Ford v. Wainwright Brief for Petitioner-Appellant
Public Court Documents
July 30, 1984
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Brief Collection, LDF Court Filings. Ford v. Wainwright Brief for Petitioner-Appellant, 1984. 15d0aa1b-b29a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/36cb20c2-5d94-4d66-a9d1-a12d750642e2/ford-v-wainwright-brief-for-petitioner-appellant. Accessed October 08, 2025.
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No. 84-5372
*
IN THE
UNITED STATES COURT OP APPEALS
FOR THE ELEVENTH CIRCUIT
ALVIN BERNARD FORD, or CONNIE FORD,
individually, and as next friend on
behalf of ALVIN BERNARD FORD,
Petitioner-Appellant,
v.
LOUIE L. WAINWRIGHT, Secretary,
Florida Department of Corrections,
Respondent-Appellee.
On Appeal from the United States District Court
______ for the Southern District of Florida_____
BRIEF FOR PETITIONER-APPELLANT
RICHARD L. JORANDBY
Public Defender
15th Judicial Circuit of Florida
224 Datura Street/13th Floor
West Palm Beach, Florida 33401
(305) 837-2150
CRAIG S. BARNARD
Chief Assistant Public Defender
f- RICHARD H. BURR III
Of Counsel
w
■ ’i
RICHARD B. GREENE
Assistant Public Defender
MICHAEL A. MELLO
Assistant Public Defender
■
Of Counsel
LAURIN A. WOLLAN, JR.
1515 Hickory Avenue
THOMAS F. BALL, III
Assistant Public Defender
Counsel for Petitioner-Appellant
Tallahassee, Florida 32303
Preference: Habeas Corpus
No. 84-5372
IN THE
UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
ALVIN BERNARD FORD, or CONNIE FORD,
individually, and as next friend on
'behalf of ALVIN BERNARD FORD,
Petitioner-Appellant,
v .
LOUIE L. WAINWRIGHT, Secretary,
Florida Department of Corrections,
Respondent-Appellee.
On Appeal from the United States District Court
for the Southern District of Florida______
BRIEF FOR PETITIONER-APPELLANT
RICHARD L. JORANDBY
Public Defender
15th Judicial Circuit of Florida
224 Datura Street/13th Floor
West Palm Beach, Florida 33401
(305) 837-2150
CRAIG S . BARNARD
Chief Assistant Public Defender
RICHARD H. BURR III
Of Counsel
RICHARD B. GREENE
Assistant Public Defender
MICHAEL A. MELLO
Assistant Public Defender
Of Counsel THOMAS F. BALL III
Assistant Public Defender
LAURIN A. WOLLAN, JR.
1515 Hickory Avenue Counsel for Petitioner-Appellant
Tallahassee, Florida 32303
Preference: Habeas Corpus
STATEMENT REGARDING PREFERENCE
This is an appeal from the denial of a petition for writ of nabeas corpus
(sought under 28 U.S.C. §2254) by the United States District Court for the
Southern District of Florida. As such, it is to be given preference in
processing and disposition. Local Rule 11, Appendix One (a) (3).
STATEMENT REGARDING ORAL ARGUMENT
Petitioner, pursuant to Local Rule 22 (f) (4), requests oral argument of
this appeal. This appeal is frcm the denial of habeas corpus and involves a
complex constitutional issue of first impression in this or any other court
concerning the administration of capital punishment in this Nation.
TABLE OF CONTENTS
PAGE
TABLE OF AUTHORITIES ............................................... vi
STATEMENT OF THE ISSUES PRESENTED ................................. 1
STATEMENT OF THE CASE ............... ............................... 1
A. Course of Proceedings ...... .............................. 1
JT
B. Statement of Material Facts ............................... 4
C. Standard of Review ......... .............................. 10
SUMMARY OF THE ARGUMENT.............................................. 10
STATEMENT OF JURISDICTION ............................................ 13
ARGUMENT
I. t h e EIGHTH AMENDMENT PRECLUDES THE EXECUTION OF THE
PRESENTLY INCOMPETENT....................................... 13
A. Introduction ............................ 13
B. Intent of the Framers .................................. 14
1. A "Savage" Act of "Extreme Inhumanity and
Cruelty" .......................................... 15
2. "Nor Cruel and Unusual Punishments Inflicted" ... 18
3. Conclusion: The Framers Intended to Prohibit
Cruel Punishments .and Execution of the Insane was
Known by the Framers to be Cruel and Inhuman ... 21
C. Traditional Eighth Amendment Jurisprudence ............ 22
1. Contemporary Standards of Decency: Uniform
Disapproval ....................................... 23
2. Independent Judicial Assessment ................... 24
3. Conclusion: Execution of the Insane Also Fails
Traditional Eighth Amendment Analysis ............ 33
-iii-
34
34
34
36
37
38
41
42
43
44
45
45
sa
g
III.
EVIDENTIARY HEARING MUST BE HELD IN THE DISTRICT COURT
DETERMINE MR. FORD'S PRESENT COMPETENCY TO BE EXECUTED,
REQUIRED BY THE THE EIGHT AMENDMENT ...................
A. Introduction .........................................
B. Jurisdiction: "In Custody In Violation of the
Constitution" ........................................
C. Florida's Gubernatorial Proceeding ..................
D. Florida's Gubernatorial Proceeding Is Inadequate to
Reliably Vindicate the Eighth Amendment Right .......
1. Florida's Procedures Are Untrustworthy .........
2. Florida Applies A Competency Standard Less Than
That Required By The Eighth Amendment ..........
3. Analogous Areas of the Law Where Determination of
Competency is Required Suggests that Florida's
Procedure is Inadequate ........................
4. Florida's Procedure Is Not Entitled to a
Presumption of Correctness .....................
E. Conclusion: An Evidentiary Hearing is Required in The
District Court On Mr. Ford's Competency to be
Executed .............................................
THE RIGHT NOT TO BE EXECUTED WHILE INCOMPETENT AS ESTAB
LISHED BY STATE LAW CANNOT BE WITHDRAWN WITHOUT PROCEDURAL
DUE PROCESS PROTECTIONS REQUIRED BY THE EIGHTH AND FOUR
TEENTH AMENDMENTS .........................................
A. Introduction .........................................
B. Solsbee v. Balkccm No Longer Measures the Process Due
to the Condemned in Determining Competency at the Time
of Execution .........................................
C. Florida Has Created as a Matter of State Law a
Protectible Expectation that a Condemned Person Who Is
Insane at the Time of Execution Will Not Be Executed .
-iv-
PAGE
D. The Right Not TO Be Executed When Incompetent Requires
the Same Due Process Protection as the Right Not TO Be
Tried When Incompetent ............................... 56
1. The Private Interest At Stake .................. 56
2. The Government's Interests At Stake ............ 57
3. Risk of Erroneous Deprivation and the Benefit of
Additional Safeguards ........................... 58
4. Due Process and the Death Penalty .............. 58
E. Conclusion ........................................... 59
IV. PETITIONER'S CLAIM THAT THE DEATH SENTENCE IS ADMINISTERED
IN FLORIDA IN AN ARBITRARY AND DISCRIMINATORY MANNER IN
VIOLATION OF THE EIGHTH AND FOURTEENTH AMENDMENTS CANNOT BE
DETERMINED UNTIL THE RESOLUTION BY THE EN BANC COURT OF THE
CONSTITUTIONAL STANDARDS GOVERNING SUCH A CLAIM ........... 60
CONCLUSION ......................................................... 65
APPENDIX: EXECUTION OF THE INCOMPETENT:
A National Survey of State Policies ..................... la
CERTIFICATE OF SERVICE
-v-
TABLE OF AUTHORITIES
Cases Cited Page
* Adams v. Wainwright, 734 F.2d 511
(11th Cir. 1984) ....................................... 61
Addington v. Texas, 441 U.S. 418
(1979) ................................................... 39
Aldridge v. Wainwright, 433 So.2d 988
(Fla. 1983) ............................................. 63
Anderson v. Kentucky, 376 U.S. 940
motion to correct order denied,
377 U.S. 902 (1964) .................................... 31
Arnett v. Kennedy, 416 U.S. 134
( 1974) ................................................... 47
Barefoot v. Estelle, ___ U.S.___ ,
103 S.Ct. 3383 (1983) ................................. 30,64
Barker v. State, 75 Neb. 289,
106 N.W. 450 ( 1905) .................................... 23
Beck v. Alabama, 447 U.S. 625
(1980) ................................................... 23,59
Bell v. Burson, 402 U.S. 535
(1971) ................................................... 49,56,57
Blackledge v. Allison, 431 U.S. 63
(1977) ................................................... 44
Board of Regents v. Roth, 408 U.S. 564
(1972) ................................................... 54
* Bounds v. Smith, 430 U.S. 817
(1977) ........ .......................................... 27,28
Braden v. 30th Judicial Circuit Court,
410 U.S. 484 ( 1973) ..........'......................... 35
Caritativo v. California, 357 U.S. 549
( 1958) ................................................... 14,49
Chaudoin v. State, 383 So.2d 645
(Fla. 5th DCA 1980) .................................... 63
Coker v. Georgia, 433 U.S. 584
(1977) ................................................... 23,24,32
-vi-
Page
Connecticut Board of Pardons v. Dumschat,
452 U.S. 458 (1981) ............................... ____ 53
Dixon v. Love, 431 U.S. 105
(1977) .............................................. _____ 56
* Drope v. Missouri/ 420 U.S. 162
(1975) .............................................. _____ 27,59
Duncan v. Louisiana, 391 U.S. 145
(1968) ............................. ................ _____ 14
Dusky v. United States, 362 U.S. 402
(1960) .............................................. ..... 41
Enmund v. Florida, 458 U.S. 782
( 1982) ............................................. ■..... 23,32
Escoe v. Zerbst, 295 U.S. 490
(1935) ............................................. ..... 47,48,50
51
Evans v. Bennett, 440 U.S. 987
(1979), vacating stay of execution,
440 U.S. 1301 (1979) ............................ ..... 31
Evans v. Bennett, 440 U.S. 1301
(1979) ............................................. ..... 30
Ex parte Bollman, 8 U.S. (4 Cranch) 75
(1807) ............................................. ..... 27,35
Ex parte Chesser, 93 Fla. 291, 111 So. 720
(1927) ............................................. ..... 36,53
* Ex parte Chesser, 93 Fla. 590, 112 So. 87
(1927) ............................................. ..... 23,53,54
Ex parte Lange, 85 U.S. (18 Wall.) 163
(1873) ............................................. ..... 35
Ex parte McCardle, 74 U.S. (7 Wall.) 506
(1868) ..........................•................... ..... 27
Ex parte Watkins, 28 U.S (3 Pet.) 193
(1830) ............................................. ..... 35
Fay v. Noia, 372 U.S. 391
(1963) ............................................. ..... 35
Fogel v. Chestnutt, 668 F.2d 100
(2d Cir. 1981) ................................... ..... 61
-vii-
Page
Ford v. Strickland, 734 F.2d 538
(11th Cir. 1984) ................................. ....... 44,60,61
Ford v. Wainwright, 451 So.2d 471,
(Fla. 1984) ....................................... ....... 36,46,53
Foster v. State, 400 So.2d 1
(Fla. 1981) ....................................... ...... 64
Fuentes v. Shevin, 407 U.S. 67
(1972) ............................................. ...... 58
* Furman v. Georgia, 408 U.S. 238
(1972) ............................................ ....... 18,19,20
22
* Gagnon v. Scarpelli, 411 U.S. 778
(1973) ............................................ ...... 50,51,60
* Gardner v. Florida, 430 U.S. 349
(1977) ............................................ ...... 39,52,59
Gilmore v. Utah, 429 U.S. 1012
(1976) ............................................ ...... 31,42
Goldberg v. Kelly, 397 U.S. 254
(1970) ............................................ ...... 49,57
Goode v. Wainwright, 448 So.2d 999
(Fla. 1984) ...................................... ...... 12,36,37
38,53
* Goode v. Wainwright, 731 F.2d 1482
(11th Cir. 1984) ................................ ...... 36,46,57
Goss v. Lopez, 419 U.S. 565
(1975) ............................................ ...... 58
Graham v. Richardson, 403 U.S. 365
(1971) ............................................ ...... 49
Gray v. Lucas, 710 F.2d 1048
(5th Cir. 1983), cert.denied,
U.S. , 104 S.Ct. 211 (1983) ............ ...... 11,14,23
42
Gray Panthers v. Schweiker, 652 F.2d 146
(D.C. Cir. 1980) ................................ ...... 39
Green v. Georgia, 442 U.S. 95
(1979) ............................................ ...... 59
-viii-
* Greenholtz v. Inmates of Nebraska Penal and
Correctional Complex, 442 U.S. 1 (1979) ........... 50,51,54
55
* Gregg v. Georgia, 428 U.S. 153
(1976) ................................................... 11,20,22
24,26,32
33
Guice v. Fortenberry, 661 F.2d 496
(5th Cir. 1981) ........................................ 38
Hawie v. State, 121 Miss. 197, 83 So. 158
(1919) ................................................... 23
Hawk v. Olson, 326 U.S. 271
(1945) ................................................... 35
* Hays v. Murphy, 663 F.2d 1004
(10th Cir. 1981) ....................................... 40,44
Hewitt v. Helms, U.S. , 103 S.Ct. 864
(1983) ................................................... 55
Hicks v. Oklahoma, 447 U.S. 343
(1980) ................................................... 50
Hitchcock v. State, 432 So.2d 42
(Fla. 1983) ............................................. 63
Hunter v. Wood, 209 U.S. 205
( 1908) ................................................... 36
Hurtado v. California, 110 U.S. 516
(1884) ................................................... 15
Hysler v. State, 136 Fla. 563, 187 So. 261
(1939) ................................................... 36,53
In re Kemmler, 36 U.S. 436
( 1890) ................................................... 20
In re Loney, 134 U.S. 372
( 1890) ................................................... 36
In re Neagle, 135 U.S. 1
( 1890) ................................................... 36
In re Smith, 285 N.M. 48, 176 P. 819
(1918) ................................................... 23
Jackson v. State, 438 S o .2d 4
(Fla. 1983) ............................................. 63
-lx-
Page
* Johnson v. Avery, 393 U.S. 483
(1969) ................................................... 27,29,30
Johnson v. Zerbst, 309 U.S. 458
( 1938) ................................................... 35
Joint Anti-Fascist Refugee Comm. v. McGrath,
341 U.S. 123 (1951) .................................... 39,50
Kelly v. Wyman, 294 F.Supp. 893
(S.D.N.Y. 1968) ........................................ 57
Lenhard v. Wolff, 443 U.S. 1306 (1979),
vacating stay of execution,
444 U.S. 807 (1979) .................................... 31
Lockett v. Ohio, 438 U.S. 586
(1978) ................................................... 31
* Logan v. Zimmerman Brush Co., 455 U.S. 422
(1982) ................................................... 50,55,56
Massie v. California, No. 68-5025
(U.S. Mar. 6, 1969), cert, denied as m o o t ,
406 U.S. 971 (1972) .................................... 31
Mathews v. Eldridge, 424 U.S. 319
(1976) ................................................... 56,58
* McCleskey v. Zant, No. 84-8176 (pending) ............. 17,60,64
McGautha v. California, 402 U.S. 183
(1971) ................................................... 19
Memphis Light, Gas & Water Div. v. Craft,
436 U.S. 1 (1978) ...................................... 56
Moore v. Dempsey, 261 U.S. 86
( 1923) ................................................... 35
* Morrissey v. Brewer, 408 U.S. 471
(1972) 49,50
Mullane v. Central Hanover Trust Co.,
339 U.S. 306 ( 1950) .................................... 58
Musselwhite v. State, 215 Miss. 363, 60 So.2d 807
(1952) ................................................... 32
Nobles v. Georgia, 168 U.S. 398
(1897) ................................................... 14
-x-
Page
Pate v. Robinson, 383 U.S. 375
(1966) 59
People v. Scott, 326 111. 327, 157 N.E. 247
(1927) ................................................... 29
Phyle v. Duffy, 34 Cal.2d 144, 208 P.2d 668
(1949) .........'.......................................... 47
Phyle v. Duffy, 334 U.S. 431
(1948) ................................................... I4
Preiser v. Rodriguez, 411 U.S. 475
( 1973) ...... '............................................. 35
* Rees v. Peyton, 384 U.S. 312
(1966) ................................................... 31,42
Rees v. Peyton, 386 U.S. 989
(1967) ................................................... 31
Ritter v. Smith, 726 F.2d 1505
(11th Cir. 1984) ....................................... 61
Robinson v. California, 370 U.S. 660
( 1962) ................................................... 14,26
Rogers v. Lodge, 458 U.S. 613
(1982) ................................................... 64
Rushing v. State, 233 So.2d 137
(Fla. 3d DCA 1970) ..................................... 63
Sanders v. United States, 373 U.S. 1
(1963) ................................................... 63
Shaw v. Martin, 613 F.2d 487
(4th Cir. 1980) ........................................ 30
Shriner v. Wainwright, ___ F.2d___ No. 84-3394
(11th Cir., June 19, 1984) ........................... 29
Smith v. Kemp, ___ U.S.___ , 104 S.Ct. 565
( 1983) ................................................... 62
* Solem v. Helm, ___ U.S.___ , 103 S.Ct. 3001
( 1983) ................................................... 11,19
* Solesbee v. Balkcom, 339 U.S. 9
(1950) passim
Solesbee v. Balkcom, 205 Ga. 122, 52 S .E .2d 433
(1949) ................................................... 54
-xi-
Page
* Spencer v. Zant, 715 F.2d 1562,
vacated for rehearing en banc,
715 F . 2d 1583 (11th Cir. 1983) ...............
State v. Allen, 204 La. 513, 15 So.2d 870
(1943) ............................................
* State ex rel. Deeb v. Fabisinski, 111 Fla. 454,
152 So. 207 (1933) .............................
* Stephens v. Kemp, ___ U.S.___ 104 S.Ct. 562
(1983) ............................................
Strickland v. Francis, ___ F.2d___ , No. 83-8572,
(11th Cir., July 31, 1984) ....................
Sullivan v. Wainwright, 721 F .2d 316
(11th Cir. 1983), petition for stay
of execution denied, ___ U .S .___ ,
104 S.Ct. 450 (1983) ...........................
Thomas v. Zant, 697 F .2d 977
(11th Cir. 1983) ................................
Thompson v. Dilley, 275 So.2d 234
(Fla. 1973) ......................................
Tobler v. State, 350 So.2d 555
(Fla. 1st DCA 1977) ............................
* Townsend v. Sain, 372 U.S. 293
(1963) ............................................
13.60.64
23
53,54
62.64
57
62
38
63
63
12,28,35
37,44
Trop v. Dulles, 356 U.S. 86
(1958) ...........................................
Turney v. Ohio, 273 U.S. 510
(1927) ...........................................
Ughbanks v. Armstrong, 208 U.S. 481
(1908) ...........................................
United States v. Hamilton, 3 U.S. (Dali.) 17
(1795) ...........................................
