Griggs v. Duke Power Company Reply Brief for Petitioners

    NO. 85-5542
IN THE

SUPREME COURT OF THE UNITED STATES 
OCTOBER TERM, 1985

ALVIN BERNARD FORD, or CONNIE FORD, 
individually, and as next friend 
on behalf of ALVIN BERNARD FORD,

Petitioner,
v.

LOUIE L. WAINWRIGHT, Secretary, 
Department of Corrections,

Respondent.



QUESTIONS PRESENTED

I.
WHETHER THE HUMANITARIAN 
POLICY DEFERRING EXECUTION 
OF AN INSANE PRISONER UNTIL 
HIS SANITY IS RESTORED SHOULD 
BE ELEVATED TO AN EIGHTH 
AMENDMENT RIGHT?

II.
WHETHER, IF AN EIGHTH AMEND­
MENT RIGHT TO BE SANE AT 
THE TIME OF EXECUTION EXISTS, 
FLORIDA'S PRESENT PROCEDURE 
ADEQUATELY PROTECTS IT?

III.
WHETHER, PURSUANT TO THIS 
COURT'S CONTROLLING PRECEDENT 
OF SOLESBEE v. BALKCOM.
339 U.S. 9 (1950), FLORIDA’S 
PROCEDURE FOR DETERMINING 
SANITY OF CONDEMNED PRISONERS 
MEETS THE REQUIREMENTS OF 
FOURTEENTH AMENDMENT PROCEDURAL DUE PROCESS?



ii

TABLE OF CONTENTS
Page

Questions Presented i

Table of Authorities iv-xiv
Opinions Below 1

Jurisdiction 2

Constitutional and Statutory
Provisions Involved 2

Statement of the Case 2-11

Summary of the Argument 12-18
Argument

I. THE HUMANITARIAN 
POLICY DEFERRING
EXECUTION OF AN INSANE 
PRISONER UNTIL HIS 
SANITY IS RESTORED 
IS NOT A FUNDAMENTAL 
RIGHT OF THE INDIVIDUAL 
REQUIRING EIGHTH 
AMENDMENT PROTECTION. 19-43

II. SHOULD THE COURT FIND 
THERE IS AN EIGHTH 
AMENDMENT RIGHT TO 
BE SANE AT THE TIME 
OF EXECUTION, THE 
PRESENT FLORIDA PROCEDURE 
ADEQUATELY PROTECTS IT. 44-56



iii

TABLE OF CONTENTS - CONTINUED
Page

III. PURSUANT TO 
CONTROLLING 
PRECEDENT OF THIS 
COURT, SOLESBEE 
v. BALKCOM,
339 U.S. 9 (1950), 
FLORIDA'S PROCEDURE 
FOR DETERMINING 
SANITY OF CONDEMNED 
PRISONERS MEETS 
THE REQUIREMENTS 
OF FOURTEENTH 
AMENDMENT 
PROCEDURAL DUE 
PROCESS. 57-80

Conclusion 81



iv
TABLE OF AUTHORITIES

Cases Page
Ake v. Oklahoma,

U.S.
105 S.Ct. 1090 (1985) 40,67

Allen v. McCurry,
449 U.S. 90 (1980) 49

Barclay v. Florida,
463 U.S. 939 (1983) 38

Barefoot v. Estelle,
463 U.S. 880 (1983) 72

Board of Curators of the 
University of 
Missouri v. Horowitz, 
435 U.S. 78 (1978) 78

Brown v. Wainwright,
392 So.2d 1327 (Fla.), 
cert, denied,
454 U.S. 1000 (1981) 3

Cabana v. Bullock,
U.S.

5T"U.S.L.W. 4105
(op. filed January 22,
1986)

Caldwell v. Line,
679 F.2d 494 
(5th Cir. 1982)

53

4949



V

TABLE OF AUTHORITIES - CONTINUED

Cases Page

Caritativo v. California,
357 U.S. 549 (1958) 60

Coker v. Georgia,
433 U.S. 584 (1976) 25

Coolidge v. New Hampshire,
403 U.S. 443 (1971) 53

Delaney v. Giarrusso,
633 F .2d 1126
(5th Cir. 1981) 49

Dusky v. United States,
362 U.S. 402 (1960) 29

Engle v. Issac, 456 U.S. 107
(1982) 47

Estelle v. Gamble,
429 U.S. 97 (1976) 23

Estelle v. Smith, 451 U.S. 454
(1981) 45

Fisher v. United States,
425 U.S. 391 (1976) 29

Ford v. State, 374 So.2d 496 
(Fla. 1979), cert. 
denied, Ford v. Florida,
445 U.S. 972 (1980) 2

Ford v. State,
407 So.2d 907 
(Fla. 1981) 2



vi
TABLE OF AUTHORITIES -

Cases
Ford v. Strickland,

676 F .2d 434 
(11th Cir. 1982)

Ford v. Strickland,
696 F .2d 804 
(11th Cir.), 
cert, denied,
464 U.S. 865 (1983)

Ford v. Strickland,
734 F .2d 538 
(11th Cir. 1984)

Ford v. Wainwright,
451 So.2d 471 
(Fla. 1984)

Ford v. Wainwright,
752 F .2d 526 
(11th Cir. 1985)

Furman v. Georgia,
408 U.S. 238 (1972)

Gardner v. Florida,
430 U.S. 349 (1977)

Gerstein v. Pugh,
420 U.S. 103 (1975)

Gilmore v. Utah,
429 U.S. 1012 (1976)

CONTINUED

Page

3

3

9

1 , 8,66

10

24

17,62,63

50

76,77



vii

TABLE OF AUTHORITIES - CONTINUED

Cases Page

Goode v. Wainwright,
448 So.2d 999
(Fla. 1984) 45

Goode v. Wainwright,
731 F .2d 1482
(11th Cir. 1984) 10,65

Graham v. Richardson,
403 U.S. 365 (1971) 60

Gray v. Lucas,
710 F.2d 1048
(5th Cir. 1983) 27

Gregg v. Georgia,
428 U.S. 153 (1976) 25,38,63

Hewitt v. Helms,
459 U.S. 460 (1983) 68

Hickey v. Morris,
722 F .2d 543
(9th Cir. 1983) 69

Hill v. Johnson,
539 F .2d 439
(5th Cir. 1976) 49

Hortonville Joint School 
District No. 1 v. 
Hortonville Education 
Association,
426 U.S. 482 (1976) 69



^  C o* ■ m «  .  v .*

t *uaH? HgmanWiiiWT iim & figBt

viii

TABLE OF AUTHORITIES - CONTINUED

Cases Page

Ingraham v. Wright,
430 U.S. 651 (1977) 25,26

Kirby v. Illinois,
406 U.S. 682 (1982) 51

Lee v. Winston,
718 F .2d 888 
(4th Cir. 1983) 48

Mathews v. Eldridge,
424 U.S. 319 (1976) 17,74

Meachum v. Fano,
427 U.S. 215 (1976) 61

Morrissey v. Brewer,
408 U.S. 471 (1972) 68

Nobles v. Georgia,
168 U.S. 515 (1897) 58,79

Palmer v. Thompson,
403 U.S. 217 (1971) 43

Pate v. Robinson,
383 U.S. 375 (1966) 67

People v. Eldred,
103 Colo. 334,
86 P .2d 248 (1938) 22

People v. Preston,
345 111. 11,
177 N.E. 761 (1931) 22



ix

TABLE OF AUTHORITIES - CONTINUED
Cases Page
People v. Riley,

37 Cal.2d 510,
235 P .2d 381 (1951) 23

Phyle v. Duffy,
34 Cal.2d 144,
208 P .2d 668 (1949) 31

Powell v. Texas,
392 U.S. 514 (1968) 25

Preiser v. Rodriguez,
411 U.S. 475 (1973) 48

Rhodes v. Chapman,
452 U.S. 337 (1981) 38,39

Roberts v. United States,
391 F .2d 991
(D.C. Cir. 1968) 41,42

Robinson v. California,
370 U.S. 660 (1962) 25

Ross v. Moffitt,
417 U.S. 600 (1974) 28,52

Schick v. Reed,
419 U.S. 256 (1974) 61

Shadwick v. Tampa,
407 U.S. 345 (1972) 50

Smith v. Estelle,
602 F .2d 694
(5th Cir. 1979) 45



X

TABLE OF AUTHORITIES - CONTINUED

Cases Page

Solesbee v. Balkcom,
339 U.S. 9 (1950) i,10,12,16,

18,22,37,
52,57,58,
60,61,62,
63,64,65,
79

Spinkellink v. Wainwright,
578 F .2d 582 
(5th Cir. 1978), 
cert, denied,
440 U.S. 976 (1979) 37,61

Stone v. Powell,
428 U.S. 465 (1976) 49

Sumner v. Mata, 449 U.S. 539
(1981) 47

Trop v. Dulles,
356 U.S. 86 (1958) 42

United States v. Gouveia,
U.S.

T M  S.Ct. 2292 (1984) 51

Wainwright v. Ford,
U.S.

