaluation of
that opinion. n291
One might argue that psychiatrists should not draw legal conclusions, but
contend that they should be the ultimate decision-makers. If one accepts
this anomalous position, then the standard of insanity should be whether
the prisoner understands the nature of the proceedings, the purposes and
extent of the punishment, the fate awaiting him, and whether he possesses
sufficient understanding to be aware of facts which may make his
punishment unjust and is able to convey those facts to his lawyer. n292
This is exactly [*89] the position taken by a commentator who
asserts that, "[a]lthough the determinations will still be largely
medical, the conclusions will be more factual than legal." n293 The
author explains neither why psychiatrists are uniquely able to make this
"factual" determination nor why or how this determination is
somehow apolitical, unaffected by the psychiatrists' feelings about the death
penalty. Underlying these logically inconsistent assertions is an
assumption that the rule against executing the incompetent is a tacit
clemency device, and that an administrative-type panel of psychiatrists
might be more inclined to find inmates incompetent, perhaps because it
would be more invisible than a judicial forum, and perhaps also because
advocating a judicial setting for what until now has been an executive
prerogative would be too large a political leap. When this position is
fully analyzed, its anti-death penalty underpinnings
On the other hand, if the rationale for the rule against executing the
incompetent is that society's demand for retribution is not satisfied by
executing an incompetent, pathetic prisoner, the standard of competency
should be lower and the evaluation procedures less stringent. A standard
like Florida's -- that the inmate understand the nature and effect of the death
penalty and why it is to be imposed upon him -- may be little
more than a "wild beast" test, but perhaps it is the only
theoretically defensible criterion given a retributory rationale.
The demand for retribution is more consciously motivated than the bases of
the tacit clemency rationale, as demonstrated by its explicitness and
visibility in literature and popular culture. Accordingly, the procedures
for assessing competency under this rationale should be aboveboard.
Society, in the form of a jury, should evaluate the prisoner and make the
ultimate determination of competency for execution. Psychiatric input into
this process should be discouraged or limited because society might
thereby "attempt to improve the image of execution by cloaking it in
the aura of medicine." n294 If a retributory basis for the death
penalty and the exemption of the incompetent are to be
meaningful, then society, represented by a jury, should look the inmate in
the eye and pass judgment on his fitness for execution. As Dr. Paul
Appelbaum has warned in the context of capital sentencing, "Society's
demand for psychiatric input . . . may be serving as a substitute [*90]
for some hard thinking about the purposes of punishment, and particularly
about the role of the death sentence in the modern world." n295
IV. Consequences and Implications of a Finding of Incompetency
Moral as well as legal issues surround the psychiatrist's participation in
certifying an inmate as incompetent, treating him, and then recertifying
him as competent because recertification brings about the reinstitution of
the death penalty. A finding of incompetency triggers a
process which brings into sharp focus such issues as the extent of
information an inmate should have before consenting to treatment, the
inmate's right to refuse treatment, and the overall ethics of psychiatric
participation in competency restoration.
A. Ethics of Physician Participation in Competency Restoration
The ethical dilemmas facing a physician or psychiatrist after an inmate
has been found incompetent for execution are twofold. First, him ready for
execution? Second, should he participate in a recertification process,
assuring the state that the inmate is indeed competent for execution? Even
psychiatrists who participate in the initial proceedings on
consequentialist grounds might find these prospects so abhorrent that they
would refuse on principle to participate in restoration to competency.
Should a psychiatrist agree to treat a prisoner found incompetent for
execution? Even assuming that this psychiatrist was not involved in the
initial certification process and thus is not subject to a conflict of
interest, the problem is not easily settled. On the one hand, a
physician's duty is to treat illness. A psychiatrist may believe that
capital punishment is morally wrong. However, to refuse to treat a
mentally ill person is to deny that mental illness causes great suffering
even if the failure to treat would cheat the executioner. Perhaps the most
humane action is to treat such an individual, and thereby allow him to
prepare for and meet death with equanimity. Another way to view this
position is to separate [*91] the medical from the legal or
political issues, recognizing that it is the physician's duty to treat
illness, and that capital punishment is a social or legal question not
within the ambit of medicine. n296
The Florida State Hospital Human Rights Advocacy Committee took a
different position. After Gary Alvord was found incompetent for execution,
he was sent to the Florida State Hospital at Chattahoochee. After
considering that the Florida statute does not define "restoration to
sanity" or specify exactly who is to make that determination, the
Committee recommended "[t]hat no individual who has been determined
to lack the mental capacity to be executed be sent to a State treatment
facility for mental health treatment without his sentence being commuted
to life imprisonment." n297 The Committee based its decision in part
on the American Psychiatric Association's position that "'a physician
serving the State as executioner, either directly or indirectly, is a
perversion of medical ethics and his or her role as healer and
Assuming a psychiatrist agrees to treat such a patient, the second ethical
question is whether he should be involved in the recertification process.
Again, eliminating the problem of conflicts of interest by assuming that
the psychiatrists who participated in the initial certification or
treatment process are not the same as those who participate in
recertification of the inmate's competency for execution, is such
involvement an ethical performance of a physician's duty? As Radelet and
Barnard note, "If incompetence is found, a later assessment of
competence by psychiatrists is tantamount to imposing a new death
sentence. In the first evaluation nonintervention leads to death; here
intervention by psychiatrists is required for death." n299 This
reasoning reveals that Radelet and Barnard accept a consequentialist basis
for participation in the first instance, and that they proceed on that
basis even at the recertification stage:
Instead of coming into a situation where the psychiatrist is told the
prisoner might be incompetent, the latter intervention rests on a
possibility that an established incompetent person may be [*92]
competent. The criteria used to determine (and measure) incompetence may
be different than those used in evaluating recovery from it. While we
would argue that the ethical issues are qualitatively the same at both
points, they are perhaps even more clear at the latter point because of a
quantitative difference. Again, we take the position that a finding of
competence places more responsibility on the physician for certainty,
clarity, and comprehensiveness than a finding of incompetence. n300
To evaluate Radelet and Barnard's eminently pragmatic position, one must
consider that they deal with death row inmates regularly and work in a
political environment where capital punishment has tremendous popular
support. If Florida psychiatrists adopted a principled approach to the
treatment and recertification phases, their position would likely have
little effect. The most obvious response to such an approach would be to
amend the Florida statute to resemble that of many other states, whereby a
hospital official would perform the recertification. There is surely no
paucity of pro-death penalty psychiatrists in Florida, on
the state payroll and otherwise, who would happily acquiesce. Radelet and
Barnard implicitly recognize this reality and argue for more stringent
criteria, with the hope that more liberal-thinking psychiatrists will
recognize the stakes and willingly participate, applying higher standards
of professional competence. Because theirs is a consequentialist position,
it does not answer the principled argument, but it does suggest that
opinions on the entire range of competency for execution issues are
inevitably affected not only by one's position on the death
penalty but also by perceived political realities.
B. Treating an Inmate Found Incompetent for Execution
Once a psychiatrist or hospital has assumed the task of treating an inmate
found incompetent for execution, additional problems arise. In recent
years, law and psychiatry have flowed with literature and litigation on
informed consent and the right to refuse treatment. What are their
contours in this context?
1. Competence and Informed Consent
Informed consent must include knowledge of: "(1) the risks,
discomforts, and side effects of the proposed treatments, (2) the
anticipated benefits of such treatments, (3) the available alternative
[*93] treatments and their attendant risks, discomforts, and
side effects, and (4) the likely consequences of a failure to be treated
at all." n301 Clearly, the "risks and benefits of
treatment" must include the possibility that if treatment makes the
inmate competent he will be returned to death row. Conversely, the inmate
also should be apprised that by becoming competent he might better come to
terms with his impending execution.
The likely consequences of a failure to treat a capital inmate include the
possibilities that the inmate will improve anyway because he is no longer
on death row or that he will remain mentally ill and perhaps never become
ready for execution. Although incompetence for execution does not
necessarily imply incompetence to make treatment decisions, it is likely
that if one does not understand the nature and effect of the death
penalty, neither will he understand these contingencies. Another
aspect of this problem is that an inmate may have no right whatsoever to
refuse treatment. Even if this were the case, the inmate still should be
informed of the treatment's effects. Moreover, he or his lawyer or
guardian should still have the last word on the kind of treatment he
The question of whether to treat the capital inmate can be approached from
both legal and philosophical perspectives. One possible response is to
invoke the inmate's legal right to refuse treatment. A second response is
to treat the inmate. If he became competent, his lawyer could then assert
that medical science should not be used to cure someone in order that he
might then be executed. Both of these positions reflect ultimate concern
for individual autonomy, but they are qualitatively different. The first
position zealously guards the inmate's right not to be executed while
incompetent but implicitly grafts onto that right his lawyer's assumption
that the prisoner would not want to die at the hands of the state at any
price. In so assuming, a lawyer blinds himself to the reality that mental
illness causes great suffering. More importantly, he denies the prisoner
the benefit of the doubt; that is, that the inmate might prefer to be well
and confront his execution with a healthier mind rather than remain in
hospitals the rest of his life suffering from severe mental illness. A
lawyer who prefers that his client be treated, however, may recognize the
anguish that mental illness inflicts upon his client.
[*94] These two positions illustrate the moral purposes served
by the doctrine of informed consent. One philosophical tradition, the
utilitarian theory, n302 aims at protecting people from harm. This
principle is risk/benefit-oriented, reasoning that "morally right
actions or practices are those that result in a positive balance of
pleasure over pain, happiness over unhappiness, or other beneficial
consequences over undesirable ones." n303 A second philosophical
strand focuses on respect for individual autonomy. "[T]he ethical
precept that underlies this moral theory is expressed in terms of
individual autonomy and human dignity. This precept more often is
expressed in the language of basic rights such as the right to life,
liberty, autonomy, and the patient's right to decide." n304 It has
been suggested that these different moral theories and value judgments
underlie each of the various tests of competency. n305 Those valuing
individual autonomy will favor a weaker test of competency while those
with a utilitarian bent will opt for more stringent tests, thereby
supporting "the exercise of benevolent paternalism in psychiatry,
placing the health, well-being, and survival of patients above their
freedom and autonomy." n306 Thus, it is not difficult to perceive a
certain paternalism in the first position, however benevolent, and a more
person-oriented strain in the second.
These different moral theories reemerge in the ethical dilemmas of
psychiatrists participating in the capital or noncapital sentencing
process. The utilitarian strain arises in the form of the psychiatrist's
obligation, as an agent of the court, to do justice and to protect society
as a whole. The person-centered model, on the other hand, is evinced in
the argument that a psychiatrist's primary obligation is to look out for
the examinee's best interests even when they conflict with those of
society. n307 The APA Task Force on Sentencing recognizes that these two
extremes cannot exist separately in the real world, as the polemic between
the two positions demonstrates. Even the most person-centered psychiatrist
or lawyer acts with an eye toward systemic concerns, and even the most
societally oriented lawyer or psychiatrist recognizes and remembers his
oath [*95] to guard zealously his client's best interests.
While there is no answer to this moral dilemma, psychiatrists, lawyers,
and judges must straddle the line and accommodate these divergent moral
values. Even if one believes the death penalty is
immoral, it is wrong to assume that an inmate in such a position would
refuse treatment and that if he accepted treatment, he must have done so
incompetently. It safely can be said, nevertheless, that there should be a
high standard of competency to accept or refuse treatment in this
situation solely because of the risk of death -- however far down the road
it may lie.
