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501 U.S. 1239 (1991)

RECTOR v. BRYANT , 501 U.S. 1239 (1991)
501 U.S. 1239 115 L.Ed.2d 1038
Ricky Ray RECTOR, petitioner,
Winston BRYANT, Attorney General of Arkansas, et al
No. 90-7755
Supreme Court of the United States
June 24, 1991
Rehearing Denied Sept. 20, 1991.
See U.S., 112 S.ct. 34.
On Petition for writ of certiorari to the United States Court of Appeals for
the Eighth Circuit.
The petition for a writ of certiorari is denied.
Justice MARSHALL, dissenting.
In Ford v. Wainwright, 477 U.S. 399 , 106 S.Ct. 2595, 91 L.Ed.2d 335
1986), this Court recognized that "the Eighth Amendment prohibits a State
from carrying out a sentence of death upon a prisoner who is insane." Id.,
at 409-410, 106 S.Ct., at 2601-2602. The full Court, however, did not
attempt a comprehensive definition of insanity or incompetence in this
setting. See id., at 407-408, 409-410, 106 S.Ct., at 2600-2601, 2601-2602 ;
id., at 418, 106 S.Ct., at 2606 (Powell, J., concurring in part and
concurring in the judgment). This petition presents the question whether a
prisoner whose mental incapacity renders him unable to recognize or
communicate facts that would make his sentence unlawful or unjust is
nonetheless competent to be executed. Because Ford leaves this question
unanswered, and because this is an important and recurring issue in the
administration of the death penalty, I would grant the petition.
After shooting and killing a police officer sent to investigate petitioner's
involvement in another homicide, petitioner attempted to end his own life by
shooting himself in the head. The gunshot did not kill petitioner. However,
it did sever a three-inch section [501 U.S. 1239, 1240]   of petitioner's
brain, resulting in a frontal lobotomy. See 923 F.2d 570, 571, and n. 2 (CA8
1991). The trial court rejected petitioner's claim that he was incompetent
to stand trial for murder of the police officer. Petitioner's conviction and
sentence of death were affirmed on appeal.
Petitioner thereafter filed a petition for a writ of habeas corpus in
federal district court, arguing that his deteriorated mental condition
rendered him incompetent to be executed. The District Court ordered a mental
evaluation of petitioner to be conducted by the United States Medical Center
for Federal Prisoners. The examiners reached two conclusions. First, the
examiners determined "that no mental illness or defect prevents [petitioner]
from being aware of his impending execution and the reason for it." Id., at
572. Second, applying the competency standard adopted by the American Bar
Association in its Criminal Justice Mental Health Standards,1 the examiners
reported that
"[petitioner] would have considerable difficulty due to his organic deficits
in being able to work in a collaborative, cooperative effort with an
attorney. In our opinions it appears that he would not be able to recognize
or understand facts which might be related to his case which might make his
punishment unjust or unlawful." Ibid. ( emphasis added).
The District Court concluded that, for purposes of Ford v. Wainwright,
supra, petitioner's competency to be executed turned solely on his
appreciation of the nature of his punishment. Consequently, the court denied
the writ. See 727 F.Supp. 1285, 1292 (ED Ark.1990).
Petitioner appealed this determination to the Court of Appeals for the
Eighth Circuit. Like the District Court, the Court of Appeals concluded that
petitioner's inability to recognize or communi- [501 U.S. 1239, 1241]   cate
facts that might make his punishment unlawful or unjust was of no legal
consequence. See 923 F.2d, at 572-573. Purporting to draw on the majority
opinion in Ford and on Justice Powell's concurring opinion, the Court of
Appeals concluded that the only considerations relevant to petitioner's
competency were "(1) whether petitioner understands that he is to be
punished by execution; and (2) whether petitioner understands why he is
being punished." Id., at 572 (emphasis added). Because the medical examiners
had determined that petitioner was competent to be executed by these
criteria, the Court of Appeals affirmed the District Court's denial of
habeas relief.