* Vitek v. Jones, 445 U.S. 480
(1980) ...........................................
Wainwright v. Ford, ___ U.S.___ , 104 S.Ct. 3498
(1984) ...........................................
22,24
48
47,48,50
35
50
14,60,61
63,64
— x i i —
Page
Wainwright v. Sykes, 433 U.S. 72
(1977) ................................................... 35,64
Waley v. Johnston, 316 U.S. 101
(1942) ................................................... 35
Weems v. United States, 217 U.S. 349
(1909) .........'.......................................... 19,20
Williams v. Florida, 399 U.S. 78
( 1970) ................................................... 34
* Williams v. New York, 337 U.S. 241
(1949) ................................................... 48,49,51
52
Woodard v. Hutchins, ___ U.S.___ , 104 S.Ct. 752
(1984) ................................................... 34
Woodson v. North Carolina, 428 U.S. 280
(1976) ................................................... 23,24,59
Statutes and Rules
Florida Statutes (1983)
Section 922.07 .................................... passim
Florida Rules of Criminal Procedure
Rule 3.210 ........................................ 57
Rule 3.850 ........................................ 63
Florida Constitution
Article V, Section 2(a) ......................... 63
United States Code
Title 28, Section 2241 ........................... 34,36,39
Title 28, Section 2243 .......................... 44
Title 28, Section 2254 ........................... 11,28,34
36,38,43
Title 28, Section 2255 .......................... 44
Books and Treatises
1 J. Archbold, A Complete Practical Treatise
on Criminal Procedure (8th ed. 1879) ............... 17
P. Bator, P. Mishkin, D. Shapiro and H. Wechsler,
Hart and Wechsler's The Federal Courts and the
Federal System (2d e d . 1973 Supp. 1977) ........... 27
-xiii-
Page
R. Berger, Death Penalties (1982) ...................... 18
4 W. Blackstone, Commentaries on the Law
of England (1768) ...................................... Passim
1 J. Chitty, A Practical Treatise on the
Criminal Law (1819) .................................... 16,20
E. Coke, Third Institute (1644) ......................... 10,16
Collinson, A Treatise on Law Concerning
Idiots, Lunatics, and Other Persons
Non Compotes Mentis (1812) ........................... 33
T. Cooley, A Treatise on Constitutional
Limitations (7th ed. 1903) ........................... 19
G. Elton, England Under the Tudors (1960) ............ 16
FitzHerbert, Natura Brevium (1534) ..................... 15
S. Glueck, Mental Disorder and the Criminal Law
(1925) ................................................... I5
1 M. Hale, The History of the Pleas of the Crown
(1736) ................................................... 16,18,26
58
1 W. Hawkins, A Treatise on the Pleas of the
Crown (1716) ............................................ 16
Hunard, The King's Pardon for Homicide Before A .D .
1307 (1969) ............................................. 15
R. Johnson, Condemned to Die;
Under Sentence of Death (1981) ...................... 30
1 I. Ray, Treatise on the Medical Jurisprudence
of Insanity (5th e d . 1871) ........................... 21
Rosenberg, The Trial of the Assassin Guiteau,
Psychiatry in the Gilded Age ( 1968) ................ 21
1 W. Russell, A Treatise on Crimes and Indictable
Misdemeanors (3d Amer. e d . 1836) .................... 21
2 J. Stephen, A History of the Common Law of England
( 1883) ................................................... 15
F. Wharton, A Treatise on the Criminal Law of the
United States (2d e d . 1852) .......................... 20
-xiv-
Page.
Period icals
Amsterdam, Criminal Prosecutions Affecting
Federaly Guaranteed Civil Rights: Federal
Removal and Habeas Corpus Jurisdiction
to Abort State Court Trial,
113 U.Pa. L. Rev. 793 (1965) ......................... 35
B a tor, Finality in Criminal Law and Federal
Habeas Corpus for State Prisoners,
76 Harv. L.Rev. 441 (1963) ........................... 35
Ennis and Litwack, Psychiatry and the Presumption
of Expertise: Flipping Coins in the Courtroom,
62 Cal. L.Rev. 693 (1974) ............................ 39
Granucci, "Nor Cruel and Unusual Punishments
Inflicted;'1' The Original Meaning,
57 Cal. L.Rev. 839 (1969) ............................ 18
Hazard and Louisell, Death, the State, and the
Insane: Stay of Execution,
9 UCLA L.Rev. 381 (1962) ............................. 25,42
Pizzi, Competency to Stand Trial in Federal Courts
Conceptual and Constitutional Problems,
45 U.Chi. L.Rev. 21 (1977) ........................... 39
Radin, Cruel Punishment and Respect For Persons;
Super Due Process For Death,
53 S.Cal. L.Rev. 1143 (1980) ........................ 59
Sayre, Mens Rea, 45 Harv. L.Rev. 974
(1931-32) ................................................ 15
Strafer, Volunteering for Execution; Competency
Voluntariness and the Proprierty of Third Party
Intervention,
74 J. Crim. L. & Criminology 860 (1983) ........... 31,40
Note, Incompetency to Stand Trial,
81 Harv. L.Rev. 455 (1967) ........................... 32
Note, The Eighth Amendment and the Execution of
the Presently Incompetent,
32 Stan. L. Rev. 765 (1980) .......................... 21
Note, Insanity of the Condemned,
88 Yale L.J. 533 ( 1979) ............................... 23,32,42
Comment, An End to Incompetency to Stand Trial,
13 Santa Clara L.Rev. 560 (1973) .................... 39
-xv-
Comment, Execution of Insane Persons,
235 Cal. L.Rev. 246 ( 1950) ........................... 42
Comment, Capital Sentencing--
Effect of McGautha and Furman,
45 Temp. L.Q. 619 ( 1972) ............................. 86
Page
Reports
Department of Economic and Social Affairs,
United Nations D o c .ST/SOA/SD/9,
Capital Punishment (1962) ............................ 24
Department of Economic and Social Affairs,
United Nations Doc. ST/SOA/SD/10,
Capital Punishment: Developments 1961-1965
(1967) ................................................... 24
Massachusettes Committee on Capital Punishment
Report (1836) ........................................... 2^
Royal Commission on Capital Punishment,
1949-1953 Report (1953) ............................... 21,25,42
Other Sources * 11
21 American Jurisprudence 2d, Criminal Law §123 ..... 42
Hawles, Remarks on the Trial of Mr. Charles Bateman,
11 State Trials 474 (1816) ........................... 16,17,26
58
-xvi-
STATEMENT OF THE ISSUES PRESENTED
1. Whether the eighth amendment's prohibition of cruel and unusual
punishment forbids the execution of a condemned person who is incompetent at
the time of execution?
2. If the eighth amendment does forbid the execution of the incompetent,
whether a federal habeas court must hold an evidentiary hearing to determine
the competency of such a person, where the only prior state determination of
competency was made in an ex parte, non-judicial proceeding?
3. Whether a state-created entitlement not to be executed when incom
petent can be withdrawn without due process of law?
4. Whether petitioner's claim that the Florida death penalty is admin
istered in an arbitrary and discriminatory manner on the basis of race and
other impermissible factors may be determined prior to the resolution of the
constitutional standards governing such a claim by the pending en banc cases of
this Court?
STATEMENT OF TOE CASE
This case is on appeal from the order of the United States District Court
for the Southern District of Florida (Honorable Norman C. Roettger, Jr.,
District Judge) summarily dismissing Mr. Ford's application for a writ of
habeas corpus (R 1-112).l
A. Course of Prior Proceedings
On December 7, 1974, Alvin Bernard Ford was convicted of first degree
murder in the Circuit Court for the Seventeenth Judicial Circuit, Broward
County, Florida, for a murder committed during an attempted robbery of a
1 Reference to the record before this Court is designated "R" with the approp
riate pages cited thereafter. Because the transcript of the proceedings before
the district court was paginated separately, however, references to that part
of the record will be designated "RT" with the appropriate pages cited there
after.
-1-
restaurant by four persons. On January 6, 1975, following a jury recommendation
of death, Mr. Ford was sentenced to death. The Florida Supreme Court affirmed
the conviction and death sentence, Ford v. State, 374 So.2d 496 (Fla. 1979),
and certiorari was denied on April 14, 1980, Ford v. Florida, 445 LJ.S. 972.
Thereafter, Mr. Ford pursued state post-conviction and federal habeas
corpus remedies. His motion for post-conviction relief pursuant to Florida
Rule of Criminal Procedure 3.850 was denied by the Circuit Court in Broward
County, and its denial was affirmed by the Florida Supreme Court. Ford v.
State, 407 So.2d 907 (Fla. 1981). Mr. Ford's subsequent petition for a writ
of habeas corpus in the United States District Court for the Southern District
of Florida was denied in an unreported opinion, and on April 15, 1982, a
divided panel of this Court affirmed the district court's denial of relief.
Ford v. Strickland, 676 F.2d 434 (11th Cir. 1982). Rehearing en banc was
granted, and the en banc court affirmed the district court's judgment. Ford v.
Strickland, 696 F.2d 804 (11th Cir. 1982). Certiorari was thereafter denied.
Ford v. Strickland, ___U.S.___, 104 S.Ct. 201 (1983).
On October 20, 1983, the undersigned counsel invoked the procedures of
Fla. Stat. § 922.07 (1983) on behalf of Mr. Ford. Pursuant to this statute, the
Florida governor appointed a commission of three psychiatrists to evaluate Mr.
Ford's current sanity in light of the statutory standards for determining
sanity at the time of execution. The commission members each thereafter
reported their findings, and on April 30, 1984, the governor signed a Death
Warrant ordering Mr. Ford's execution. No written findings were made by the
governor with respect to Mr. Ford's sanity.
On May 21, 1984, petitioner filed in the state trial court a Motion for a
Hearing and Appointment of Experts for Determination of Competency to be
Executed, and for a Stay of Execution During the Pendency Thereof, together
with a supporting memorandum of law and an extensive appendix containing
-2-
documentation of Mr. Ford's present incompetency. Within four hours of filing
these pleadings, the judge denied the motion without findings.
This Order was appealed to the Florida Supreme Court. On May 25, 1984 the
court denied relief, holding that there is no judicial remedy in Florida for
the determination of competency to be executed: "[I]n Goode we held that under
[Florida Statutes] section 922.07 the governor can make the determination;
Goode does not stand for the proposition that the issue of sanity to be
executed can be raised independently in the state judicial system." Ford v .
State, 451 So.2d 471, 475 (Fla. 1984). The court also denied by that opinion
an original petition for writ of habeas corpus.
Thereafter petitioner filed his petition for writ of habeas corpus in the
United States District Court for the Southern District of Florida. The cause
was assigned to the Honorable Norman C. Roettger, Jr., who heard argument on
petitioner's application for a stay of execution on May 29, 1984. On the same
date, Judge Roettger denied the habeas corpus petition on the basis of the
following:
I find that there is an abuse of the writ throughout this
matter. But reaching the merits as well I find no reason to
grant the relief sought by the Petitioner. The Governor of
this State acting under 922.07 the Court finds that he has
acted properly, has followed the steps. Each of. the three
psychiatrists whom he appointed has found the Defendant
sufficiently competent to be executed under the law and so on
the merits, as well as on this issue, the petition must
fail.
(KT 71-72).
On May 30, 1984, this Court granted a certificate of probable cause and
stayed petitioner's execution. Ford v. Wainwright, 734 F.2d 538. The Supreme
Court thereafter denied respondent's motion to vacate the stay of execution.
Wainwright v. Ford, ___U.S. ___, 104 S.Ct. 3498 (1984).
B. Statement of Material Facts
In the two-year period after December, 1981, Alvin Ford's mental health
gradually deteriorated. By November, 1983, he was found to be incompetent to
be executed. At that time Mr. Ford thought that he was on death row at Florida
State Prison only because he chose to be there. He thought that the case of
"Ford v. State" had ended capital punishment in Florida and, in particular, had
deprived the State of Florida of the right to execute him. After November,
1983, his incapacity worsened. He lost the ability to communicate by conven
tional means. He could only mutter softly to himself, making gestures in which
there seemed to be a message, but a message that no one could decipher. This
was his condition at the time this appeal began.
One of the questions presented by this appeal is whether these facts, set
forth in greater detail in the pages that follow, are sufficient to have
required an evidentiary hearing in the district court. In the related context
of trial competency, Drope v. Missouri, 420 U.S. 162, 180 (1975), has taught
that "evidence of a defendant's irrational behavior" and "any prior medical
opinion on competence" are especially material to whether an evidentiary
hearing should have been held. Accordingly, the evidence of Mr. Ford's
irrational behavior and of medical opinion concerning his competency is
summarized herein.
Prior to December, 1981, Mr. Ford did not suffer from psychosis. No
question concerning his competency had been raised before, during, or after his
trial. But gradually, from December, 1981 on, Mr. Ford began to lose touch with
reality.
This process began in an almost unnoticeable fashion: By December, 1981,
Mr. Ford began to believe that the personalities at a radio station in
Jacksonville talked to him over the radio (R 203-05). But it continued
relentlessly. He then began to believe that he wrote the subjects for the
_4_
radio station's opinion line (R 207-08), and thereafter, that he had the power
to see things in the world outside the prison that no one else, except those
vested with the same powers of perception, could see. Through his powers of
perception, Mr. Ford became convinced that he had found strong evidence
implicating the Ku Klux Klan in the arson of a house in Jacksonville in which a
black family was killed (R 210-30). Not long after this, Mr. Ford began to
believe that the Ku Klux Klan had placed several of its members as guards in
the prison. The task of these Klan members was to drive Mr. Ford to suicide. To
do so, the guards imprisoned and raped women in the "pipe alley" behind his
cell, put dead bodies in the concrete enclosure under his bunk in his cell, and
put semen on his food. See R 262-70.
Other conspiracies against him developed. He claimed that he had written
a book about Teddy Pendergrass which had been stolen from him and published
under another title by another author. Even though the book as published was
about Paul Robeson, Mr. Ford said that the book was merely an encoded version
of his work (R 266). Long time friends and people providing Mr. Ford support
over the years suddenly became enemies (R 262-70). All were joined in a giant
conspiracy with the Ku Klux Klan to drive him crazy or to make him commit
suicide (L3.). During the time that these events were taking place in the
mental life of Mr. Ford, he was not always obsessed by these thoughts. He had
interludes of clarity and of being in touch with reality (R 249-52, 254-56).
However, as time progressed, these interludes became fewer and much shorter.
By the fall of 1982, Mr. Ford seemed to be unable to regain contact with
reality. By this time the conspirators against him, most notably the members
of the Ku Klux Klan who were acting as correctional officers, had begun taking
hostages (R 318-19). At first Mr. Ford's mother, then other members of his
family, then his lav/yers, then radio and television personalities, and finally
politicians, and world political leaders — all became hostages in a machiavel
-5-
lian scheme to drive Mr. Ford to insanity. See, e.g., R 321-23, 325, 336,
348-350. For a period of months, Mr. Ford desperately wrote everyone he could
think of who had the power to assist him and begged for help in ending "the
hostage crisis." Mr. Ford repeatedly wrote President Reagan, the director of
the FBI, the state attorney in Jacksonville, Jim Smith and numerous assistant
attorneys general in the State of Florida, and numerous judges. See R 344-45,
352-62, 364-65. In each letter to each of these people, Mr. Ford recounted the
events leading up to the hostage crisis and begged for help. As time progres
sed, his pleas became more bizarre, less logical, and more nonsensical. Id. At
the same time, the events in Mr. Ford's world began to take on significance far
beyond him. Thus, in April, 1983, Mr. Ford wrote an attorney in Miami that
"this [hostage] crisis has to end, it is causing the racial unrest in your
City, namely Liberty City," (R 344).
By the summer of 1983, Mr. Ford's world changed again. He seemed to gain
new power within his world. As a result, he seemed to be in the process of
resolving the hostage crisis himself. For example, on May 10, 1983, he wrote
Attorney General Jim Smith: "I have fired a number of officials at the institu
tional level and state level, with the final approval, from the Governor, and
the President of the United States. Also your office." (R 359). And again,
on July 27, 1983, in a letter in which Mr. Ford referred to himself as Pope
John Paul III, he wrote,
Ibis investigation has been very successful, and to the exact
point of my past letters. It's unfortunate so many, prison
personnel will be cast in prison. Thankfully the CIA-FBI was
in fact able to investigate UCI, the attorney general's
office, all level of state and federal court. The Florida
State Supreme Court, I have appointed new justices, I have
appointed nine.
(R 372-73).
By November, 1983, Mr. Ford's communications from his world became more
fragmented. He was no longer centered on any particular subject, but would
"carry on" about a multiplicity of subjects all in one uninterrupted breath.
See, e.g., R 377-78. The best example of this behavior was captured by Dr.
Harold Kaufman, a psychiatrist who evaluated Mr. Ford on November 3, 1983 at
the request of Mr. Ford's counsel. Dr. Kaufman recorded Mr. Ford's speech as
the following on this date:
Mr. Ford: The guard stands outside my cell and reads my mind.
** Then he puts it on tape and sends it to the Reagans and
CBS...I know there is some sort of death penalty, but
I'm free to go whenever I want because it would be
illegal and the executioner would be executed...CBS is
trying to do a movie about my case...I know the KKK and
news reporters all disrupting me and CBS knows it. Just
call CBS crime watch... there are all kinds of people in
pipe alley (an area behind Mr. Ford's cell) bothering
me — Sinatra, Hugh Heffner, people from the dog show,
Richard Burr, my sisters and brother trying to sign the
death warrants so they don't keep bothering me...I
never see them, I only hear them especially at night.
(Note that Mr. Ford denies seeing these people in his
delusions. This suggest that he is honestly reporting
what his mental processes are.) I won't be executed
because of no crime...maybe because I'm a smart
ass...my family's back there (in pipe alley)...you
can't evaluate me. I did a study in the army...alot of
masturbation.. .1 lost alot of money on the stock
market. They're back there investigating my case. Then
this guy motions with his finger like when I pulled the
trigger. Come on back you'll see what they're up
to— Reagan's back there too. Me and Gail bought the
prison and I have to sell it back. State and federal
prisons. We changed all the other countries and
because we've got a pretty good group back there I'm
completely harmless. That's how Jimmy Hoffa got it. My
case is gonna save me.
** Comments in parentheses are [Dr. Kaufman's] own.
(R 433).
In the same conversation that Dr. Kaufman had with Mr. Ford, he asked Mr.
Ford, "are you going to be executed?" Mr. Ford replied, "I can't be executed
because of the landmark case. I won. Ford v. State will prevent executions all
over." (R 434). Thereafter, Dr. Kaufman and Mr. Ford carried on the following
colloquy:
Dr. Kaufman (Q): Are you on death row?
Mr. Ford (A): Yes.
__ "7 —
Q: Does that mean that the State intends to execute you?
A: No.
Q: Why not?
A: Because Ford v. State prevents it. They tried to get me
with the FCC tape but when the KKK came in it was up to CBS
and the Governor. These prisoners are rooming back there
raping everybody. I told the Governor to sign the death
warrants so they stop bothering me.