T W  S.Ct.“T598 (1984)

Wainwright v. Torna,
455 U.S. 586 (1982)

Williams v. New York,
337 U.S. 241 (1949)

9

28,52

62,63



xi

TABLE OF AUTHORITIES - CONTINUED
Cases Page
Williams v. Wallis, 

734 F .2d 1434 
(11th Cir. 1984) 69,76

Statutes and Rules Page
Ariz. Rev. Stat. Ann., 

§13-4021 (1982) 36
Ark. Stat. Ann.,

§43-2622 (1977) 36
Calif. Penal Code, 

§3701 (1979) 36
Conn. Gen. Stat.,

§54-101 (1980) 36
Fla. Stat.,

§922.07 (1983) 3,8,9,12,
14,16,21,
30,32,44,
64,65,73,
78

Fla. Stat.,
§922.07(1) 7,54

Georgia Code Ann., 
§17-10-61 36

Illinois Rev. Stat. 
(1982), Ch. 38, 
§1005-2-3(a) 55



xii
TABLE OF AUTHORITIES - CONTINUED 

Statutes and Rules Page

Kan. Stat.,
§22-4006 (Supp. 1981) 36

Md. Ann. Code,
Art. 27, §75(c) 36

Mass. Gen. Laws Ann., 
Ch. 279, §62 
(1984 Supp.) 36

Miss. Code Ann., 
§99-19-57 
(1983 Supp.) 36

Neb. Rev. Stat.,
§29-2537 (1979) 36

Nev. Rev. Stat.,
§176.425 (1983) 36

New Mex. Stat. Ann., 
§31-14-4 (1978) 36

N.Y. Corr. Law,
§665 (1983 Supp.) 36

Ohio Rev. Code Ann.,
§2949.28 (1982 Supp.) 36

Okla. Stat. Ann., 
§1005 (1983) 36

Utah Code Ann.,
§77-19-13(1) (1982) 36



xiii
TABLE OF AUTHORITIES - CONTINUED 

Statutes and Rules Page

Wyo. Stat.,
§7-13-901
(1984 Cum. Supp.) 36

Rule 9(b), Rules Governing 
28 U.S.C. §2254
Proceedings 29

28 U.S.C.,
§2254(a) 47,53

28 U.S.C.,
§2254(d) 47

Other
4 Blackstone,

Commentaries,
395-396 (13th Ed. 1800) 28

Comment, Execution of 
Insane Persons,
23 So.Cal.L.Rev. 246
(1950) 41

Granucci, Nor Cruel and 
Unusual Punishments 
Inflicted: The
Original Meaning,
57 Cal.L.Rev. 839 (1969) 24



xiv
TABLE OF AUTHORITIES - CONTINUED 

Other Page

Hazard and Louisell,
Death, the State 
and the Insane:
Stay of Execution,
9 UCLA L .Rev. 381 (1962) 27

E. Kubler-Ross,
On Death and Dying
(1969) 33

Coke, Third Institute 6
(1797) 30

LaFave and Scott,
Handbook on Criminal Law 
(1972) 55

J. Story, On the
Constitution of the 
United States,
§1908 at 680
(3rd Ed. 1858) 24

Tribe, American
Constitutional Law
(1978) 65

Van den Haag, In Defense
of the Death Penalty:
A Legal-Practical-Moral 
Analysis, 14 Crim. L.
Bull. 5 (1978) 32

Van den Haag, Punishing 
Criminals (1975) 32,35



1

NO. 85-5542 
IN THE

SUPREME COURT OF THE UNITED STATES 

OCTOBER TERM, 1985

ALVIN BERNARD FORD, or CONNIE FORD, 
individually, and as next friend 
on behalf of ALVIN BERNARD FORD,

Petitioner, 
v.

LOUIE L. WAINWRIGHT, Secretary, 
Department of Corrections,

Respondent.

OPINIONS BELOW

Respondent accepts the 

Petitioner's citations. In addition, 

the Florida Supreme Court's opinion 

on the issues raised in this case 
is reported as Ford v. Wainwright,

451 So.2d 471 (Fla. 1984), and it is

set out at A 5.



2
JURISDICTION

Respondent accepts the 

Petitioner's statement.

CONSTITUTIONAL AND STATUTORY 
PROVISIONS INVOLVED

Respondent accepts the 

Petitioner's statement.

STATEMENT OF THE CASE

On July 21, 1974, the Petitioner, 

Alvin Bernard Ford, murdered a police 

officer in the course of an attempted 
robbery. After years of litigation, 

his direct and collateral appeals 

were concluded. Ford v. State,

374 So.2d 496 (Fla. 1979), cert. 
denied, Ford v. Florida, 445 U.S. 972 

(1980) [direct appeal]; Ford v. State, 

407 So.2d 907 (Fla. 1981) [a

3
consolidated collateral appeal and 
original habeas corpus action];

Ford v. Strickland, 676 F.2d 434 
(11th Cir. 1982) [panel decision] 

and Ford v. Strickland, 696 F.2d 804 

(11th Cir), cert, denied, 464 U.S. 865
(1983) [a federal habeas corpus denial 
which was affirmed by a panel and 
ultimately the en banc Eleventh 

Circuit]. Ford was also a named 

party in Brown v. Wainwright,

392 So.2d 1327 (Fla.), cert, denied, 
454 U.S. 1000 (1981).

In late 1983, the governor of 

Florida appointed a commission of 

three psychiatrists pursuant to the 
provisions of Fla. Stat. §922.07 

(1983) to evaluate Ford's sanity for 
execution. The commissioners were 

directed to examine Ford for the



4

purpose of determining whether he 

understood the nature of the death 

penalty and why it was to be imposed 
upon him. The commissioners examined 

Ford on December 19, 1983. They also 
reviewed materials submitted to them 

by counsel for Ford, inspected Ford's 
prison cell and spoke to his guards, 

and reviewed his prison medical 
records. Each commissioner then 

submitted a written report to the 

governor stating his findings.
In his Statement of the Case,

Ford describes the findings as 
"conflicting." The record shows 
otherwise, for all three commissioners 

independently concluded that Ford 

understood the death penalty and 

why it was to be imposed on him.

5

Dr. Ivory reported:
I formed the opinion that 
the inmate knows exactly 
what is going on and is able 
to respond promptly to ex­
ternal stimuli. In other 
words, in spite of the verbal 
appearance of severe in­
capacity, from his consistent 
and appropriate general 
behavior he showed that he 
is in touch with reality 
. . . (A 98)
This inmate's disorder, 
although severe, seems 
contrived and recently 
learned. My final opinion, 
based on observation of 
Alvin Bernard Ford, on 
examination of his environment, 
and on the spontaneous comments 
of group of prison staff, 
is that the inmate does 
comprehend his total situa­
tion including being sentenced 
to death, and all of the 
implications of that penalty.
(A 100)
Dr. Mhatre's report to the 
governor stated:
The conversation with the 
guards at Florida State Prison 
who have been working with 
Mr. Ford, furnished the



6
following information. His 
jibberish talk and bizarre 
behavior started after all 
his legal attempts failed.
He was then noted to throw 
all his legal papers up in 
the air and was depressed 
for several days after that.
He especially became more 
depressed after another inmate, 
Mr. Sullivan, was put to death 
and his behavior has rapidly 
deteriorated since then. In 
spite of this, Mr. Ford 
continues to relate to other 
inmates and with the guards 
regarding his personal needs.
He has also borrowed books 
from the library and has been 
reading them on a daily basis.
A visit to his cell indicated 
that it was neat, clean and 
tidy and well organized . . .
It is my medical opinion that 
Mr. Ford has been suffering 
from psychosis with paranoia, 
possibly as a result of the 
stress of being incarcerated 
and possible execution in the 
near future. In spite of 
psychosis, he has shown ability 
to carry on day to day 
activities, and relate to his 
fellow inmates and guards, 
and appears to understand 
what is happening around him.
It is my medical opinion

7
that though Mr. Ford is 
suffering from psychosis 
at the present time, he has 
enough cognitive function­
ing to understand the nature 
and the effects of the death 
penalty, and why it is to 
be imposed upon him. (A 103)
Dr. Afield concluded:

. . . Although this man 
is severely disturbed, he 
does understand the nature 
of the death penalty that 
he is facing, and is aware 
that he is on death row 
and may be electrocuted.
The bottom line, in summary 
is, although sick, he does 
know fully what can happen 
to him. (A 105-106)

By signing a death warrant for

Ford on April 20, 1984, the governor

determined Ford was sane within the
meaning of Fla. Stat. §922.07(1).

Ten days prior to Ford's scheduled
May 31, 1984, execution, Ford's

counsel filed in the state trial

court a motion for hearing and



8

appointment of experts for a determina­

tion of.competency to be executed.
The motion was denied. The Florida 

Supreme Court affirmed the trial 

court's order. Ford v. Wainwright,
451 So.2d 471 (Fla. 1984). The 
Florida Supreme Court held that the 
gubernatorial proceeding outlined 

in Fla. Stat. §922.07 is the 
exclusive means for determining 

competency to be executed and there was 
no right to a judicial determination 

(A 9-10).
Ford's counsel then filed his 

second Petition for Writ of Habeas 

Corpus in the United States District 

Court, Southern District of Florida, 

on May 25, 1984 (A 11-124). The 
State filed a response (A 125-140).