2. The Right to Refuse Treatment
Although the Supreme Court has never recognized a constitutional right to
refuse treatment for the civilly committed patient or the criminally
committed prisoner, a number of lower federal courts have recognized such
a right based on the constitutional right of privacy or personal autonomy,
n308 the eighth amendment prohibition of cruel and unusual punishment,
n309 and the first amendment guarantee of freedom of religion. n310 The
right to refuse treatment, however, has never been held to be absolute.
Rather, the individual's interests are to be balanced against those of the
state or mental institution. In its most expansive form, the right, once
asserted, entitles the patient to a hearing to determine his competency to
make treatment decisions. If the patient is adjudged incompetent, a
substituted judgment is provided for, usually by a judge or guardian ad
[*96] Substantial state interests inhere in a correctional
facility. Inmates are presumed to have forfeited numerous liberty-based
interests by virtue of their incarceration. The Supreme Court held in
Hudson v. Palmer n312 that prisoners are not protected from regular
shakedown searches, reasoning that "the Fourth Amendment proscription
against unreasonable searches does not apply within the confines of the
prison cell." n313 On the same day, the Court held in Block v.
Rutherford n314 that pretrial detainees are neither constitutionally
entitled to contact visits nor protected from shakedown searches, inasmuch
as the jail administration's decision that such practices would jeopardize
security should be accorded substantial deference. n315 The state interest
in orderly prison administration similarly tipped the constitutional
balance in Commissioner of Correction v. Myers, n316 in which the Supreme
Judicial Court of Massachusetts held that a prisoner could be forced to
undergo hemodialysis and medication. n317 The court noted that although
the defendant's incarceration did not divest him of his right of privacy
and interest in bodily integrity, it did impose limitations on those
constitutional guarantees because of the state interest "in upholding
orderly prison administration." n318
The Supreme Court has recognized, however, that defendants do not
necessarily forfeit all of their constitutional rights at the prison gate.
For example, in Bell v. Wolfish, n319 the Court held that pretrial
detainees do retain due process rights, although their liberty may be
imposed upon absent individualized punitive intent by prison officials.
n320 Similarly, in Cruz v. Beto, n321 the Court recognized that prisoners
must be provided "reasonable opportunities . . . to exercise their
first amendment religious freedom[s]." n322 In Vitek v. Jones, n323
the Court held that a prisoner could not be involuntarily transferred from
a prison to a mental hospital without [*97] appropriate
procedural protections. The Court reasoned that although conviction and
sentencing extinguished the inmate's right to freedom from confinement,
they did not authorize the state to classify him as mentally ill and to
subject him to involuntary behavior modification treatment. n324 The
qualitative difference between a penal institution and a mental hospital
further subjected the inmate to a stigma distinct from mere incarceration.
No court has ever faced the issue of whether an inmate declared
incompetent for execution has a right to refuse treatment, or considered
the dimensions of that right. On its face there seems to be no greater
state interest than carrying out a lawfully imposed sentence. While the
state statutes regarding competency for execution do not specify the
terms, conditions, or extent of voluntariness of treatment, they do evince
strong state interests in curing inmates so that they might be returned to
death row. If a state can execute a prisoner against his will, what
prevents it from forcibly injecting him with psychotropic drugs to make
him fit for execution? n325 Further analysis will reveal, however, that
this may not be the best treatment protocol.
Psychiatrists initially reacted to the newly discovered right to refuse
treatment with considerable confusion, alarm, and anger. They viewed the
recent decisions as further encroachment by the legal system upon hospital
psychiatry, an environment lawyers are ill-equiped to understand. n326
Further consideration revealed that studying why patients refused
treatment provided therapeutically useful information. As Appelbaum and
Gutheil wrote in their study of drug refusal, the "right" to
refuse "fails to take into account the fact that 'refusal' is not a
homogeneous concept but a set of behaviors whose meaning and consequences
vary according to the patient's clinical state." n327 Appelbaum and
Gutheil found that [*98] drug refusers fell into three groups:
situational, stereotypic, and symptomatic. n328 By examining the reasons
for the refusals, psychiatrists were able to determine on a clinical basis
that it might be more therapeutically beneficial to yield to the patient's
refusal of medication in certain cases: "Permitting both situational
and stereotypic refusers in our study to decline medications, not as a
'right' but as a matter of clinical policy, did not seriously impair their
overall treatment and yielded some positive advantages." n329
The person-centered approach advocated by Appelbaum and Gutheil, which
looks to the individual dynamics of a patient's illness and the reasons
for the refusal rather than to abstract principles of individual autonomy,
evokes the tensions between the utilitarian and person-centered moral
philosophies that come into play in the context of informed consent. n330
While principles of fairness dictate that inmates who are adjudged
incompetent for execution should not be shipped to hospitals and blindly
injected with drugs, it does not necessarily follow that they should be
allowed to "rot with their rights on," though this may save them
from the executioner. Medical personnel who believe it is not their role
to prepare someone for execution n331 certainly should be accorded the
prerogative to decline to participate in such treatment. Those who do
elect to participate, however, need not necessarily feel that they are
facilitating an involuntary execution. A number of capital inmates have
elected to die, either by suicide or execution, rather than spend their
lives in prison. Moreover, not all incompetent inmates have exhausted
state and federal post-conviction remedies or avenues for clemency;
therefore, a return to competency does not necessarily mean imminent
A further wrinkle in treating those found incompetent for execution is
that as the inmate begins to improve, he may also begin fully to
appreciate his situation. This realization may result in [*99]
drug refusal, the product, perhaps, of an "unwillingness to surrender
the positive defensive adaptations of the psychotic state . . . a fear of
losing the supports offered by the hospital and physician . . . or a
multifaceted reluctance to reestablish contact with reality." n332
This refusal, on the one hand, would be a competent refusal although,
depending upon the legal situation, the inmate may not have the right to
refuse. On the other hand, the refusal of medication may again cause the
prisoner's condition to deteriorate, making him again incompetent, thereby
causing the cycle to repeat itself. Further complicating the picture is
the inmate who is sent to the hospital, treated and cured, returned to
death row, and then deteriorates into situational psychosis caused by the
return to the death cell. Whether the prison and hospital administrations
may maintain the death row inmate on medication so that he may competently
anticipate his impending fate is yet another vexing problem. In another
context, the Supreme Court of New Jersey opined that "the law, equity
and justice must not themselves quail and be helpless in the face of
modern technological marvels presenting questions hitherto unthought
of." n333 In formulating the rule prohibiting the execution of the
incompetent, Blackstone, Hale, Coke, and others could not have foreseen
that in the 1980's it is often possible to make a severely disturbed,
psychotic person rational and competent relatively quickly. Modern medical
technology may now enable us to cure someone with medication and thereby
send him to the electric chair when a century ago he would have been
incurable and would have spent the remainder of his life in prisons or
hospitals. It seems ironic that doctors may impose "artificial
competence" upon an inmate and expedite his death; n334 however, this
is the natural and logical consequence of the rule in the modern world. If
we shudder at the thought of an inmate who would have been spared the gas
chamber but for an injection of Prolixin, our uneasiness reflects a more
basic abhorrence of the death penalty itself.
The ancient proscription against executing an incompetent prisoner [*100]
raises seemingly intractable dilemmas. When analyzed, these issues are no
more perplexing than many of the other problems arising out of the
relation between law and psychiatry. Competency for execution seems more
insoluble because it forces us to confront directly the ultimately moral
question of when the state may properly take life as punishment. Previous
attempts to rationalize the rule and to prescribe standards of competency
and procedures assuring its effectiveness have proved incoherent because
they failed to confront the reality that law and psychiatry rarely, if
ever, exist separately from culture and politics. n335 Analyzing the rule
against executing incompetent capital inmates forces us to address the
fundamentally moral and political nature of law and psychiatry in a
peculiarly charged context. Facing these questions openly might enable
society to abolish capital punishment altogether or to acknowledge that
its sole purpose is retribution.
STANDARDS OF COMPETENCY FOR EXECUTION SURVEY OF STATE STATUTORY AND COMMON
Explicit Statutory Proscription Against Execution of the Incompetent and
CODE § 15-16-23 (1982)
REV. STAT. ANN. §§
STAT. ANN. § 43-2622
PENAL CODE §§ 3700-
GEN. STAT. ANN. § 54-
he understands the
STAT. § 922.07 (1985)
and effect of the death
and why it is to be
CODE ANN. §§ 17-10-60 to
also 1976 Op. Atty Gen.
223, 225 (available on
States library, GAAG
(the competency test is
the individual is
the nature and
of the proceedings
on against him and
comprehends his own
in reference to such
and is capable of
his attorneys such
as a proper defense
the [proceedings] preferred
Brown v. State, 113
618, 620 (Ga. 1960).
of a mental
ANN. STAT. ch. 38, § 1005-
he is unable to
the nature and
of [the death]
See also People v.
131 N.E. 652, 655 (Ill.
("within the meaning of
statute, the defendant is
. . . when he has
the nature of the
against him, what
was tried for originally, the
of his punishment,
the impending fate which
and a sufficient mind
know any facts which
exist which would make
punishment unjust or
and sufficient of
to convey such
to his attorney or
STAT. ANN. § 22-4006
ANN. CODE art. 27, §
GEN. LAWS ANN. ch.
§ 62 (West Supp. 1985)
CODE ANN. § 99-19-57
a result of mental disease
Ann. Stat. § 552.060
defect he lacks capacity to
the nature and
of the punishment
to be imposed upon
or matters in extenuation,
or reasons why the
should not be carried
Code Ann. § 46-19-201
Rev. Stat. §§ 29.2537-
Rev. Stat. §§ 176.425-
Stat. Ann. §§ 31-14-4 to
also In re Smith, 176 P.
823 (N.M. 1918) ("If the
has not at the
time, from the defects
his faculties, sufficient
to understand the
of the proceedings
him, what he was
for, the purpose of his
which awaits him, a
any fact which might
which would make his
and the intelligence
to convey such
to his attorneys
the court, then he would
be sane and should not be
Correct. Law §§ 655-657
Rev. Code Ann. §
also In re Keaton, 250
901, 906 (Ohio Ct.
1969) (test under the
is whether the
to understand the
of the proceedings
him, what he was
for, the purpose of his
which awaits him, and a
any fact which might
which would make his
and the intelligence
to convey such
to his attorneys
Stat. Ann. tit. 22, §§
also Bingham v. State,
P.2d 311, 314-15 (Okla.
App. 1946) (test at
law was "a state of
insanity, the mental
and a being in
deplorable condition can
no defense whatsoever
has no understanding of
nature of the punishment
to be imposed"; court
cites with approval test
in In re Smith,
P. 819 (N.M. 1918)).
Codified Laws Ann. §§
from a mental
Code Ann. § 23A-27A-
or defect resulting
(1) In his inability to
the nature of the
against him or
punishment specified for
offense charged; or (2) In
inability to assist his
in his defense"
Stat. §§ 7-13-901-7-13-
[*105] Judicial Adoption of Common Law Rule Proscribing
Execution of the Incompetent and Applicable Standard:
v. Allen, 15 So. 2d 870,
(La. 1943) ("insane").
v. Moon, 117
96, 102 (Pa. 1955) (The
factor is the
or extent to which the
is affected by the
disorder and not the
existence of symptoms
would induce a
illness. . . . The
that illness so
his capacity to use
and discretion as to
it necessary or
for him to be under
(emphasis in original).
v. State, 135 S.W. 327
v. Davis, 108 P.2d 641
[*106] General Statutory Procedures Requiring Transfer of
Incompetent Prisoners to State Mental Hospital and Applicable Standard:
Code Ann. tit. 11, § 406
ill and in need of
Code Ann. § 11-10-4-3
and treatment in the
of mental health
a mental health facility"
reason of mental illness
Gen. Stat. § 15A-1001
defect he is unable to
the nature and
of the proceedings
him, to comprehend
own situation in reference
the proceedings, or to assist
his defense in a rational or
Gen. Laws §§ 40.1-5.3-6
ill or mentally
Code Ann. 44-23-220
Code § 19.1-177 (1983)
States Which Have Recently Repealed Statutes, Leaving Case Law Which
Supports the Common Law Rule:
v. People, 156 P. 800,
(Colo. 1916) ("insane").
v. Commonwealth, 259
25, 27 (Ky. 1923)
re Lang, 71 A. 47, 48 (N.J.