Id.
In December, 1983, communication with Mr. Ford became virtually impos
sible. In two interviews with Mr. Ford, on December 15 and December 19, 1983,
Mr. Ford spoke in a fragmented, code-like fashion. At times during these
interviews, Mr. Ford appeared to be trying to respond to questions posed to
him, but he seemed incapable of communicating by any of the conventional
methods with which we ccmmunicate. See R 62-67.2
Four psychiatrists evaluated Mr. Ford's competency during November and
December, 1983: Dr. Harold Kaufman and the three psychiatrists appointed by
the governor pursuant to Fla. Stat. §922.07 (Drs. Peter Ivory, Umesh Mhatre,
and Walter Afield) . Dr. Kaufman, Dr. Mhatre, and Dr. Afield determined that
Mr. Ford suffered from psychosis. (R 432-35, 441-43, 445). Dr. Kaufman
further concluded that Mr. Ford's psychosis was of such severity "that he
cannot sufficiently appreciate or understand either the reasons 'why the death
penalty was imposed upon him' or 'the purpose' of this punishment." (R 435).
Dr. Mhatre and Dr. Afield concluded that Mr. Ford was competent despite having
found that he genuinely suffered from psychosis.2
2 The second of these interviews, on December 19, was the interview conducted by
the psychiatrists appointed by Governor Graham pursuant to Fla. Stat. §922.07.
2 Thus, only the third psychiatrist appointed by Governor Graham, Dr. Ivory,
found Mr. Ford to be suffering from no genuine illness. As to the genuineness
of Mr. Ford's illness, however, it should be noted that a fifth psychiatrist,
Dr. Jamal Amin, also evaluated Mr. Ford. Dr. Amin evaluated Mr. Ford periodi
cally during the course of his deterioration, from before December, 1981
through June, 1983. Dr. Amin concluded that Mr. Ford had developed a profound
-8-
There were substantial reasons proffered to the district court why the
opinions of the psychiatrists who disagreed with Dr. Kaufman's assessment of
competency were wrong. In preparation for the hearing which counsel for Mr.
Ford anticipated in the state trial court, counsel asked two forensic psychia
trists, Dr. Seymour Halleck and Dr. George Barnard, both of whom are widely
recognized as highly competent expert^ within their field, to review the
process by which the three psychiatrists who found Mr. Ford competent undertook
their evaluation. In the opinion of these experts, the evaluations conducted by
the three appointed psychiatrists failed to measure up to the adequate minimum
standards for forensic evaluation. The reasons for this were the appointed
psychiatrists' failure to consider much of the available data concerning Mr.
Ford's mental status (evidenced by their failure to document the factual basis
for their conclusions in the face of pervasive data supporting the contrary
conclusion of Dr. Kaufman) and the great likelihood that the conditions under
which Mr. Ford was evaluated would produce insufficient data for reliable
forensic evaluation. See R 447-53, 465-69.
Even with the serious inadequacy of the appointed psychiatrists' evalua
tions of competency, two of the three nevertheless found that Mr. Ford suffered
from a psychotic illness. And even more telling was the observation of one of
these psychiatrists, Dr. Mhatre, that "without [appropriate anti-psychotic]
medication [Mr. Ford] is likely to deteriorate further and may soon reach a
point where he may not be competent for execution" (R 442) , for in the months
after Dr. Mhatre's observation, his prediction of further deterioration was
strikingly confirmed.
On May 23, 1984, Dr. Kaufman attempted to interview Mr. Ford for two hours
at Florida State Prison. He observed the following:
form of schizophrenia during this time and documented why Mr. Ford's illness
was genuine (R 424-26). Dr. Amin was not able to render an opinion concerning
Mr. Ford's competency after June, 1983, however, because Mr. Ford refused to be
interviewed thereafter by Dr. Amin.
-9-
[Mr. Ford] appeared to have lost at least twenty (20) pounds
since I had last examined him on November 3, 1983. He was
neatly dressed and was wearing rubber shower sandals. He did
not greet the four of us as we entered and sat down. He sat
with his body immobile and his handcuffed hands in a prayer
ful position in front of his mouth. Occasionally he moved
his hands, still in the praying mode, to each of us for no
apparent reason. His lips were pursed intermittently, but his
head moved little. His eyes were closed or fluttering most of
the time, although he occasionally glanced at one or more of
us. His hands and fingers appeared to be trembling. We took
turns asking him questions, and little or no response was
forthcoming. He began muttering to himself after about five
minutes. These utterances were largely unintelligible. This
is the overall picture of what took place for two hours.
(R 487). These observations led Dr. Kaufman to conclude that "Mr. Ford's
condition, severe paranoid schizophrenia, has seriously worsened, so that he
now has only minimal contact with the events of the external world," and to
reconfirm his opinion that Mr. Ford was incompetent to be executed (R 488).
These then were the facts — of Mr. Ford's irrational behavior and of
medical opinion concerning his competency — that were proffered in the
district court on May 29, 1984, in response to which no evidentiary hearing was
held to determine Mr. Ford's competency.
C. Standard of Review
Each of Mr. Ford's federal claims requires the Court to interpret or apply
federal statutory provisions governing habeas corpus procedures, particularly
the principles of Townsend v. Sain, 372 U.S. 293, 313 (1963) governing the
requirement for a federal evidentiary hearing, and/or to reassess independently
the application of federal constitutional principles to record facts.
SUMMARY OF THE ARGUMENT
1. The question of whether the eighth amendment precludes the execution
of an incompetent person has never been reached on the merits by any court.
Because since as early as the twelfth century the execution of the insane has
been repudiated as "savage" and as an act of "extreme inhumanity and cruelty,"
E. Coke, Third Institute 6 (1644), it was a deeply embedded moral principle of
-10-
our enlightened society at the time of the formation of our new Republic. The
Framers of the Sill of Rights were familiar with the English common law and
sought to secure by the Bill of Rights at least all of the rights of English
common law. See Solem v. Helm, ___ U.S.___ , 103 S.Ct. 3001, 3007 & n. 109
(1983). The execution of the insane, seen as a cruel and inhuman sanction, was
thus encompassed by the original intent of the Framers in prohibiting the
infliction of cruel and unusual punishment. In addition contemporary eighth
amendment analysis examines first the objective indicia of contemporary values
and second applies the Court's own independent judicial assessment of the
sanction to determine whether it comports with the basic concept of human
dignity. E.g., Gregg v. Georgia, 428 U.S. 153, 173 (1976). Under this test
too, the execution of the insane violates the eighth amendment. The objective
indicators of public attitudes toward execution of the insane reveal uniform
rejection, for "[t]he law in all American state jurisdictions, as well as
ancient common law, does not permit the execution of a person who is presently
insane." Gray v. Lucas, 710 F.2d 1048, 1053 (5th Cir. 1983). Moreover, this
Court's independent assessment will lead it to conclude that execution of the
insane conflicts with civilized standards of our enlightened society. Thus,
execution of the insane violates the eighth amendment.
2. Since the eighth amendment precludes the execution of a presently
incompetent person, the federal courts must determine independently the
constitutional issue. Moreover, a hearing is mandated in the district court to
determine the factual question of whether Mr. Ford is insane, because the
Florida state determination of that question was nonjudicial, hence entitled to
no deference under 28 U.S.C. §2254, and was procedurally defective and unreli
able in addition. The Florida executive proceeding is entirely ex parte and
the present governor has a "publicly announced policy of excluding all advocacy
on the part of the condemned" in the executive's determination of competency to
-11-
be executed. Goode v. Wainwright, 448 So.2d 999, 1001 (Fla. 1984). There is no
hearing, judicial or otherwise, no examination of witnesses, no written
findings, no judicial review. In short, the Florida gubernatorial proceeding
is entitled to no deference in the federal courts for it is wholly insufficient
to vindicate such a fundamental constitutional right. See Tbwnsend v. Sain,
372 U.S. 293, 313 (1963). There are material facts in serious dispute in this
case that require resolution for determination of the federal question of Mr.
Ford's present incompetency. Accordingly, the eighth amendment question may be
resolved only after a full and fair evidentiary hearing in the district court.
3. Apart from the substantive eighth amendment prohibition against
executing the insane, the procedural due process protections of the fourteenth
amendment require a procedurally fair determination of competency to be
executed. The resolution of the due process question is not controlled by
Solesbee v. Balkcom, 339 U.S. 9 (1950). Solesbee was decided at a time when
constitutional due process analysis still turned on the right-privilege
distinction, when capital sentencing proceedings were generally held to be
beyond the reach of the due process clause, and well before the eighth
amendment imperatives of post-Furman capital jurisprudence had been articu
lated, much less applied through the due process clause to require enhanced due
process protection in death penalty cases. Solesbee was thus the distinct
product of its constitutional era, and its reasoning has been so eroded by
subsequent decisions that it can no longer be relied upon to resolve the
procedural due process issue created by Florida's exclusive reliance on section
922.07. Once Solesbee is analyzed in its proper perspective, the application
of current procedural due process principles compels the conclusion that Mr.
Ford's state—created right not to be executed when incompetent cannot be
withdrawn without substantially greater procedural protections than are
afforded by the ex parte executive procedure provided by section 922.07.
-12-
4. Petitioner's second claim for relief is that Florida administers the
death penalty arbitrarily and discriminatorily on the basis of race of the
victim, race of the defendant and other impermissible factors in violation of
the eighth and fourteenth amendments. Inasmuch as the legal standards govern
ing this claim have not yet been determined and are presently under considera
tion by the en banc court, Mr. Ford's claim cannot be determined until the
resolution of those _en banc decisions. See Spencer v. Zant, 715 F.2d 1562
(11th Cir. 1983), vacated for rehearing en banc, 715 F.2d 1583 (11th Cir.
1983); McCleskey v. Zant, No 84-8176 (pending). The issue has not been
foreclosed by the opinion of Justice Powell concurring in the order of the
Court denying the application to vacate the stay of execution, Wainwright v.
Ford, 104 S.Ct. at 3498, since it was not a ruling on the merits nor could it
have been since the legal standards for evaluating evidence of discriminatory
application of the death penalty have not yet been established by this Court.
STATEMENT OF JURISDICTION
This appeal is taken from an order and judgment entered on May 29, 1984 in
the United States District Court for the Southern District of Florida. This
Court granted a certificate of probable cause on May 30, 1984. Jurisdiction of
the Court lies pursuant to 28 U.S.C. §2253.
ARGUMENT
I. THE EIGHTH AMENDMENT PRECLUDES THE EXECUTION OF THE PRESENTLY
INCOMPETENT.
A. Introduction
While the execution of an incompetent person has been repudiated as
"savage” and "cruel" since perhaps as early as the twelfth century, no court
has addressed the issue under the eighth amendment. The Supreme Court has had
four occasions to address the question of execution of the incompetent, but in
none of these decisions did it reach the eighth amendment issue presented here.
Significantly, all of those decisions were before the incorporation of the
eighth amendment into the due process clause in Robinson v. California, 370
U.S. 660 (1962).4 In the present case, in declining to vacate the stay entered
by this Court, four Justices recognized that: "This Court has never determined
whether the Constitution prohibits execution of a criminal defendant who
currently is insane, ..." Wainwright v. Ford, 104 S.Ct. at 3498 n.*. In
Goode v. Wainwright, 731 F.2d 1482 (11th Cir. 1984) this Court did not reach
the substantive eighth amendment claim because it found an "abuse of the writ.
Id. at 1483. (citing Woodard v. Hutchins, ___U.S.___, 104 S.Ct. 752 (1984)
(order vacating stay of execution)). And the fifth circuit assumed without
deciding that the eighth and fourteenth amendments would not permit execution
of an insane person in Gray v. Lucas, 710 F.2d 1048 (5th Cir. 1983).
The issue is thus one of first impression. In the sections below, it will
be shown that the eighth amendment precludes the execution of the presently
incompetent both under an analysis of the original intent of the Framers of the
Bill of Rights and under contemporary eighth amendment jurisprudence.
B. Intent of the Framers
Here, we will examine the history of the prohibition against executing the
insane for it bears upon and guides the analysis of the intent of the Framers
of the Bill of Rights5 and we will then look to the adoption of the eighth
4 see Nobles v. Georgia, 168 U.S. 398 (1897) (no right to jury for determining
competency to be executed); Phyle v . Duffy, 334 U.S. 431 (1948) (avoided due
process question because state judicial remedy still available); Solesbee v.
Balkcom, 339 U.S. 9 (1950) (reaching due process question but specifically not
deciding eighth amendment question); Caritativo v. California, 357 U.S. 549
(1958) (one sentence opinion citing Solesbee, with four justices separately
opining that the due process clause prohibited execution of the presently
incompetent).
5 Ihe Court has frequently examined the common law in determining the intent of
the Framers and whether a particular right is to be included within those
guaranteed by the Bill of Rights. See, e.g., Duncan v. Louisiana, 391 U.S. 145,
151-53 (1968) (tracing the history of jury trials through the common law to the
colonies and original states and concluding that "[e]ven this skeletal history
is impressive support for considering the right to trial by jury in criminal
cases to be fundamental to our system of justice, an importance frequently
recognized in the opinions of this Court"); Williams v. Florida, 399 U.S. 78,
87-94 (1970) (tracing common law history but finding no support that a 12-
-14-
amendment to show that execution of the insane falls within the original intent
of the prohibition against "cruel and unusual punishments."
1. A "Savage" Act of "Extreme Inhumanity and Cruelty"
The prohibition against the execution of the insane dates at least frcxn
the thirteenth or early fourteenth centuries when proof of madness required the
grant of a royal pardon:
[I]n very ancient times proof of madness appears not to have
entitled a man to be acquitted, at least in case of murder,
but to a special verdict that he committed the offence when
mad. This gave him a right to a pardon.
2 J. Stephen, A History of the Criminal Law of England 151 (1883) (emphasis
added) .* 6 * See also FitzHerbert, Natura Brevium 202 (1534) (quoted in Sayre,
Mens Rea, 45 Harv. L. Rev. 974 (1931-32)).
So settled by the 16th century was the principle that a "madman" must be
reprieved from execution that in order to exempt one guilty of high treason
from its proscription "in the bloody reign of Henry VIII, a statute was made,
which enacted that if a person, being compos mentis, should commit high
treason, and after fall into madness, he might be tried in his absence, and
should suffer death as if he were of perfect memory." 4 W. Blackstone,
Commentaries on the Laws of England 24 (1768) (hereinafter cited as
Blackstone). Because the execution of the insane "was always thought cruel
person jury was constitutionally required); Hurtado v. California, 110 U.S. 516
(1884) (no right to grand jury indictment).
6 In a footnote to this paragraph Stephen cites to the written laws of Edward II
(1310) and Edward 111(1330). See also Hunard, The King's Pardon for Homicide
Before A.D. 1307 159 (1969) (tracing the early treatment of insanity prior to
Edward II); S. Glueck, Mental Disorder and the Criminal Law 124-25 (1925)
(briefly summarizing the treatment of insanity in the reigns of Edward I
(1272-1307), Edward II (1307-1321) and Edward III (1326-1327)).
-15-
and inhuman,"7 even this narrow exception to the established rule "lived not
long"8 9 for as Blackstone notes "this savage and inhuman law was repealed by the
statute of 1 and 2 Ph. and M. c.10." Blackstone at 24. See also 1 M. Hale, The
History of the Pleas of the Crown 35 (1736).8
The prohibit ion - as "savage," "cruel," "inhuman," and "inhumane" of
execution of the insane was thus firmly established. It was recognized by Lord
Coke in 1644, in commenting upon and approving the repeal of Henry VIII's law,
that "it was against the common law" and "should be a miserable spectacle, both
against law, and of extreme inhumanity and cruelty, and can be no example to
others." E. Coke, Third Institute 6 (1644). Matthew Hale explained that one
charged with a capital offense "even tho the delinquent in his sound mind were
examined, and confessed the offense" could not be executed "if after judgment
he became of non sane memory, ... for were he of sound memory, he might allege
somewhat in stay of judgment of execution." 1 M. Hale, The History of the
Pleas of the Crown 35 (1736). See also 1 W. Hawkins, A Treatise of the Pleas
of the Crown 2 (1716) ("And it seems agreed at this Day, That if one who has
committed a capital Offence, become Non Compos before Conviction, he shall not
7 1 J. Chitty, A Practical Treatise on the Criminal Law 620 (Philadelphia ed.
1819). The exeception was apparently made "in Respect of that high Regard which
the Law has for the Safety of the King's Person". I W. Hawkins, A Treatise of
the Pleas of the Crown 2 (1716).
8 Hawles, Remarks on the Trial of Mr. Charles Bateman, 11 State Trials 474, 477
(1816) (recognizing the law of Henry VIII to be "a cruel and inhumane law").
9 It is of more than passing interest in evaluating the depth of the belief that
execution of the insane was cruel and inhumane, that the narrow high treason
exception was repealed during the reign of Phillip and Mary. Mary was Mary I,
who is known as "Bloody Mary." She ruled from 1553 to 1558 and during her
reign she procured "ferocious new treason laws," G.R. Elton, England Under the
Tudors 219 (1960), punishible by "such pains of death" as befits treason, stat.
I, c.6. See Blackstone at 376-77 (detailing such pains of death: "being drawn
or dragged to the place of execution . . . oribowelling alive, beheading, and
quartering). It can thus be safely said that Mary's repeal of the "cruel and
inhuman law" of Henry VIII was not motivated by some extreme, misguided
benevolence.
be executed"). Blackstone reaffirmed the settled nature of the principle in
1775:
If a man in his sound memory commits a capital offense, ...
and if, after judgment, he becomes of nonsane memory,
execution shall be stayed: for peradventure, says the
humanity of English law, had the prisoner been of sound
memory, he might have alleged something in stay of judgment
or execution.
Blackstone at 24-25.
Various reasons had been put forth by the scholars to explain the settled
prohibition. Sir Edward Coke observed that execution of the insane could "be
no example to others." Sir John Hawles disagreed, "the true reason of the law
I think to be this, a person of 'non Sana memoria,' and a lunatick during his
lunacy, is by an act of God (for so it is called, though, the means may be
human, be it violent, as hard imprisonment, terror of death or natural as
sickness) disabled to make his just defence." Hawles, 11 State Trials at 476.
Blackstone added the further rationale that "a madman is punished by his
madness alone."10 Hawles added still another reason: an insane person is
deprived of the opportunity to make peace with his God:
it is inconsistent with religion, as being against Christian
charity to send a great offender quick, as it is stiled, into
another world, when he is not of a capacity to fit himself
for it.
Hawles, 11 State Trials at 477.
These then were the explanations advanced by the common law writers. As
Lord Hawles observed, however, "whatever the reason of the law is, it is plain
the law is so." Id. See generally 1 J. Archbold, A Complete Practical Treatise
on Criminal Procedure 22-23 (8th ed. 1879) (summarizing the rule and its common
law reasons).