The District Court heard legal

9
argument on May 29, 1984. At the 

conclusion of the hearing, the court 

announced its ruling orally. It found 
the petition constituted an abuse of 

the writ (A 164). Alternatively, on 

the merits, the District Court ruled 
the gubernatorial proceeding 
under Fla. Stat. §922.07, was 

properly followed and relief was 
denied (A 164).

A divided panel of the United 
States Court of Appeals for the 

Eleventh Circuit granted a certificate 
of probable cause and a stay of 

execution on May 30, 1984. Ford v . 
Strickland, 734 F.2d 538 (11th Cir. 

1984). By a vote of 6-3, this Court 

denied the State's motion to vacate 
the stay. Wainwright v. Ford,

___U.S. ____, 104 S.Ct. 3498 (1984).



10

After a full briefing and oral 
argument, a panel of the Eleventh 

Circuit affirmed, by a 2-1 vote, 

the District Court's order. Ford v . 
Wainwright, 752 F.2d 526 (11th Cir. 

1985). The majority held this Court's 

opinion in Solesbee v. Balkcom,
339 U.S. 9 (1950), which had been 

recently applied by a panel of the 
Eleventh Circuit in Goode v .

Wainwright, 731 F.2d 1482 (11th Cir. 
1984), was controlling. The portion 

of Solesbee v. Balkcom, supra, quoted 

by the Court of Appeal as dispositive, 

states:
We are unable to say that 
it offends due process 
for a state to deem its 
governor an 'apt and 
special tribunal' to pass 
upon a question so closely 
related to powers that 
from the beginning have 
been entrusted to governors.

11

Id. at 12 (quoted at A 187).
Rehearing en banc was denied 

(A 202-203). This Court granted 
Ford's Petition for Certiorari on 

December 9, 1985 (A 207).



SUMMARY OF THE ARGUMENT
12

I. The execution of Alvin Bernard 

Ford, a state death row inmate who 
has had over eleven years to challenge 

his conviction, and whose sanity to 

be executed has been determined by 

Florida's governor pursuant to 
Fla. Stat. §922.07 (1983) , will not 

offend the cruel and unusual punish­
ment clause of the Eighth Amendment.

At common law, it was recognized 

an insane man should not be executed, 
as a matter of humanitarian principle. 

This was not considered an individual 

right, but rather, an appeal was 

made to the discretion of the 
tribunal having authority to post­

pone sentence. Solesbee v. Balkcom, 

339 U.S. 9 (1950). Thus, the Framers

could not have intended that this
13

social policy be incorporated in the 

Eighth Amendment as a fundamental 

personal right.
Deferment of an insane man's 

execution does not fall within the 

scope of the Eighth Amendment for 

several reasons. First, it operates 
as a temporary reprieve only and 
not as a permanent bar to execution, 

unlike this Court's past interpreta­

tion of the Eighth Amendment as 

setting substantive limits on punish 
ment. Second, there has never been 

a single agreed-upon rationale under 

lying the policy of postponing the 

execution of an insane man, so there 
is no compelling premise to support 

Ford's argument that his execution 

would offend the dignity of man.



Third, an examination of contemporary 

standards as revealed by present state 
statutes, confirms that the common 

law view equating deferment of the 

execution of the insane with clemency 
is still accepted today. Finally, 
this Court should not find an Eighth 

Amendment right because post-conviction 
insanity occurs at a stage outside 

the criminal process after the 

validity of the conviction and 
sentence are no longer* in dispute.

II. If this Court determines the 
Eighth Amendment prohibits the 

execution of the insane, the Florida 

procedure outlined in Fla. Stat.
§922.07 (1983), adequately prevents 
it. Ford was examined by an 

appointed commission of three 

psychiatrists who reported to the

14
governor their conclusion that he was 

sane. Counsel for Ford was present 

at the examination, and was permitted 

to submit written material to the 
commissioners and to the governor.

Ford is not entitled to a federal 
habeas corpus evidentiary hearing to 

determine his present sanity because 
he is not challenging his conviction.

The function of habeas corpus is to 
secure release from illegal custody.

The issue of post-conviction sanity 
is outside the criminal process. Less 
stringent procedural requirements 

apply. The governor, acting as a 

neutral and detached decisionmaker, 
with the aid of psychiatrists, was 

a proper party to make the determination 

that Ford was sane for purposes of

15

execution.



Florida s standard of competency 
to be executed is that a prisoner 

understands the nature of the death 
penalty and why it is to be imposed 
upon him. This is an adequate 

standard, for Ford has no further 
right of access to the courts.

IIT* In Solesbee v. Balkcom.
339 U.S. 9 (1950), this Court upheld 
a procedure like Florida's for 

determining sanity to be executed as 

comporting with due process. Solesbee 
is still valid and it should be dis­

positive of Ford's claim that Fla.
Stat. §922.07 fails to satisfy 

procedural due process. Solesbee 
held the determination of post­

conviction insanity could be deemed 

an executive function, akin to the 

clemency authority. It has not been

16
overruled by Gardner v. Florida.

430 U.S. 349 (1977), because Gardner 
deals with sentence imposition, 

whereas the issue of competency to 
be executed arises long after 

sentencing and is not part of the 
judicial process.

Due process is flexible and 
what process is due depends upon 

the situation. The Florida procedure 
allows the governor to make the 

determination of sanity to be executed, 
subsequent to the receipt of reports 

from a commission of appointed experts. 
The procedure was followed in this 
case and all three members of the 

commission concluded Ford was sane.
The balancing test of Mathews v . 

Eldridge, 424 U.S. 319 (1976) is 

satisfied. Ford's private interest

17



is insubstantial because he has had 

full review of his conviction. The 

State has a valid and compelling 
interest in an end to litigation.

The risk of error is minimized by 

the Florida statute which provides 

for experts to advise the governor.

To require an adversarial judicial 
proceeding, subject to appellate 
review, will invite endless litigation. 

Solesbee v. Balkcom, supra, should 

be reaffirmed by upholding the 

Florida procedure for determining 
competency to be executed.

18 19
ARGUMENT

I.
THE HUMANITARIAN POLICY 
DEFERRING EXECUTION OF AN 
INSANE PRISONER UNTIL HIS 
SANITY IS RESTORED IS NOT 
A FUNDAMENTAL RIGHT OF THE 
INDIVIDUAL REQUIRING EIGHTH 
AMENDMENT PROTECTION.

Alvin Bernard Ford murdered a
helpless, wounded police officer--
Dimitri Walter Ilyankoff--on July 21,

1974, by shooting him in the back

of the head at close range. He was
tried and sentenced to death. His

challenges to the validity of his
conviction and sentence were rejected

by the state and federal courts in
the ten year period following the

commission of the crime.
Although the legality of the

conviction is no longer at issue,

Ford's sentence has not been carried



out. His remaining challenge to 

the State's right to execute him 
is his assertion that the Eighth 

Amendment proscribes the execution 

of an insane person as "cruel and 
unusual" punishment. Ford alleges 
he is presently insane"*" and the 

Florida procedure for determining 
sanity to be executed is inadequate 
to satisfy the federal due process 

standards which would inexorably 
follow if the court accepts his 
Eighth Amendment claim. The State 

maintains the humanitarian principle 
deferring execution of an insane 
person is not a substantive Eighth

^This claim was never presented 
to any court until ten days prior to 
his scheduled 1984 execution, although 
according to his pleadings, his mental 
problems began in December, 1981.

20
Amendment right of the condemned. 

Moreover, even if the court determines 

there is such a right, the Florida 
gubernatorial proceeding adequately 

protects it.
The Florida procedure, which 

was followed in this case, is outlined 

in Fla. Stat. §922.07 (1983). When a 
condemned prisoner's sanity is in 

question, the governor appoints a 

commission of three psychiatrists.

The commissioners are directed to 
examine the prisoner and advise the 

governor whether he understands the 
nature of the death penalty and why 

it is to be imposed upon him. In 

this case, all three psychiatrists 
reported to the governor that Ford 

was sane within the meaning of the 

statute. By signing Ford's death

21



warrant, the governor determined he 
was sane for purposes of execution.

The present Florida procedure 

reflects the common law policy. As 
described in this Court's decision 

in Solesbee v. Balkcom, 339 U.S. 9,

13 (1950), "the heart of the common 

law doctrine has been that 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." 
Stated another way, it is "an appeal 
to the humanity" of a tribunal to 

postpone execution. People v. Preston. 
345 111. 11, 177 N.E. 761 (1931);
People v. Eldred, 103 Colo. 334,

86 P .2d 248 (1938). At common law, 

a stay of execution due to insanity 

was discretionary with the court

22
or the executive in the exercise of

23

clemency; there was no absolute right 
to a hearing and no provision for 
judicial review. People v. Riley,

37 Cal.2d 510, 235 P.2d 381, 384 (1951). 

The decision to spare an insane 

person from execution was not deemed 

to be an individual right and the 
Framers of the Constitution could 

not have intended that it be included 

within the "cruel and unusual" 

punishment clause of the Eighth 
Amendment. The primary concern of 

the drafters of the Eighth Amendment 

was to proscribe torture and other 
barbarous methods of punishment.