(if prisoner is "capable
understanding the nature
object of the proceedings
on against him, if he
comprehends his own
in reference to such
and can conduct
defense in a rational
he is . . . deemed to
sane, although on some
subjects his mind may
deranged or unsound")
trial judge's jury
parte Morris, 257 S.W.
(Tex. Crim. App. 1924)
[*107] Note: Nine states, Alaska, Hawaii, Iowa, Maine,
Michigan, Minnesota, North Dakota, West Virginia, and Wisconsin, have no death
penalty. Two states, Idaho and New Hampshire, have a death
penalty but no law relating to competency for execution. Two
states, Oregon and South Dakota, were undetermined.
n1. Musselwhite v. State, 60 So. 2d 807, 811 (Miss. 1952).
n2. See Appendix for citations.
n3. Since the 1950's, drugs have become increasingly important in the
treatment of psychiatric disorders. See, e.g., Klerman, Neuroleptics: Too
Many or Too Few?, in Rational Psychopharmacotherapy and the Right to
Treatment 1, 3 (F. Ayd ed. 1975); Crane, Clinical Psychopharmacology in
its 20th Year, 181 Science 124-25 (1973) ("In the last 15 years,
neuroleptic agents have replaced most forms of treatment for psychoses and
other serious mental ailments.").
A neuroleptic drug or agent is one which affects the nervous system so as
to produce sedative, analgesic, and tranquilizing effects. 3 J. Schmidt,
Attorneys' Dictionary of Medicine N-41 (1985). Psychotropic drugs comprise
a broader category of medications which affect an individual's mental
functions, including the subconscious thought processes. See id. at P-301,
P-307; Gutheil & Appelbaum, "Mind Control," "Synthetic
Sanity," "Artificial Competence," and Genuine Confusion:
Legally Relevant Effects of Antipsychotic Medication, 12 Hofstra L. Rev.
77, 83 (1983). Neuroleptic and psychotropic medications which are
frequently administered to persons suffering from psychosis have been
referred to as antipsychotic drugs. See infra note 48; see generally
Winick, Psychotropic Medication and Competence to Stand Trial, 1977 Am. B.
Foundation Research J. 769 (1977). Some common psychotropic medications
are sold under the trade names Haldol, Thorazine, Prolixin, Mellaril, and
Stelazine. See Winick, Psychotropic Medication, 1977 Am. B. Foundation
Research J., at 778. See generally Physicians' Desk Reference (Med.
Economics C. 40th ed. 1986).
n4. See Bureau of Justice Statistics, U.S. Dep't of Justice, Bulletin,
Capital Punishment 1984 at 7 (1985).
n5. 408 U.S. 238 (1972).
n6. 428 U.S. 153 (1976).
n7. Pace of Executions in U.S. Quickens, N.Y. Times, Dec. 13, 1984, at
A18, col. 1.
n8. Telephone interview with Richard Brody, Director of Research, Capital
Punishment Project, NAACP Legal Defense Fund (May 13, 1986).
n9. Solesbee v. Balkcom, 339 U.S. 9, 14 (1950) (Frankfurter, J.,
n10. See, e.g., Gallemore & Panton, Inmate Responses to Lengthy Death
Row Confinement, 129 Am. J. Psychiatry 167 (1972).
n11. Id. ("One of the least common and possibly the most stressful of
all human experiences is the anticipation of death at a specific moment in
time and in a known manner.").
n12. 408 U.S. 238 (1972).
n13. Id. at 288-89 & n.36 (Brennan, J., concurring). See also
Solesbee, 339 U.S. at 14 (Frankfurter, J., dissenting); Commonwealth v.
O'Neal, 339 N.E.2d 676, 680-81 (Mass. 1975); Gottlieb, Capital Punishment,
15 Crime & Delinq. 1, 8-10 (1969).
n14. See, e.g., District Attorney v. Watson, 411 N.E.2d 1274, 1288-95
(Mass. 1980) (Liacos, J., concurring); Hopkinson v. State, 632 P.2d 79,
209-11 (Wyo. 1981) (Rose, C.J., concurring in part, dissenting in part),
cert. denied, 455 U.S. 922 (1982); Note, Mental Suffering Under Sentence
of Death: A Cruel and Unusual Punishment, 57 Iowa L. Rev. 814 (1972).
n15. See, e.g., Bluestone & McGahee, Reaction to Extreme Stress:
Impending Death by Execution, 119 Am. J. Psychiatry 393, 393 (1962);
Gallemore & Panton, supra note 10, at 167; Johnson, Under Sentence of
Death: The Psychology of Death Row Confinement, 5 Law & Psychology
Rev. 141, 142, 156 n.30 (1979); cf. Murton, Treatment of Condemned
Prisoners, 15 Crime & Delinq. 94 (1969) (describing successful
one-year experiment integrating capital inmates into general prison
n16. See, e.g., Hussain & Tozman, Psychiatry on Death Row, 39 J.
Clinical Psychiatry 183 (1978); Johnson, supra note 15, at 157-60;
Radelet, Vandiver & Berardo, Families, Prisons, and Men with Death
Sentences, 4 J. Fam. Issues 593, 595-600 (1983); West, Psychiatric
Reflections on the Death Penalty, 45 Am. J.
Orthopsychiatry 689, 694-95 (1975); cf. Inmates Release Hostages, Tulsa
World, Mar. 18, 1986, at A3, col. 1 (double-celling allegedly provoked
riot on death row); Death Row Double-Celled, Tulsa Tribune, Jan. 10, 1986,
at 6A, col. 5 (reporting voluntary double-celling at Oklahoma State
Penitentiary due to cell shortage occasioned by transfer of capital
inmates for security reasons). See generally B. Jackson & D.
Christian, Death Row (1980).
n17. See, e.g., Smith v. Coughlin, 748 F.2d 783 (2d Cir. 1984); Sinclair
v. Henderson, 435 F.2d 125 (5th Cir. 1970) (per curiam), on remand, 331 F.
Supp. 1123 (E.D. La. 1971).
n18. See Bluestone & McGahee, supra note 15, at 393.
n19. Id. at 394; see also Kaufman, Discussion, 129 Am. J. Psychiatry 171
(1972). In projective testing, the subject is shown ambiguous materials,
such as inkblots or incomplete sentences and drawings, and asked to say
what they make him think of or how his prevailing mood or thought patterns
are affected. The subject's responses are interpreted by a trained
examiner. The two most common forms of projective testing are the
Rorschach inkblot test and the thematic apperception test. 3 J. Schmidt,
supra note 3, at P-278.
n20. An ego defense mechanism is a conscious or unconscious psychic
maneuver by which a person defends himself, in his own mind, against
unpleasant or unacceptable feelings such as guilt, anxiety, and
frustration. 1 J. Schmidt, Attorneys' Dictionary of Medicine D-18 (1985).
n21. In denial, the ego refuses to recognize the facts of reality in order
to save itself from anxiety and mental pain. Id. at D-29.
n22. Bluestone & McGahee, supra note 15, at 395. Affect is an
immediately expressed and observed emotion. A feeling state becomes an
affect when it is observable, for example, as overall demeanor or tone and
modulation of voice. American Psychiatric Ass'n, Diagnostic and
Statistical Manual of Mental Disorders 353 (3d ed. 1981) [hereinafter
cited as DSM-III]. A flat affect is a diminished emotional reaction to a
particular situation. Therefore, a death row inmate who nonchalantly
comments, "So they'll kill me and that's that," is said to
display flat affect. The affect is isolated because feelings one would
normally associate with being on death row -- deep depression or anxiety
-- are not evident in the inmate's outward appearance.
n23. Id. at 395. The authors distinguished denial from the phenomenon they
observed in several subjects, who were so immersed in the present that
they experienced no emotions relating to the past or future.
n24. A person using projection denies having an unacceptable
characteristic or emotion and attributes it to another person. 3 J.
Schmidt, supra note 3, at P-278.
n25. A delusion is a false personal belief, not generally accepted by
other members of the person's culture, which is "based on incorrect
inference about external reality and firmly sustained in spite of what
everyone else believes and in spite of what constitutes incontrovertible
and obvious proof or evidence to the contrary." DSM-III, supra note
22, at 356. In delusions of persecution, the central theme is that a
person or group, usually the patient or someone close to him, is being
injured or plotted against by known or unknown enemies. Id. at 357; 1 J.
Schmidt, supra note 20, at D-26.
n26. Bluestone & McGahee, supra note 15, at 395. One inmate believed
he was the victim of a "Jewish plot" because the judge, district
attorney, and his court-appointed lawyer all were Jewish. This inmate
would grow depressed upon bad news of his appeal, and paranoid and
grandiose when a stay of execution was granted. Id. at 394. Furthermore,
he alternated his use of projection with introjection, a mental maneuver
by which a person turns upon himself animosity or hostility felt toward
another. See 2 J. Schmidt, Attorneys' Dictionary of Medicine I-88 (1984).
Bluestone and McGahee noted in some subjects "an almost quantitative
reciprocal relationship between the use of projection and introjection so
that they are either overly paranoid or depressed." Bluestone &
McGahee, supra note 15, at 395.
n27. Obsessive rumination is a neurotic state marked by preoccupation with
particular, frequently trivial, thoughts. 3 J. Schmidt, supra note 3, at
O-5. Neurosis is the less serious of the two major mental disorders, the
other being psychosis. See infra note 48. Usually caused by an
unsuccessful attempt to resolve subconscious emotional conflicts, neurosis
frequently manifests itself in impairment of judgment and thought,
although generally there is no appreciable degeneration of the personality
or loss of understanding of external reality. Id. at N-45; see also
DSM-III, supra note 22, at 9-10, 364-65.
n28. Bluestone & McGahee, supra note 15, at 395-96. For example, one
prisoner spoke for an hour about whether a pronoun in a legal document
should be "who" or "whom." Id. The two inmates who
were obsessed with religion both had accomplices who were involved in
their crimes and received the death penalty, although
neither accomplice had killed anyone. Bluestone and McGahee theorized that
the inmates' guilt feelings about involving their confederates were
blunted by this preoccupation with religion. Id. at 396.
n29. Id. at 393-95; see also Kaufman, supra note 19, at 171.
n30. Gallemore & Panton, supra note 10, at 167.
n31. The MMPI is a questionnaire administered primarily to mental
patients. It consists of 550 questions in the form of negative and
positive statements pertaining to a variety of personality aspects, such
as general health, sexual attitudes, political attitudes, and many
psychopathological items pertinent to psychiatric diagnosis and treatment.
