How Incompetent is Incompetent Enough: Evaluating Death Penalty Mental Incompetence Standards

Blog Post | 111 KY. L. J. ONLINE | October 25, 2022

How Incompetent is Incompetent Enough: Evaluating Death Penalty Mental Incompetence Standards

By: Alyssa Williams, Staff Editor, Vol. 111

Mental incompetence and the death penalty has been the topic of heavy discussion for decades. One of the most central conflicts has been what the standard is for incompetence that bars the use of the death penalty as a punishment. In Ford v. Wainwright, Justice Powell’s concurrence laid out a popular standard where an individual must be (1) unaware of the punishment they are about to suffer and (2) why they are to suffer it.[1]

History of Mental Incompetence in the Court

In 2007 the Supreme Court explained in Panetti v. Quarterman that, even if a prisoner is aware that a link between his crime and the punishment to be inflicted has been identified, this does not mean that the prisoner is mentally competent.[2] The Court explained that this awareness is not the same as a rational understanding of the reason for their execution.[3] Going even further, the Court in 2019 in Madison v. Alabama explained that the standard from Panetti focuses on whether a mental disorder has a particular effect on an individual’s ability to understand why execution is being sought.[4] The standard does not strive to identify any precise cause of this inability, as long as the required lack of comprehension is present.[5] Thus, in evaluating an individual’s competency to be executed, a judge must look to the downstream consequences of such a punishment.[6] 

Over the course of more than 30 years, the Supreme Court acknowledges that under Ford and Panetti, a state may execute someone even if they don’t remember committing their crime.[7] Under those same decisions, however, a state may be barred from executing someone even though they suffer from dementia or overall cognitive decline, rather than an established mental disease or defect such as delusions.[8] The test then shifts from whether an individual is aware of the punishment they are about to suffer and why they are to suffer it to whether an individual can reach a “rational understanding” of why they are to be executed using evidence from the record such as expert reports and testimony.[9] 

Definitions of Mental Incompetence

States vary in their definition of mental incompetence; for example, Mississippi’s statute seems to require that 6 factors be met to be deemed a “person with mental illness.”[10] Further, Missouri’s statute provides that “No person condemned to death shall be executed if as a result of mental disease or defect he lacks capacity to understand the … reasons why the sentence should not be carried out.”[11] Another example is California’s statute, which provides that a defendant is mentally incompetent when “as a result of a mental health disorder or developmental disability, the defendant is unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner.”[12] Other states have similar, but slightly different, interpretations of mental incompetence.[13]

In Kentucky, to be deemed “mentally incompetent,” it must be shown that the defendant “lacks capacity to appreciate the nature and consequences of the proceedings against him or her, or to participate rationally in his or her defense….”[14] These requirements are similar to the United States Code, which provides that a defendant is mentally incompetent when “presently suffering from a mental disease or defect rendering him mentally incompetent to the extent that he is unable to understand the nature and consequences of the proceedings against him or to assist properly in his defense.”[15] The only difference here, it seems, is that the United States Code requires a defendant to be presently suffering from a mental disease or defect while Kentucky does not.[16]

The Issue

This is where an issue arises. Are some states executing individuals who should not be executed because of their more restrictive statutes governing mental incompetence? It’s possible. In Ford, Justice Powell explains that states are allowed to adopt a “more expansive view of sanity … than the one the Eighth Amendment imposes as a constitutional minimum.”[17] The “constitutional minimum” set out in this decision, however, does not include the requirement that an individual be suffering from a “mental disease or defect.”[18] It is entirely possible that an individual who is not suffering from a mental disease or defect is unaware of the punishment they are about to suffer or why they are to suffer it.[19] It is just as possible that an individual suffering from a mental disease or defect is aware of the punishment and why they are to suffer it.[20] In fact, the Supreme Court in Madison explained that delusions “come in many shapes and sizes, and not all will interfere with the understanding that the Eighth Amendment requires.”[21] Further, the Court explained that dementia is the type of mental condition that can “cause such disorientation and cognitive decline as to prevent a person from sustaining a rational understanding of why the State wants to execute him.”[22]

In fact, the Supreme Court seems to have shifted away from the use of “mental disease or defect” and instead use the broad term “mental status” to describe an individual’s mental state during the commission of a crime.[23] The Court in Kansas v. Cheever explained that “mental status” is a broader term than “mental disease or defect” that includes defenses “based on psychological expert evidence as to … mens rea, mental capacity to commit the crime, or an ability to premeditate.”[24]

The New Universal Standard

If the United States Code and other states, such as California, insist on using restrictive language in their statutes, they should adopt the use of “mental status” or another more inclusive language in place of “mental disease or defect.” The use of the current language is too restrictive, places an undue burden on the defendant and their counsel to prove mental incompetence, and violates an individual’s Eighth Amendment right, as some defendants may not be suffering from a “mental disease or defect” but are still mentally incompetent.[25] The Supreme Court has decided that the standard of competency depends on an individual’s ability to reach a “rational understanding” of why a state wants to execute them, without regard to the cause of an individual’s ability or inability.[26] This standard is the most encompassing of individuals who may be mentally incompetent because it does not require a showing of mental disease or defect, just an inability to understand. This standard should be the universal standard applied by the states to ensure that the analysis of mental incompetence is uniform to protect individuals who may be mentally incompetent.

[1] Ford v. Wainwright, 477 U.S. 399, 422 (1986).

[2] Panetti v. Quarterman, 551 U.S. 930, 933 (2007).

[3] Id.

[4] Madison v. Alabama, 139 S. Ct. 718, 728 (2019).

[5] Id.

[6] Id. at 729.

[7] Id. at 731.

[8] Id.

[9] Id.

[10] Miss. Code. Ann. § 99-19-57 (West).

[11] Mo. Ann. Stat. § 552.060 (West).

[12] Cal. Penal Code § 1367 (West).

[13] See e.g., Utah Code Ann. § 77-19-201 (West); Ga. Code Ann. § 17-10-60 (West); Wyo. Stat. Ann. § 7-13-901 (West); Ariz. Rev. Stat. Ann. § 13-4021; Nev. Rev. Stat. Ann. § 178.400 (West).

[14] Ky. RCr 8.06.

[15] 18 U.S.C.A. § 4241 (West).

[16] Id.; Ky. RCr 8.06.

[17] Ford, 477 U.S. at 422 n.3.

[18] Id. at 400.

[19] Madison, 139 S. Ct. at 729.

[20] Id.

[21] Id.

[22] Id.

[23] Kansas v. Cheever, 571 U.S. 87, 88 (2013).

[24] Id.

[25] Panetti, 551 U.S. at 933.

[26] Madison, 139 S. Ct. at 729.