The lower courts clearly erred in viewing Ford as settling the issue whether
a prisoner can be deemed competent to be executed notwithstanding his
inability to recognize or communicate facts showing his sentence to be
unlawful or unjust. Although the Court in Ford did emphasize the injustice
"of executing a person who has no comprehension of why he has been singled
out and stripped of his fundamental right to life," 477 U.S., at 409, 106
S.Ct., at 2601, the Court stressed that this was just one of many conditions
that were treated as rendering a prisoner incompetent (or insane) at common
law, see id., at 407-408, 409-410, 106 S.Ct., at 2600- 2601, 2601-2602.
Indeed, the Court quoted with approval Blackstone's discussion of this
topic, which clearly treats as a bar to execution a prisoner's inability to
recognize grounds for avoiding the sentence:
" '[I]f, after judgment, [a capital prisoner] becomes of nonsane memory,
execution shall be stayed: for peradventure, says the humanity of the
English law, had the prisoner been of sound memory, he might have alleged
something in stay of judgment or execution.' " Id., at 407, 106 S.Ct., at
2600 (emphasis added), quoting 4 W. Blackstone, Commentaries *24-*25 (1769).
It is true, as the Court of Appeals noted, that Justice Powell addressed and
rejected this definition of incompetence in his concurring opinion. See 477
U.S., at 419-421, 106 S.Ct., at 2606-2608. But even he recognized that the
full Court left the issue open. See id., at 418, 106 S.Ct., at 2606 (noting
that Court does not resolve "the meaning of insanity in this context").
In my view, a strong argument can be made that Justice Powell's answer to
this open question is the wrong one. As we have emphasized, the Eighth
Amendment prohibits any punishment considered cruel and unusual at common
law as well as any pun- [501 U.S. 1239, 1242]   ishment contrary to "the
'evolving standards of decency that mark the progress of a maturing
society.' " Penry v. Lynaugh, 492 U.S. 302 , 330- 331, 109 S.Ct. 2934, 2953,
106 L.Ed.2d 256 (1989), quoting Trop v. Dulles, 356 U.S. 86, 101 , 78 S.Ct.
590, 598, 2 L.Ed.2d 630 (1958) (plurality opinion); accord, Stanford v.
Kentucky, 492 U.S. 361 , 368-369, 109 S.Ct. 2969, 2974-2975, 106 L.Ed.2d 306
(1989); Ford v. Wainwright, supra, 477 U. S., at 405-406, 106 S.Ct., at
2599-2600. The common law's hostility to putting a man to death under such
circumstances is documented not only by Blackstone, see 4 W. Blackstone,
supra, *24-*25, *388-*389, but also by other commentators on English common
law, see 1 M. Hale, Pleas of the Crown 35 (1736), and by numerous early
American decisions, see State v. Helm, 69 Ark. 167, 171-173, 61 S.W. 915,
916-917 (1901); People v. Geary, 298 Ill. 236, 245, 131 N.E. 652, 655-656
(1921); Barker v. State, 75 Neb. 289, 292-293, 106 N.W. 450, 451 (1905); In
re Smith, 25 N.M. 48, 59-60, 176 P. 819 (1918); Freeman v. People, 4 Denio
(N.Y.) 9, 20, 47 Am.Dec. 216, 219-220 (1847). See generally Solesbee v.
Balkcom, 339 U.S. 9 , 20, n. 3, 70 S.Ct. 457, 459, n. 3 (1950) (Frankfurter,
J., dissenting); 1 J. Chitty, The Criminal Law *761 (5th ed. 1847); 1 W.
Russell, Crimes and Misdemeanors 14 (8th ed. 1857); L. Shelford, The Law
Concerning Lunatics, Idiots and Persons of Unsound Mind 295 (1833); Annot .,
3 A.L.R. 94, 97-99 (1919).2 Objective indicia of contemporary mores likewise
[501 U.S. 1239, 1243]   condemn execution of a prisoner afflicted with a
"mental disease or defect [ depriving him of the] capacity to understand . .
. matters in extenuation, arguments for executive clemency or reasons why
the sentence should not be carried out." Mo.Ann.Stat. 552.060.1 (Supp.1991);
accord, Miss.Code Ann. 99-19-57(2)(b) (Supp.1990); N.C.Gen. Stat.Ann.