The subject is asked to answer each question in one of three ways:
"true" if he thinks the item applies to him and
"false" if it does not; if he cannot determine whether it is
true or false he indicates an inability to answer true or false. Following
administration of the questionnaire, the subject's responses are
interpreted according to nine MMPI psychopathological scales which include
depression, hysteria, paranoia, and schizophrenia. Comprehensive Textbook
of Psychiatry 528-29 (A. Freedman & H. Kaplan eds. 1967).
n32. The Beta Intelligence Test is designed to evaluate the mental level
or capacity of subjects who are unable to read English. 1 J. Schmidt,
supra note 20, at B-41.
n33. Gallemore & Panton, supra note 10, at 168.
n34. Id. at 170.
n35. Kaufman, supra note 19, at 171.
n36. See R. Johnson, Condemned to Die: Life Under Sentence of Death 94
(1981); see also id. at 98 n.10. The sequence distilled by Professor
Johnson is consistent with Gallemore and Panton's finding that even though
the long-term death row inmates utilized less denial than Bluestone and
McGahee's group, they resorted to projection more frequently. Thus, the
long-term prisoners increasingly attributed their predicament to
persecution by law enforcement, judicial, and correctional agents. See
Gallemore & Panton, supra note 10, at 170.
n37. See, e.g., Pleas Fail to Prevent Execution, Tulsa Tribune, Jan. 10,
1986, at 1A, col. 2 (final statement of Terry James Roach to family and
fellow death row inmates: "I leave you comfortable that I've been
forgiven in my sins, just as I have forgiven those who have done this to
me."); Florida Executes Killer of Officer, N.Y. Times, Jan. 31, 1985,
at A21, col. 1 (James David Raulerson said execution made prison
superintendent a murderer); Killer of Teen-Agers is Executed in Carolina,
N.Y. Times, Jan. 12, 1985, at 42, col. 3 (Joseph Carl Shaw, addressing the
governor: "Killing is wrong when I did it. It is wrong when you do
it. I hope you have the courage and the moral strength to stop the
killing. I have no bitterness toward anyone. May God bless and forgive you
all."); Killer Executed in S.C., Pittsburgh Press, Jan. 11, 1985, at
A5, col. 1 (Shaw's apology to his victims' families); Georgian, Asserting
Innocence, Put to Death, N.Y. Times, Jan. 10, 1985, at A19, col. 1
(Maintaining his innocence, Roosevelt Green said: "It's evident now
that liberty and justice for all is not a synonym for what's about to
happen to me. I have nothing against anyone. I love the Lord and I hope
you love Him too."); Louisiana Killer Is Put to Death, N.Y. Times,
Dec. 29, 1984, at 5, col. 1 (Robert Lee Willie to victim's parents:
"I hope you get some relief from my death. Killing people is wrong.
That's why you've put me to death. It makes no difference whether it's
citizens, countries or governments. Killing is wrong.").
n38. 752 F.2d 526 (11th Cir.), cert. granted, 106 S. Ct. 566 (1985) (No.
85-5542) (argued Apr. 22, 1986).
n39. 459 So. 2d 316 (Fla. 1984).
n40. Brief for Petitioner-Appellant at 2-8, Ford, 752 F.2d 526 (No.
n41. See Letter from Emanuel Tanay, M.D., to William J. Sheppard, Esq.
(Nov. 14, 1984) [hereinafter cited as Tanay letter].
n42. Sherrill, In Florida, Insanity Is No Defense, 1984 The Nation, 551,
555-56 (quoting Scharlette Holdman, Director, Florida Clearinghouse for
n43. Brief for Petitioner-Appellant at 4, Ford, 752 F.2d 526.
n44. Driven Crazy on Death Row?, Tallahassee Democrat, Dec. 9, 1985, at
1B, col. 2. Fla. Stat. § 922.07 (1985) proscribes execution of the
mentally incompetent; most states which impose the death penalty
have similar provisions. See Appendix.
n45. Fla. Stat. § 922.07(1) (1985).
n46. See Brief for Petitioner-Appellant at 4-8, Ford, 752 F.2d 526.
n47. One reporter gave this description of Ford's behavior at that press
conference: "Hello Satan, hello Satan, turn them back," Ford
began. Then he spoke for a bit about David and Goliath and force fields
and, for no apparent reason, began to laugh. He told one questioner that
he had not spoken to his mother because she was traveling on "flying
saucer number 210." Finally, a reporter asked him whether he was
acting crazy. "God told me to act crazy," he said, "because
you all have been acting crazy to me."
Is He Sane Enough To Die?, Newsweek, June 11, 1984, at 69.
n48. See letter from Walter E. Afield, M.D., to Governor Bob Graham (Jan.
19, 1984) (on file, Florida State University Law Review) (Ford's behavior
did not fit any standard description but was labeled psychotic.)
[hereinafter cited as Afield letter]; Letter from Umesh M. Mhatre, M.D.,
to Governor Bob Graham (Dec. 28, 1983) (Ford was suffering from psychosis
with paranoia.) [hereinafter cited as Mhatre letter].
Psychosis is a mental disorder in which a person's personality is much
more seriously affected than in neurosis. See supra note 27. Psychosis is
characterized by gross impairment in reality testing. "[T]he
individual incorrectly evaluates the accuracy of his perceptions and
thoughts and makes incorrect inferences about external reality, even in
the face of contrary evidence." Delusions or hallucinations,
unaccompanied by insight into their pathological nature, indicate
psychosis. DSM-III, supra note 22, at 367; see also 3 J. Schmidt, supra
note 3, at P-306 to P-307.
n49. See letter from Peter B.C.B. Ivory, M.D., to Governor Bob Graham
(Dec. 20, 1983) (on file, Florida State University Law Review) (Ford's
disorder was severe but appeared contrived and recently learned.)
[hereinafter cited as Ivory letter].
n50. Letter from Harold Kaufman, M.D., to Richard H. Burr, Esq. (Dec. 14,
1983) (on file, Florida State University Law Review) (possibility that
Ford could have lied or put on a performance was highly unlikely).
n51. See Affidavit of George W. Barnard, M.D. (May 21, 1984) (on file,
Florida State University Law Review) [hereinafter cited as Barnard
affidavit]. Dr. Barnard intimated that the examination of Ford by the
three psychiatrists appointed by Governor Graham amounted to nothing more
than a perfunctory mission in a vast bureaucratic machine. Id. at 6-7.
n52. Tanay letter, supra note 41, at 1-5.
n53. See Petition for Writ of Habeas Corpus at 6, Winegeart ex rel. Alvord
v. Wainwright (M.D. Fla., filed Nov. 25, 1984).
n54. Id. at 6.
n55. Id. at 6-7.
n56. Like most death penalty cases in which an inmate
furiously pursues post-conviction relief, Alvord's case was characterized
by a myriad of appeals in both state and federal courts. See Alvord v.
State, 459 So. 2d 316 (Fla. 1984) (per curiam), for a complete procedural
history of the case. As of this writing, the final action taken in this
case was an executive order by Governor Bob Graham on Nov. 29, 1984,
staying the execution of Gary Eldon Alvord. Fla. Exec. Order No. 84-222
(Nov. 29, 1984).
n57. See letter from William Sheppard, Esq., to Governor Bob Graham (Nov.
16, 1984) (on file, Florida State University Law Review).
n58. See letter from Peter B.C.B. Ivory, M.D., Gilbert N. Ferris, M.D.,
and Umesh M. Mhatre, M.D., to Honorable Bob Graham (Nov. 26, 1984) (on
file, Florida State University Law Review) [hereinafter cited as Ivory,
Ferris & Mhatre letter].
n59. Michael Radelet and George Barnard report that:
We were able to identify only one case in which a death row inmate in
Florida was found incompetent to be executed. Guy H. Eoff killed his wife
and attempted suicide on April 24, 1946, in Belle Glade. He was sentenced
to death on July 31, 1946. Psychiatric testimony placed his mentality as
that of a child between 10 years old to early adolescence, but the
psychiatrist found him sane and competent to stand trial. A few hours
after being condemned, Eoff again attempted suicide. He was then found
incompetent for execution, and confined to a mental hospital until
November, 1965. The hospital staff then determined that his competency had
been restored, and he was returned to the prison for execution. On
September 14, 1965 - after nearly 20 years of living under a death
sentence - the governor commuted the sentence to life imprisonment.
M. Radelet & G. Barnard, Ethics and the Psychiatric Determination of
Competency to be Executed 30 n.40 (Nov. 20, 1984) (unpublished manuscript)
(citing Palm Beach Post, Sept. 7, 1966, at 4, col. 3, and Sept. 15, 1966,
at 8, col. 2).
In 1979, Governor Graham ordered a psychiatric examination of Alvord to
determine whether he was competent to be executed. On advice of counsel,
Alvord invoked his fifth amendment privilege against self-incrimination
and declined to be examined. Id.
n60. 594 F. Supp. 949 (M.D. Tenn. 1984).
n61. See Gilmore v. Utah, 429 U.S. 1012, 1013 (1976); see also infra text
accompanying notes 174-77.
n62. Harries, 594 F. Supp. at 954.
n64. Id. at 956.
n65. Id. at 955.
n66. Id. at 956.
n67. Id. at 955.
n68. Id. at 961. The court also found that, even if Harries had waived his
remedies voluntarily, the conditions on death row violated the inmate's
"Eighth Amendment right to die with dignity." Id. at 962.
n69. An acute illness has a sudden onset and a short but severe course. 1
J. Schmidt, supra note 20, at A-73. Illness which is chronic follows a
prolonged course although it may be less severe. Id. at C-165.
n70. By situational psychosis the author means an acute mental disorder
which is induced by specific environments, such as the adverse conditions
accompanying death row confinement. See supra note 48 for a general
definition of psychosis.
n71. Elisabeth Kubler-Ross found that patients dealing with their
impending deaths often pass through five stages: denial and isolation,
anger, bargaining, depression, and acceptance. See E. Kubler-Ross, On
Death and Dying 34-121 (1967). Mental health professionals applying her
approach to a death row population would seek to help the inmates through
these psychological stages in order to achieve psychological acceptance of
their impending executions.
n72. See National Medical Ass'n Section on Psychiatry and Behavioral
Sciences, Position Statement on the Role of the Psychiatrist in Evaluating
and Treating "Death Row" Inmates 3-4 (undated) [hereinafter
cited as National Medical Ass'n Position Statement].
n73. See Tanay letter, supra note 41, at 1-7.
n74. Id. at 7. Alvord was convicted of three counts of first-degree murder
and sentenced to death in 1974. Those convictions were affirmed by the
Florida Supreme Court in Alvord v. State, 322 So. 2d 533 (Fla. 1975),
cert. denied, 428 U.S. 923 (1976).
n75. See A. Stone, Law, Psychiatry, and Morality 41-53 (1984).
n76. See supra text accompanying notes 52-54.
n77. See, e.g., M. Radelet & G. Barnard, supra note 59, at 5:
Confusion surrounding the application of this law is in part attributable
to a lack of agreement surrounding the purpose of capital punishment. That
is, the answer to the question of why some prisoners should not be
executed is dependent upon society's answer to the question of why others
should be executed and what procedures are necessary to insure the
legitimacy of the capital punishment process.
n78. Cf. Hazard & Louisell, Death, the State, and the Insane: Stay of
Execution, 9 UCLA L. Rev. 381, 383 (1962) ("[O]nly when [the
exemption's] importance is correctly gauged can we decide what degree of
procedural thoroughness should accompany application of the rule.").
n79. 339 U.S. 9, 17-19 (1950) (Frankfurter, J., dissenting).
n80. See Hazard & Louisell, supra note 78, at 383.
n81. See, e.g., Model Penal Code § 4.01 (Proposed Official Draft 1962).
See generally ABA Standards for Criminal Justice 7-6.1-7-6.10 (2d ed.
n82. Dusky v. United States, 362 U.S. 402 (1960) (per curiam).
n83. Sieling v. Eyman, 478 F.2d 211, 214-15 (9th Cir. 1973); Schoeller v.