Even though the right not to be executed while insane was so entrenched in
10 Blackstone expressed the rationale in its Latin formulation: furiosus solo
furore punitur." Blackstone at 395-96.
common law, some have still referred to it as falling within the perogative of
the Crown as an act of grace. This, however, would be a misreading of common
law history. Though as a technical matter, one who was insane was excused from
execution only by a "reprieve," it was not a matter of grace but a matter of
right. As Blackstone explains, there were twa types of reprieves, the first
was the "arbitrary reprieve" ("ex arbitria judicis") which could be granted, as
its name implies, for any or no reason. The second type of reprieve was ex
necessitate 1 eg is" which as its name also implies, was mandatory. It is in
this later type of reprieve that the stay of execution for insanity lies. It
was a reprieve as a matter of right — an "invariable rule and could be
raised by the judge or "plead[ed] in bar of execution. Blackstone at 394-97.
2. "Nor Cruel and Unusual Punishments Inflicted"
The Framers of the Bill of Rights were, of course, familiar with the
cannon law for that was the only system they had known: "The cannon law was the
mapped world; to depart therefrom was to venture into the unknown."11 There were
"[f]ive sources from which American colonists gained their understanding of
English law" and among these were Hale's History of the Pleas of the Crown and
volume four of Blackstone's Commentaries on the Laws of England. Granucci,
Cruel and Unusual Punishments Inflicted:" The Original Meaning, 57 Cal. L. Rev.
839, 861 (1969). As discussed in the preceding section, Hale and Blackstone
had each stated the uneguivocal common law prohibition against executing the
insane.
Admittedly, as of ten-times observed, there is little specific history to
reflect the intent of the Framers in adopting the eighth amendment.12 But all
11 R. Berger, Death Penalties 63 (1982).
12 E.g., Furman v. Georgia, 408 U.S. 238, 258 (1972) (Brennan, J., concurring)
("We have very little evidence of the Framers' intent in including the Cruel
and Unusual Punishments Clause among those restraints upon the new Government
enumerated in the Bill of Rights.").
-18-
that is known, including the settled nature of the law at the time, indicates
that execution of the insane would fall within the proscription of "cruel and
unusual punishments" as intended by the Framers.
It is now axiomatic in eighth amendment jurisprudence that "[t]here can be
no doubt that the Declaration of Rights guaranteed at least the liberties and
privileges of Englishmen." Solem v. Helm, ___U.S. ____, 103 S.Ct. 3001, 3007
n. 10 (1983). Thus,
When the Framers of the Eighth Amendment adopted the language
of the English Bill of Rights, . . . . one of the consistent
thanes of the era was that Americans had all of the rights of
English subjects . . . . Thus, our Bill of Rights was
designed in part to ensure that these rights were preserved.
Although the Framers may have intended the Eighth Amendment
to go beyond the scope of its English counterpart, their use
of the language of the English Bill of Rights is convincing
proof that they intended to provide at least the same protec
tion — including the right to be free from excessive
punishments.
Id. at 3007.
Thus, Thomas Cooley, though finding it "certainly difficult to determine
precisely what is meant by cruel and unusual punishments," believed only that
punishments permitted under common law at the time of the adoption of the
amendment would be permitted by the amendment. T. Cooley, A Treatise on the
Constitutional Limitations 472-73 (7th ed. 1903). At the very least "[w]e may
rely on the conditions which existed when the Constitution was adopted." Weens
v. United States, 217 U.S. 349, 30 S.Ct. 544, 552 (1909). Concurring in Furman,
Justice Brennan summarzed the Court's early eighth amendment decisions as
"concluding simply that a punishment would be 'cruel and unusual' if it were
similar to punishments considered 'cruel and unusual' at the time the Bill of
Rights was adopted." Furman v. Georgia, 408 U.S. 238, 264 (1972) (Brennan, J.,
concurring). See also McGautha v. California, 402 U.S. 183, 226 (1971) (Black,
J., concurring) (same).
Even under the most restrictive reading that has been given to the meaning
-19-
of the eighth amendment — that it prohibits only something that is addition
ally inhumane beyond the "mere extinguishment of life"13 — execution of the
insane would be prohibited, for it had been viewed for centuries as being more
barbarous, cruel and inhumane than execution alone. Execution of the insane
was thus plainly believed to be "worse" in terms of human decency than was the
"mere extinguishment of human life."
If all that the eighth amendment was intended to do was to ensure the
prohibition of the punishments then prohibited by English law, then there can
be no doubt that the clause proscribed as "cruel and unusual" the execution of
the insane as it had been proscribed for five hundred years as cruel. It would
require blinders to history to hold otherwise. There is absolutely no indica
tion that the Framers intended to permit more cruelty under its prohibition
than had the English law; one would have to assume that the Framers intended
"American law [to be] more brutal than what is revealed as unbroken command of
English law for centuries preceding the separation of the Colonies." Solesbee
v. Balkcom, 339 U.S. at 20 (Frankfurter, J., dissenting).
This was of course not the intent. That the new Americans continued to
believe in the inhumanity of execution of the insane is shown by early American
commentators. In 1819 Chitty published his American edition of his treatise on
criminal law in which he carried forward the proscription on execution of the
insane, repeating that it "was always thought cruel and inhuman." 1 J. Chitty,
A Practical Treatise on the Criminal Law 620 (Amer. ed. 1819). See also F.
Warton, A Treatise on the Criminal Law of the United States 50 (2d ed. 1852)
("If one who had committed a capital offence become non compos mentis ... after
13 in re Kemmler, 136 U.S. 436, 447 (1890). See also Furman v. Georgia, 408 U.S.
at 378 (Burger, C.J., dissenting) (quoting Kemmler); Gregg v. Georgia, 428 U.S.
at 169-70 (plurality opinion) (recognizing original intent to preclude
"'tourture' and other 'barbarous' methods" beyond execution itself). But see
Weans v. United States, 217 U.S. 349, 30 S.Ct. 544, 551 (1910) ("[I]t must have
come to [the Framers] that there could be exercises of cruelty by laws other
than those which inflicted bodily pain or mutilation.").
conviction, he shall not be executed"); I. Ray, Treatise on the Medical
Jurisprudence o£ Insanity 2 (5th ed. 1871); 1 W. Russell, A Treatise on Crimes
and Indictable Misdemeanors 15 (3d Amer. ed. 1836) ("if after judgment he
becomes of nonsane memory, execution shall be stayed"). In 1836 a legislative
committee of Massachusetts reflected public opinion in commenting on the
prospect of execution of the insane: "the proposition to do so would be
rejected with unanimous indignation, even after he has committed more than one
murder." Massachusetts Committee on Capital Punishment, Report 22 (1836).14 A
more recent historian described the deeply-rooted attitude of the era:
Both humanity and the law assumed, of course, that no truly
insane person should be put to death as punishment for his
criminal acts. Though opposition to capital punishment as
such was comparatively small, only a few self-consciously
ruthless intellectuals even suggested that insane criminals
should suffer the maximum penalty.
Rosenberg, The Trial of the Assassin Guiteau, Psychiatry in the Guilded Age 66
(1968).
All indications therefore conclusively show that the Framers did not
intend to regress from the centuries-old common law.
3 . Conclusion: The Framers Intended to Prohibit Cruel Punishments and
Execution of the Insane was Known by the Framers to be Cruel and
Inhuman
As recognized by the Royal Commission on Capital Punishment: "It has for
centuries been a principle of the common law that no person who is insane
should be executed___ " Royal Commission on Capital Punishment, 1949-1953
Report 13 (1953). This is such a deeply embedded principle that it cannot be
subject to question. See also Note, The Eighth Amendment and the Execution of
the Presently Incompetent, 32 Stan. L. Rev. 765, 778 (1980) ("it has been a
14 The Massachusettes1 committee was one of several 19th-century state commissions
investigating the death penalty which all endorsed the same view regarding the
unthinkability of execution of the incompetent. See Note, The Eighth Amendment
and the Execution of the Presently Incompetent, 32 Stan. L. Rev. 765, 779 &
n.67 (1980).
-21-
cardinal principle of Anglo-America jurisprudence since the medieval period
that the presently incompetent should not be executed").
Could it be said that a mode of punishment thought to be savage, inhumane
and extremely cruel by all courts and commentators at the time of the framing
of the Bill of Rights would not be likewise deemed cruel by the Framers of the
eighth amendment? Likewise, could it be said that a punishment disapproved by a
settled rule for hundreds of years would not be thought to be "unusual" by the
Framers?!^ The Framers sought at a minimum to secure the common standards of
decency then in effect and did not seek regression from those standards.
Execution of the insane was considered cruel at the time of the adoption of the
eighth amendment and thus fails under the proscription of cruel punishments
originally intended by the Framers.
C. Traditional Eighth Amendment Jurisprudence
Just as strongly as does the intent of the Framers, the traditional eighth
amendment analysis demonstrates that execution of the insane contravenes the
eighth amendment. To evaluate the eighth amendment propriety of an aspect of
the death penalty, the Court has adopted a two-part test based upon the
proposition that the amendment must draw its meaning from the "evolving
standards of decency that mark the progress of maturing society." Gregg v.
Georgia, 428 U.S. 153, 173 (1976) (quoting, Trop v. Dulles, 356 U.S. at 101).
The first part of the test focuses on "contemporary standards of decency" and
uses "objective indicia" such as historical usage and legislative enactments,
to ascertain the public perceptions toward a given sanction. Gregg v. Georgia,
428 U.S. at 173. Second, even if the sanction is found by objective evidence to
be "acceptable to contemporary society," the eighth amendment demands that 15
15 See, e.g. , Trop v. Dulles, 356 U.S. 86, 100 n. 32 (1958) ("If the word
' unusual' is to have any meaning apart from the word 'cruel,' however, the
meaning should be the ordinary one, signifying something different from that
which is generally done"); Furman v, Georgia, 408 U.S. at 309 (Stewart, J.,
concuring).
" [ t] he Court also must ask whether it comparts with the basic concept of human
dignity at the core of the Amendment." _Id. at 1 8 2 . ^ 6 Execution of the insane
fails on both counts.
1. Contemporary Standards of Decency: Uniform Disapproval
Evaluation of "contemporary" standards of decency is uniquely facile in
this case, for the standards have remained constant for the greater part of the
millennium. The fifth circuit court of appeals recently observed that "[t]he
law in all American state jurisdictions, as well as the ancient common law,
does not permit the execution of a person who is presently insane. Gray v .
Lucas, 710 F.2d 1048, 1053 (5th Cir. 1983), cert, denied, ___U.S.___, 104 S.Ct.
211 (1983). See also Note, Insanity of the Condemned, 88 Yale L. J. 533 (1979).
In the appendix to this brief, the statutory and case law provisions are set
out for the Court's review — and a review of the states with capital punish
ment reveals only three states that have no statutory or case law provisions.
State court decisions also continued to reaffirm the prohibition on execution
of the presently insane. See, e.g., Ex parte Chesser, 93 Fla. 590, 112 So. 87,
89 (1927); People v. Scott, 326 111. 327, 157 N.E. 247 (1927); State v. Allen,
204 La. 513, 15 So.2d 870, 871 (1943); Hawie v. State, 121 Miss. 197, 83 So.
158, 159-60 (1919); Barker v. State, 75 Neb. 289, 106 N.W. 450 (1905); In re
Smith, 25 N.M. 48, 176 P. 819, 822 (1918).
This stark evidence of domestic rejection is further supported by inter 16
16 jtj # For example in assessing the constitutionality of the death sentence for
"Eipe in Coker v. Georgia, 433 U.S. 584 (1977), the Court said that the contem
porary public attitude both "informed," idL at 592 and "strongly confirm[ed] ,"
id. at 597, its own independent judgment, but did "not wholly determine [the]
controversy, for the Constitution contemplates that in the end our own judgment
will be brought to bear on the question," id. The Court has also followed this
two-step approach in assessing the constitutionality of the death penalty for
aiders and abettors to murder, Enmund v. Florida, 458 U.S. 782 (1982); of
mandatory death penalties, Woodson v. North Carolina, 428 U.s. 280 (1976); and
of capital laws excluding lesser included offenses, Beck v. Alabama, 447 U.S.
625 (1980).
-23-
national practice.I7 United Nations documentation reveals that the principle is
reflected in practice throughout the world — all reporting countries with
capital punishment laws recognize an exclusion frcm the death sentence in favor
of the mentally incompetent. Department of Economic and Social Affairs, United
Nations Doc. ST/SOA/SD/IO, Capital Punishment; Developments 1961-1965, 10
(1967); Department of Economic and Social Affairs, United Nations Doc.
ST/SOA/SD/9, Capital Punishment, 15-16, 88 (1962).
Thus, the objective indicia are unique in the uniformity of rejection of
the sanction of death for the presently insane. It has been rejected by
history, by legislatures, by the courts, by the commentators, and by the world
community. There hardly could be stronger evidence.
2. Independent Judicial Assessment
The second aspect of traditional eighth amendment analysis of a mode of
punishment involves the Court's assessment, independent of the objective
indicia, of whether the sanction is consistent with that amendment's "require
ment that the State's power to punish 'be exercised within the limits of
civilized standards.'" Woodson v. North Carolina, 428 U.S. 280, 301 (1976)
(citing Trop v. Dulles, 356 U.S. at 100). The proposition to be addressed in
this section is that the execution of the insane is in conflict "with 'the
dignity of man' which is the 'basic concept underlying the Eighth Amendment.'"
Gregg v. Georgia, 428 U.S. at 173.
With regard to the execution of the insane, the "constitutional test is
intertwined with the assessment of contemporary standards." Id. at 175. The
exceptionally lengthy history and uniformity of the repudiation of execution of
the insane should first "inform[]" and then "confirm" this Court's independent
judgment. Coker v. Georgia, 433 U.S. at 592, 597. The conclusiveness of the 17
17 See, e.g., Trop v. Dulles, 356 U.S. at 102-03 (examining the practice in "the
civilized nations of the world" in evaluating the propriety under the eighth
amendment of the punishment of expatriation).
-24-
repudiation of such a sanction demonstrates that our enlightened society abhors
the idea of executing someone who is mentally disabled, reflecting an affirma
tion of the value of each human life. A number of "logical" explanations have
been advanced over the years to explain the prohibition for execution of the
insane, some of which have been the subject of debate over their efficacy. See,
e.g. Hazard and Louisell, Death, The State, and the Insane: Stay of Execution,
9 UCLA L. Rev. 381, 383-89 (1962). This debate, however, is quite beside the
point, for regardless of the explanation it remains that execution of the
insane has been prohibited and disapproved as savage, cruel and inhuman for
centuries. "The more fundamental the beliefs [of a civilized society] are the
less likely they are to be explicitly stated." Solesbee v. Balkcan, 339 U.S. at
16 (Frankfurter, J., dissenting). The "miserable spectacle" of execution of
the insane is an act that thus strikes to the essence of basic human dignity:
Such doctrines have been preached and practiced in National-
Socialist Germany, but they are repugnant to the moral
traditions of Western civilization and we are confident that
they would be unhesitatingly rejected by the great majority
of the population of this country. We assume the continuance
of the ancient and humane principle that has long formed part
of our common law.
Royal Commission on Capital Punishment, 1949-1953 Report 98 (1953) (emphasis
supplied).
Our society's compassion for one suffering mental illness reflects a
recognition that mental illness is not a voluntary disease that can be control
led but one that renders one helpless. It offends basic notions of fairness to
execute someone in such a helpless condition, unable to understand what is
happening to them, to defend themselves, to prepare for imminent death or to
make peace with their God. Thus, regardless of the reasons for it, the
-25-
prohibition is deeply entrenched in our moral fabric.13 It is said to be
"extremely inhumane," "savage" and "cruel" and described as being "against
Christian charity" and "repugnant to the moral traditions of Western civiliza
tion." Can it thus be said that execution of the presently insane would
"accord with the 'dignity of man,' which is the 'basic concept underlying the
Eighth Amendment.'" Gregg, 428 CJ.S. at 173.
There are however, other, more specific reasons compelling the same
conclusion which draw upon well-founded constitutional principles that serve to
safeguard the '"dignity of man.'" These principles — the right of access to
the courts and the requirement that there be penological justification for
inflicting a particular punishment — teach us just as persuasively that the
execution of the insane is fundamentally at odds with the dignity of man.
In the seventeenth century, Hale wrote that an insane person must not be
executed, "for were he of sound memory, he might allege somewhat in stay of
judgment or execution." 1 M. Hale, The History of Pleas of the Crown at 35.
This rationale was persuasive, because the common law recognized that post
judgment insanity could prevent the assertion of
circumstances lying in [the condemned person's] private
knowledge, which would prove his innocence, of which he can
have no advantage, because not known to the persons who shall
take upon them his defense.
Hawles, Remarks on the Trial of Mr. Charles Bateman, 11 State Trials 474, 476
(1816). The contemporary standards of decency underlying eighth amendment
jurisprudence today recognize the same reason as requiring that the insane be
spared from execution.
Today it is a settled constitutional principle that the competency of a
defendant before and during trial "is fundamental to an adversary system of
Justice Douglas, concurring in Robinson v. California, supra, opined that the
execution of the insane would be prohibited by the eighth amendment for that
amendment "expresses the revulsion of civilized man against barbarous acts."
370 U.S. at 676 (also citing Coke and Blackstone).
justice." Drope v. Missouri, 420 U.S. at 172. To permit the state to try a
defendant who is incapable of participating in his defense at least to the
extent of communicating relevant facts known only by him to his lawyer would be
to accord the state such an unfair advantage that the trial would no longer be
an adversarial proceeding. The principle which underlies the prohibition
against trying a defendant who is incompetent is thus the following: the state
cannot be permitted to proceed against a criminal defendant when his competency
is a precondition to the exercise of constitutionally-protected rights. To do
otherwise would be to permit the state to take undue advantage of the defen
dant's incompetency. Although this principle is most clearly applicable to the
defendant's exercise of rights securing a fair trial, it is equally applicable
to the convicted defendant's exercise of his right of access to procedures
providing for collateral attack of his conviction or sentence.
Even though a convicted defendant does not have a constitutional right to
collaterally attack his conviction or sentence, he does have a constitution-
ally-guaranteed right of access to the collateral attack procedures made
available by statute.
Since the basic purpose of the writ [of habeas corpus] is to
enable those unlawfully incarcerated to obtain their freedom,
it is fundamental that access of prisoners to the courts for
the purpose of presenting their complaints may not be denied
or obstructed.
Johnson v. Avery, 393 U.S. 483, 485 (1969). Eight years after Johnson, the
Court recognized that "[i]t is now established beyond doubt that prisoners have
a constitutional right of access to the courts," Bounds v. Smith, 430 U.S. 817, 19
19 Federal courts have no jurisdiction to issue a writ of habeas corpus absent a
statute authorizing the issuance of the writ. See Ex parte Bollman, 8 U.S. 46,
58, 4 Cranch 75, 94-95 (1807); Ex parte McCardle, 74 U.S. (7 Wall.) 506 (1868).
However, the Supreme Court has never squarely decided whether Congress or the
states are constitutionally obligated to provide a post-conviction judicial
forum for federal and state prisoners to raise federal claims. See P. Bator, P.
