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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.
Crime as Communication

  ... 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. ...  


Guilty But Mentally Ill and the Death Penalty
  ... 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." ...  


An Interdisciplinary Examination of Coercion
... 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? ... 


Mental Illness and the Death Penalty
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.



  ... 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. ...  


... 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. ...  


Consistency in the Application of the Death Penalty to Juveniles and the Mentally Impaired
 ... 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. ...  
Constitutional Protection of Confessions Made by Mentally Retarded Defendants
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. ...  
 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


In Search of Clemency Procedures We Can Live With
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.