Dunbar, 423 F.2d 1183 (9th Cir.), cert. denied, 400 U.S. 834 (1970).
n84. Saddler v. United States, 531 F.2d 83, 86 (2d Cir. 1976) (per
n85. Gilmore v. Utah, 429 U.S. 1012 (1976); Rees v. Peyton, 384 U.S. 312
(1966) (per curiam), held without action on petition for cert., 386 U.S.
989 (1968); see also infra text accompanying notes 175-178.
n86. 1 M. Hale, Pleas of the Crown 34-35 (1736); see also 4 W. Blackstone,
n87. See, e.g., Hazard & Louisell, supra note 78, at 383-84.
n88. See West, supra note 16, at 695.
n89. Weihofen, A Question of Justice: Trial or Execution of an Insane
Defendant, 37 A.B.A. J. 651, 651-52 (1951).
n90. See, e.g., 4 W. Blackstone, supra note 86, at *395-96. The often
cited Latin equivalent is furiosus solo furore punitur.
n91. Hazard & Louisell, supra note 78, at 384.
n92. See Royal Commission on Capital Punishment, 1949-1953, at 128, 157-58
n93. Solesbee, 339 U.S. at 18 (Frankfurter, J., dissenting) (quoting J.
Hawles, Remarks on the Tryal of Charles Bateman, in 3 STATE-TRYALS 651,
n94. Caritativo v. California, 357 U.S. 549, 559 (1958) (Frankfurter, J.,
n95. 60 So. 2d 807 (Miss. 1952).
n96. Id. at 811.
n97. Hazard & Louisell, supra note 78, at 387 & n.21 (analyzing
Aquinas, Treatise on Angels, in Summa Theologica; Aquinas, Summa Contra
Gentiles, bk. 3, ch. 146).
n98. Id. at 388 (quoting Gowers, a Life for a Life? (1956)).
n99. Hazard & Louisell, supra note 78, at 388.
n100. Weihofen, supra note 89, at 652.
n101. U.S. Const. amend. I ("Congress shall make no law respecting an
establishment of religion, or prohibiting the free exercise thereof . . .
."). See generally L. Tribe, American Constitutional Law §§
14-1-14-13 (1978 & 1979 Supp.).
n102. Sociopathy is a common term for an antisocial personality disorder,
which includes individuals who are always in trouble, do not learn from
experience, lack responsibility and judgment, show emotional immaturity,
and continuously rationalize their behavior. See 3 J. Schmidt, supra note
3, at S-108. Adult sociopaths are characterized by criminality, aggressive
sexual behavior, substance abuse, and the failure to sustain work or
family responsibilities. DSM-III, supra note 22, at 317-21.
n103. See infra note 128.
n104. E. Coke, Third Institute 6 (1680).
n105. Solesbee, 339 U.S. at 17-18 (Frankfurter, J. dissenting) (quoting J.
Hawles, Remarks on the Tryal of Charles Bateman, in 3 State Tryals 651,
n106. Weihofen, supra note 89, at 652.
n107. Hazard & Louisell, supra note 78, at 385.
n109. Solomon, Capital Punishment as Suicide and as Murder, 45 Am. J.
Orthopsychiatry 701 (1975) (arguing that capital punishment is not a
deterrent but may contribute to the incidence of murder); see, e.g., West,
supra note 16, at 692.
n110. E. Coke, supra note 104, at 6.
n111. Hazard & Louisell, supra note 78, at 384.
n112. Weihofen, supra note 89, at 652.
n113. Phyle v. Duffy, 208 P.2d 668, 676-77 (Cal. 1949( (en banc) (Traynor,
J., concurring); see also Bingham v. State, 169 P.2d 311, 315 (Okla. Crim.
App. 1946) ("Any investigation of the mental condition of the
prisoner is for the sole purpose of determining whether it would be
consistent with public decency and propriety to take away the life of a
person who was not sane enough to realize what was being done.").
n114. See infra text accompanying notes 174-75.
n115. The prevalence of such defense mechanisms on death row, religious or
otherwise, has been well documented. See, e.g., Bluestone & McGahee,
supra note 15, at 395-96; Gallemore & Panton, supra note 10, at
170-71; Hussain & Tozman, supra note 16, at 187; see also supra notes
15-58 and accompanying text and infra text accompanying notes 162-63.
n116. 370 N.E.2d 417 (Mass. 1977).
n117. Id. at 430 (quoting the guardian ad litem).
n118. Id. at 432.
n119. M. Radelet & G. Barnard, supra note 59, at 8.
n120. H.L.A. Hart, Punishment and Responsibility 9 (1968).
n121. Hazard & Louisell, supra note 78, at 387.
n122. M. Radelet & G. Barnard, supra note 59, at 5.
n123. 60 So. 2d 807 (Miss. 1952).
n124. Musselwhite, 60 So. 2d at 809.
n125. Gregg v. Georgia, 428 U.S. 153, 183 (1976) (plurality opinion).
n126. Note, Incompetency to Stand Trial, 81 Harv. L. Rev. 454, 459 (1967);
see also Ford, 752 F.2d at 531 (Clark, J., dissenting).
n127. Hazard & Louisell, supra note 78, at 387 (footnote omitted).
n128. Ehrenzweig, A Psychoanalysis of the Insanity Plea -- Clues to the
Problems of Criminal Responsibility and Insanity in the Death Cell, 73
Yale L.J. 425, 435-36 (1964).
n129. Id. at 437-38.
n130. Id. at 433-39.
n131. Hussain & Tozman, supra note 16, at 187.
n132. See, e.g., Ehrenzweig, supra note 128, at 439.
n133. M. Radelet & G. Barnard, supra note 59, at 7.
n134. G.W.F. Hegel, The Philosophy of Right 107, reprinted in
Philosophical Perspectives on Punishment (G. Ezorzsky ed. 1972); see also
Moore, Legal Conceptions of Mental Illness, in Mental Illness: Law and
Public Policy 25 (B. Brody & H. Englehardt eds. 1980) ("By
attaching legal consequences to conduct, the law necessarily regards
individuals as responsible agents.").
n135. Freedman, Competence, Marginal and Otherwise, 4 Int'l J.L. &
Psychiatry 53, 55 (1981).
n136. Id. at 58-59.
n137. Id. at 59.
n138. See, e.g., A. Stone, supra note 75, at 3-36.
n139. See Roth, Meisel & Lidz, Tests of Competency to Consent to
Treatment, 134 Am. J. Psychiatry 279 (1977) ("THE CONCEPT OF
COMPETENCY . . . is social and legal and not merely psychiatric or
n140. See infra text accompanying notes 290-95.
n141. 339 U.S. 9 (1950).
n142. Id. at 14 (Frankfurter, J., dissenting).
n143. Hazard & Louisell, supra note 78, at 394 & n.44.
n144. See Feltham, The Common Law and the Execution of Insane Criminals, 4
Melb. U.L. Rev. 434, 467 (1964); Bingham v. State, 169 P.2d 311, 314-15
(Okla. Crim. App. 1946).
n145. For a national survey of each state's standard of competency for
execution, see Appendix.
n146. Alabama: Ala. Code § 15-16-23 (1982); Arizona: Ariz. Rev. Stat.
Ann. §§ 13.4021-.4024 (1978); Arkansas: Ark. Stat. Ann. § 43-2622
(1977); California: Cal. Penal Code §§ 3700-3704.5 (West 1982);
Colorado: Bulger v. People, 156 P. 800, 802 (Colo. 1916); Connecticut:
Conn. Gen. Stat. Ann. § 54-101 (West 1985); Georgia: Ga. Code Ann. §§
17-10-60 to 17-10-63 (1982); Kansas: Kan. Stat. Ann. § 22-4006 (1981);
Kentucky: Barrett v. Commonwealth, 259 S.W. 25, 27 (Ky. 1923); Louisiana:
State v. Allen, 15 So. 2d 870, 871 (La. 1943); Maryland: Md. Ann. Code
art. 27, § 75(c) (Supp. 1985); Massachusetts: Mass. Gen. Laws Ann. ch.
279, § 62 (West Supp. 1985); Mississippi: Miss. Code Ann. § 99-19-57
(Supp. 1985); Nebraska: Neb. Rev. Stat. §§ 29.2537-.2539 (1979); Nevada:
Nev. Rev. Stat. §§ 176.425-.455 (1983); New Mexico: N.M. Stat. Ann. §§
31-14-4 to 31-14-7 (1984); New York: N.Y. Correct. Law §§ 655-657
(McKinney Supp. 1984.); Ohio: Ohio Rev. Code Ann. §§ 2949.28-.30 (Page
1982); Oklahoma: Okla. Stat. Ann. tit. 22, §§ 1005-1008 (West 1958);
Tennessee: Jordan v. State, 135 S.W. 327, 329 (Tenn. 1911); Texas: Ex
Parte Morris, 257 S.W. 894 (Tex. Crim. App. 1924); Washington: State v.
Davis, 108 P.2d 641, 651 (Wash. 1940; Wyoming: Wyo. Stat. Ann. §§
7-13-901 to 7-13-902 (Supp. 1985); see also Delaware: Del. Code Ann. tit.
11, § 406 (1979) ("mentally ill"); Indiana: Ind. Code Ann. §
11-10-4-3 (1) (Burns 1981) ("mentally ill and in need of care and
treatment by the department of mental health or in a mental health
facility"); Montana: Mont. Code Ann. § 46-19-201 (1985) ("lacks
mental fitness"); South Carolina: S.C. Code Ann. § 44-23-220 (Law.
Co-op. 1985) ("mentally ill or mentally retarded").
n147. Accord Note, Insanity of the Condemned, 88 Yale L.J. 533, 540 &
n148. See Fla. Stat. § 922.07 (1985).
n149. See Georgia: 1976 Op. Att'y Gen. Ga. 223, 225 (available on LEXIS,
States library, GAAG file); North Carolina: N.C. Gen. Stat. § 15A-1001
(a) (1983); see also Missouri: Mo. Ann. Stat. § 552.060 (1) (Vernon Supp.
1986) ("[a]s a result of mental disease or defect, he lacks capacity
to understand the nature and purpose of the punishment about to be imposed
upon him or matters in extenuation, arguments for executive clemency or
reasons why the sentence should not be carried out.").
n150. See Illinois: People v. Geary, 131 N.E. 652, 655-56 (Ill. 1921); New
Mexico: In re Smith, 176 P. 819, 823 (N.M. 1918); Ohio: In re Keaton, 250
N.E.2d 901, 906 (Ohio Ct. App. 1969); Oklahoma: Bingham v. State, 169 P.2d
311, 314-15 (Okla. Crim. App. 1946) (citing with approval In re Smith, 176
P. at 823.).
n151. Utah Code Ann. § 77-19-13 (1982).
n152. See Commonwealth v. Moon, 117 A.2d 96, 102 (Pa. 1955) (emphasis in
original). Note the similarity of this test in particular to a common
civil commitment criterion that a person "likely to cause harm to
himself or to suffer substantial mental or physical deterioration"
may, in certain cases, be civilly committed. See Stromberg & Stone, A
Model State Law on Civil Commitment of the Mentally Ill, 20 Harv. J. on
Legis. 275, 330 (1983).
n153. See Bingham, 169 P.2d at 314 (dictum).
n154. See M. Radelet & G. Barnard, supra note 59, at 10-16.
n155. The meaning of "understanding" in the context of informed
consent to medical care "may be so complex as to defy definition or
description." See Meisel & Roth, Toward an Informed Discussion of
Informed Consent: A Review and Critique of the Empirical Studies, 25 Ariz.
