For every action there is a reaction: the procedural pushback against Panetti v. Quarterman.

Author:Greenberg, Jonathan

I do not understand! I understand nothing!

I cannot understand nor do I want to understand! (1)

In order to understand the world, one has to turn away from it on occasion. (2)

On one level, this Note is a straightforward legal inquiry. In the aftermath of Panetti v. Quarterman, (3) this Note asks: 1) what are the relevant factors in a competency-for-execution inquiry; and 2) with special attention given to the element of "rational understanding," how has this standard been applied by lower courts?

On a deeper level, this is a story about four condemned men--profiled here--suffering from an assortment of mental illnesses and disorders. Scott Panetti believes he is a player in a struggle of good versus evil and that the State seeks his execution to silence his preaching. (4) Michael Dean Overstreet believes that angels and demons talk to him, impairing his ability to discern fact from fantasy. (5) Billy Ray Irick possesses the emotional and social functioning of a child, and claims to have no memory of the crime underlying his death sentence. (6) James Billiot has suffered from schizophrenia for decades, and labors under the delusion that if he simply shows enough therapeutic progress, he will be transferred from death row to a mental hospital and eventually home. (7) The inverse of malingering, (8) Billiot does not feign illness but rather sanity. (9)

Would the execution of these men comport with the Eighth Amendment? (10) Under common law, it was accepted that the goals of capital punishment were not furthered by executing the insane. (11) The Supreme Court has incorporated this centuries-old understanding into its Eighth Amendment jurisprudence. (12) Despite this categorical prohibition, shielding the insane from execution is an incompletely realized goal. Indeed, certain courts have read this obligation in ways that range from "parsimonious" at best to "mutinous" at worst. (13)

This Note consists of two complementary inquiries assessing modern compliance with the Eighth Amendment's demands. The legal inquiry explores how lower courts have treated the Supreme Court's recent refinement of competency for execution. The human inquiry asks whether current substantive and procedural mechanisms governing death row competency claims are sufficient to ensure that none of these four men, if truly incompetent, will be put to death. The overarching point this Note will make is that the case law governing death row competency proceedings is so skeletal as to give lower courts almost unfettered discretion in determining which inmates will ultimately be executed.

Part I of this Note analyzes the two Supreme Court cases implicated in competency-for-execution inquiries: Ford v. Wainwright and Panetti v. Quarterman. It also explores ABA standards for an alternative view of the minimum requirements of competency. Part II considers various formulations of reason, assessing philosophic, psychiatric, and legal constructions of what rationality entails. Part 111 discusses the incompetency claims of Panetti, Overstreet, and Irick, and critiques how various lower courts have applied the Panetti requirement of a "rational understanding" of execution. This analysis shows that most lower courts have taken advantage of Panetti's amorphous and deferential standard to erect procedural roadblocks against potentially meritorious incompetency claims. Part IV turns to an overview of Billiot v. Epps to show that, despite its shortcomings, an expansive reading of Panetti exists that safeguards the substantive rights of death row inmates suffering from severe mental illness. This Part concludes with recommendations to implement such an interpretation.


    The starting point for any discussion on competency standards for execution lies with the Supreme Court. Thus, Section A covers Justice Marshall's plurality opinion in Ford v. Wainwright, which held that executing the insane violates the Eighth Amendment. This Section then discusses Justice Powell's concurrence, which provided the plurality with its fifth vote and lower courts with a competency standard. Section B considers alternate standards, such as the ABA's broader two-pronged approach. Section C analyzes the Supreme Court's recent decision in Panetti v. Quarterman to show how the Court clarified or otherwise modified Justice Powell's standard. Ultimately, Part I shows that the current competency standard is nebulous and vaguely defined. This lack of specificity becomes especially relevant in Part III, which analyzes lower court decisions using Ford and Panetti to reject incompetency claims.

