Encyclopedia of Psychology and Law

countries has as one of its bases the presumption of

competence. That is, all defendants are presumed

competent unless this issue is called into question by

one of the parties to a legal proceeding. The compe-

tence of a criminal defendant may arise as an issue at

any point in the legal proceedings, from as early as

initial arrest and interrogation, throughout the entire

legal process, and finally to the time of sentencing or,

for those who have been sentenced to the ultimate

penalty of death, the time of execution. Just as an

incompetent defendant is not allowed to proceed to

trial, so too an incompetent defendant/inmate is pro-

hibited from being sentenced or executed. The ratio-

nale against executing incompetent individuals is

that, among other things, it is inhumane, neither

deterrence nor retribution is accomplished, and

incompetent individuals are unable to assist in

appealing their sentence.

Legal Standards

The issue of the constitutionality of executing incom-

petent individuals was heard by the U.S. Supreme

Court in 1986 in Ford v. Wainwright. The Court in

Fo rd held that the Eighth Amendment, which bans

cruel and unusual punishment, prohibits the execution

of an “insane” (mentally incompetent) person. The

Court reasoned that (a) execution of the insane would

offend humanity, (b) executing the insane would not

serve to set an example and would not reaffirm the

deterrence value believed to exist in capital punish-

ment, (c) any individual who is believed to be insane

is also believed unable to prepare “spiritually” for

death, (d) madness itself is punishment and, therefore,

negates the punishment value of execution, and (e) no

retributive value is believed to be served by executing

the mentally incompetent.

The Court in Fo rdalso ruled that when questions of

competency for execution were raised, due process

entitled a defendant to an evidentiary hearing. Further-

more, the Court stated that this evidentiary hearing is

required only when defendants make a “high thresh-

old showing” that their competency to be executed is

in question. The justices, however, did not define the

precise nature of the “high threshold.” Moreover, the

justices could not agree on the specific fact-finding

procedures to be used in case such a threshold is met:

Some agreed that a full “panoply” of trial-type proce-

dures was required, others argued that a more relaxed

hearing was acceptable if due process was ensured,

and still others argued that the most minimal “pro

forma” procedures were acceptable.

In addition to being divided on the fact-finding pro-

cedures, the Court also failed to specify a proper legal

test of incompetence within the execution context.

Only Justice Powell, in his concurring opinion,

addressed the issue of the legal test for competency for

execution, stating that the Eighth Amendment “forbids

the execution only of those who are unaware of the

punishment they are about to suffer and why they are

to suffer it” (p. 2608). Furthermore, he concluded that

the proper test of competency should be whether

defendants can comprehend the nature, pendency, and

purpose of their execution. Justice Powell argued that

the retributive goal of criminal law is satisfied only

when defendants are aware of the connection between

their crime and its punishment and defendants can only

prepare for death if they are aware that it is pending

shortly. Furthermore, Justice Powell asserted that the

states were free to adopt “a more expansive view of

sanity” that included the “requirement that the defen-

dant be able to assist in his own defense” (p. 2608).

Despite the charge given to individual states to

develop procedures to ensure that the insane would

not be executed, many states do not provide specific

guidelines for evaluating competency for execution,

and those guidelines that do exist vary widely. The

decision in Fo rd established that it was unconstitu-

tional to execute the insane and set the stage for psy-

chological evaluations of death row inmates whose

mental status for execution is questionable; however,

the Fo rdCourt left open two critical issues. First, the

Court did not specify the necessary fact-finding pro-

cedures to enforce the Fo rd decision. Second, the

Court failed to specify the proper legal test to be

implemented in cases of competency for execution.

Although it is not legally binding, the American

Bar Association, in the ABA Criminal Justice Mental

Health Standards(1989), has also provided a legal

test for determining competency for execution. This

test reads as follows:

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 proceed-

ings, what he or she was tried for, the reasons for the

punishment, or the nature of the punishment. A con-

vict 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

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