L. Rev. 265, 286 (1983); see also id. at 286-309.
n156. M. Radelet & G. Barnard, supra note 59, at 10-11. Goode died in
Florida's electric chair in 1984 for raping, torturing, and murdering a
10-year-old boy. The difference between cognitive and affective
understanding can be demonstrated by Goode's testimony about his ghastly
I have no remorse whatsoever. I'm extremely proud of knowing that I,
Arthur Frederick Goode, was the last person to see Jason alive or any of
the other victims which I have murdered. Also, that I was the last person
who heard the sweet, sexy voice. I was also the last person who had kissed
his precious warm lips before I, Arthur Goode, had murdered him. These are
some of the things I'm proud of. Jason was so cute and sexy-looking that I
raped him while I beat him with my belt. . . . I would have the nerve to
murder a little boy right here in this courtroom, in front of this jury[,]
just to prove that I would do such a thing, only if it was authorized by
the Court, which I know it is not.
See Sherrill, supra note 42, at 553 (quoting trial transcript).
n157. See supra note 22 and accompanying text.
n158. M. Radelet & G. Barnard, supra note 59, at 11-12; see also supra
note 38 and accompanying text.
n159. Freedman, supra note 135, at 64.
n160. M. Radelet & G. Barnard, supra note 59, at 11.
n161. See Brief for Petitioner-Appellant at 4, Ford, 752 F.2d 526.
n162. Bluestone & McGahee, supra note 15, at 394-95.
n163. Id. at 395.
n164. Weihofen, supra note 89, at 652. Accord Hazard & Louisell, supra
note 78, at 394-95; Comment, Execution of Insane Persons, 23 S. Cal. L.
Rev. 246, 256 (1959).
n165. See Brief for Petitioner-Appellant at 4, Ford, 752 F.2d 526.
n166. Dusky v. United States, 362 U.S. 402, 402 (1960) (per curiam).
n167. See, e.g., Williams v. Bordenkircher, 696 F.2d 464, 466-67 (6th
Cir.), cert. denied, 461 U.S. 916 (1983); Schoeller v. Dunbar, 423 F.2d
1183, 1194 (9th Cir.) (Hufstedler, J., dissenting), cert. denied, 400 U.S.
n168. Saddler v. United States, 531 F.2d 83, 86 (2d Cir. 1976) (per
curiam). Legally, allocution is the formal inquiry of the prisoner by the
court as to "whether he has any legal cause to show why judgment
should not be pronounced against him on verdict of conviction."
Black's Law Dictionary 70 (5th ed. 1979).
n169. J. Kantor, Competency to be Executed 1-2 (undated) (unpublished
private letter opinion) (on file, Florida State University Law Review)
(discussing T. Hobbes, Leviathan, Part Two, XXVII, XXVIII).
n170. J. Kantor, supra note 169, at 4-5.
n171. Feltham, supra note 144, at 467-68.
n173. Solesbee v. Balkcom, 339 U.S. 9, 20 n.3 (Frankfurter, J.,
dissenting) (quoting In re Smith, 176 P. at 823).
n174. 384 U.S. 312 (1966) (per curiam), held without action on petition
for cert., 386 U.S. 989 (1967).
n175. Id. at 314.
n176. The events leading up to Gilmore's execution are narrated in N.
Mailer, The Executioner's Song (1979).
n177. Gilmore v. Utah, 429 U.S. 1012, 1013 (1976). Gilmore has been
criticized as lowering the Rees threshold of competency to waive review.
See Note, The Eighth Amendment and the Execution of the Presently
Incompetent, 32 Stan. L. Rev. 765, 771-72, 794-96 (1980).
n178. For example, an inmate who volunteers for execution when the state's
death penalty statute has not yet been upheld on eighth
amendment grounds raises substantial questions because society has an
independent stake in not inflicting cruel or unusual punishments. The
meaning of voluntariness or competence in this context is also unclear. A
capital inmate's desire for death may be based upon suicidal wishes either
preceding the crime or following his death row confinement. Whether the
government should participate at all in these "state-administered
suicides" is questionable. The propriety of next friend intervention
on behalf of the inmate also has been litigated. For comprehensive
discussions of these questions, see generally Kaine, Capital Punishment
and the Waiver of Sentence Review, 18 Harv. C.R.-C.L. L. Rev. 483 (1983);
Strafer, Volunteering for Execution; Competency, Voluntariness and the
Propriety of Third Party Intervention, 74 J. Crim. L. & Criminology
860 (1983); Note, supra note 147. See also Hays v. Murphy, 663 F.2d 1004
(10th Cir. 1981); infra text accompanying notes 266-70; and discussion of
Groseclose ex rel. Harries v. Dutton, 594 F. Supp. 949 (M.D. Tenn. 1984),
supra text accompanying notes 60-68.
n179. See Hays v. Murphy, 633 F.2d 1004, 1008-14 (10th Cir. 1981) (holding
that psychiatric evaluations to determine inmate's competency to waive
post-conviction review were inadequate, considering the irreversible
nature of the death penalty).
n180. See supra text accompanying notes 159-63.
n181. 176 P. 819 (N.M. 1918). See supra text accompanying note 173.
n182. Gray v. Lucas, 710 F.2d 1048, 1053 (5th Cir.), cert. denied, 461
U.S. 910 (1983).
n183. U.S. Const. amend. VIII ("Excessive bail shall not be required,
nor excessive fines imposed, nor cruel and unusual punishments
n184. Caritativo v. California, 357 U.S. 549 (1958); Solesbee v. Balkcom,
339 U.S. 9 (1950); Phyle v. Duffy, 334 U.S. 431 (1948); Nobles v. Georgia,
168 U.S. 398 (1897). See also Wainwright v. Ford, 467 U.S. 1220, 1221 n.*
(1984) (plurality opinion) (In denying the state's application to vacate
the stay of execution, Justice Powell said that "[t]his Court has
never determined whether the Constitution prohibits execution of a
criminal defendant who currently is insane.").
n185. See Robinson v. California, 370 U.S. 660 (1962). When Solesbee was
decided, the due process clause was held to guarantee fundamental
procedural rights accompanying only determinations of guilt or innocence
and generally, for example, not to apply to sentencing proceedings,
Williams v. New York, 337 U.S. 241, 245-46 (1949) (there are inherent
differences, for due process purposes, between trial and post-conviction
procedures), or to punishment itself, Solesbee, 339 U.S. at 12.
n186. No. 85-5542 (U.S. argued Apr. 22, 1986), reviewing 752 F.2d 526
(11th Cir. 1985). The case was submitted to the Court shortly before this
Article went to press.
n187. For extensive analysis of this problem, see, e.g., Ford, 752 F.2d at
528-35 (Clark, J., dissenting); Brief for Petitioner-Appellant at 13-33,
45-59, Ford, 752 F.2d 526; Suggestion for Rehearing En Banc at 5-15, id.;
cf. Kaine, supra note 178, at 483 (discussing cases in which the defendant
refused to pursue post-conviction relief); Note, supra note 147, at
n188. 168 U.S. 398 (1897).
n189. Id. at 406.
n190. Id. at 407 (quoting Laros v. Commonwealth, 84 Pa. 200, 211 (1877)).
n191. Id. at 409.
n192. In 1948, the Court avoided the due process question by adverting to
the availability of further state remedies. See Ex parte Phyle, 186 P.2d
134, 139-40 (Cal. 1947), cert. dismissed sub nom. Phyle v. Duffy, 334 U.S.
431, reh'g denied, 334 U.S. 862 (1948). For discussion of this complex
litigation, see Hazard & Louisell, supra note 78, at 393 n.41.
n193. 339 U.S. 9 (1950).
n194. Id. at 11.
n195. Id. at 12.
n196. Id. at 14-26 (Frankfurter, J., dissenting).
n197. 357 U.S. 549 (1958) (per curiam).
n198. Caritativo v. Teets, 303 P.2d 339 (Cal. 1956) (en banc), aff'd sub
nom. Caritativo v. California, 357 U.S. 549 (1958). Accord People v.
Riley, 235 P.2d 381, 384-85 (Cal. 1951) (en banc); Ex parte Phyle, 186
P.2d 134, 139-40 (Cal. 1947), cert. dismissed, 334 U.S. 431 (1948).
n199. Caritativo v. California, 357 U.S. 549 (1958) (per curiam).
n200. Id. at 557 (Frankfurter, J., dissenting).
n201. Id. at 556-59.
n202. See generally L. Tribe, American Constitutional Law §§ 10-8 --
10-13 (1978) (overview of due process law).
n203. The continuing vitality of the various state procedures concerning
execution of the incompetent, especially in view of recent due process and
eighth amendment jurisprudence, is questioned in Note, supra note 147, at
n204. For a full discussion of the argument, see Brief for Petitioner at
36-48, Ford, 752 F.2d 526 (No. 84-5372); Brief for Petitioner-Appellant at
45-58, id.; Suggestion for Rehearing En Banc at 11-14, id.
n205. See, e.g., Escoe v. Zerbst, 295 U.S. 490 (1935); Ughbanks v.
Armstrong, 208 U.S. 481 (1908).
n206. See, e.g., Goldberg v. Kelly, 397 U.S. 254 (1970) (state could not
terminate welfare benefits without affording recipient opportunity for
evidentiary hearing prior to termination).
n207. 424 U.S. 319, 334-35 (1976). Accord Logan v. Zimmerman Brush Co.,
455 U.S. 422 (1982); Memphis Light, Gas & Water Div. v. Craft, 436
U.S. 1, 17-18 (1978); Dixon v. Love, 431 U.S. 105, 112-15 (1977).
n208. Brief for Respondent-Appellee at 39-49, Ford, 752 F.2d 526 (No.
n209. Brief for Petitioner-Appellant at 56, Ford, 752 F.2d 526. See also
Brief for Petitioner at 40, id.
n210. Woodson v. North Carolina, 428 U.S. 280, 305 (1976).
n211. Brief for Petitioner-Appellant at 58-59, Ford, 752 F.2d 526. See
also Radin, Cruel Punishment and Respect for Persons: Super Due Process
for Death, 53 S. Cal. L. Rev. 1143 (1980). The government's response to
this argument was simply that Solesbee controls the issue. Brief for
Respondent-Appellee at 49, Ford, 752 F.2d 526.
n212. Nobles v. Georgia, 168 U.S. 398, 407 (1897).
n213. See, e.g., Louisiana: State v. Allen, 15 So. 2d 870 (La. 1943);
Pennsylvania: Commonwealth v. Moon, 117 A.2d 96 (Pa. 1955); Tennessee:
Jordan v. State, 135 S.W. 327 (Tenn. 1911); Washington: State v. Davis,
108 P.2d 641 (Wash. 1940).
n214. Arizona: Ariz. Rev. Stat. Ann. § 13-4021 (1978); Arkansas: Ark.
Stat. Ann. § 43-2622 (1977); California: Cal. Penal Code § 3701 (West
1982); Connecticut: Conn. Gen. Stat. Ann. § 54-101 (1985); Kansas: Kan.
Stat. Ann. § 22-4006 (1981); Mississippi: Miss. Code Ann. § 99-19-57
(Supp. 1985); Missouri: Mo. Rev. Stat. § 552.060 (Supp. 1986); Nebraska:
Neb. Rev. Stat. § 29.2537 (1979); Nevada: Nev. Rev. Stat. § 176.425
(1983); New Mexico: N.M. Stat. Ann. § 31-14-4 (1984); Ohio: Ohio Rev.
Code Ann. § 2949.28 (Page 1982); Oklahoma: Okla. Stat. Ann. tit. 22, §
1005 (West 1958); South Carolina: S.C. Code Ann. § 44-23-220 (Law Co-op.
1985); Utah: Utah Code Ann. § 77-19-13(1) (1982); Wyoming: Wyo. Stat.
Ann. § 7-13-901 (Supp. 1985).
n215. Alabama: Ala. Code § 15-16-23 (1982); Illinois: Ill. Stat. Ann. ch.