Estelle v. Gamble, 429 U.S. 97, 101 
(1976). The "cruel and unusual 

punishment" clause was taken from 

the English Bill of Rights adopted



24. 2in 1689, and due to the prevailing 

view that the clause only prohibited 

certain methods of punishment, it was 
rarely invoked throughout the 

nineteenth century. Granucci, Nor 

Cruel and Unusual Punishments Inflicted 
The Original Meaning. 57 Cal.L.Rev.
839 (1969).

The fact that no court has ever 
held execution of the insane to be 

forbidden by the Eighth Amendment is 
itself evidence that the Framers did 
not so intend. The common law 

prohibition against executing the 

insane operates only as a temporary 

reprieve; since the validity of the 

original judgment and sentence is not 

2See, J. Story, On the Constitu­
tion of the United States. §1908 at 
680(3rd Ed. 1858), cited in Furman v. 
Georgia, 408 U.S. 238, 317 (1972).

25
at issue, the prisoner can be executed 
once his sanity has been restored.

The postponement of an execution is 
not within the scope of the Eighth 

Amendment, which has always been 

considered to be directed at the 

method or kind of punishment imposed 
for the violation of criminal 
statutes. Powell v. Texas,

392 U.S. 514, 531-532 (1968). It 

bans punishments that are barbaric 
and excessive in relation to the 

crime committed, Coker v. Georgia.
433 U.S. 584, 592 (1976), and imposes 

substantive limits on what can be 

made criminal and punished as such. 
Gregg v. Georgia. 428 U.S. 153,

172 (1976), citing Robinson v . 

California. 370 U.S. 660 (1962).
See also, Ingraham v. Wright,



26
430 U.S. 651, 667 (1977). To accept 

Ford's position would not prevent 

his eventual execution, but would 

mean only that states cannot execute 

condemned prisoners who are allegedly 

insane until their sanity is restored. 
Such a deferment of execution does 

not merit Eighth Amendment protection, 
and, in Florida, is properly left to 
the governor.

Aside from the fact that the 
issue before this Court is not one 

which would fall within the traditional 

purview of the Eighth Amendment, an 

examination of the common law reasons 
and those urged by Ford establishes 
there is no consistently applied 

rationale underlying the policy

■NMMi MUMf

against executing the insane. There

are various justifications which all
reflect humanitarian concerns and

are in the nature of clemency; these

justifications do not cancel the
punishment or suggest its imposition 

4was wrong. This general lack of 

agreement supports the State's 
position that the policy does not 

create an Eighth Amendment right in 

the individual, for how can execution 
of the insane be said to offend the 

concept of human dignity when there 
is no consensus as to why this is so? 3 4

3Gray v. Lucas, 710 F.2d 1048,
1054 (5th Cir. 1983) [. . . the under­
lying social principle . . .  is unclear 
and not the subject of general 
agreement . . .]

4The following discussion of the 
common law is based upon Hazard and 
Louisell, Death, the State and the 
Insane: Stay of Execution. 9 UCLA
L.Rev. 381 (1962).

27
3



Blackstone and Hale explained 
the rule by saying if the prisoner 

is sane he may urge some reason why 

the sentence should not be carried 

out. 4 Blackstone, Commentaries. 
395-396 (13th Ed. 1800). Ford re­

states this in contemporary terms as 
access to the courts: a prisoner
must be competent to meaningfully 
exercise his right of access to 
collateral remedies.  ̂ Ford 

acknowledges he has fully availed 
himself of his judicial remedies; 
his pleadings allege his mental

28

The existence of this "right" 
is questionable; this Court has held 
here is no right to counsel to

™ - Ue d^screti°nary applications for 
review, Ross_v^Moffitt, 417 U.S. 600 

'* and counsel's failure to file
Iht'h, an.apPlicati°n cannot constitute 
the basis for a claim of ineffective­
ness . Wamwright v. Torna.
455 U-S~386 (1982).---- ~

incompetency began in December, 1981, 
seven years after his trial. Every 

conceivable claim which could be 

advanced on Ford's behalf has been 
raised. The filing of any further 

collateral proceedings would be an 
abuse of process and an abuse of the 
writ. Rule 9(b), Rules Governing 

28 U.S.C. §2254 proceedings. Ford 

has no standing to assert the rights 
of others on this issue. Fisher v. 

United States, 425 U.S. 391 (1976). 6 

Blackstone also stated that the 
prisoner's insanity is itself 

sufficient punishment, but this 

is not convincing, for at common law

29

Moreover, since collateral 
proceedings review the conviction, 
and it is constitutionally required 
that a prisoner have been competent 
at his trial, Dusky v. United States. 
362 U.S. 402 (1960), the access to 
the courts argument is not persuasive.



it was recognized that when the 

prisoner regained his sanity he was 

again subject to execution. This is 
true today, for Fla. Stat. §922.07 

(1983), provides that if a prisoner 
is found insane, after treatment, he 
may be restored to sanity and 
executed.

Coke theorized the rule is one 
of humanity--a refusal to take the 

life of the unfortunate prisoner, 

Coke, Third Institute 6 (1797). Thi 
rationale has been characterized 
thusly:

Is it not an inverted 
humanitarianism that 
deplores as barbarous the 
capital punishment of those 
who have become insane 
after trial and conviction, 
but accepts the capital 
punishment for sane men, 
a curious reasoning that 
would free a man from 
capital punishment only

30
if he is not in full 
possession of his senses?

Phyle v. Duffy, 34 Cal.2d 144, 159,

208 P .2d 668, 676-77 (1949) (Traynor,
J., concurring).

Coke has also suggested there
is no deterrent value in executing

an insane person. Ford restates this
theory by alleging execution of the

insane is excessive for it does not

serve the penological justifications
of retribution and deterrence.

This argument concerns a societal
interest which does not create a

right in the prisoner, who is still

subject to execution upon restoration
to sanity. Furthermore, these

interests are served. Ford is to
be executed for murder, and his

execution should deter potential

murderers. The purpose of retribution

31



is to place value on the life of the 

victim and it exists as an alternative 

to private vengeance. Van den Haag,
In Defense of the Death Penalty: A

Legal-Practical-Moral Analysis.
14 Grim. L. Bull. 5 (1978). The 

societal objective of retribution, 
the enforcement of laws, matters 
more than the individual wish and 
is quite independent of it.

Van den Haag, Punishing Criminals 
(1975). In light of the fact that 

Ford's sanity has been determined 

pursuant to Fla. Stat. §922.07 (1983) 
the State has adequately protected 
society.

The theological reason advanced 
for the rule at common law is that 

the condemned should be afforded one 
last opportunity to make his peace

32 33
with God. The religious rationale 

is difficult to assess in a judicial 

proceeding, particularly in modern 

society where there is no consensus 
as to doctrine. Accordingly, Ford 

restates this principle as an entitle­

ment to face death and die with 
dignity. He cites to studies which 

describe the deaths of terminally ill 
patients who are victims of circum­
stances beyond their control. E .g .,

E. Kubler-Ross, On Death and Dying 
(1969) ["in the following pages is 

an attempt to summarize what we have 

learned from our dying patients in 
terms of coping mechanisms at the 
time of a terminal illness", page 33]. 

The situation of a dying patient 

cannot be analogized to Alvin Bernard 
Ford's. Ford chose to place himself



34

on death row at the time he committed 
murder and he has had many years to 

ponder his fate.'7 A death from ill­

ness is not comparable to capital 
punishment:

To be put to death because 
one's fellow humans find 
one unworthy to live is a 
very different thing from 
reading the end of one's 
journey naturally, as all 
men must. To be condemned, 
expelled from life by one's 
fellows, makes death not a 
natural event or a mis­
fortune but a stigma of 
final rejection. The 
knowledge that one has been 
found too odious to live is 
bound to produce immense 
anxiety. Threatened by 
disease or danger, we 
usually feel that death is in 
an indecent hurry to overtake 
us. We appeal to friends and 
physicians to save us, to

Certainly, he has had far more 
time than the few seconds he allowed 
his unfortunate victim.

35
help delay it, and we expect 
a comforting response. Death 
is the common enemy, and it 
calls forth human solidarity.
Not for the condemned man.
He is pushed across by the 
rest of us.

Van den Haag, Punishing Criminals, 

page 212 (1975).
Therefore, Ford has presented 

no compelling justification to 

support his claim that he has an 
individual right, protected by the 
Eighth Amendment's concept of human 
dignity, to have a stay of execution 

based on post-conviction insanity.

