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Law Journal Articles
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Competency For
Execution 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 punishment.
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| Crime as
Communication |
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... This article adopts Austin's suggestion and focuses on a
particular legal excuse, the insanity defense. ... It considers the
insanity defense as an excuse that negates criminal responsibility by
rebutting common-sense, everyday inferences about the meaning of conduct,
inferences drawn in criminal law through the elaborate interpretive system
of the mental elements of crime. ... The commentary to an earlier draft of
the test explained that an effort to exclude nondeterrable defendants from
punishment must take account of impairment by mental illness of both
cognitive and volitional capacities. ... In summary, the insanity defense
arises when an offender's mental illness deprives him of the cognitive or
volitional capacity required to adhere to relevant legal or moral norms.
... The interpretive analysis of the insanity defense and other excuses
raises an exciting question: If the core of criminal responsibility is the
disrespect shown by actions that injure the legally protected interests of
others, and if excuses represent conduct that does not convey this
disrespect, then how does the criminal law account for normal
cases, where the conduct in question does convey such disrespect? The
answer, I propose, is that criminal law addresses meaning through the
intricate system of mental elements known as mens rea and the
voluntariness component of actus reus. ...
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| Guilty But
Mentally Ill and the Death Penalty |
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... It would seem, therefore, that he deserved harsh punishment for
his actions. ... In particular, this Part focuses on the effect of
volitional impairment on culpability by examining two death
penalty cases--Thompson v. Oklahoma, which involved a youth, and
Penry v. Lynaugh, which involved a mentally retard- ed person. ... The
question for the guilty but mentally ill defendant is whether a lack of
culpability should pro- hibit imposition of the death penalty
in light of society's recogni- tion that the individual was unable to
conform to the law's re- quirements. ... Insofar as the verdict of guilty
but mentally ill recognizes a diminished capacity to control one's
conduct, it is sufficiently akin to other recognized forms of volitional
impairments that the Eighth Amendment should bar imposition of the death
penalty in such cases. ... Accordingly, official recognition of
volitional impairment must bar capital punishment for guilty but mentally
ill defendants "to protect the dignity of society itself from the
barbarity of exacting mindless ven- geance." ...
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| An
Interdisciplinary Examination of Coercion |
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... In his Comment, Paul Cassell ignores what our article is about:
the development and illustration of a decision model that analyzes and
explains how modern methods of psychologically-based interrogation lead
both to true confessions from the guilty and false confessions from the
innocent. ... In this brief response, we will argue (1) that it is
presently not possible to quantify the number and frequency of false
confessions or the rate at which they lead to miscarriages of justice; and
(2) that Cassell misunderstands our suggestions for improving the quality
of contemporary interrogation practices and increasing the reliability of
confession evidence. ... Rather, it is: In high profile murder cases, why
do police investigators so often select the wrong suspect, resort to
inappropriate and illegal interrogation tactics, and automatically
consider a case closed once they have elicited a confession? Why do
police, prosecutors, judges and juries so readily assume that a confession
must be true when it was obtained by psychologically coercive methods, is
internally inconsistent, does not lead to corroboration and/or is
contradicted by the facts of the case? Why do police, prosecutors, judges
and juries so readily presume a suspect's guilt based on a questionable
confession statement when the sum of evidence should lead them to conclude
that the suspect is innocent beyond any reasonable doubt? And what can be
done to prevent police-induced false confessions in high profile cases and
their admission into evidence? ...
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| Mental
Illness and the Death Penalty |
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Our society has long been ambivalent about mental illness. On the one
hand, for many laypeople mental illness is something to be feared. The
medieval theory that mental disability is the product of possession by
evil spirits finds its modern expression in the accepted wisdom that
“crazy” people are very different from the rest of us and are
generally to be avoided.
At the same time, we have long pitied those who are afflicted by mental
problems, as evidenced by the centuries-old existence of a special defense
excusing such people from criminal responsibility,
as well as by the frequent campaigns to improve their treatment
facilities.
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COMMUTATION
OF THE DEATH SENTENCE |
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... Adding a chapter
to Florida's long history of death sentence commutations, the Florida
Clemency Board recently overhauled its Rules of Executive
Clemency. ... The injustice of this commutation, in the eyes of
the public and of the other prisoners, makes grace an unacceptable
justification for exercising the clemency power. ... Although reports,
records, and documents generated or obtained during the investigation
are confidential and available only to the Clemency Board and staff,
transcripts of any statements or testimony of the condemned that are a
part of the Commission's report are available to the state's attorney,
the inmate's attorney, and the victim's family. ... These savings, which
would not be realized if the condemned is resentenced to death on
appeal, are small, however, in comparison to the chance that obvious
injustice will be remedied early through commutation of a death sentence
(or a full pardon). ... First, forcing an early clemency hearing would
not usually force the condemned to pursue a collateral appeal. ...
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CONCEPTS
OF CULPABILITY AND DEATHWORTHINESS |
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... The punishment of death
is supposed to be reserved for those defendants who commit the most
grievous murders and deserve the most extreme punishment. ... At the
guilt phase the jury determines whether the defendant is guilty of
committing a murder for which the death penalty may be
an appropriate punishment. ... A defendant's mental disease or defect
may also be relevant as a mitigating factor at the punishment phase,
regardless of whether it was presented as a defense at the guilt phase.