38, § 1005-2-3(b) (Smith-Hurd 1982).
n216. Florida: Fla. Stat. § 922.07 (1985); Georgia: Ga. Code Ann. §
n217. N.C. Gen. Stat. § 15A-1002 (1983).
n218. See Delaware: Del. Code Ann. tit. 11, § 406 (1979); Indiana: Ind.
Code Ann. §§ 11-10-4-1 to 11-10-4-7 (Burns 1981); Maryland: Md. Ann.
Code art. 27, § 75(c) (Supp. 1985); Massachusetts: Mass. Gen. Laws Ann.
ch. 279, § 62 (West Supp. 1985); Montana: Mont. Code Ann. § 46-19-201
(1985); New York: N.Y. Correct. Law § 655 (McKinney Supp. 1984);
Virginia: Va. Code § 19.2-177 (1983).
n219. E.g., Arkansas: Ark. Stat. Ann. § 43-2622 (1977) ("reasonable
grounds"); Georgia: Ga. Code § 17-10-61 (1982) (same); Montana:
Mont. Code Ann. § 46-19-201 (1985) ("good reason"); Nevada:
Nev. Rev. Stat. § 176.425 (1983) (same); New Mexico: N.M. Stat. Ann. §
31-14-4 (1984) (same); Oklahoma: Okla. Stat. Ann. tit. 22, § 1005 (West
1958) (same); Utah: Utah Code Ann. § 77-19-13 (1982) (same).
n220. See, e.g., Caritativo v. California, 357 U.S. 549, 550 (1958)
(Harlan, J., concurring) (statute imposes duty upon warden continually to
evaluate sanity of capital inmates); McCorquodale v. Stynchcombe, 236
S.E.2d 486, 490 (Ga. 1977) (governor's denial of further action on
insanity claim not subject to judicial review); State ex rel. Johnson v.
Alexander, 49 P.2d 408, 413 (Utah 1935) (initiation of proceeding entirely
within discretion of statutorily designated officers); cf. Shank v.
Todhunter, 75 S.W.2d 382 (Ark. 1934) (warden's discretion to initiate
review will not be questioned absent an affirmative showing of abuse of
discretion or unquestioned neglect of duty); McCracken v. Teets, 262 P.2d
561, 563 (Cal. 1953) (to overcome presumption that warden fulfilled duty
to make sanity determination, and in order for mandamus to lie, inmate
must produce "substantial evidence" that warden did not perform
his duty); State v. Allen, 15 So. 2d 870, 873 (La. 1943) (trial court's
refusal to appoint a "lunacy commission" to determine capital
inmate's sanity not an abuse of discretion under the evidence, which
included affidavits, testimony, and the judge's extrajudicial observation
of the inmate).
n221. See supra note 213. At common law, typically, a jury was impaneled
to hear the claim. See Feltham, supra note 144, at 470. Accord Barrett v.
Commonwealth, 259 S.W. 25, 27 (Ky. 1923) (although right to jury trial is
not inherent, usually a jury is impaneled).
n222. See, e.g., California: Cal. Penal Code § 3700.5 (West 1982) (three
alienists from "medical staffs" of the Department of
Corrections); Connecticut: Conn. Gen. Stat. Ann. § 54-101 (1985)
("three reputable physicians"); Delaware: Del. Code Ann. tit.
11, § 406 (1979) (two "practicing physicians"); Florida: Fla.
Stat. § 922.07 (1985) ("three psychiatrists"); Georgia: Ga.
Code § 17-10-61 (1982) ("such expert physicians as the governor may
choose"); Indiana: Ind. Code Ann. § 11-10-4-3 (Burns 1981)
("psychiatrist"); Maryland: Md. Ann. Code art. 27, § 75(c)
(Michie Supp. 1985) ("medical examination"); Massachusetts:
Mass. Gen. Laws Ann. ch. 279, § 62 (West Supp. 1985) ("two
psychiatrists"); Mississippi: Miss. Code Ann. § 99-19-57(2)(a)
(Supp. 1985) (statute implies medical examination even though medical
examination not required); Missouri: Mo. Ann. Stat. § 552.060 (Vernon
Supp. 1986) ("physician"); Montana: Mont. Code Ann. § 46-14-202
(1985) ("at least one qualified psychiatrist"); Nevada: Nev.
Rev. Stat. § 176.425 (1983) ("two physicians, at least one of whom
shall be a psychiatrist"); North Carolina: N.C. Gen. Stat. §
15A-1002(b) (1983) ("one or more impartial medical experts" or
observation by a "State mental health facility"); South
Carolina: S.C. Code Ann. § 44-23-220 (Law Co-op. 1985) ("two
examiners designated by the Department of Mental Health or the Mental
Retardation Department or both"); Utah: Utah Code Ann. §
77-15-5 (1982) (examination by "two or more alienists" or
observation by the state hospital or another facility).
n223. Connecticut: Conn. Gen. Stat. Ann. § 54-101 (1985); Delaware: Del.
Code Ann. tit. 11, § 406 (1979); Indiana: Ind. Code Ann. § 11-10-4-2
(Burns 1981); South Carolina: S.C. Code § 44-23-220 (Law Co-op. 1985).
n224. Illinois: Ill. Ann. Stat. ch. 38, § 1005-2-3 (Smith-Hurd 1982);
Missouri: Mo. Ann. Stat. § 552.060 (Vernon Supp. 1986); Montana: Mont.
Code Ann. § 46-19-202 (1985); Nevada: Nev. Rev. Stat. § 176.455 (1983);
North Carolina: N.C. Gen. Stat. § 15A-1003 (1983); Utah: Utah Code Ann.
§ 77-19-13 (1982).
n225. Florida: Fla. Stat. § 922.07 (1985); Georgia: Ga. Code § 17-10-61
(1982); Maryland: Md. Ann. Code art. 27, § 75(c) (Supp. 1985).
n226. Mass. Gen. Laws Ann. ch. 279, § 62 (Supp. 1985).
n227. Arizona: Ariz. Rev. Stat. Ann. §§ 13-4021 to 13-4024 (1978);
California: Cal. Penal Code §§ 3700-3703 (1982); Oklahoma: Okla. Stat.
Ann. tit. 22, § 1005-1008 (West 1958); Wyoming: Wyo. Stat. Ann. §§
7-13-901 to 7-13-902 (Supp. 1985); see also People v. Riley, 235 P.2d 381
(Cal. 1951) (statutory proceeding does not purport to be a true
adversarial one with all common law trial safeguards but it is a special
proceeding of a civil nature; unanimous jury verdict not required).
n228. New York: N.Y. Correct. Law § 655 (McKinney Supp. 1984) (governor);
Virgina: Va. Code § 19.2-177 (1983) (commission).
n229. Arkansas: Ark. Stat. Ann. § 43-2622 (1977); Kansas: Kan. Stat. Ann.
§ 22-4006 (1981) (three out of four votes required); Nebraska: Neb. Rev.
Stat. § 29-2537 (1979) (two out of three votes required).
n230. See Alabama: Ala. Code § 15-16-23 (1982); New Mexico: N.M. Stat.
Ann. § 31-14-4 (1984); Ohio: Ohio Rev. Code Ann. § 2949.28 (Page 1982).
n231. E.g., Florida: Fla. Stat. § 922.07 (1985); Georgia: Ga. Code §
17-10-61 (1982); Kansas: Kan. Stat. Ann. § 22-4006 (1981); Maryland: Md.
Ann. Code art. 27, § 75(c) (Supp. 1985); Massachusetts: Mass. Gen. Laws
Ann. ch. 279, § 62 (West Supp. 1985); Nebraska: Neb. Rev. Stat. §
29-2537 (1979); Virginia: Va. Code § 19.2-177 (1983). Two other state
procedures may be ex parte, but it is difficult to tell from the statutes.
See Connecticut: Conn. Gen. Stat. Ann. § 54-101 (West 1985); Delaware:
Del. Code Ann. tit. 11, § 406 (1979).
n232. Alabama: Ala. Code § 15-16-23 (1982); Arizona: Ariz. Rev. Stat.
Ann. §§ 13-4021 to 13-4024 (1978); Illinois: Ill. Stat. Ann. ch. 38, §
1005-2-3 (Smith-Hurd 1982); Mississippi: Miss. Code Ann. § 99-19-57
(Supp. 1985); Missouri: Mo. Ann. Stat. § 552.060 (Vernon Supp. 1986); New
Mexico: N.M. Stat. Ann. § 31-14-4 (1984); Ohio: Ohio Rev. Code Ann. §§
2949.28-.30 (Page 1982); Oklahoma: Okla Stat. Ann. tit. 22, §§ 1005-1008
(West 1958); Wyoming: Wyo Stat. Ann. §§ 7-13-901 to 7-13-902 (1977).
n233. Indiana: Ind. Code Ann. § 11-10-4-3 (Burns 1981); Nevada: Nev. Rev.
STAT. § 176.435 (1983); North Carolina: N.C. Gen. Stat. §§ 15A-1001 to
15A-1002 (1983); Utah: Utah Code Ann. § 77-19-13 (1982).
n234. See People v. Riley, 235 P.2d 381, 386 (Cal. 1951); Leick v. People,
345 P.2d 1054, 1055 (Colo. 1959) (en banc); People v. Carpenter, 150
N.E.2d 100, 103 (Ill. 1958), cert. denied, 358 U.S. 887 (1958); People v.
Geary, 131 N.E. 652, 655 (Ill. 1921).
n235. Cf. Welch v. Beto, 355 F.2d 1016 (5th Cir.), cert. denied, 385 U.S.
839 (1966); State v. Allen, 15 So. 2d 870 (La. 1943).
n236. See, e.g., Lockett v. Ohio, 438 U.S. 586 (1978) (plurality opinion)
(requiring sentencing hearings in capital cases in which both sides may
introduce evidence of aggravating and mitigating circumstances).
n237. See Note, supra note 147, at 553.
n238. Id. at 555 (footnotes omitted).
n239. Id. at 556.
n240. American Psychiatric Ass'n, The Principles of Medical Ethics with
Annotations Especially Applicable to Psychiatry 72 (3d ed. 1981).
n241. 451 U.S. 454 (1981).
n242. Id. at 461-69; see also Miranda v. Arizona, 384 U.S. 436 (1966)
(prescribing warnings of which a criminal suspect or defendant must be
advised prior to custodial interrogation).
n243. Smith, 451 U.S. at 473.
n244. Even psychiatrists examining inmates at the behest of the defense
may be agents of the state if the prosecution may obtain the results of
defense examinations by means of reciprocal discovery or otherwise. See
American Psychiatric Ass'n, Psychiatry in the Sentencing Process 28 (1984)
[hereinafter cited as APA Sentencing Report]; cf. Fed. R. Crim. P. 16(b)
(if defense requests discovery, upon compliance, government may request
and defense must supply reciprocal discovery).
n245. APA Sentencing Report, supra note 244, at 16-17.
n246. Id. at 17.
n247. Accord Note, supra note 147, at 556-57; cf. APA Sentencing Report,
supra note 244, at 17 (defense counsel should always have notice of
psychiatric exams and can best explain many legal risks and benefits of
such exams to client).
n248. See Addington v. Texas, 441 U.S. 418, 429 (1979); Ennis &
Litwack, Psychiatry and the Presumption of Expertise: Flipping Coins in
the Courtroom, 62 Cal. L. Rev. 693 (1974); APA Sentencing Report, supra
note 244, at 21 (The limitations on psychiatric expertise "may result
from deficiencies in the examination . . . or from the current state of
psychiatric or medical knowledge about particular issues.").