The arguments Ford has advanced as 
to contemporary standards of decency 

are based on the existence of state 

laws which provide the insane are not 
to be executed. The existence of 

these laws does not ipso facto create

an Eighth Amendment right; an



36

examination of the process they 

provide shows that in modern times, 

as at common law, the determination 

of post-sentence insanity is a matter
O

for the executive or the prisoner's 
9custodian, to inquire into for 

humanitarian reasons.

g
Georgia Code Ann., §17-10-61;

N.Y. Corr. Law, §665 (1983 Supp.);
Md. Ann. Code. Art. 27 §75(c);
Mass. Gen. Laws Ann., Ch. 279 §62 
(1984 Supp.).

9
Ariz. Rev. Stat. Ann.. §13-4021 

(1982); Ark. Stat. Ann.. §43-2622 
(1977); Calif. Penal Code. §3701
(1979) ; Conn. Gen. Stat.. §54-101
(1980) ; Kan. Stat., §22-4006 (Supp. 
1981); Miss. Code Ann.. §99-19-57 
(1983 Supp.); Neb. Rev. Stat..
§29-2537 (1979); Nev. Rev. Stat.. 
§176.425 (1983); New Mex. Stat. Ann., 
§31-14-4 (1978); Ohio Rev. Code Ann., 
§2949.28 (1982 S u ^ . ) ; Okla. Stat. Ann.. 
§1005 (1983); Utah Code Ann., 
§77-19-13(1) (1982) ; WyoT~Stat.. 
§7-13-901 (1984 Cum. Supp.).

37

In bringing the court's view to 

bear on the subject, the State submits 
Ford has failed to establish a right 
under the Eighth Amendment. In 

Spinkellink v. Wainwright, 578 F.2d 582, 
617-619 (1978), cert, denied,

440 U.S. 976 (1979), the defendant 
argued that Florida's clemency 

procedures must be governed by the 
due process clause of the Fourteenth 

Amendment. The Fifth Circuit 
rejected the claim, finding the 

clemency power vested exclusively 

in the executive branch and it was 
a discretionary decision, not the 
business of judges. As authority, 

the court cited Solesbee v, Balkcom,

339 U.S. 9 (1950), in which this 
Court held the function of 

determining post-conviction insanity



38

was properly vested in the state 

governor. Like clemency, the fact 
there is long-standing recognition 

that the insane should not be executed 

until their sanity is restored, see, 
Gregg v. Georgia, 428 U.S. 153,

200 n. ,50 (1976), does not suffice 

to elevate the principle to a right 

etched in constitutional stone. Just 
as not all errors of state law in a 
capital sentencing proceeding are 

violative of the Eighth Amendment, 

Barclay v, Florida, 463 U.S. 939 (1983), 
the determination of post-conviction 
sanity need not be viewed as an 

Eighth Amendment right. As the court 
noted in Rhodes v. Chapman, 452 U.S.

337, 351 (1981), the courts should 

proceed cautiously in making Eighth 

Amendment judgments because revisions

39
cannot be made (short of a constitu­

tional amendment) in the light of 

further experience.
This Court's conclusions cannot 

be the subjective views of the judges 

but should be formed by objective 

factors such as history and the action 
of state legislatures. Rhodes v .

Chapman, 452 U.S. 337, 346-47 (1981).
As the State has discussed, history 

shows that the policy against 

executing the insane is primarily 
for humanitarian reasons and it is 

not viewed as a right of the condemned 

prisoner. The existing statutes of 

the states provide for procedures 
akin to the executive clemency function.

There are valid reasons for 

distinguishing the determination of 
post-conviction insanity from earlier



40

stages of the judicial process.

The State, when it prosecutes 
someone for a crime, must prove the 

defendant was sane at the time of 

its commission, for sanity at the time 
of the crime is an element of guilt 

itself.^ Likewise, sanity at the 
time of trial is essential to an 

effective defense, and trial must be 
postponed if a defendant is in­

competent. However, post-trial 

insanity commencing after judgment 

operates only to delay execution and 
so it is not deserving of the same

The court's holding in Ake v.
Oklahoma, ___ U.S. ___, 105 S.Ct. 1090
(1985), that an indigent defendant 
must have access to the psychiatric 
assistance necessary to prepare an 
effective defense at trial has no 
bearing on the instant case, which 
concerns post-conviction insanity.

41

protections afforded at the trial 

stage. Comment, Execution of Insane 
Persons, 23 So.Cal.L.Rev. 246 (1950).

In Roberts v. United States,

391 F .2d 991 (D.C. Cir. 1968), the 
court was presented with a prisoner's 

contention that due to his mental 
condition he would not be able to 

conform to prison regulations and 
so he would not become eligible for 
parole. He argued the prospect of a 
long incarceration was, as to him, 

cruel and unusual punishment for­

bidden by the Eighth Amendment. The 
court rejected the claim, noting 

there is nothing unique in the 
development of mental or emotional 

disorders as a result of imprisonment. 

Writing for the court, Circuit Judge 

(now Chief Justice) Burger quoted



42
Trop v. Dulles. 356 U.S. 86, 100 
(1958) :

While the state has the 
power to punish, the 
[Eighth] Amendment stands 
to assure that this power 
be exercised within the 
limits of civilized standards. 
Fines, imprisonment and 
even execution may be imposed, 
depending on the enormity of 
the crime, but any technique 
outside the bounds of these 
traditional penalties is 
constitutionally suspect.

The court concluded that since the

case involved no technique "outside

the bounds of these traditional
penalties," the claim was without

merit. Roberts v. United States.
supra, at 992.

The present case, as did 

Roberts, involves a penalty within 

traditional bounds" which has been 
justly imposed. Ford's Eighth 

Amendment claim of "right" to a

43
determination of post-conviction of 

insanity must likewise be held to be 
lacking in merit. "All that is good 

is not commanded of the Constitution 

and all that is bad is not forbidden 

by it." Palmer v. Thompson,

403 U.S. 217, 228 (1971).



44

II.
SHOULD THE COURT FIND THERE 
IS AN EIGHTH AMENDMENT 
RIGHT TO BE SANE AT THE 
TIME OF EXECUTION, THE 
PRESENT FLORIDA PROCEDURE 
ADEQUATELY PROTECTS IT.

If this Court does conclude there
is an Eighth Amendment right to be

sane at the time of execution, the

State maintains the procedures set
forth in Fla. Stat. §922.07 (1983),
adequately vindicate it. Ford

invoked the statutory procedure.

Three psychiatrists examined him,
and all three doctors reported to

the governor in writing that Ford

was competent to be executed, i.e.,

he understood the nature of the death
penalty and why it was to be imposed

upon him. Ford's counsel was allowed

to be present at the examination,

45
which, constitutionally is not even 

required.  ̂ There is absolutely 
nothing in the statute to prevent 

defense counsel from submitting any 
pertinent material to the governor.
Ford excerpts a sentence from the 

Florida Supreme Court's decision in 
Goode v. Wainwright, 448 So.2d 999 
(Fla. 1984), to support this portion 

of his argument, but the opinion states 
only, "He [Goode] complains about the 

governor's publicly announced policy 

of excluding all advocacy on the part 

of the condemned from the process of

'*''*'See, Smith v. Estelle,
602 F .2d 694, 708 (5th Cir. 1979); 
vacated on other grounds but cited with 
approval as to point that counsel not 
entitled to be present at psychiatric 
examination. Estelle v. Smith,
451 U.S. 454, 470, n. 14 (1981).



determining whether a person under

sentence of death is insane."

448 So.2d 999. In fact, Ford's 

counsel did prepare materials which 
were submitted to and considered by 

the commissioners (A 103, 105), and 

he asserted in the District Court he 
had been able to submit information 
to rebut the conclusions of the 

commissioners to the governor.
(A 75-76, n. 6). ["In the 922.07 
proceeding before the governor, 

counsel and Mr. Ford demonstrated 
that the conclusions of the . . . 

commission members . . . were- flawed"].
Nevertheless, Ford insists he 

is entitled to a federal evidentiary 

determination of competency because 
the Florida proceeding was not 

conducted in a court and therefore

47
the presumption of correctness of 

28 U.S.C. §2254(d) is inapplicable.

The State maintains a determination 
of Ford's competency in a federal 
habeas corpus proceeding would be 

wholly inappropriate. Pursuant to 
28 U.S.C. §2254(a) a person in custody 

pursuant to a state court judgment 
may apply for habeas corpus "only 

on the ground that he is in custody 
in violation of the Constitution . . .

of the United States." The federal 

court's habeas corpus jurisdiction is 

defined and limited by the statute. 

Engle v. Issac, 456 U.S. 107, 110, 
n. 1 (1982); Sumner v. Mata,
449 U.S. 539, n. 2 (1981). Section 

2254 is "primarily a vehicle for 

attack by a confined person on the 

legality of his custody and the



48

traditional remedial scope of the 

writ has been to secure absolute 

release--either immediate or 
conditional--from that custody."