    1. Ford v. Wainwright: The Constitutionalization of the Common Law

      In Ford v. Wainwright, the Supreme Court held that the execution of the insane is constitutionally impermissible. (15) Ford was the first Eighth Amendment case to establish a categorical exclusion shielding defendants from capital punishment not because of conduct, but because of class-wide characteristics. (16) The Court observed that "virtually no authority condon[ed] the execution of the insane at English common law." (17) This revulsion towards executing "one who has no capacity to come to grips with his own conscience" (18) survived into modernity, given that no state permitted the execution of the insane. (19) In part due to the value of shielding "the condemned from fear and pain without comfort of understanding," (20) the Court held that executing an insane prisoner violates the Eighth Amendment. (21)

      As Justice Powell observed in his concurrence, the plurality left open for determination "the meaning of insanity in [the capital] context." (22) Towards the end of the plurality opinion, Justice Marshall stated that it is "abhorrent" to "exact in penance the life of one whose mental illness prevents him from comprehending the reasons for the penalty or its implications." (23) This suggests that one possible standard for competency is an inquiry into whether the condemned understands his fate and the reasons behind it. (24) Such an interpretation foreshadows the cognitive test proffered by Justice Powell.

      Justice Powell in his concurrence asserted that there were two rationales justifying the common law prohibition. The first went to the accused's ability to assist his own defense, so as to preserve "the defendant's ability to make arguments on his own behalf." (25) The second rationale revolved around "more straightforward humanitarian concerns." (26) Justice Powell maintained that the "assistance" rationale "has slight merit today," given that modern convictions enjoy greater review, in conjunction with the right to effective counsel at trial and elsewhere "whenever the defendant raises substantial claims." (27) Considering that a defendant must also be competent for trial, (28) Justice Powell concluded it was "unlikely indeed that a defendant today could go to his death with knowledge of undiscovered trial error that might set him free." (29)

      Rejecting the assistance approach, Justice Powell advanced a cognitive standard for competency. Observing that "[i]f the defendant perceives the connection between his crime and his punishment, the retributive goal of the criminal law is satisfied," (30) Justice Powell asserted that a constitutionally sound standard would prevent the execution of "those who are unaware of the punishment they are about to suffer and why they are to suffer it." (31) Because this concurrence provided Ford with its fifth vote, it became the de facto standard and constitutional floor for death row competency. (32)

    2. A Little Help from My Friends': The ABA Assistance Prong

      Justice Powell emphasized in Ford that any standard articulated by the Court is a constitutional floor, and that states remain free to impose stronger competency requirements. (33) Such a heightened standard can be found in the ABA Criminal Justice Standards. Pursuant to Standard 7-5.6(b), an inmate is incompetent for execution not only if cognitive deficiencies prevent him from understanding the nature of the sentence, (34) but also if such deficiencies impede his ability to assist counsel. (35) Numerous states have adopted a heightened standard and permit a finding of incompetency for execution if a mental defect prevents a prisoner from assisting counsel. (36) The ABA reiterated in a 2006 report that mental deficiencies impairing an understanding of punishment or the ability to assist counsel should preclude capital punishment, (37) and additionally argued that an inability to make a rational decision to terminate post-conviction relief should likewise prevent execution. (38)

      The ABA report emphasizes that such inmates should be ineligible for the death penalty because execution in these circumstances undermines the integrity of the justice system. (39) This concern is present even in situations that do not involve explicit constitutional violations. For example, while the waiver of appeal by a death row inmate is not a per se violation of due process, (40) an inmate must be competent to knowingly and voluntarily make such a waiver. (41) Despite this requirement, a recent study of 106 so-called "volunteers" found that over sixty percent had been diagnosed with mental illnesses including schizophrenia. (42)

      Similarly, the ABA justified an assistance requirement on the grounds that the hundreds of death row exonerations underscore the risk that individuals with cognitive impairments may be unable to effectively assist counsel in establishing actual innocence. (43) It is impossible to prove in any case whether a defendant's cognitive limitations and their impact on the attorney-client relationship directly resulted in a death sentence or failed appeal. However, the representation of a mentally ill or otherwise cognitively challenged defendant raises unique challenges. These include difficulties in maintaining attorney-client communications, (44)...

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