... By restricting "constitutionally mitigating evidence" to
that which lessens a defendant's culpability in the guilt-phase sense
and by requiring a nexus between the evidence of mental disabilities and
the commission of the crime, the Fifth Circuit turns the punishment
phase into a process that too closely replicates the guilt phase. ...
Requiring a nexus between the crime and mitigating evidence of mental
disabilities in order to constitute "constitutionally relevant
mitigating evidence" perpetuates the same mistake because it limits
the punishment-phase consideration of this evidence to the defendant's
guilt-phase culpability. ... This occurs, for example, when a prosecutor
argues at the punishment phase that the defendant's mitigating evidence
does not excuse his conduct, or when the prosecutor refers back to a
guilt-phase argument that mental disease or defect does not affect a
defendant's criminal responsibility. ...
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Consistency
in the Application of the Death Penalty to Juveniles
and the Mentally Impaired |
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... The Supreme
Court's decision in Gregg v. Georgia allowed state legislatures
to enact death penalty statutes that would pass
constitutional muster under the test of Furman v. Georgia, and
provided guidelines on structuring a death penalty
statute that would be constitutional. ... In Lockett v. Ohio,
the Court reviewed an Ohio statute which mandated the death
penalty unless the sentencing body found at least one of three
statutorily mandated mitigating circumstances. ... The briefs filed in
the Penry case before the Supreme Court indicate that for two
distinct reasons the Texas scheme of capital sentencing did not allow
the jury to fully consider Penry's mental impairment specifically as
mitigation. ... The above cases demonstrate the need for state statutes
that take the issue of mental impairment out of the
aggravating-mitigating circumstance balancing in capital sentencing. ...
As dementia involves the loss of mental capacity to the extent of
interference with social functioning, and paranoid ideation which can
result in physical attacks by the sufferer, a person rendered a
functional juvenile after the age of eighteen should be treated no
differently legally than one whose disorder begins while a minor. ...
The proposal thus requires the trier of fact to evaluate the defendant's
mental illness and its effects along a continuum of adultjuvenile
capacity, with juveniles assumed to have a significantly reduced
capacity in these areas, the same assumption made by the Thompson
court. ... |
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Constitutional
Protection of Confessions Made by Mentally Retarded Defendants |
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The Court, however, has yet
to decide definitively how a person's mental state should affect the
admissibility of his confession. ... A trained police officer, like a mental
retardation professional interviewer, is more apt to induce a
confession. ... The defendant in Patterson relied upon the
"knowing and intelligent" requirements of a valid waiver,
instead of the "voluntary" component as relied upon by the
defendant in Connelly. ... For these reasons, it is unlikely
that a police officer's recitation of the standard Miranda
warning will provide a mentally retarded suspect with the requisite
understanding of his rights and the consequences of waiving them, nor
will it enable the mentally retarded person to make a voluntary decision
to waive his rights. ... The Court also held that Patterson's waiver of
his sixth amendment right was made "knowingly and
intelligently" using formulations of valid waivers espoused in Johnson
v. Zerbst and Moran v. ... In sum, Patterson presents the
possibility of securing the sixth amendment right to counsel depending
upon a defendant's needs at an earlier stage than that prescribed in Kirby.
Furthermore, a waiver of this constitutional right must be voluntary,
knowing and intelligent using a "totality of the
circumstances" test that factors in a defendant's particular
susceptibilities to coercion and pressure. ... |
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EXEMPTING
THE MENTALLY RETARDED FROM THE DEATH PENALTY |
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In 1989, in Penry v.
Lynaugh, the United States Supreme Court held that the eighth
amendment's cruel and unusual punishment clause does not prohibit the
execution of a mentally retarded person convicted of a capital felony.
... Whether a mentally retarded individual is classified as mild or as
profound, the substantial limitations in cognitive ability and adaptive
behavior produced by mental retardation severely reduce
the ability of every mentally retarded person to perform in the everyday
world. ... The language in the original versions of the proposed bills
was similar to the language of legislation in the five states that have
already exempted the mentally retarded from capital punishment. ...
While polls show that eighty-four percent of Florida's population favor
capital punishment, the same polls show that seventy-one percent oppose
the death penalty for the mentally retarded. ...
Imposition of the death penalty on a mentally retarded
defendant does not further the legitimate penal goals of capital
punishment -deterrence and retribution. ... Even when mental
retardation is recognized, the characteristics unique to the
mentally retarded place them at a severe disadvantage in the criminal
justice system. ... Florida's proposed legislation would not exempt the
mentally retarded from punishment, nor would it weaken Florida's death
penalty statute
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In
Search of Clemency Procedures We Can Live With |
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The United States Supreme
Court has denied certiorari for the final time. All state and federal
appeals have been exhausted. The execution date has been set. There is
only one thing that can save the death row inmate from the ultimate
punishment: the proverbial call from the governor and a grant of executive
clemency. In this environment, the role that executive
clemency must play in the realm of capital punishment is
becoming increasingly important. Initially, this article will briefly
examine the statutory clemency schemes currently in use in states that
have the death penalty. Next, it will discuss the
applicability of the Due Process Clause to capital clemency proceedings.
Finally, it will seek to determine exactly what process is due in
capital clemency proceedings.
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