Lee v. Winston, 718 F.2d 888, 892 

(4th Cir. 1983). Ford is not attack­

ing the validity of his judgment and 
sentence or the lawfulness of the 

Respondent's custody, since even 
if there is a right not to be 

executed while insane, once sanity 
is restored, the execution can proceed. 

The essence of habeas corpus is an 
attack by a person in custody upon 

the legality of that custody, and the 
traditional function of the writ is 

to secure release from illegal

custody. Preiser v. Rodriguez,

411 U.S. 475, 484 (1973). The sole 
function of the writ is to grant

49
relief from unlawful imprisonment or 

custody, and it cannot be used properly 

for any other purpose. Hill v .
Johnson, 539 F.2d 439 (5th Cir. 1976); 

Caldwell v. Line, 679 F.2d 494 
(5th Cir. 1982) ; Delaney v. Giarrusso, 

633 F .2d 1126, 1128 (5th Cir. 1981). 
There is no universal right to litigate 

a federal claim in a federal court; 

the Constitution makes no such 

guarantee. Allen v. McCurry,
449 U.S. 90, 103-104 (1980); Stone 

v. Powell, 428 U.S. 465 (1976).
The determination of sanity 

to be executed is not a stage of the 

criminal process, as a death-sentenced 
prisoner is not subject to execution 

until the criminal process has been 

completed. Events which are not 

critical stages of a criminal



50

proceeding are not subject to stringent 

procedural requirements to vindicate 
constitutional rights.

In Gerstein v. Pugh, 420 U.S. 103 

(1975), this Court held that while the 

Fourth Amendment requires a judicial 
determination of probable cause as a 
prerequisite to extended restraint of 
liberty following arrest, full 

adversary hearing safeguards were 
not necessary. An informal procedure 

could be used and appointment of 
counsel was not required.

In Shadwick v. Tampa, 407 U.S. 345 

(1972), this Court held municipal 

court clerks qualified as neutral 
and detached magistrates capable of 

issuing arrest warrants for purposes 

of the Fourth Amendment, and concluded 

not all warrant authority must reside

51

exclusively in a lawyer or judge.

It has been determined the 
Sixth Amendment right to counsel 
attaches only when formal judicial 

proceedings are initiated against 

an individual. Kirby v. Illinois,

406 U.S. 682 (1982). Thus, prison 
inmates closely confined in administra­

tive detention while being investigated 
for criminal activity were held not 

to be entitled to the appointment of 
counsel, for there is no Sixth Amend­

ment right until adversary proceedings 

are initiated. United States v .
Gouveia, ___ U.S. ___, 104 S.Ct. 2292

(1984). The right to counsel, once 
it has attached, concludes after 

direct appeal. A criminal defendant 

has no right to counsel to pursue 

discretionary applications for review,



52

Ross v. Moffitt, 417 U.S. 600 (1974), 
and counsel's failure to file such an 

application cannot constitute the 

basis for a claim of ineffectiveness. 

Wainwright v. Torna, 455 U.S. 586
(1982).

Therefore, any Eighth Amendment 
right Ford has to be sane when he is 

executed can be addressed in a non­
judicial setting, since the issue 

arose after the criminal (and in this 
case, extensive collateral) proceed­

ings were completed. The decision 
as to post-conviction sanity has 

been properly vested by Florida in 

the governor, for, as this Court 
held in Solesbee v. Balkcom,

339 U.S. 9 (1950), the decision bears 

a close affinity not to trial for 
a crime but to clemency powers in

53
general. The Constitution is 

satisfied because the decisionmaker 

is a neutral and detached official. 
Coolidge v. New Hampshire, 403 U.S. 443, 

453 (1971). Therefore, Ford's argu­

ments as to the applicability of 
28 U .S.C . §2254(a) are not material 
to the issue since there is no judicial

proceeding required under the 
12Constitution.

Ford's additional argument that 

the Florida competency standard is 

inadequate because it does not require 
that the prisoner be able to prepare 

for death and consult with counsel is 12

12If this Court does find a 
judicial proceeding is required, the 
Florida courts, rather than the federal 
District Court, should be given the 
first opportunity to act. Cabana v.
Bullock, ___ U.S. ___, 54 U.S.L.W.
4105, 5109 (op. filed January 22,
1986).



54

a repeat of his death with dignity 
and access to the courts arguments.
As the State has pointed out earlier, 
Ford has litigated this case for years 

and he has already exercised all his 

rights of access to the courts.
13Concerning the dubious nature of 

Ford's claim to a right to prepare 

for death, the State submits the 
statute's requirement that the 
condemned prisoner understand the 
nature of the death penalty and why 
it is to be imposed on hirn^ satisfies 

this purpose.
The competency standard asserted 

by Ford is simply an invitation to 
endless litigation. The legislature

^See pages 33-35, supra.

U Fla. Stat. §922.07(1)

55

has wisely set a standard which is 
appropriate to the situation and left 

the determination to the governor.

The Florida statutory standard is the 

standard cited in LaFave and Scott, 

Handbook nn Criminal Law (1972) at

page 303:
The common law was quite 
vague on the meaning of 
insane in this context 
[time of execution], but 
it is usually taken to 
mean that the defendant 
cannot be executed if he 
is unaware of the fact that 
he has been convicted and 
that he is to be executed.
Stated another way, he 
must be so unsound mentally 
as to be incapable of 
understanding the nature 
and purpose of the 
punishment about to be 
executed upon him.

It is also the standard in at least
one other state, Illinois, where the

applicable statute, lUinois_Rev.
Stat. (1982), Ch. 38, §1005-2-3(a),



56
provides:

A person is unfit to be 
executed if because of a 
mental condition he is 
unable to understand the 
nature and purpose of 
such sentence.

The State maintains the Eighth 
Amendment requires no more.

57

III.
PURSUANT TO CONTROLLING 
PRECEDENT OF THIS COURT,
SOLESBEE v. BALKCOM,
339 U.S. 9 (1950) , FLORIDA'S 
PROCEDURE FOR DETERMINING 
SANITY OF CONDEMNED 
PRISONERS MEETS THE REQUIRE­
MENTS OF FOURTEENTH AMEND­
MENT PROCEDURAL DUE PROCESS.

Ford argues in the alternative
that even if there is no Eighth

Amendment right to be sane at the time
of execution, Florida has created
such a right and its procedure for

protecting it fails to satisfy due

process. The State maintains this
Court's decision in Solesbee v .

Balkcom, 339 U.S. 9 (1950), wherein
it held a gubernatorial determination
of sanity to be executed satisfies

due process, is still good law and
should therefore be applied as

controlling precedent to reject Ford's



58

contentions.

The decision in Solesbee was 
preceded by Nobles v. Georgia,

168 U.S. 515 (1897). In Nobles, the 
court held the question of insanity 
after verdict did not give rise to 

an absolute right to have the issue 
tried before a judge and jury, but 

was addressed to the discretion of 
the judge. The court concluded the 
manner in which the sanity question 
was to be determined was purely a 

matter of legislative regulation.

This decision led to Solesbee v . 
Balkcom, 339 U.S. 9 (1950), where the 

court held the Georgia procedure 
whereby the governor determined the 
sanity of an already convicted 

defendant did not offend due process:

59
We are unable to say that 

it offends due process for 
a state to deem its governor 
an "apt and special tribunal" 
to pass upon a question so 
closely related to powers 
that from the beginning have 
been entrusted to governors. 
And here the governor had 
the aid of physicians 
specially trained in 
appraising the elusive and 
often deceptive symptoms of 
insanity. It is true that 
governors and physicians 
might make errors of judgment. 
But the search for truth 
in this field is always 
beset by difficulties that 
may beget error. Even 
judicial determination 
of sanity might be wrong.

* * * * *

To protect itself society 
must have power to try, con­
vict, and execute sentences. 
Our legal system demands 
that this governmental duty 
be performed with scrupulous 
fairness to an accused. We 
cannot say that it offends 
due process to leave the 
question of a convicted 
person's sanity to the 
solemn responsibility of 
a state's highest executive 
with authority to invoke



60

the aid of the most skill­
ful class of experts on 
the crucial questions 
involved.

Id. at 12-13.

Solesbee was reaffirmed by this 
Court's decision in Caritativo v . 

California, 357 U.S. 549 (1958).

Ford argues Solesbee is no 
longer valid because it was decided 
at a time when the right/privilege 

distinction was thought to be 
determinative of an individual's 

constitutional rights, a concept 

which has since been rejected. See, 
e .g ., Graham v. Richardson,

403 U.S. 365, 374 (1971). However, 
the thrust of the court's holding 
in Solesbee was the determination 

of post-conviction insanity could 

properly be deemed an executive 
function because it was akin to

61

clemency and it did not offend due 

process for the governor, with the 
aid of physicians, to make the 

determination. The court's decision 

did not turn on the right/privilege 
distinction but on the authority 

traditionally vested in the executive. 
Its analysis was adopted in 

Spinkellink v. Wainwright,
578 F.2d 582, 617-619 (5th Cir. 1978), 

cert, denied. 440 U.S. 976 (1979).