Mishkin, D. Shapiro and H. Wechsler, Hart and Wechsler's The Federal Courts and
the Federal System 1513-14, 525-26 (2d ed. 1973 & Supp. 1977).
-27-
821 (1977) , and access to the courts pursuant to that right must be "adeouate,
effective, and meaningful," id. at 822.
In determining whether a state has "obstructed" or "impaired" meaningful
access to the courts in a particular case, no court has yet examined whether
the state's taking advantage of a prisoner's inccmpetency to cut off his right
of access to the courts amounts to a constitutionally prohibited denial of
access to the courts. Mr. Ford's case nevertheless presents this question in
the context of the eighth amendment "'dignity of man'" inquiry. Because of the
constitutional rule prohibiting the state frctn taking advantage of a defen
dant's inccmpetency when his competency is necessary to the exercise of his
rights, and because of the unique cutting off of access to the courts associ
ated with execution, however, the question can be analyzed on the basis of
familiar, settled principles.
Like the right to a fair trial in the first instance, the right of access
to the courts for collateral proceedings presumes as a precondition to the
exercise of that right a prisoner who is competent. Similar to the defense of
oneself at trial, the commencement and prosecution of a collateral proceeding
requires the active participation of the prisoner, for example, in communica
ting facts to counsel that may be known only to him or in testifying as to
historical facts underlying a constitutional claim which were not fairly
determined in prior proceedings, see, e.g., Townsend v. Sain, 372 U.S. 293,
312-19 (1963); 28 U.S.C. §2254(d). As the Court recognized in Bounds v. Smith,
collateral proceedings are
original actions seeking new trials, release from confine
ment, or vindication of fundamental civil rights. Rather
than presenting claims that have been passed by [other]
courts, they frequently raise heretofore unlitigated issues
• • • •
430 U.S. at 827-28. Accordingly such actions require a competent prisoner just
as much as does the original criminal trial.
-28-
In the specific context of federal habeas corpus proceedings, the need for
the active, independent participation of the prisoner has been recognized
through the responsibility imposed upon the petitioner personally in such
proceedings. Even when a habeas corpus petitioner is represented by counsel,
the petitioner will be held to 'nave waived his right to present facts and
claims if he personally fails to assert such facts and claims as were known to
him at the time of his habeas corpus proceeding. This rule holds true even if
the petitioner informed his counsel about such facts and claims, and counsel
neglectfully or deliberately failed to present them. See Shriner v.
Wainwright, 735 F.2d 1236, 1240-41 (11th Cir. 1984). If upon exercising his
right of access to the federal courts through habeas corpus, a petitioner can
waive his claims by his own neglect or strategic choices, presumptively he
must be competent.
With this proposition established, we now turn to the central inquiry:
whether the state’s execution of an incompetent prisoner amounts to a constitu
tionally prohibited denial of access to the courts. In capital cases, wholly
unlike non-capital cases, the execution of the sentence absolutely denies
further access to the courts. From the perspective of the constitutional
guarantee of the right of access to the courts, therefore, execution can be
permitted only if the purpose of the guarantee — "to enable those unlawfully
incarcerated to obtain their freedom," Johnson v. Avery, 393 U.S. at 485, or to
enable those unlawfully sentenced to death to regain their lives -- has been
served. Concededly,
[t]here must come a time, even when so irreversible a penalty
as that of death has been imposed upon a particular defen
dant, when the legal issues in the case have been suffic
iently litigated and relitigated that the law must be allowed
to run its course .... Indeed, just as the rule of law
entitles a criminal defendant to be surrounded with all the
protections which do surround him under our system prior to
conviction and during trial and appellate review, the other
side of the coin is that when the State has taken all the
steps required by that rule of law, its will, as represented
by the legislature which authorized the imposition of the
-29-
death sentence and the state courts which imposed it and
upheld it, should be carried out.
Evans v. Bennett, 440 U.S. 1301, 1303 (1979) (Rehnquist, J., Circuit Justice).
Thus,
there is required a practical judgment whether in the
particular situation "the legal issues have been sufficiently
litigated and'relitigated that the law must be allowed to run
its course;" and whether the criminal defendant's entitlement
to "all the protections which ... surround him under our
system prior to conviction and during trial and appellate
review" [emphasis mine] have been accorded.
Shaw v. Martin, 613 F.2d 487, 491 (4th Cir. 1980) (Phillips, J.) (bracketed
material and emphasis in text).
Because the right of access to habeas corpus is of "fundamental importance
... in our constitutional scheme," Johnson v. Avery, supra, meaningful access
to that remedy must be counted as among "the protections which ... surround [a
condemned person] under our system ...," Evans v. Bennett, supra. Accord,
Barefoot v. Estelle, ___U.S.___, 103 S.Ct. 3383, 3391 (1983); Shaw v. Martin,
613 F.2d at 491-92. But since meaningful access to habeas corpus presupposes a
competent petitioner, to permit a state to extinguish the right of access to
habeas corpus by the execution of one who is incompetent is to permit the
denial of the right of access prematurely. It is to permit in the post-trial
setting that which we absolutely forbid in the pretrial and trial setting: the
state's taking advantage of a person's incompetency -- to foreclose the
exercise of constitutional rights — when his competency is a precondition to
the exercise of those constitutionally-protected rights.2® 20
20 Indeed in Alvin Ford's case the state's "taking advantage" of Mr. Ford's
incompetency has even greater meaning. All of the psychiatrists who have
evaluated Mr. Ford since the onset of his mental illness and who have offered
opinion as to the cause of Mr. Ford's current condition have reasoned that
in part the cause is the stress of incarceration on death row and the prospect
of his impending execution, factors wholly within the state's control. See R.
R. 426, 439, 442, 445. Thus, the state's execution of Mr. Ford would not only
allow it to take advantage of his incompetency but would also allow it to take
advantage of a situation in part created by the operation of its own policies.
See generally R. Johnson, Condemned to Die: Under Sentence of Death (1981).
-30-
This argument is of course self-limiting: because it hinges upon the
absolute cutting off of access to the courts unique to the execution of death
sentences, it applies only to capital cases. The imprisonment of an incompet
ent defendant does not extinguish his right of access to the courts. See
Lockett v. Ohio, 438.U.S. 586, 605 (1978). While such a prisoner may not be
able to exercise that right, the state's carrying out of his imprisonment does
not take undue advantage of his incompetency in the manner forbidden by the
constitution. It is the absolute cutting off of the right of access when a
prisoner is incapable of exercising the right — that is forbidden.
While the experience of the Supreme Court in treating the cases of
incompetent or arguably incompetent condemned prisoners is very limited, the
Court has consistently ruled that the state cannot be permitted in such cases
to take advantage of a condemned person's incompetency. All of these cases21
have involved the question whether a condemned person may be permitted to
withdraw, or refuse to pursue, pending or available legal challenges to the
lawfulness of his conviction or death sentence. In none of the cases has the
Court permitted the condemned person's wishes to be honored without first
assuring itself of that person's competency. The teaching of the Supreme Court
in these cases thus strongly confirms the validity of the analysis here. If
the state intends to execute a person, it cannot do so if the execution would
occur when the condemned person is incapable because of incompetency of
exercising, or waiving, all the constitutional rights then available to him.
21 Lenhard v. Wblff, 443 U.S. 1306 (1979), vacating stay of execution, 444 U.S.
807 (1979) (Rehnquist, J., Circuit Justice); Evans v. Bennett, 440 U.S. 987
fl979). vacatinq stay of execution, 440 U.S. 1301 (1979) (Rehnquist, J..
rirniit Justice): Gilmore v. Utah, 429 U.S. 1012 (1976); Massie v. California,
No. 68-5025 (U.S. Mar. 6, 1969) (Douglas, J., Circuit Justice), cert, denied as
moot, 406 U.S. 971 (1972); Rees v. Peyton, 384 U.S. 312 (1966) (per curiam),
held without action on petition for cert., 386 U.S. 989 (1967); Anderson v^
KpirHicky. 376 U.S. 940, motion to correct order denied, 377 U.S. 902 (1964).
See qenerally Strafer, Volunteering for Execution: Competency,^ Voluntariness
and the Proprietv of Third Party Intervention, 74 J.Crim. L. & Criminology 860
(1983).
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A further aspect of this Court's independent assessment of the execution
of the insane is that it does not measurably contribute — beyond the death
penalty itself — to the penological justifications for capital sentencing. It
would therefore be "'nothing more than the purposeless and needless imposition
of pain and suffering,' and hence an unconstitutional punishment." Enmund v.
Florida, 458 U.S. at 798 (quoting Coker v. Georgia, 433 U.S. at 592).
Retribution is ill-served by the execution of the insane, for if it is
meant to impress a moral lesson on the offender, the condemned person, by
reason of his insanity, cannot be brought by that spectre to feel the respect
for the law and society that a sane person should feel. If it is intended to
act as a release or an "expression of society's moral outrage," Gregg, 428 U.S.
at 183, then execution of the insane fails in that goal or even would counter
act it. This theory of retribution is that each wrong must be offset by a
punative act of the same quality, but when the prisoner is insane, a punishment
of lesser value is being imposed. "Society may be punishing a person, who for
all moral purposes, is not the same person who committed the crime." Note,
Insanity of the Condemned 88 Yale L.J. 533, 536 n. 17 (1979) (citing Solesbee
v. Balkcom, 339 U.S. at 19 (Frankfurter, J., dissenting)). See also Note,
Incompetency to Stand Trial, 81 Hacv. L. Rev. 454, 458-59 (1967) ("[T]he social
goal of institutionalized retribution may be frustrated when the force of the
state is brought to bear against one who cannot comprehend its significance").22
22 As one court vividly described this aspect of execution of the insane:
Amid the darkened mists of mental collapse, there is no light against
which the shadows of death may be cast. It is revealed that if he
were taken to the electric chair, he would not quail or take account
of its significance.
Musselwhite v. State, 215 Miss. 363, 60 So.2d 807, 809 (1952). This retributive
theory — that the prisoner must know what is happening to him in order to
satisfy the public need for vengence — may seem "unappealing to many, but," as
For this reason, contemporary eighth amendment jurisprudence forbids the
execution of the insane.
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insane. Lord Coke opined centuries ago that executing an insane person "can be
no example to others." Id. This is so because "prospective offenders" of
capital crimes, Gregg, 428 U.S. at 183, could not identify with an insane
person who is executed. As expressed by an early 19th century canmentator:
[H]ow could the execution of a man incapable of understanding
any law, operate more as a warning to others to avoid the
violation of the law, than the public punishment of a dog?
— The one would be a spectacle of horror, the other of
ridicule.
Collinson, A Treatise on Law Concerning Idiots, Lunatics, and Other Persons Non
Compotes Mentis 472 (1812). Since public attitudes strongly disfavor execution
of the insane and penal sanctions cannot far outrun public opinion, the lack of
public support for and opposition to such executions negates any additional
deterrent effect that there could be from executing the insane. And whatever
the overall deterrent effect of the death penalty is itself, it would not be
weakened by the withholding of it for those relatively few prisoners who become
insane. Executing the insane would thus not measurably contribute to the
stated penological goals of capital punishment.
3. Conclusion: Execution of the Insane Also Fails Traditional Eighth
Amendment Analysis.
Both prongs of the traditional analysis set out by the Court in Gregg,
Enmund and Coker demonstrate that the execution of the insane would violate the
eighth amendment. Deeply-rooted moral values of our enlightened society
repudiate the execution of the insane, and so must the Constitution.
For similar reasons, deterrence is not further served by execution of the
the Supreme Court says, "it is essential in an ordered society." Gregg, 428
U.S. at 183.
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II. AN EVIDENTIARY HEARING MUST BE HELD IN THE DISTRICT COURT TO
DETERMINE MR. FORD'S PRESENT COMPETENCY TO BE EXECUTED, AS
REQUIRED BY THE EIGHTH AMENDMENT.
A. Introduction
fifc-. Ford has a substantive eighth amendment right not to be executed while
incompetent. A hearing is required in the district court to decide the factual
question of whether Mr. Ford is insane since the Florida state determination of
that question was nonjudicial, hence entitled to no deference under 28 U.S.C.
§2254, and was procedurally defective and unreliable in addition.
B. Jurisdiction: "In Custody In Violation of the Constitution"
The respondent, Wainwright, has filed a motion to dismiss the appeal,
claiming no federal jurisdiction to adjudicate the federal constitutional
question presented. 23 The principal theory of Wainwright's motion is that a
federal constitutional claim "which is not an attack on the petitioner s
judgment and sentence" is not cognizable in federal habeas corpus proceedings.
(Motion to Dismiss, 114). This shows nothing but a fundamental misknowledge
about the nature of federal habeas corpus.
That misknowledge is symbolized by Wainwright's citation of §2254 as the
source of the federal habeas corpus jurisdiction. The jurisdictional basis for
the federal writ is 28 U.S.C. §2241, which authorizes the issuance of the writ
whenever any person is in custody in violation of the Constitution of the
United States. Section 2254 on the other hand is a 1 imitation upon the
issuance of the writ in certain cases where custody rests on a state-court
judgment. The 1867 statute which survives today as §2241(c)(3) and extends
federal habeas corpus protection to any person "in custody in violation of the
Constitution" was not originally conceived, and never has been conceived, as
exclusively — or even principally — providing a means for attacking state- 23
23 By order of this Court dated July 6, 1984 petitioner was permitted to respond
to the motion to dismiss in this brief on the merits.
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court judgments.24 25 It is a procedure for attacking the legality of the petit
ioner's confinement. It may be maintained when the petitioner is confined
under other authority than a judgment of conviction, e.g., United States v_.
Hamilton, 3 U.S. (Dali.) 17 (1795); Ex parte Bollman, 8 U.S. (4 Cranch) 75,
99-100 (1807), and for purposes other than attacking such a judgment, e.g.
Braden v. 30th Judicial Circuit Court, 410 U.S. 484 (1973); Preiser v.
Rodriguez, 411 U.S. 475 (1973).2^
Thus, the Supreme Court has observed:
The jurisdictional prerequisite [for habeas corpus] is not
the judgment of a state court but detention simpliciter ....
Habeas corpus lies to enforce the right of personal liberty;
and when that right is denied and a person confined, the
federal court has the power to release him ....
Fay v. Noia, 372 U.S. 391, 430-31 (1963). Accord Waley v. Johnston, 316 U.S.
101, 104-05 (1942); Hawk v. Olson, 326 U.S. 271, 274-76 (1945). See also In
Townsend v. Sain, 372 U.S. 293, 311-12 (1963) (the "function on habeas corpus
is to test by way of an original civil proceeding, independent of the
normal channels of review of criminal judgments, the very gravest of allega
tions.... [T]he power of inquiry on federal habeas corpus is plenary. )
The question of whether Mr. Ford's claim is cognizable on federal habeas
corpus thus turns solely on whether he is "in custody in violation of the
24 See generally Amsterdam, Criminal Prosecutions Affecting Federally Guaranteed
Civil Rights: Federal Removal and Habeas Corpus Jurisdiction to Abort State
Court Trial, 113 U. Pa. L. Rev. 793, 882-89 (1965).
25 The irony in Wainwright's position is that historically the writ did not lie at
all for the purpose of attacking a judgment of conviction or a sentence. When a
respondent's return to the writ showed that the petitioner was held by virtue
of a judgment of a court having jurisdiction, the inquiry on habeas corpus
ended. E.g. Ex parte Watkins, 3 Pet. 193 (U.S. 1830); Moore v. Dempsey, 261
U.S. 86 (1923) . See generally Bator, Finality in Criminal Law and Federal
Habeas Corpus for State Prisoners, 76 Harv. L. Rev. 441 (1963). The emergence
of habeas corpus as a post-conviction remedy available to question the legality
of a conviction and sentence is a recent principle resulting from the expansion
of the original concept of "lack of jurisdiction. E.g. Ex parte Lange, 18
Wall. 163 (U.S. 1873); Johnson v. Zerbst, 304 U.S. 458 (1938). See generally
Wainwright v. Sykes, 433 U.S. 72, 79 (1977).
-35-
Constitution" within the meaning of §2241(c)(3) and §2254(a) if he is being
confined for the purpose of executing him and his execution would be unconsti
tutional. It has long been settled that a habeas petitioner is "in custody in
violation of the Constitution" if he is being confined for purposes of subject
ing him to a trial that would violate his federal rights. See, e.g., In re
Loney, 134 U.S. 372 (1890); In re Neagle, 135 U.S. 1 (1890); Hunter v. Wood,
209 U.S. 205 (1908). There is no conceivable ground, and Wainwright has
offered none, for distinguishing the case of a petitioner held for the purpose
of subjecting him to a federally unconstitutional execution.
The federal courts plainly have jurisdiction to reach the fundamental
constitutional question presented by this cause.
C. Florida's Gubernatorial Proceeding
Florida, by statute, has created an administrative proceeding for the
governor to examine a death-sentenced individual's competency to be executed.
Fla.Stat. §922.07 (1983). In Mr. Ford's case, for the first time, the Supreme
Court of Florida held that "the statutory procedure is now the exclusive
procedure for determining competency to be executed." Ford v. Wainwright, 451
So.2d at 475.26
The proceeding provided by the statute is ex parte within the executive
branch. When the governor is informed that a person may be insane, he must
stay the execution of sentence and appoint three psychiatrists to examine the
convicted person "to determine whether he understands the nature and effect of
26 Ihe Florida Supreme Court had previously held, prior to the enactment of the
statute, that there was a right to a judicial determination by the trial judge
where a condemned was alleged to be incompetent. Ex parte Chesser, 93 Fla.
291, 111 So. 720 (1927); Hysler v. State, 136 Fla. 563, 187 So. 261 (1939).
The court had not had an opportunity to address the statute or the issue,
however, until this case in May and the prior month in Goode v. Wainwright, 448
So.2d 999 (Fla. 1984). And in Goode the court appeared to leave open the
prospect of judicial proceedings for the determination of execution compet
ency. See Goode v. Wainwright, 731 F.2d at 1483 ("he was free to assert this
contention in state and federal courts from the time that he was sentenced to
death." (emphas is supplied)).
-36-
§922.07(1). Thethe death penalty and why it is to be imposed upon him."
examination is to take place with all three psychiatrists present at the same
time. Defense counsel and the prosecutor "may be present at the examination."
And if the convicted person has no counsel, the trial court "shall appoint
counsel to represent him." Id.
Though provision is made for appointment of counsel, no hearing is held and
no provision is made for any adversarial activity by such counsel on behalf of
the client. Consistent with these provisions, the present Florida governor has
a "publicly announced policy of excluding all advocacy on the part of the
condemned from the process of determining whether a person under sentence of
death is insane." Goode v. Wainwright, 448 So.2d at 1001 (emphasis supplied).
After receiving the report, if the governor "decides" that the convicted person
does not meet the competency test set out above, then he orders the person
committed to the state hospital. If he "decides" that he meets the test, then
the governor issues a death warrant ordering execution. §§922.07(2),(3). There
are no written findings and there is no judicial review of the decision.