n249. M. Radelet & G. Barnard, supra note 59, at 29 n.36.
n250. Id. at 20-21.
n251. See infra text accompanying notes 277-82.
n252. 430 U.S. 349 (1977).
n253. Id. at 362.
n254. Fla. Stat. § 922.07 (1985).
n255. Goode v. Wainwright, 448 So. 2d 999, 1001 (Fla. 1984).
n256. McCorquodale v. Stynchcombe, 236 S.E.2d 486, 489-90 (Ga.) (due
process not violated if indigent inmate is unable to afford psychiatric
examinations beyond those conducted by state), cert. denied, 434 U.S. 975
n257. People v. Carpenter, 150 N.E.2d 100, 104 (Ill. 1958) (rejecting
petitioner's argument that his expert testimony was overwhelmed by that of
the state, which had "practically unlimited financial
n258. 105 S. Ct. 1087 (1985).
n259. APA Sentencing Report, supra note 244, at 17-19.
n260. Woodson v. North Carolina, 428 U.S. 280, 305 (1976).
n261. M. Radelet & G. Barnard, supra note 59, at 21.
n262. 429 U.S. 1012 (1976).
n264. Id. at 1019 (Marshall, J., dissenting) (footnotes omitted).
n265. Id. at 1019 n.2 (Marshall, J., dissenting) (emphasis in original).
n266. 663 F.2d 1004 (10th Cir. 1981).
n267. Id. at 1009.
n268. Id. at 1011-13 & nn.12-16. Similar criticisms have been made of
the state's evaluation of Alvin Ford. See, e.g., Ford, 752 F.2d at 532
(Clark, J., dissenting); Brief for Petitioner-Appellant at 9-10, Ford, 752
F.2d 526; M. Radelet & G. Barnard, supra note 59, at 18; Affidavit of
Seymour L. Halleck, M.D. (May 21, 1984) (on file, Florida State University
Law Review) [hereinafter cited as Halleck affidavit].
n269. Hays, 663 F.2d at 1011 n.12 (emphasis and brackets in original)
(quoting district court record).
n270. See supra note 178 and text accompanying notes 60-68.
n271. Montana: Mont. Code Ann. § 46-14-203 (1985); Utah: Utah Code Ann.
§ 77-15-5 (1982).
n272. E.g., Arkansas: Ark. Stat. Ann. § 43-2622 (1977); California: Cal.
Penal Code § 3700.5 (West 1982); Connecticut: Conn. Gen. Stat. Ann. §
54-101 (West 1985); Delaware: Del. Code Ann. tit. 11, § 406 (1979);
Florida: Fla. Stat. § 922.07 (1985); Georgia: Ga. Code § 17-10-61
(1982); Kansas: Kan. Stat. Ann. § 22-4006 (1981); Massachusetts: Mass.
Gen. Laws Ann. ch. 279, § 62 (West Supp. 1985); Nebraska: Neb. Rev. Stat.
§ 29.2537 (1979); New York: N.Y. Correct. Law § 655 (McKinney Supp.
1984); North Carolina: N.C. Gen. Stat. § 15A-1002 (1983); South Carolina:
S.C. Code Ann. § 44-23-220 (Law Co-op. 1985).
n273. See Afield letter, supra note 48; Ivory letter, supra note 49;
Mhatre letter, supra note 48. These findings were severely criticized by
defense psychiatrists. See Barnard affidavit, supra note 51; Halleck
affidavit, supra note 268.
n274. Ivory, Ferris & Mhatre letter, supra note 58.
n275. See supra note 233 and accompanying text.
N276. M. Radelet & G. Barnard, supra note 59, at 15. Accord West,
supra note 16.
n277. M. Radelet & G. Barnard, supra note 59, at 15.
n278. For example, Fla. Stat. § 922.07 (1985) provides that the governor
shall stay the execution and appoint a commission of three psychiatrists
to examine an inmate when he is informed that such inmate may be insane.
n279. 410 U.S. 113 (1973) (constitutional right of privacy encompasses
decision whether to terminate pregnancy).
n280. See, e.g., Bolsen, Strange Bedfellows: Death Penalty
and Medicine, 248 J. Am. Med. Ass'n 518, 519 (1982).
n281. M. Radelet & G. Barnard, supra note 59, at 22.
n282. Id. at 21.
n283. National Medical Ass'n Position Statement, supra note 72, at 2-3.
n284. Id. at 3.
n285. M. Radelet & G. Barnard, supra note 59, at 15.
n286. Note, supra note 147, at 558 n.147.
n287. M. Radelet & G. Barnard, supra note 59, at 15-16.
n288. Id. at 18.
n289. See, e.g., Shah, Legal and Mental Health System Interactions, 4
Int'l J.L. & Psychiatry 219, 250 (1981); American Psychiatric Ass'n,
Statement On The Insanity Defense 17-19 (Dec. 1982) (psychiatric testimony
about "ultimate issues" like sanity or criminal responsibility
requires leap in logic from medical concepts to legal or moral
constructs); APA Sentencing Report, supra note 244, at 22-23 (whether
forensic psychiatrists should frame their conclusions in medical or legal
terms is a subject of longstanding dispute).
n290. See supra text accompanying note 283.
n291. Note, supra note 147, at 559 (citation omitted).
n292. Id. at 562.
n293. Id. at 562 n.170.
n294. Bolsen, supra note 280, at 519 (discussing the lethal injection
method of execution).
n295. Appelbaum, Psychiatrists' Role in the Death Penalty,
32 Hosp. & Community Psychiatry 761, 762 (1981).
n296. Accord National Medical Ass'n Position Statement, supra note 72, at
n297. Letter from Peter D. Ostreich, Chairman, Florida State Hospital
Human Rights Advocacy Committee, to Honorable Marcia Beach, Chairwoman,
Florida Statewide Human Rights Advocacy Committee 1-2 (Dec. 6, 1984) (on
file, Florida State University Law Review).
n298. Id. at 2.
n299. M. Radelet & G. Barnard, supra note 59, at 24.
n301. Meisel, Roth & Lidz, Toward a Model of the Legal Doctrine of
Informed Consent, 134 Am. J. Psychiatry 285, 286 (1977).
n302. See generally J. Bentham, An Introduction to the Principles of
Morals and Legislation (1789); J. S. Mill, Utilitarianism (1863).
n303. Macklin, Some Problems in Gaining Informed Consent from Psychiatric
Patients, 31 Emory L. J. 345, 349 (1982).
n305. Id. at 367.
n307. See APA SENTENCING REPORT, supra note 244, at 7.
n308. See, e.g., Bee v. Greaves, 744 F.2d 1387 (10th Cir. 1984), cert.
denied, 105 S. Ct. 1187 (1985) (pretrial detainee has constitutionally
protected right not to be forcibly administered antipsychotic drugs);
Rogers v. Okin, 478 F. Supp. 1342, 1366-67 (D. Mass. 1979) (right to make
decision whether or not to refuse medication a fundamental right of
privacy), aff'd in part, 634 F.2d 650 (1st Cir. 1980), vacated on other
grounds sub nom. Mills v. Rogers, 457 U.S. 291 (1982); Mackey v.
Procunier, 477 F.2d 877, 878 (9th Cir. 1973) (administration of
succinycholine without prisoner's consent raises serious constitutional
questions of "impermissible tinkering with the mental
processes"); Rennie v. Klein, 462 F. Supp. 1131 (D.N.J. 1978) (in
absence of emergency, some due process hearing required before an
involuntary mental patient may be forcibly administered drugs).
n309. See, e.g., Scott v. Plante, 532 F.2d 939 (3d Cir. 1976); Mackey, 477
F.2d at 878; Welsch v. Likins, 373 F. Supp. 487 (D. Minn. 1974), aff'd in
part, 550 F.2d 1122 (8th Cir. 1977).
n310. See, e.g., Winters v. Miller, 446 F.2d 65 (2d Cir.), cert. denied,
404 U.S. 985 (1971).
n311. See, e.g., Rogers v. Commissioner of the Dep't of Mental Health, 458
N.E.2d 308 (Mass. 1983) (judge, using substituted judgment standard,
decides whether patient adjudicated incompetent would have assented to
administration of antipsychotic medications); cf. Greaves, 744 F.2d 1387
(no clear remedy specified).
n312. 104 S. Ct. 3194 (1984).
n313. Id. at 3200.
n314. 104 S. Ct. 3227 (1984).
n315. Id. at 3234.
n316. 399 N.E.2d 452 (Mass. 1979).
n317. Id. at 458.
n319. 441 U.S. 520 (1979).
n320. Id. at 535-40.
n321. 405 U.S. 319 (1972) (per curiam).
n322. Id. at 322 n.2.
n323. 445 U.S. 480 (1980). See also Greenholtz v. Nebraska Penal Inmates,
442 U.S. 1 (1979) (due process protections attach to parole revocation);
Morrissey v. Brewer, 408 U.S. 471 (1972) (revocation of probation).
n324. Vitek, 445 U.S. at 493.
n325. See supra note 3.
n326. See, e.g., Appelbaum & Gutheil, The Boston State Hospital Case:
"Involuntary Mind Control," the Constitution, and the
"Right to Rot," 137 Am. J. Psychiatry 720 (1980); Appelbaum
& Gutheil, "Rotting with Their Rights On": Constitutional
Theory and Clinical Reality in Drug Refusal by Psychiatric Patients, 7
Bull. Am. Acad. Psychiatry & L. 306, 309 (1979) ("[M]any lawyers
tend to view psychiatrists as motivated solely by interests of greed,
power or sadism."). For a general discussion of the right to refuse
treatment in the psychiatric context, see Brooks, The Constitutional Right
to Refuse Antipsychotic Medications, 8 Bull. Am. Acad. Psychiatry & L.
n327. Appelbaum & Gutheil, Drug Refusal: A Study of Psychiatric
Inpatients, 137 Am. J. Psychiatry 340, 344 (1980). See also Stone, The
Right to Refuse Treatment, 38 Arch. Gen. Psychiatry 358, 362 (1981)
("Competent patients . . . have and should have the right to decide
about medication. But once appropriate procedural safeguards have been met
and the presumption of competence has been overcome, the court owes it to
patients and those who undertake their treatment to facilitate that
n328. Appelbaum & Gutheil, supra note 327, at 342-43. The doctors
conducted the study on a 40-bed inpatient unit at the Massachusetts Mental
Health Center, the population of which included patients suffering from
acute and chronic mental illnesses. Drug refusers who were
"situational" refused medication infrequently and with no
apparent pattern. Those patients described as "stereotypic"
appeared to respond habitually to a variety of stresses by the predictable
response of refusing medication. Finally, drug users who were
"symptomatic" methodically refused medication over substantial
periods of time in a manner that precluded the hospital from rendering
proper care to the patient. Id.
n329. Id. at 345.
n330. See supra notes 302-07 and accompanying text.
n331. See, e.g., supra text accompanying notes 297-98.
n332. Appelbaum & Gutheil, supra note 327, at 340.
n333. In re Quinlan, 355 A.2d 647, 665 (N.J. 1976).
n334. Cf. Gutheil & Appelbaum, "Mind Control,"
"Synthetic Sanity," "Artificial Competence," and
Genuine Confusion: Legally Relevant Effects of Antipsychotic Medication,
12 HOFSTRA L. REV. 77 (1983).
n335. Unger, A Program for Late Twentieth-Century Psychiatry, 139 AM. J.
PSYCHIATRY 155, 164 (1982) ("[T]here are no clear-cut and permanent
frontiers between psychiatric and nonpsychiatric discourse."); see
also R. UNGER, PASSION: AN ESSAY ON PERSONALITY (1984).