There the court, which in addition 
to Solesbee, cited Schick v. Reed,

419 U.S. 256 (1974) and Meachum v .
Fano, 427 U.S. 215 (1976), held that 
where the governor and the cabinet, 

pursuant to established procedures, 
chose to consider whether the defendant 
was entitled to mercy, there was no 

Fourteenth Amendment due process



62

violation, for clemency is an 

executive function. In the case 
sub judice, it should be recognized 

that enforcement of the law, like 
clemency, is traditionally an executive 

function. Accordingly, the governor, 

who is charged with carrying out the 
sentence by signing the warrant, is 
the proper party to determine sanity 

in this context.
Ford also argues the decision 

in Gardner v. Florida, 430 U.S. 349 

(1977), revisited Williams v. New York, 

337 U.S. 241 (1949), and since 
Solesbee cited to Williams, Solesbee 

must be reevaluated as well. The 
State maintains this Court's holding 
in Gardner that the sentencing phase 

of a capital murder trial, as well 
as the phase on guilt or innocence,

63

must satisfy the requirements of the 
due process clause, does not call 
into question the continued validity 

of Solesbee. In both Williams and 
Gardner, the court was concerned with 

the imposition of sentence. As Justice 
White noted, concurring in Gardner,
"The issue in this case . . . involves

the procedure employed by the state in 
selecting persons who will receive 

the death penalty." Gardner v .
Florida, supra, 430 U.S. at 363. By 

contrast, Solesbee dealt with the 

determination of post-sentence 
insanity, which is not part of the 
judicial process, and it is done 

subsequent to the imposition of 

sentence. It is a discretionary
stage with which, as stated in 

Gregg v. Georgia, 428 U.S. 153, 199



64

(1976), the courts are not concerned.

[. . . "a defendant who is convicted 
and sentenced to die may have his 

sentence commuted by the governor . . . 

The existence of these discretionary 
stages is not determinative of the 

issues before us . . . Nothing in any 
of our cases suggests that the decision 
to afford an individual defendant 

mercy violates the Constitution."] 
Therefore, since Fla. Stat. §922.07

(1983) is not part of the sentence 

imposition or process, pursuant to 
this Court's still controlling 

decision in Solesbee, it satisfies 
due process.

Ford's argument that Florida 

has created a right and it is subject 

to procedural due process protections 
is a restatement, in different terms,

65
of his contention that Solesbee v . 
Balkcom is no longer valid, since 

under Solesbee, Fla. Stat. §922.07 

(1983), does satisfy due process.^

The State therefore reiterates its 

position that Solesbee is dispositive.
In any event, if the State is 

free to define and limit an entitle­

ment, there seems no good reason why 

it should not be equally free to define 
the procedure that goes with that 

entitlement. Tribe, American 

Constitutional Law, page 536 (1978).
An examination of Fla. Stat. §922.07 

(1983), reveals that the statute does 
no more than provide that the prisoner

^ Goode v. Wainwrieht. 731 F.2d 
^82, 1483 (1984) 7 1 the Eleventh 
Circuit, citing Solesbee. held the 
Fl°rida statute meets the minimum 
standards required by procedural 
due process.]



66

or someone on his behalf may inform 

the governor of his alleged insanity. 

This procedure has superseded the 
earlier Florida decisions which held 

an application to the trial court may 

be made for a determination of sanity. 

Ford v. Wainwright, 451 So.2d 471,
475 (Fla. 1984). The only expectation 

that has been created by first the 
common law and then the statute is 

the opportunity to petition for a 
sanity determination.

Ford's argument that he is 

entitled to the same due process 
protections that are applicable to 
a determination of competency to 

stand trial ignores the qualitative 

and obvious distinctions between the 
trial on guilt or innocence and a 

last-ditch attempt to avoid execution

67

many years later after all other legal 

efforts have failed. At trial, 
competency is necessary to ensure the 
effectiveness of the fundamental rights 

inherent therein such as the right to 

counsel, to confront and cross-examine 

witnesses, the decision whether to 
testify, etc. In short, as a matter 
of Fourteenth Amendment fundamental 
fairness, an accused must be competent 

at trial so he will be able to 

participate meaningfully in the 
judicial proceeding in which his life 

is at stake. Pate v. Robinson,

383 U.S. 375 (1966); Ake v. Oklahoma,

___ U.S. ___, 105 S.Ct. 1087, 1093
(1985). It is appropriate that the 

court before whom he is to be tried 

determines his competency to stand

trial.



68

By contrast, at the time of 

execution, the prisoner has exhausted 

his remedies and has no further 

avenues of relief. It is well 
established, as the phrase implies, 

that "due process" is flexible and 
calls for such procedural protections 
as the particular situation demands; 

not all situations calling for 
procedural safeguards require the 

same kind of procedure. Morrissey v . 
Brewer, 408 U.S. 471, 481 (1972); 

see also, Hewitt v. Helms, 459 U.S. 460 

(1983). In the instant case, the 
statutory procedure which provides 

for the appointment of a commission 
of experts, an examination at which 
counsel for the prisoner may be 

present, and a submission of a report 

to the governor, is sufficient.

69
Due process does not always 

require an adversarial hearing.

Williams v. Wallis. 734 F.2d 1434,

1438 (11th Cir. 1984); Hickey v. Morris. 
722 F.2d 543, 549 (9th Cir. 1983).

In Hortonville Joint School District 
No. 1 y. Hortonville Education 

Association. 426 U.S. 482 (1976), the 
court held that where the state law 

vested a governmental function in the 

school board and had an interest in it 
remaining there, the school board's 
review of teacher firing decisions 

satisfied due process. The court 

further noted there is a presumption 
of honesty and integrity in policy­
makers with decisionmaking power.
Ld. at 497. Likewise in this case 
the legislature has enacted a 

statutory procedure which vests the



70

determination of sanity to be executed 

in the governor, subsequent to the 
receipt of a report from a commission 

of experts, and there is a presumption 

the executive has acted with integrity. 

This presumption is well founded in 

the instant case, for the commission 
appointed by the governor unanimously 

concluded Ford was sane.
Counsel for Ford and for amici 

criticize the fact that the mental 
examination was just for a half-hour 

period and contend this was insufficient 

to make an accurate diagnosis. They 
appear to ignore the facts that the 

commissioners also spoke to prison 

personnel who had daily contact with 

Ford, reviewed his prison medical 

records, observed the condition of 

his cell, and considered material

71

submitted by Ford's attorneys, which 

included reports by Doctors Kaufman 
and Amin (A 98-106).16 The three 

psychiatrists drew the conclusion 

that Ford understood the nature of 

the death penalty and why it was to 

be imposed upon him and reported this 
to the governor in writing.

For example, Dr. Afield's 
report states: "I had an in depth
conference with both attorneys for 
the inmate and reviewed the medical 
records that they had available. I 
talked at length with a variety of 
guards who had dealings with the 
inmate and reviewed the contents of 
Mr. Ford’s writings in his cell. I 
discussed his medical condition with 
the prison psychiatrist and examined 
the man in the presence of all counsels 
and two other state-appointed 
psychiatrists. My examination con­
sisted of a complete mental status 
examination. Subsequently, I spoke 
at length with attorney Burr and 
reviewed complete medical records from 
the prison, which included psychiatric 
evaluations and reports from several 
prison psychologists. I reviewed in 
depth Dr. Kaufman's findings."



72

In Barefoot v. Estelle,

463 U.S. 880 (1983), this Court 
refused to accept the view propounded 
by the American Psychiatric Association 

that experts cannot accurately predict 
the future dangerousness of a convicted 

criminal. The court noted there were 
doctors who disagreed with this 
position and would be quite willing 

to testify on the matter at a 
sentencing proceeding. Id., 463 U.S. 

899. In this case, three doctors 

followed the Florida procedure for 
determining competency to be executed 

and were able to make a diagnosis.
In Barefoot, this Court additionally 
concluded that psychiatric testimony 

on future dangerousness need not be 

based on personal examination and may 

be given in response to hypothetical

73
questions. Therefore, in the instant 

case, the methodology used, which 

included a mental examination, did 
not violate due process.

Further evidence that the 
Florida procedure provides for 

accurate fact finding is available 

from the case of Gary Eldon Alvord, 
a death row inmate who invoked 

Fla. Stat. §922.07 (1983), in 

November, 1984. In Alvord's case, 
the governor appointed two of the 

same three commissioners who had 
examined Ford, Doctors Ivory and 
Mhatre, to examine Alvord. 

(Respondent's Appendix 1-4). Based 
on their reports, the governor 

determined Alvord was insane and 

committed him for treatment. 

(Respondent's Appendix 5-7).



74

Florida's statutory procedure 

therefore satisfies the three-part 

balancing test of Mathews v. Eldridge, 
424 U.S. 319 (1976). At this point in 

the proceeding--post trial, post appeal, 

and post collateral attack, Ford's 

private interest is insubstantial.
He has had many years to prepare for 

death, and he is not entitled to 
further access to the courts to 

attack his conviction.