Thus, what we will examine in the following sections is whether that ex
parte state executive proceeding should be given deference by the federal
courts. Manifestly such a venture should not be deferred to for it is wholly
insufficient to vindicate the eighth amendment right.
D. Florida's Gubernatorial Proceeding Is Inadequate to Reliably Vindicate The
Eighth Amendment Right
In Townsend v. Sain, supra, the Court addressed those situations where it
was mandatory to hold an evidentiary hearing on constitutional claims presented
in a habeas corpus action. Underlying the Court's decision was a focus upon
the reliability of state-court fact-finding:
Where the facts are in dispute, the federal court in habeas
corpus must hold an evidentiary hearing if the habeas
applicant did not not receive a full and fair evidentiary
hearing in a state court, either at the time of the trial or
in a collateral proceeding. In other words a federal
evidentiary hearing is required unless the state-court trier
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of fact has after a full hearing reliably found the relevant
facts.
372 U.S. at 312 (emphasis supplied). See also Thcmas v. Zant, 697 F.2d 977,
980-81 (11th Cir., 1983).
The Townsend Court then delineated six categories of cases wherein a
hearing must be held'— each of which focus upon the reliability of the state
court proceedings to vindicate the constitutional right. 372 U.S. at 313.
Similarly, Congress mirrored these categories in enacting §2254(d) where it
defined the situations in which state-court factfindings are entitled to a
"presumption of correctness" by the federal courts. The focus again is upon
the reliability of the state court proceedings. Thus, Townsend sets forth the
threshold standards of whether a hearing must be held and §2254(d) governs the
burden of proof at that hearing. See Thomas v. Zant, 697 F.2d at 977 (citing
Guice v. Fortenberry, 661 F.2d 496 (5th Cir. 1981)(en banc)).
By the very terms of both Townsend and §2254(d) , they are inapplicable to
this situation since there was no hearing in the state courts — any
"resolution" of the constitutional question in Florida was both ex parte and
nonjudicial. Even so, beyond this fatal flaw, the Florida state proceedings
were otherwise wholly unreliable and thus could in no way vindicate the
fundamental federal constitutional right involved in this case.
1. Florida's Procedures Are Untrustworthy
First and foremost, Florida's statute provides for no hearing before the
decisionmaker. The statute makes no provision for presentation of defense
witnesses or evidence at the psychiatric ccmntission's inquiry. There is no
right of cross examination and no power to secure compulsory process. The
decisionmaker is the governor, and there is no hearing at which he presides
— and the present governor prohibits "all advocacy on the part of the
condemned" at a hearing or otherwise. Goode v. Wainwright, 448 So.2d at 1001.
At least three societal goals are served by an oral hearing held before the
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decisionmaker. First, a hearing is necessary in order to provide the
"adversarial debate our system recognizes as essential to the truth seeking
function," Gardner v. Florida, 430 U.S. at 359, for "no better instrument has
been devised for arriving at truth." Joint Anti-Fascist Refugee Comm, v.
McGrath, 341 U.S. 123, 171 (Frankfurter, J., concurring). Secondly, a hearing
serves as an "institutional check on arbitrary or impermissible action." Gray
Panthers v. Schweiker, 652 F.2d 146, 162 (D.C. Cir. 1980). Finally, "no other
procedure so effectively fosters a belief that one has been dealt with fairly,
even if there remains a disagreement with the result." Id.
Moreover, a judicial process which would give any deference to the results
of such a process as that of §922.07 would increase the risk of erroneous
determinations and abdicate the uniquely judicial responsibility to ensure that
the state comply with the requirements of the eighth amendment or any other
constitutional right. Cf. 28 U.S.C. §2241(c)(3). Specifically, a judicial
hearing is the most appropriate forum to resolve the legal, not medical, issue
of a prisoner's present competency. The Supreme Court has noted that psych
iatric diagnoses are subject to a substantial degree of uncertainty. See
Addington v. Texas, 441 U.S. 418, 429 (1979). Psychiatrists may often misdiag
nose individuals. See Ennis and Litwack, Psychiatry and the Presumption of
Expertise: Flipping Coins in the Courtroom, 62 Calif. L. Rev. 693 (1974).
Psychiatrists mistakenly apply medical rather than legal standards of compet
ency, and confuse competency with insanity. Comment, An End to Incompetency to
Stand Trial, 13 Santa Clara L. Rev. 560, 560-61 (1973). Psychiatric reports
have been described as "weakest precisely at the point of drawing legal
conclusions from clinical data." Pizzi, Competency to Stand Trial in Federal
Courts: Conceptual and Constitutional Problems, 45 U.Chi. L.Rev. 21, 52 (1977).
Moreover, the methodology of some psychiatric examinations for determining
present competency are subject to serious question — including the type of
-39-
examination provided by the Florida proceeding. This case serves as an example
of the typical problems inherent in the Florida proceeding. The examination
took place over a one-half hour period, in the courtroom of the prison (not a
clinical setting), with not only the three doctors present, but also prison
guards, an executive aide, paralegals, and defense counsel. These were the
circumstances that led the tenth circuit court of appeals to find a psychiatric
examination to be inadequate for determining the post-judgment competence of a
death-sentenced prisoner. Hays v. Murphy, 663 F.2d 1004, 1011-12 (10th Cir.
1981). In Mr. Ford's case affidavits by respected psychiatrists were submitted
which identified the flaws of the process of the examination in the present
case — finding it to be below the minimum standard of care required by the
medical profession for a proper psychiatric evaluation. R 452-53, 468. We
mention this here not to prove the impropriety of the governor's examination —
though consistent with Hays it was inadequate and unreliable — but simply to
point out the grave risk of error in the Florida proceeding, in first fostering
and then excluding any opportunity to consider such failings.^
These risks of error at the initial determination are enhanced by the fact
that Florida's 922.07 procedure provides no mechanism to review that determina
tion. There are not even written findings that could be reviewed even if there
were such a mechanism — at most there is only an implied conclusory finding as
to the ultimate legal issue. If the judiciary is to be excluded from the
initial determination, then some mechanism for reconsideration of that deter
mination is needed. Such review would make it more likely that the reasons
given by the decisionmaker would reflect reliance on proper procedural and 27
27 See also strafer, Volunteering for Execution: Competency, Voluntariness and the
Propriety of Third Party Intervention, 74 J. Crim. & Criminology 860, 877-78
(1983) ("while psychiatric and psychological examinations and evaluations are
the sine gua non of an adequate inquiry into competency, the hearing [on
competency] may still be inadequate if the professional examinations are not
conducted and administered in a proper manner").
-40-
substantive standards as well as all the available evidence.
2. Florida Applies A Competency Standard Less Than That Required By Hie
Eighth Amendment
Florida's competency standard itself is unreliable because it applies a
substantive standard of competency far less exacting than the standard required
by the eighth amendment. The Florida statute only partially defines the
constitutionally required standard for determining insanity or sanity for a
person under sentence of death. The defendant must "understand the nature and
effect of the death penalty and why it is to be imposed upon him." Fla. Stat.
§922.07 (1). Thus, Florida statutory law provides an articulation of the
"understanding" portion of the traditional competency standard.28 The standard
for evaluating competency for execution, however, must draw its content from
the underlying reasons explaining why our enlightened society does not execute
the incompetent. Because executing the presently incompetent violates the
eighth amendment in part because it takes advantage of the prisoner's mental
disorder to foreclose his final right to challenge his sentence (see Point
1(C)(2), supra), the test for present competency must include the "consult with
counsel" element absent from Florida's statutory definition of the standard.
Justice Frankfurter, dissenting in Solesbee, endorsed a standard embodying
the degree of protection which common law had cane to require:
After sentence of death, the test of insanity is whether the
prisoner has not "from the defects of his faculties, suffic
ient intelligence to understand the nature of the proceedings
against him, what he was tried for, the purpose of his
punishment, the impending fate which awaits him, a sufficient
understanding to know any fact which might exist which would
make his punishment unjust or unlawful, and the intelligence
requisite to convey such information to his attorneys or the
court."
339 U.S. at 20 n.3. The fifth circuit applied Justice Frankfurter's Solesbee
28 See Dusky v. United States, 362 U.S. 402 (1960) (one component of the test of
trial competency is "whether [the defendant] has a rational as well as factual
understanding of the proceedings against him").
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test in Gray v. Lucas, 710 F.2d at 1054. Moreover, a variety of jurisdictions
have adopted similar statements of this rule. See 21 Am. Jur. 2d. Criminal Law
§123, pp. 257-58, and it has been endorsed by the carmentators.29
Accordingly, the test for competency to be executed as articulated in the
Solesbee dissent has been recognized as satisfying the interests underlying the
right not to be executed when incompetent. But this is not the standard set
out in Florida law.
3. Analogous Areas of the Law Where Determination of Competency is
Required Suggests that Florida's Procedure is Inadequate
That the eighth amendment's prohibition against execution of the presently
incompetent contemplates a judicial proceeding to determine competency is
suggested by Rees v. Peyton, 384 U.S. 212 (1966) and Gilmore v. Utah, 429 U.S.
989 (1976) wherein death-row inmates attempted to abandon legal efforts to
prevent their executions. In Rees, the Court refused to allow the prisoner to
withdraw his appeal without a judicial determination that he was competent to
make this decision and retained jurisdiction, ordering the district court to
conduct any hearings "suitable" to determine Rees' competency. 483 U.S. at
313-14. In Gilmore, the state trial court had held a hearing on this very
issue before Gilmore's case reached the Court. Because this psychiatric
evidence uniformly stated that Gilmore was competent to forego his appeal, no
further hearing was needed. 429 U.S. at 1015-16 nn.4 & 5 (Burger, C. J.,
concurring). If a judicial competency determination is required prior to
29 See Note, Insanity of the Condemned, 88 Yale L. J. 533, 562 (1979); Comment,
Execution of Insane Persons, 23 S. Cal. L. Rev. 246, 256 (1959). Another
standard suggested by the commentators as being more consistent with the true
rationale for the prohibition against execution of the insane — that such a
sanction simply violates deeply held moral values of our enlightened society —
is the civil involuntary committment standard. Hazard & Louisell, Death, the
State, and the Insane: Stay of Execution, 9 UCLA L. Rev. 381, 395 (1962)
("whether the defendant's condition is such that, by ordinary standards, he
would be involuntarily conmittable to an institution"). This is the standard
that was employed in England prior to abolition of the death penalty. Royal
Commission on Capital Punishment, 1949-1953 Report 101, 124 (1953).
-42-
permitting the waiver of the right to challenge a death sentence, how could it
be argued that one who is so disabled by his mental condition that he is unable
to participate in or initiate such legal proceedings is not likewise entitled
to such a determination?
Accordingly, Florida's nonjudicial procedure can in no way substitute for,
or affect, the proceeding which the Supreme Court clearly contemplates for the
determination of competency at the time of execution.
4 . Florida's Procedure Is Not Entitled to a Presumption of Correctness
The habeas corpus statute, 28 U.S.C. §2254(d) , provides that a written
determination after a hearing on the merits of a factual dispute, made by a
state court of competent jurisdiction, is presumed correct unless one of the
conditions set out in subsections (d) (1)—(7) apply. The statute by its terms
does not apply to the ex parte executive activities of the present case because
§(d) is explicity limited to findings "made by a state court." But even so,
the exceptions listed in §§(l)-(7) are significant in what they say about the
character of state factfinding procedures upon which federal courts will not
defer. Five of the circumstances listed in §(d), which really are indicia of
untrustworthiness, are present here.
Subsection (1) provides that federal courts will not defer to state
factfinding if the merits were not resolved "in the State court hearing." In
this case there was no "hearing" at all and no determination by a "court."
Subsection (2) precludes deference if "the factfinding procedure employed
by the State court was not adequate to afford a full and fair hearing." Once
again, there was no hearing at all, much less a full and fair one, by a court
or anyone else.
Subsection (3) forbids deference if the "material facts were not adequately
developed at the state court hearing." At a hearing, petitioner would have
-43-
sharply challenged the evidence suggesting competency and the methodology of
the evaluation process, and presented his own proof of insanity.
Subsection (6) states no deference be accorded if petitioner "did not
receive a full, fair and adequate hearing in the State Court proceeding."
Subsection (7) forbids deference if petitioner was "otherwise denied due
process at the state court proceeding." There was no semblance of due process
here — no hearing, no adversarial process, no cross-examination, no written
findings, no review, etc. (See Point III, infra)
E. Conclusion: An Evidentiary Hearing is Required in The District Court On
Mr. Ford's Competency to be Executed
It has been shown: (1) there is an eighth amendment prohibition against
execution of the insane and (2) the Florida state treatment of that issue is in
no manner binding upon federal review of the question. Frcm this it follows
that a federal evidentiary hearing must be held to determine the competency of
Mr. Ford to be executed.
The facts are in sharp dispute and have never been reached or resolved by a
hearing in state court or otherwise. See Townsend v. Sain, 372 U.S. at 312-17.
And the facts alleged by Mr. Ford — showing that he is presently incompetent
— "would entitle him to relief" _id. at 312, under the eighth amendment. Under
such circumstances a hearing is mandatory.30 That there is genuine dispute
regarding the question of competence is beyond peradventure. As this Court
previously observed "[c]redible evidence... indicates that Ford is insane."
Ford v. Strickland, 734 F.2d at 539. Moreover, one of the two appointed psych
iatrists who had found him psychotic had also predicted in December of 1983
that Mr. Ford would continue to deteriorate such that he would soon become
30 E.g Blackledge v. Allison, 431 U.S. 63, 73-74 & n. 3 (1977) (equating the
standards for requiring an evidentiary hearing under 28 U.S.C. §§2243 and 2255
and thus holding that a federal evidentiary hearing must be held "'unless the
motion and the files and records of the case conclusively show that the
prisoner is entitled to no relief.'" (quoting 28 U.S.C. §2255 (emphasis
supplied)).
-44-
incompetent even under the narrow Florida standard; and the state hospital
doctor who had found no psychosis had refused to consider any of the extensive
mental history materials available. Also, telling criticism of all of the
appointed psychiatrists' evaluation methods were submitted in affidavits from
two recognized forensic psychiatric experts in the court below wherein the
doctors analyzed in detail the methodology employed by the governor's psych
iatrists to examine Mr. Ford and found it to be below standards of minimum care
for the medical profession.33 Finally, the most reliable evidence concerning the
truly serious nature of Mr. Ford's mental illness was the evidence presented by
the reports of Dr. Kaufman, the only psychiatrist who had observed Mr. Ford
over a substantial length of time and studied all of the available information
concerning Mr. Ford. Dr. Kaufman's reports (the latest of which is the most
recent report available) unequivocally conclude that Mr. Ford is incompetent to
be executed even under the unconstitutionally narrow Florida standard.
The evidence is thus in sharp conflict. Those conflicts must be resolved
in a full hearing in the district court, for the Florida courts have refused to
do so.
III. THE RIGHT NOT TO BE EXECUTED WHILE INCOMPETENT AS ESTABLISHED
BY STATE LAW CANNOT BE WITHDRAWN WITHOUT PROCEDURAL DUE
PROCESS PROTECTIONS REQUIRED BY THE EIGHTH AND FOURTEENTH
AMENDMENTS.
A. Introduction
Apart from the substantive eighth amendment prohibition against executing
the insane, the procedural due process protections of the fourteenth amendment
prevent the execution of the insane unless there has first been a fair determ
ination of the condemned person's sanity.
A variant of this issue — which attacked Fla. Stat. §922.07 as denying 31
31 As previously discussed, such evidence regarding the inadequacy of the examina
tion process is essential for a reliable determination of the competency issue
and thus must be the subject of a hearing. Hays v . Murphy, 663 F.2d at
1009-13.
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procedural due process — was summarily rejected by the panel in Goode v.
Wainwright, 731 F.2d 1482, 1483 (11th Cir. 1984), relying on Solesbee v.
Balkcom, 339 U.S. 9 (1950). Goode does not control the issue presented by Mr.
Ford, however. Significantly, the Court assumed in Goode that the petitioner
had been "free to assert [his] contention [of incompetency to be executed] in
the state ... courts thereby "secur[ing] an orderly determination of his
then current mental condition." 731 F.2d at 1483. Because of the judicial
alternative then thought to be available to Goode — through which he could
have obtained a procedurally fair determination of his competency — the Court
understandably rejected Goode's claim that §922.07 violated due process. In Mr.
Ford's case, however, the Florida court held for the first time that §922.07
provided "the exclusive procedure for determining competency to be executed."
Ford v. Wainwright, 451 So.2d at 475. Thus, Mr. Ford's case presents the
procedural due process issue not presented by Goode: whether §922.07 alone
provides adequate procedural protection of the right not to be executed when
incompetent. This, in turn, requires the Court to address what it was not
required to address in Goode: the continued viability of Solesbee v. Balkcom.
As we demonstrate in the discussion that follows, Solesbee is no longer
good law. It was decided at a time when constitutional due process analysis
still turned on the right-privilege distinction, when capital sentencing
proceedings were generally held to be beyond the reach of the due process
clause, and well before the eighth amendment imperatives of post-Furman capital
jurisprudence had been articulated, much less applied through the due process
clause, to require enhanced due process protection in death penalty cases.
Solesbee was thus the distinct product of a jurisprudence that has been so
changed by subsequent decisions that it can no longer be relied upon to resolve
the procedural due process issue created by Florida's exclusive reliance on
section 922.07. Once Solesbee is analyzed in its proper perspective, the
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application of current procedural due process principles compels the conclusion
that Mr. Ford's state-created right not to be executed when incompetent cannot
be withdrawn without substantially greater procedural protections than are
afforded by section 922.07.
B. Solesbee v. Balkcpm No Longer Measures the Process Due to the Condemned in
Determining Competency at the Time of Execution
In Solesbee v. Balkcom, the Court considered a due process challenge by a
Georgia death row inmate to Georgia's procedure for determining the competency
of the condemned at the time of execution. The procedure for such a determina
tion in Georgia expressly prohibited judicial resolution of execution competen
cy, and instead provided a wholly discretionary procedure by which the governor
exclusively determined any question of execution competency. The Court rejected
the petitioner's argument that this exclusive procedure deprived him of his due
process right to have his sanity "originally determined by a judicial or
administrative tribunal after notice and hearings in which he could be repre
sented by counsel, cross-examine witnesses and offer evidence, and to judicial
review thereafter if the original tribunal was administrative. Id. at 10.
The principles of analysis which led to this result must be fully under
stood in order to appreciate how thoroughly the result has been eroded by
subsequent jurisprudential developments.
At the outset, it must be understood that Solesbee was decided at a time
when the procedural protections of the due process clause were applicable only
to "rights," not "privileges." See, e.g., Ughbanks v. Armstrong, 208 U.S. 481
(1908); Escoe v. Zerbst, 295 U.S. 490 (1935); Phyle v. Duffy, 34 Cal. 2d 144,
208 P.2d 6 6 8 , 677-78 (1949) (Traynor, J., concurring in judgment). The
classification of a particular interest as a right or a privilege turned
critically upon the procedure which historically had been used to protect the
interest. See Arnett v. Kennedy, 416 U.S. 134, 210-11 & n. 7 (1974) (Marshall,
J., joined by Brennan and Douglas, J.J., dissenting). The greater the discre
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tion allowed by the procedure to the tribunal charged with protecting an
interest, the greater the likelihood that interest would be classified a "mere
privilege." See, e.g., Uqhbanks v. Armstrong, supra (parole); Escoe v. Zerbst,
supra (probation). There is no better example of the operation of these
principles than the Court's analysis in Solesbee.