15A-1001 (1990); ABA Criminal Justice Mental Health Standards 7-5.6(b)
The issue in this case is not only unsettled, but is also recurring and
important. The stark realities are that many death row inmates were
afflicted with serious mental impairments before they committed their crimes
and that many more develop such impairments during the excruciating interval
between sentencing and execution. See Lewis, Pincus, Feldman, Jackson &
Bard, Psychiatric, Neurological, and Psychoeducational Characteristics of 15
Death Row Inmates in the United States, 143 Am.J. Psychiatry 838, 840-841
(1986); Johnson, Under Sentence of Death: The Psychology of Death Row
Confinement, 5 Law & Psychology Rev. 141, 176-181 ( 1979); Gallemore &
Panton, Inmate Response to Lengthy Death Row Confinement, 129 Am.J.
Psychiatry 167, 168, 169 (1972). Unavoidably, then, the question whether
such persons can be put to death once the deterioration of their faculties
has rendered them unable even to appeal to the law or the compassion of the
society that has condemned them is central to the administration of the
death penalty in this Nation. I would therefore grant the petition for
certiorari in order to resolve now the questions left unanswered by our
decision in Ford v. Wainwright.
Adhering to my view that the death penalty is in all circumstances cruel and
unusual punishment prohibited by the Eighth and Fourteenth Amendments, Gregg
v. Georgia, 428 U.S. 153, 231 , 96 S.Ct. 2909, 2973, 49 L. Ed.2d 859 (1976)
(MARSHALL, J., dissenting), I would grant the petition and vacate the death
sentence even if I did not view the issue in this case as being
independently worthy of this Court's plenary review.
[ Footnote 1 ] ABA Standard 7-5.6(b) provides:
"A convict is incompetent to be executed if, as a result of mental illness
or mental retardation, the convict cannot understand the nature of the
pending proceedings, what he or she was tried for, the reason for the
punishment, or the nature of the punishment. A convict is also incompetent
if, as a result of mental illness or mental retardation, the convict lacks
sufficient capacity to recognize or understand any fact which might exist
which would make the punishment unjust or unlawful, or lacks the ability to
convey such information to counsel or to the court." ABA Criminal Justice
Mental Health Standards 7-5.6(b) (1989) (emphasis added).
[ Footnote 2 ] Justice Powell did not dispute the established status of this
definition of incompetence at common law. See Ford v. Wainwright, 477 U.S.
399, 419 , 106 S.Ct. 2595, 2606, 91 L.Ed.2d 335 (1986) (concurring in part
and concurring in the judgment). Instead, he reasoned that the advent of
increased opportunities for direct and collateral review of criminal
convictions had so reduced the possibility of undiscovered error as to
render this conception obsolete. See id., at 420-421, 106 S.Ct., at 2607-
2608. This view strikes me not only as inconsistent with the established
principle "that the Eighth Amendment's ban on cruel and unusual punishment
embraces, at a minimum, those modes or acts of punishment that had been
considered cruel and unusual at the time that the Bill of Rights was
adopted," id., at 405, 106 S.Ct., at 2599 (emphasis added); accord, Penry v.
Lynaugh, 492 U.S. 302, 330 , 109 S.Ct. 2934, 2953, 106 L.Ed.2d 256 (1989 ),
but also as somewhat question begging. For if a prisoner is incapable of
recognizing or communicating facts that would facilitate collateral review,
there is no reason to assume that collateral review in his case has rooted
out all trial errors. In addition, Justice Powell's argument seems to miss
at least half the point of the common law conception of incompetence. This
definition focuses not only on the prisoner's capacity to recognize and
communicate facts showing that his sentence is unlawful, but also on his
capacity to recognize and communicate facts showing that his sentence is
unjust. Absent this capacity, the prisoner is unable to participate in
efforts to seek executive clemency, see, e.g., Mo.Ann.Stat . 552.060.1
(Supp.1991), the appropriateness of which will not necessarily be disclosed
in the course of direct or collateral review of the prisoner's conviction.
Ultimately, then, the common law conception of incompetence embodies the
principle that it is inhumane to put a man to death when he has been
rendered incapable of appealing to the mercy of the society that has
condemned him.