The State has a valid and 

compelling interest in an end to 
litigation and the carrying out of 
its lawfully imposed sentence. In 

the present case, the District Court 
found Ford's habeas corpus petition 

to be an abuse of the writ (A 164), 

as did the dissenting judge on the 

Eleventh Circuit's stay panel

75

(A 179). Ford's pleadings allege 
his mental deterioration began in 
December, 1981, yet he never sought 

treatment, nor did he bring the matter 
of his alleged insanity to any court 

until ten days prior to his scheduled 
1984 execution (A 4). The Florida 
statutory procedure prevents such 

abuses, for by permitting the governor 
to be the decisionmaker with the aid 
of an appointed commission of 

psychiatrists, eleventh hour post­

ponements of executions will not be 
obtained by frivolous claims of 
incompetence.

The risk of an erroneous depriva­
tion is negligible since the statute 
provides for experts to advise the

The merits panel did not reach 
the issue (A 184, n. 1).



76

governor. In Williams v. Wallis,

734 F .2d 1434 (11th Cir. 1984), the 
court upheld Alabama's nonadversary 

procedures for determining whether 
insanity acquitees should be released 

from state mental hospitals, noting 

that medical professionals have no 
bias against release and it can be 

safely assumed they are disinterested 

decisionmakers. The court stated 
"neither judges nor administrative 

hearing officers are better qualified 

than psychiatrists to render 
psychiatric judgments" [ ]. Id. at 

1439..
In Gilmore v. Utah, 429 U.S. 1012 

(1976), the court terminated a stay 

of execution, after reviewing state 
records, having concluded "the State's 

determinations of his [Gilmore's]

77
competence knowingly and intelligently 
to waive any and all such rights were 
firmly grounded." The concurring 

opinion pointed out that the state 

determinations were based on reports 
of doctors ordered by the court to 
examine Gilmore prior to his trial 

and reports of prison psychiatrists 

who had seen him after his conviction. 
Id. at 429 U.S. 1015, n. 5. Since 

m  Gilmore the court was willing to 

accept state determinations of 

competency in a situation where the 

prisoner was waiving his appellate 
rights less than five months after 

committing his crimes, it does not 
offend due process to allow a state 

governor, aided by a commission of 

experts to determine competency to 
be executed many years later.



78
See also, Board of Curators of the 
University of Missouri v. Horowitz,

435 U.S. 78 (1978) [dismissal of 
student for academic reasons requires 

expert evaluation and is not readily 
adapted to the procedural tools of 
judicial or administrative decision­

making.] Accordingly, in this case 
where pursuant to Fla. Stat. §922.07 
a commission of three psychiatrists 

examined the Petitioner, found him 

sane, so advised the governor, and 
the governor thereupon issued a death 

warrant, a proper balance was struck.

To accept amici's and Ford's 

contention that due process requires 
the State to provide full adversarial 

judicial proceedings, subject to 

appellate review, is to invite never-
Ford's executionending litigation.

79
was stayed on May 30, 1984. By the 

time this case is resolved, two more 

years will have gone by. The concern 
expressed by this Court long ago in 
Nobles v. Georgia. 168 U.S. 398, 

405-406 (1897), is just as valid 
today:

If it were true that at 
common law a suggestion 
of insanity after sentence 
created on the part of a 
convict an absolute right 
to a trial of this issue 
. . . it would be wholly
at the will of the convict 
to suffer any punishment 
whatever, for the 
necessity of his doing 
so would depend solely 
upon his fecundity 
in making suggestion after 
suggestion of insanity, 
to be followed by trial 
upon trial.

The State urges this Court to re­

affirm Solesbee v. Balkcom. supra, 

by holding that the Florida procedure 
for determining competency to be



80

executed satisfies procedural due 

process.

81

CONCLUSION

Wherefore, based on the foregoing
reasons and authorities, the

Respondent respectfully requests
that the decision of the Circuit

Court of Appeals for the Eleventh
Circuit be affirmed.

JIM SMITH 
Attorney General

JOY B. SHEARER 
Assistant Attorney General 
111 Georgia Avenue 
Room 20A
West Palm Beach, FL 33401 
(305) 837-5062

Counsel for Respondent



A-1

STATE OF FLORIDA 
OFFICE OF THE GOVERNOR 

EXECUTIVE ORDER NUMBER 84-214

(Commission to Determine Mental 
Competency of Inmate)

WHEREAS, the Governor has been 
informed that GARY ELDON ALVORD, an 
inmate at Florida State Prison, under 

sentence of death, may be insane, and 

WHEREAS, pursuant to Section 
922.07, Florida Statutes, it is 

necessary to appoint a Commission of 

three competent, disinterested 
psychiatrists to inquire into the 

mental condition of the aforesaid 

inmate, and to suspend the execution 

of the death sentence imposed upon 

said inmate during the course of the 
medical examination;



NOW, THEREFORE, I, BOB GRAHAM, 

as Governor of the State of Florida, 

by virtue of the authority vested in 
me by the Constitution and Laws of the 

State of Florida, specifically Section 
922.07, Florida Statutes, do hereby 

promulgate the following Executive 
Order, effective immediately:

1. The following persons, who 

are competent, disinterested 
psychiatrists, are hereby appointed 
as a Commission to examine the mental 

condition of GARY ELDON ALVORD, an 

inmate at Florida State Prison, 
pursuant to Section 922.07, Florida 

Statutes:
1. Peter B.C.B. Ivory, M.D.

2. Gilbert N. Ferris, M.D.

3. Dr. Umesh M. Mhatre

2. The above-named psychiatrists 
as and constituting the "Commission

to Determine the Mental Condition of 
GARY ELDON ALVORD" shall examine 

GARY ELDON ALVORD to determine whether 

he understands the nature and effect 
of the death penalty and why it is 
to be imposed upon him as required by 

Section 922.07. The examination 
shall take place with all three 

psychiatrists present at the same 
time. Counsel for the inmate and the 

State Attorney may be present but 

shall not participate in the examina­
tion in any adversarial manner.

3. The psychiatric examination 
shall be conducted expeditiously.

Upon completion of the examination, 
said Commission shall report to me 
their findings.



4. The expenses involved in this 

examination shall be borne by the 
Department of Corrections.

5. The execution of the sentence

imposed upon GARY ELDON ALVORD by the

Circuit Court of the 13th Judicial

Circuit, Hillsborough County, on

April 9, 1974, is hereby suspended
pending the outcome of the examination

of the mental condition of said inmate
IN TESTIMONY WHEREOF,
I have hereunto set 
my hand and caused 
the Great Seal of the 
State of Florida to be 
affixed at Tallahassee 
the Capitol, this 
20th day of November, 
1984.
/s/ Bob Graham 
GOVERNOR

ATTEST:
/s/ George Firestone
SECRETARY OF STATE

STATE OF FLORIDA

OFFICE OF THE GOVERNOR 

EXECUTIVE ORDER NUMBER 84-222 

(Amendment of Executive Order 84-214)

WHEREAS, in accordance with the 

provisions of Section 922.07, Florida 
Statutes, Executive Order 84-214 was 
entered appointing three competent, 

disinterested psychiatrists (the 
"Commission") to examine the mental 
condition of GARY ELDON ALVORD, an 

inmate at Florida State Prison under 
sentence of death, and

WHEREAS, the Commission has 
completed its examination of the 
said GARY ELDON ALVORD, and, in 

reviewing its report the Governor has 

determined that GARY ELDON ALVORD is 
not mentally competent under the



terms of Section 922.07, and
WHEREAS, Section 922.07 requires 

that an inmate under sentence of 
death found to be incompetent must 

be committed to the state hospital 

for the insane until such time as 
the inmate is found to be competent, 

and
WHEREAS, there is no reason for 

the continuation of the Commission 

since the purpose for which it was 

created has been completed; and in 
accordance with Section 922.07, 

Florida Statutes,
NOW, THEREFORE, I, BOB GRAHAM, 

as Governor of the State of Florida, 

by virtue of the authority vested in 

me by the Constitution and laws of 

the State of Florida, do hereby

promulgate the following executive 
order:

1. GARY ELDON ALVORD is remanded 
to the Florida State Hospital for the 

insane at Chattahoochee where he shall 
be kept in secure custody.

2. Peter Ivory, M.D., Gilbert 
Ferris, M.D., and Umesh Mhatre, M.D., 

are hereby relieved of all further 

duties and responsibilities under 
Executive Order 84-214.

3. The stay of execution of 
the sentence imposed upon GARY 
ELDON ALVORD, granted by said 

Executive Order 84-214, remains in 

effect until further order pursuant 
to Section 922.07.



IN TESTIMONY WHEREOF, 
I have hereunto set 
my hand and caused 
the Great Seal of the 
State of Florida to 
be affixed at 
Tallahassee, the 
Capitol, this 29th 
day of November,
1984.
/s/ Bob Graham 
GOVERNOR

ATTEST:

/s/ George Firestone 
SECRETARY OF STATE