The Solesbee Court determined there was no "right" not to be executed when
insane by examining the nature of the "suggestion of insanity after sentence
and the character of the sentencing proceeding itself. 339 U.S. at 11-13. The
examination of these procedures led the Court to the following: the exercise
of wide discretion by the tribunal charged with determining post-sentencing
insanity or the sentence itself was the essential character of sentencing and
post-sentencing proceedings, and that exercise of discretion was not histor
ically "hedged in by strict evidentiary procedural limitations," Williams v.
New York, 337 U.S. 241, 246 (1949). The Court explained that in Williams,
because sentencing judges could "exercise [such] wide discretion, Williams,
337 U.S. at 246, it hal "emphasized that certain trial procedure safeguards are
not applicable to the process of sentencing." Solesbee, 339 U.S. at 12. "This
principle applie[d] even more forcefully to an effort to transplant every trial
safeguard to a determination of sanity after conviction, id., for a suggestion
of insanity rested upon a wholly unconditioned exercise of discretion: a
suggestion of insanity after sentence is an appeal to the conscience and sound
wisdom of the particular tribunal which is asked to postpone sentence. Id. at
13. Accordingly, because the Solesbee Court found both sentencing determina
tions and post-sentencing determinations of sanity to be essentially discret
ionary and not "hedged in" by the "salutary and time-tested" protections
associated with the determination of guilt, Williams v. New York, 337 U.S. at
245, the Court found no "right" of the condemned to a due process determination
of sanity. The "settled usages and modes of proceeding," Turney v. Ohio, 273
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U.s. 510, 523 (1927), with respect to sentencing determinations and post-
sentencing determinations of sanity accorded no procedural safeguards to the
prisoner — it accorded only the conscience of the tribunal charged with making
a determination.
In the more than three decades since Solesbee, three doctrines have
developed which have eroded the reasoning of Solesbee and as a result have
required re-analysis of the applicability of the due process clause to the
determination of the sanity of the condemned at the time of execution. These
include the doctrine that due process protection is afforded against the
arbitrary denial of state-created rights, and the doctrines that due process
now applies to sentencing proceedings and that capital sentencing proceedings
demand, in particular, stringent due process protections. 32
In the decade of the 1970's the Supreme Court firmly discarded "the concept
that constitutional rights turn upon whether a governmental benefit is char
acterized as a 'right' or as a 'privilege,'" Graham v. Richardson, 403 U.S.
365, 374 (1971). See also Morrissey v. Brewer, 408 U.S. 471, 481 (1972); Bell
v. Burson, 402 U.S. 535, 539 (1971); Goldberg v. Kelly, 397 U.S. 254, 262
(1970). Rather than examining the historical treatment of a particular
interest to determine whether the granting or withholding of the interest had
been "hedged in" by various procedural safeguards, Williams v. New York, supra,
or was wholly discretionary, the post-right/privilege analysis focuses upon
"whether the nature of the interest is one within the contemplation" of the due
process clause of the fourteenth amendment. Morrissey v. Brewer, 408 U.S. at
481. This in turn depends upon "the extent to which an individual will be
3 2 Indeed the erosion of Solesbee began even before the evolution of these
doctrines. By 1958, eight years after Solesbee, four members of the Supreme
Court would have held due process protections applicable to the execution of
the condemned. See Caritativo v. California, 357 U.S. 549, 550 (1958) (Harlan,
J., concurring); id. at 552-59 (Frankfurter, J., joined by Douglas, J., and
Brennan, J., dissenting).
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'condemned to suffer grievous loss'" if the interest at issue is arbitrarily
withdrawn or withheld. IcL (quoting Joint Anti-Fascist Refugee Ccmmittee v.
McGrath, 341 U.S. at 168 (Frankfurter, J., concurring)). At its core this
analysis examines the "'objective expectation [of the individual], firmly fixed
in state law and official ... practice," Vitek v. Jones, 445 U.S. 480, 489
(1980), and if upon that examination, the individual has a "justifiable
expectation," id., that the state will not arbitrarily withdraw a benefit
conferred or withhold a benefit expected to be conferred, due process protects
that individual's interest against "grievous loss" — the "arbitrary disregard
of" the individual's state-law—created interest, Hicks v. Oklahoma, 447 U.S.
343, 346 (1980). See also Greenholtz v. Inmates of Nebraska Penal and
Correctional Complex, 442 U.S. 1, 17 (1979); Logan v. Zimmerman Brush Co., 455
U.S. 422, 430-31 (1982).
While there has been no application of the post-right/privilege analysis to
the interest of a condemned person in not being executed when insane, the
analysis has been applied to two related interests parole and probation.
Under the right/privilege analysis, these interests were seen as identical to
the interest of the condemned in not being executed when insane: each had
previously been classified only as "privileges," which the state could grant or
revoke wholly within its discretion because each "cones as an act of grace to
one convicted of crime." Escoe v. Zerbst, 295 U.S. at 492; Ughbanks v.
Armstrong, supra. Despite this earlier view of probation and parole, the
Supreme Court held that the states could nonetheless create entitlements to
both that were protected by due process. Such an entitlement was first found in
connection with the interest of a parolee in not having his parole arbitrarily
revoked. Morrissey v. Brewer, 408 U.S. at 481-82. On the basis of the same
consideration, the Court thereafter held that probation could not be revoked
without due process protections. Gagnon v. Scarpelli, 411 U.S. 778, 782 & n. 4
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(1973). And, because Nebraska's parole statute created "a protectible expecta
tion of parole," in Greenholtz v. Inmates of Nebraska Penal & Correctional
Complex, 441 U.S. at 11-12, the Court held that the interest of a prisoner in
obtaining parole in the first instance was also protected by due process.
Since the application of the post-right/privilege method of analyzing the
interests protected by due process has produced these results with respect to
probation and parole, the application of this analytical method to the interest
of the condemned in not being executed when insane will produce the same
results in a state which has created a "justifiable expectation that a
condemned person will not be executed when insane. We no longer determine the
applicability of due process protection as the Solesbee Court did, by whether
an interest has historically been granted or withheld wholly within the
discretion of the state, as an act of "grace" or "humanity." We look now to
whether, despite historical treatment, a state has so conditioned its grant or
denial of a benefit as to create an interest in the individual which is
protected by due process. Solesbee in no way applied such an analysis, and so
its holding, like the dictum concerning probation in Escoe v. Zerbst, supra,33
is no longer authoritative or even persuasive. It is simply immaterial to
modern due process analysis. Accordingly, the evolution of due process
jurisprudence since Solesbee has rendered Solesbee of historical interest only
and requires a new evaluation of the applicability of the due process clause to
the determination of the sanity of the condemned at the time of execution.
Two other, post-Solesbee developments confirm the necessity of evaluating
anew the applicability of the due process clause to the determination of
execution competency. These two developments have thoroughly undermined
Williams v. New York, supra, upon which the Solesbee Court relied to hold that
the due process clause did not protect the interest of the condemned in
33 See Gagnon v. Scarpelli, 411 U.S. at 782 n. 4.
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competency at the time of execution. Solesbee, 339 U.S. at 12. These develop
ments, and their relation to Williams, were examined at length in Gardner
Florida, 430 U.S. 349 (1977).
In 1949, when the Williams case was decided, no significant
constitutional difference between the death penalty and
lesser punishments for crime had been expressly recognized by
this Court. At that time the Court assumed that after a
defendant was convicted of a capital offense, like any other
offense, a trial judge had complete discretion to impose any
sentence within the limits prescribed by the legislature....
In the intervening years there have been two constitutional
developments which require us to scrutinize a State s
capital-sentencing procedures more closely than was necessary
in 1949.
First, five Members of the Court have now expressly recog
nized that death is a different kind of punishment from any
other which may be imposed in this country ....[Citations
omitted.] ... It is of vital importance to the defendant and
to the community that any decision to impose the death
sentence be, and appear to be, based on reason rather than
caprice or emotion.
Second, it is now clear that the sentencing process, as well
as the trial itself, must satisfy the requirements of the Due
Process Clause....
430 U.S. at 357-58 (footnotes omitted). Thus, because Solesbee was signif
icantly the product of Williams v. New York, Solesbee has effectively been
overruled to the same extent as Williams --by the subsequent jurisprudential
upheavals which led to the application of the due process clause to sentencing
proceedings and to the requirement of particularly stringent due process
protections in connection with the application of the death penalty.
For these reasons Solesbee v. Balkcom no longer measures the process due to
the condemned in determining competency at the time of execution.
r Pinrida Has Created as a Matter of State Law a Protectible Expectation That
a Condemned Person Who Is Insane At the Time of Execution Will Not_Be
Executed.
Florida has, by common law and statute, adopted the fundamental principle
that one who is incompetent cannot be executed. The prohibition against the
execution of the incompetent in Florida, however, is not a mere "matter of
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grace," cf_;_ Solesbee v. Balkcom, which is left to the executive's "unfettered
discretion," Connecticut Bd. of Pardons v. Dumschat, 452 U.S. 458, 466 (1981).
Instead it is a "protectible expectation" under the due process clause of the
fourteenth amendment. While Florida formerly protected this right in judicial
proceedings, it now protects the right exclusively by an ex parte process
wholly within the control of the governor. The state-provided procedure for
protecting this right, however, neither fixes nor controls the measure of due
process protection to which this right is entitled under the fourteenth
amendment.
For at least sixty years, Florida law has flatly prohibited the execution
of a person who is insane at the time of execution. In Ex parte Chesser, 93
Fla. 590, 112 So. 87 (1927), the Florida Supreme Court first articulated its
adherence to the common law prohibition as follows:
Since there is in this state no statute governing the
question before us, the principles of the common law apply
.... The rule of the common law is stated ... [:] "if, after
judgment, [the condemned 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 somewhat in stay of judgment or
execution . . . . "
112 So. at 89 (emphasis supplied). The absolute prohibition against the
state's execution of the incompetent has continued in equal force to the
present. See Ex parte Chesser, 111 So. at 721; State ex rel. Deeb v.
Fabisinski, 111 Fla. 454, 465-67, 152 So. 207, 211 (1933); Hysler v. State, 187
So. at 26 2; Goode v. Wainwright, 448 So.2d at 1001; Ford v. Wainwright, 451
So.2d at 475. See also Fla. Stat. §922.07(3).
The nature of the right of a condemned person in Florida not to be executed
when incompetent is thus critically different from the right asserted in
Solesbee v. Balkcom. In Solesbee the right not to be executed when incompetent
was described simply as "an appeal to the conscience and wisdom" of the
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governor, 339 U.S. at 13.34 However, in Florida the legal right not to be
executed when incompetent is not a mere "right" to appeal to the conscience of
the governor for "an 'equity1 type judgment," Greenholtz v. Inmates of Nebraska
Penal & Correctional Complex, 442 U.S. at 8 . It is instead a "legitimate claim
of entitlement," Board of Regents v. Roth, 408 U.S. 564, 577 (1972), of the
very same character as the right not to be tried or sentenced when incompetent.
See State ex rel. Deeb v. Fabisinski, 111 Fla. at 465-67, 152 So. at 211 ("the
rule at common law is well settled that a person while insane cannot be tried,
sentenced, nor executed" (emphasis supplied)). Because there is a "set of facts
which, if shown, mandate a decision favorable to the individual," Greenholtz,
442 U.S. at 10, — i.e., if the facts show a condemned prisoner is incompetent,
he "cannot" be executed and "shall" instead be transferred to the state
34 In Solesbee the Supreme Court characterized the general common law right in
this fashion, not as a flat prohibition against the execution of the insane. We
have explained, supra, why — even if this were a correct characterization of
the right as it existed at common law — Solesbee1 s holding has been thoroughly
eroded by subsequent developments in the law. Another criticise of Solesbee
must be made here, however. As a matter of historical and legal-historical
fact, Solesbee mischaracterized the common law right as merely an appeal to the
humane but unfettered discretion of the tribunal charged with deciding whether
to postpone the execution. This was erroneous. The common law right, as the
Florida Supreme Court reported it in Chesser, supra, and as Justice Frankfurter
reported it in his dissent in Solesbee, 339 U.S. at 16-20, did flatly prohibit
the execution of the insane: upon the showing of insanity, the tribunal had no
discretion to allow the execution to proceed. See also the Florida cases cited
in the text, supra. The Solesbee majority's mischaracterization of the general
common law right is explainable, however, for twD reasons. First, as we have
noted, in assessing whether there was a right under the right/privilege
analysis in force at the time Solesbee was decided, the Court very often made
the assessment without distinguishing the nature of the interest at issue from
the process used to protect it. Thus, the Court could well have been talking
about the process used in some jurisdictions — which in some was wholly
discretionary — to enforce the common law right, yet used that description to
characterize the right itself. Second, the Court could have been speaking of
the right as it was then defined in Georgia, and could have mischaracterized
Georgia's significant modification of the common law right as the common law
right itself. See Solesbee v. Balkcom, 205 Ga. 122, 52 S.E.2d 433, 437 (1949)
(in contrast to the common law rule, as expressed in a California statute,
which flatly prohibited execution of the insane, "the State of Georgia not
only does not confer such a right upon a condemned person, but expressly
declares that he has no such right..."). Thus, the Georgia right not to be
executed when insane which was before the Court in Solesbee was fundamentally
different from both the common law right and, consistent with the common law
right, the right adhered to in Florida.
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hospital — this right is protected by the due process clause. Accord Hewitt
v. Helms, ___U.S.___, 103 S.Ct. 864, 871 (1983); ich at 875 (Blackmun, J.,
concurring in part and dissenting in part) . Accordingly, the nature of the
right of the condemned in Florida not to be executed is of the sort that gives
rise to due process protections if the state seeks to avoid it. Cf. Greenholtz,
442 U.S. at 7-11.
Once it is established that the due process clause does protect the
state-created right not to be executed while insane, it follows that the
federal Constitution — not the common law or state-created procedures — sets
the measure of the process due.
Each of our due process cases has recognized, either
explicitly or implicitly, that because "minimum [procedural]
requirements [are] a matter of federal law, they are not
diminished by the fact that the State may have specified its
own procedures that it may deem adequate for determining the
preconditions to adverse official action." Vitek v. Jones,
445 U.S. 480, 491 (1980). See Arnett v. Kennedy, 416 U.S.,
at 166-167 (Powell, J., opinion concurring in part); id., at
211 (Marshall, J. dissenting). Indeed, any other conclusion
would allow the State to destroy at will virtually any
state-created property interest. The Court has considered and
rejected such an approach: "'While the legislature may elect
not to confer a property interest ... it may not constitu
tionally authorize the deprivation of such an interest, once
conferred, without appropriate procedural safeguards....
[T]he adequacy of statutory procedures for deprivation of a
statutorily created property interest must be analyzed in
constitutional terms.'" Vitek v. Jones, 445 U.S., at 490-491
quoting Arnett v, Kennedy, 416 U.S., at 167 (opinion con
curring in part).
Logan v. Zimmerman Brush Co., 455 U.S. at 432.
Accordingly, Florida's adoption of a substantive entitlement not to be
executed if insane has, in effect, vested the prisoner with a substantial
interest — an entitlement to life while insane --that deserves protection by
this Court under the due process clause.
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D. The Riqht Not To Be Executed When Incompetent Requires The Same Due Process
Protection As The Right Not To Be Tried When Incompetent
Once a constitutionally protected interest is identified, the extent of
procedural protection must be ascertained. Since "[a] procedural rule that may
satisfy due process in one context may not satisfy procedural due process in
every case," Bell v.'Burson, 402 U.S. at 540, in order to determine what
process is due the Court has employed a balancing process that weighs three
factors: the private interest that will be affected by the government action at
issue, the public interest in limiting the fiscal and administrative burdens of
additional procedural safeguards, and the probable effect such safeguards will
have on reducing the risk of erroneous decisions. See Logan v. Zimmerman Brush
Co., 455 U.S. at 434; Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1,
17-18 (1978); Dixon v. Love, 431 U.S. 105, 112-15 (1977); Mathews v. Eldridge,
424 U.S. 319, 334-35 (1976). In taking the measure of these factors in a death
penalty context, the balance must in addition reflect a fourth factor: the
death penalty jurisprudence that has developed under the rubric of the eighth
amendment. The past decade's decisions make clear that the extraordinarily
weighty individual interest at stake in death penalty cases justifies height
ened due process protections so that safeguards which might suffice in less
sensitive contexts will not meet the mark here.
Weighed according to these guidelines, the procedural safeguards estab
lished by Florida law for the protection of the right not to be tried when
incompetent are equally applicable to the protection of the right not to be
executed when incompetent.
1. The Private Interest At Stake
Mr. Ford's interests are of extraordinary weight: the right to have one
last opportunity to assert matters known only to him which would make his
execution unlawful or unjust, and the right to appreciate and prepare himself
for the termination of his life. Specifically, his interests in not being
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executed while insane are recognized in virtually every jurisdiction with the
death penalty and are mandated by the eighth amendment to the Constitution. His
interests are of such fundamental character that they should weigh the balance
heavily towards postponing execution long enough to determine his competency in
a fair proceeding.
2. The Government's Interests At Stake
The state has essentially two interests at stake here: its interest in
reducing administrative costs and its interest in avoiding frivolous claims
designed to delay executions unjustifiably. The first interest, while
legitimate, cannot overcome the important life interests at stake. '"While the
problem of additional expense must be kept in mind, it does not justify denying
a hearing meeting the ordinary standards of due process.'" Goldberg v. Kelly,
397 U.S. at 261 (quoting Kelly v. Wyman, 294 F. Supp. 893, 901 (S.D.N.Y.
1968)); Bell v. Burson, 402 U.S. at 540-41.
Moreover, the second interest would not be thwarted by a procedure similiar
to that presently allowed under Florida law for the determination of trial
competency. See Fla. R. Crim. P. 3.210. We understand the concern that a right
not to be executed while insane could be twisted, if the courts permitted, to
allow never-ending allegations of incompetency to work a permanent, and
unmerited, bar to execution. But this prospect can readily be forestalled, for
the courts appropriately can fashion limitations on the consideration which
such multiple allegations of incompetency will receive. See Goode, 731 F.2d at
1484. Further, the courts are quite capable of distinguishing between genuine
and fabricated claims of incompetency. See, e.g., Strickland v. Francis,
_F.2d___, No. 83-8572 (11th Cir., July 31, 1984), slip op. at 32-35.35
35 Moreover, the Court should take notice of the fact that there have been very
few claims asserted that incompetency should bar an execution. Governor Graham
has signed 86 death warrants in his five and one-half years in office. In only
three cases in which warrants have been signed has a claim of inccmpetency been
raised. In only one of the five cases where warrants have not been stayed
(Arthur Goode) has such a claim been raised. Ihe prospect that the claim of
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The feasibility of devising procedures that efficiently and fairly control
feigned or repeated claims of insanity suggests that the state's interests are
substantially outweighed by the individual's compelling interest in life.
3 . Risk of Erroneous Deprivation and the Benefit of Additional
Safeguards
When the private "interest at issue is life itself, any risk of error is
intolerable. In our discussion in Point II (D)(1), at pages 38-41, supra, we
have explained why the determination of competency at the time of execution by
the non-adversarial process of Fla. Stat. §922.07 creates an enormous risk that
competency will be determined unreliably, and a prisoner's life interest will
thereby be extinguished unfairly. That discussion as well demonstrates why
nothing short of a full adversarial hearing will reduce the risk of error
sufficiently to satisfy the demands of due process in the context presented by
Mr. Ford's case. Accordingly, the risk of the erroneous deprivation of a
condemned person's life, or the risk that a condemned person will be executed
when he is incapable of preparing for death, demands the most esteemed safe
guard that due process can provide — an adversarial hearing. See Fuentes v.
Shevin, 407 U.S. 67, 80 (1972); Mullane v. Central Hanover Trust, Co., 339 U.S.
306, 313 (1950) (quoted in Goss v. Lopez, 419 U.S. 565, 579 (1975)).
4. Due Process and the Death Penalty
The three Mathews v. Eldridge factors cannot of themselves constitute a
sufficient analysis of the process due Mr. Ford because his interest in not
being executed when incompetent is a life interest which, in recent years, has
been recognized to be unique and deserving of the highest protection the law
allows. Mr. Ford's interest simply is not in the same category as interests
incompetency to be executed could become a practical bar to executions in
Florida is thus no more than an abstract, irrational fear. The facts are to
the contrary. This was also true in the common law where such fears were
voiced, but found to be more fear them fact, since the courts were found fully
capable of dealing with the "difference between pretenses and realities"
Hawles, 11 State Trials at 478; M. Hale, Pleas of the Crown at 35.
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in welfare benefits or the job security of non-tenured teachers.
The Supreme Court's post-Furman death penalty jurisprudence underscores
that the likelihood of error and the gravity or cost of erroneous execution
calls for the strictest of procedural safeguards. Recognizing death to be a
"qualitatively different penalty," Woodson v. North Carolina, 428 U.S. at 350,
the Court has adopted more stringent procedural requirements to guarantee the
constitutionality of capital sentencing processes and to reduce the risk of
improperly imposed death sentences. The Court's heightened due process
decisions have thus paralleled and been informed by its eighth amendment
decisions and have reinforced the protections guaranteed by Furman, Proffitt,
and their progeny. The Court has in effect applied an eighth amendment and a
due process rationale interchangeably. See, e.g., Gardner v. Florida, 430 U.S.
at 357, 358-61; Green v. Georgia, 442 U.S. 95, 97 (1979); Beck v. Alabama, 447
U.S. 625, 637, 638 (1980). The result has been what one commentator has aptly
called "super due process for death." See Radin, Cruel Punishment and Respect
for Persons: Super Due Process for Death, 53 S.Cal. L.Rev. 1143 (1980).
Accordingly, the Mathews factors, coupled with the need for enhanced
reliability in every decision leading to the execution of the condemned, leads
to but one conclusion. The determination of competency at the time of execu
tion must be undertaken with at least the same safeguards of reliability that
guide the determination in Florida of competency at the time of trial: where
there is a bona fide doubt concerning the competency of the condemned prisoner,
an adversarial judicial hearing must be held to determine his or her
competency. See Drope v. Missouri, 420 U.S. at 172-173; Pate v. Robinson, 383
U.S. 375, 385 (1966).
E. Conclusion
Independent of the Court's resolution of whether the eighth amendment
prohibits execution of the incompetent, we have shown that the State of Florida
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has as a matter of state law created an entitlement in the condemned not to be
executed if incompetent. This interest is now plainly protected against the
arbitrary action of the state by the due process clause of the fourteenth
amendment. As we have demonstrated in our discussion of the Florida procedure
under Fla. Stat. § 922.07, Point II, supra, the process that is due under the
fourteenth amendment is not provided, even in part, by Florida. Accordingly,
" [b] ecause [petitioner] was not afforded . . . the standards of due process
prescribed" by the fourteenth amendment for the deprivation of the right not to
be executed when incompetent, "[petitioner] was entitled to a writ of habeas
corpus." Gagnon v. Scarpelli, 411 U.S. at 791.
IV. PETITIONER'S CLAIM THAT THE DEATH SENTENCE IS ADMINISTERED IN
FLORIDA IN AN ARBITRARY AND DISCRIMINATORY MANNER IN VIOLA
TION OF THE EIGHTH AND FOURTEENTH AMENDMENTS CANNOT BE
DETERMINED UNTIL THE RESOLUTION BY THE EN BANC COURT OF THE
CONSTITUTIONAL STANDARDS GOVERNING SUCH A CLAIM.
Petitioner's second claim for relief is that Florida administers the death
penalty arbitrarily and discriminatorily on the basis of the race of the
victim, the race of the defendant and other impermissible factors in violation
of the eighth and fourteenth amendments.
This issue has a unique procedural posture. Mr. Ford first advanced the
claim in the district court and subsequently, in his stay application to this
Court. Respecting the stay application, this Court held that the discrimina
tion claim was not an abuse of the writ, 734 F.2d at 543, and presented an
issue identical to the issues under en banc consideration in Spencer v. Zant,
715 F .2d 1562 (11th Cir. 1983), vacated for rehearing en banc, 715 F.2d 1583
(11th Cir. 1983) and McCleskey v.Zant, No. 84-8176 (pending en banc) , and
therefore should be stayed pending the outcome of those cases, id^ Subsequent
ly, the respondent applied to the Supreme Court to vacate the stay, which was
denied. See Wainwright v. Ford, ___U.S.___, 104 S.Ct. 3498 (1984).
The basis for the Supreme Court's order in Ford is not clear. The Court
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merely issued an order denying the motion without an opinion. However, Justice
Powell filed a concurring opinion (joined by Justices White and Blackmun)
suggesting that this Court "abused its discretion in also granting a stay of
execution on Ford's discrimination claim pending its decision in Spencer v.
Zant" because: (1) there was "no convincing explanation" by this Court for
ignoring the factual determination by the District Court that Ford abused the
writ; (2 ) this claim is barred by procedural default in state proceedings; and
(3) the statistical data offered by Ford "was not sufficient to raise a
substantial ground upon which relief might be granted." 104 S.Ct. at 3499.
The import of the Court's order, simply put, is that it determines this
Court's response to the above issue. If this Court determines that the Supreme
Court's order has no binding effect, then the "law of the case" doctrine
applies and no correction of this Court's prior opinion is warranted or
necessary. See Pogel v. Chestnutt, 668 F.2d 100, 109 (2d Cir. 1981). Several
considerations militate against finding the Supreme Court order to be binding.
First, while this Court has "faithfully" tried to apply the principles of
the Supreme Court, it has been an "unusually difficult" task in capital cases
in a posture such as Mr. Ford's. Ford v. Strickland, 734 F.2d at 541. The
last-minute nature of the proceedings combined with the fact that "the state of
the law with respect [to cases raising the discrimination claim] is unsettled,"
Adams v. Wainwright, 734 F.2d 511, 512 (11th Cir. 1984), predictably result in
less-than-clear signals from the Supreme Court.
Second, the Supreme Court was faced only with an application to vacate a
stay, not a contest on the merits. Thus, Justice Powell's response is addres
sed only to that issue. Trying to equate the denial of a motion to vacate a
stay with a decision on the merits defies common understanding and the clear
words of this Court in Ritter v. Smith, 726 F.2d 1505, 1511 n. 17 (11th Cir.
1984), "that a decision to grant or deny a stay is not one on the merits of the
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claims presented," (also cited in Ford v. Strickland, 734 F.2d at 542).
Third, Justice Powell's opinion, while unequivocal in its words, does not
necessarily state the position of even the concurring Justices, much less the
Court as a whole. The Court's opinion, if read adversely to Mr. Ford, could
depend on which, if any, of the three rationales offered by Justice Powell the
justices choose to rely on. It is easy to see that the possibilities are
countless and the Court's position is anything but definite.
Fourth, the evidence below affirmatively supports this Court's opinion:
A. There was no abuse of the writ — this case is identical to
Stephens v, Kemp, ___U.S.___, 104 S.Ct. 562 (1983) (granting stay of execution
pending Eleventh Circuit en banc consideration of Spencer) and does not
represent an attempt to relitigate the issue. Compare, Stephens v. Kemp,
supra, with Smith v. Kemp, ___U.S.___, 104 S.Ct. 565 (1983). Also, Sullivan v.
Wainwright, 721 F.2d 316 (11th Cir. 1983), petition for stay of execution
denied, ___U.S.___, 104 S.Ct. 450 (1983), does not compel a different result
because Sullivan was decided before this Court voted to hear Spencer en banc.
Moreover, Stephens, which raises the identical discrimination issues on an
indistinguishable factual basis in the identical procedural posture, was
granted a stay by the Supreme Court after Sullivan. Finally, Mr. Ford could
not have effectively raised the discrimination claim in his first habeas
petition because the Gross-Mauro study on which it is based was unavailable
until after the district court's disposition of Mr. Ford's case. To force Mr.
Ford, an indigent, to raise issues without proper factual support is to condemn
him to a cruel Catch-22 situation — if he raises the claim in his first
petition when the data is inadequate, the issue will be rejected because of the
insufficient documentation, and all subsequent efforts to raise the issue will
be abusive under the Smith—Adams line of decisions; on the other hand, if he
awaits a proper study and raises the claim in a second petition once the study
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becomes available, his failure to raise it in the earlier petition will be
considered abusive. Surely, the interests of justice, Sanders v. United States,
373 U.S. 1, 15-17 (1963), and the fundamental purposes of the writ of habeas
corpus are ill—served bv the imposition of such a harsh dilenma on impoverished
death row prisoners. All of these factors affirmatively support this Court s
prior opinion and provide a "convincing explanation" that there was no abuse of
the writ.
B. There is no state procedural default — Justice Powell noted that
the Florida Supreme Court held that "Ford's discrimination claim was proced-
urally barred for failure to present it in a motion for post-conviction relief
as required by Fla.R.Crim.Pro. 3.850." 104 S.Ct. at 3873. There are two reasons
why this "default" is not a default under Florida law which bars review on the
merits. First, Rule 3.850, Fla.R.Crim.P., itself permits precisely what
petitioner did here if the 3.850 motion would be "inadequate or ineffective to
test the illegality of his detention." Because the Florida Supreme Court had
expressly rejected the merits of the issue in three recent decisions, Jackson
v. State, 438 So.2d 4, 6 (Fla. 1983); Aldridge v. Wainwright, 433 So.2d 988,
990 (Fla. 1983); and Hitchcock v. State, 432 So.2d 42, 44 n. 3 (Fla. 1983), a
motion to the trial court would have been ineffective. This was implicitly
recognized in Aldridge, in which the Florida Supreme Court ruled solely on the
basis of the merits when this same issue was presented to it in the same
procedural posture — by an original habeas corpus petition. 433 So.2d at 990.
Moreover, the Florida Constitution, Article V, Section 2(a), forbids the
dismissal of a cause "because an improper remedy has been sought," requiring
instead that the court "treat the case as though a proper remedy has been
sought." Chaudoin v. State, 383 So.2d 645, 646 (Fla. 5th DCA 1980). Accord,
Thompson v. Dilley, 275 So.2d 234 (Fla. 1973); Tbbler v. State, 350 So.2d 555
(Fla. 1st DCA 1977); Rushing v. State, 233 So.2d 137 (Fla. 3d DCA 1970). See
-63-
also Foster v. State, 400 So.2d 1, 4 (Fla. 1981). The Florida Supreme Court's
ruling on the merits of this issue in Mr. Ford's case thus represents its
adherence to this rule insofar as the post-conviction "default" is concerned.
There is no such default vis a vis Wainwright v. Sykes.
C. The claims raised by Mr. Ford are sufficient to raise a ground
upon which relief may be granted — neither Justice Powell, nor any other
justice of the Court has ever stated any difference between the Georgia studies
and the Florida studies. Indeed, in the view of the Attorney General of Florida
and this Court, there is no difference. 734 F.2d at 541. Moreover, Mr. Ford
does not rest his claim solely on statistical data, but also relies on facts
establishing long-standing and pervasive societal discrimination against black
people in the State of Florida. Such evidence further supports an inference of
"purposeful discrimination." Rogers v. Lodge, 458 U.S. 613, 625 (1982). Mr.
Ford offers such evidence to show that prosecutors are not immune to the
subtle, but powerful, influence of race discrimination in their prosecutorial
decisions and to generally rebut the State's assertion that there is no hard
evidence of actual, intentional discrimination. Thus, Mr. Ford's factual
showing is at least as compelling as the showing in Spencer and McCleskey.
Because Mr. Ford's claim is as substantial as the showing in Spencer and
McCleskey, and remains identical to the issue in Stephens this Court is amply
justified in its prior conclusion — there are "substantial grounds upon which
relief may be granted." Barefoot v. Estelle, 103 S.Ct. at 3395.
In sum, the Supreme Court's order in Wainwright v. Ford, supra, is not
binding on this Court and the "law of the case" cannot be disregarded. The
nature of the proceedings, the Supreme Court's order, Justice Powell's concur
ring opinion and the evidence supporting this Court's prior opinion all
affirmatively support petitioner's view — this cause cannot fairly be decided
until Spencer and McCleskey.
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CONCLUSION
For the reasons set forth herein, the summary dismissal of the petition
for writ of habeas corpus must be reversed, and this cause must be remanded to
the District Court with directions to grant habeas corpus relief.
RICHARD L. JORANDBY
Public Defender
15th Judicial Circuit of Florida
224 Datura Street/13th Floor
West Palm Beach, Florida 33401
(305) 837-2150
CRAIG S. BAFNARD
Chief Assistant Public Defender
RICHARD H. BURR III
Of Counsel
RICHARD B. GREENE
Assistant Public Defender
MICHAEL A. MELLO
Assistant Public Defender
THOMAS F. BALL III
Assistant Public Defender
Counsel for Petitioner-Appellant
BY
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A P P E N D I X
EXECUTION OF THE INCOMPETENT:
A National Survey of State Policies
1. Explicit statutory proscription against execution of
the incompetent:
ALABAMA ...................... Code (1981)
§15-16-23
ARIZONA ...................... Rev. Stat.Ann. (1982)
§13.4021 et seq.
ARKANSAS ....................... Stat. Ann. (1977)
§43.2622
CALIFORNIA ................... Penal Code (1979)
§3700 et seq.
CONNECTICUT .................. Gen. Stat. (1980)
§54-101
FLORIDA ..................... Statutes (1983)
§922.07
GEORGIA ..................... Code Ann. (1982)
§17-10-60 et seq.
ILLINOIS ..................... Rev. Stat. (1982)
Ch. 38, §1005-2-3
KANSAS ........................ Stat. (Supp. 1981)
§22-4006
MARYLAND ..................... Ann. Code (1983 Cura.Supp.)
Art. 27, §75
MASSACHUSETTS ............... Gen. Laws Ann. (1984 Supp.)
Ch. 279 §62
MISSISSIPPI .................. Code Ann. (1983 Supp.)
§99-19-57
MISSOURI ..................... Rev. Stat. (1983 Supp.)
§552.060
MONTANA ..................... Code Ann. ( 198 3)
§46-19-201 et seq.
NEBRASKA ..................... Rev. Stat. (1979)
§29.2537 et seq.
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NEVADA ........................ Rev. Stat. (1983)
§176.425 et seq.
NEW MEXICO ................... Stat. Ann. (1978)
§31-14-4 et seq.
NEW YORK ..................... Correc. Law (1983 Supp. )
§655 et seq.
OHIO ........ ................. Rev.Code Ann. (1982 Supp.)
§2949.28 et seq.
OKLAHOMA ..................... Stat.Ann. (1983)
Title 22, §1004 et seq.
UTAH .......................... Code Ann. (19 82)
§77-19-13
WYOMING ...................... Stat. (1984 Cum. Supp.)
§7-13-901 et seq.
2. Judicial adoption of common law rule proscribing
execution of the incompetent:
LOUISIANA .................. State v. Allen, 204 La. 513,
515, 15 So.2d 870-71 (1943)
PENNSYLVANIA .............. Commonwealth v. Moon, 383 Pa. 18
117 A.2d 96 (1955)
TENNESSEE .................. Jordan v. State, 124 Tenn. 81,
135 S.W. 327, 329-30 (1910)
WASHINGTON ................ State v. Davis, 6 Wash. 2d 696,
108 P .2d 641, 651 (1940)(dictum)
3. General statutory procedures requiring transfer of
incompetent prisoners to state mental hospital:
DELAWARE ................... Code Ann. (1982)
§11-406
INDIANA .................... Code Ann. (1983)
§11-10-4-1 et seq.
NORTH CAROLINA ............ Gen.Stat. (1983)
§15A-1001
SOUTH CAROLINA ............ Code Ann. ( 19 8 3 Supp.)
§44-23-210 et seq.
VIRGINIA ................... Code (1983)
§19.2.177
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NOTE:
Nine states (Alaska, Hawaii, Iowa, Maine, Michigan,
Minnesota North Dakota, West Virginia, Wisconsin) have no death
penalty
Three states (Idaho, New Hampshire, Rhode Island) have a
death penalty, but no case law or statute relating to execution
of insane prisoners.
Four states (Colorado, Kentucky, New Jersey, and Texas) have
recently repealed appicable provisions, leaving case law which
supports the common law proscription of execution of insane
prisoners. See Bulger v. P e o p l e , 61 Colo. 187 , 156 P. 800
(1916); Barrett v. Commonwealth, 202 Ky. 153, 259 S.W. 25 (1923);
In re Lang, 77 N.J.L., 207, 71 A.47 (1908); Ex parte Morris, 96
Tex. Cr. R. 256, 257 S.W. 844 (1924).
Three states (Oregon, South Dakota, Vermont) were undeter
mined .
SUMMARY: OVERALL CATEGORIES
Explicit statutory proscription ...... 22
Judicial adoption of common law ...... 4
Statutory procedure applying to
"any" prisoner ......................... 5
No case law or statute (but yes
a death penalty) ...................... 3
Repealed statutes, leaving common
law ...................................... 4
No death penalty ...................... 9
Undetermined ........................... 3
~50
METHOD OF STUDY: This survey includes an examination of statu
tory and case law in each of the fifty states from 1895-present.
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that I have served two copies of the Brief of
Petitioner-Appellant, together with its appendix and a copy of the Record
Excerpts, by hand delivery to Joy B. Shearer, Assistant Attorney General, 111
Georgia Avenue, Elisha'Newton Dimick Building, West Palm Beach, Florida, this
30th day of July, 1984.
H'S ! <2-~> ^ f UP
Of Counsel