Ford v. Wainwright Brief of Respondent

    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.

ON WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE ELEVENTH CIRCUIT

BRIEF OF RESPONDENT

JIM SMITH 
Attorney General
JOY B. SHEARER 
Assistant Attorney General 
111 Georgia Avenue 
Room 204
West Palm Beach, FL 33401 
(305) 837-5062
Counsel for 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?



11

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

TABLE OF CONTENTS

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



Ill

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

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) 53

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

TABLE OF AUTHORITIES

49



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 - CONTINUED
Cases Page
Ford v. Strickland, 

676 F .2d 434 
(11th Cir. 1982) 3

Ford v. Strickland,
696 F .2d 804 
(11th Cir.), 
cert, denied,
464 U.S. 865 (1983) 3

Ford v. Strickland, 
734 F .2d 538 
(11th Cir. 1984) 9

Ford v. Wainwright, 
451 So.2d 471 
(Fla. 1984) 1,8,66

Ford v. Wainwright, 
752 F .2d 526 
(11th Cir. 1985) 10

Furman v. Georgia,
408 U.S. 238 (1972) 24

Gardner v. Florida,
430 U.S. 349 (1977) 17,62,63

Gerstein v. Pugh,
420 U.S. 103 (1975) 50

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



V l l l

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
Solesbee v. Balkcom,

339 U.S. 9 (1950)

Page

1,10,12,16,
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.

104 s!ct.~2292 (1984) 51
Wainwright v. Ford,

U.S.
104 S.Ct. 3498 (1984) 9

Wainwright v. Torna,
455 U.S. 586 (1982) 28,52

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



X1X1

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 Page

TABLE OF AUTHORITIES - CONTINUED

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



X X V

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 
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.

13



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.
Ill. 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

17

satisfied. Ford's private interest



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.
21

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



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
Oin 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

9See, 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).



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).

25

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



27
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 
was 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?

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

^The 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).

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 
there is no right to counsel to 
pursue discretionary applications for 
review, 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 ineffective­
ness. Wainwright v. Torna,
455 U.S. 586 (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).

Blackstone also stated that the 
prisoner's insanity is itself 
sufficient punishment, but this 
is not convincing, for at common law

gMoreover, 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.

29



30
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). This 
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



31
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



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 Crim. 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.^ 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

8for the executive or the prisoner's 
custodianf to inquire into for 
humanitarian reasons.

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.).

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 Supp.); Okla. Stat, Ann., 
§1005 (1983); Utah Code Ann., 
§77-19-13(1) (1982); Wyo. 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).



46
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. MeCurry,
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

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, 4109 (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. 

Concerning 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 him^4 satisfies 

this purpose.

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

~̂ See pages 33-35, supra.
14Fla. 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 on 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, Illinois 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

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

III.



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

[, . . "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,

(1976), the courts are not concerned.



65
of his contention that Solesbee v . 
Balkeom 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. Wainwright, 731 F .2d 
1482, 1483 (1984),Lthe Eleventh 
Circuit, citing Solesbee, held the 
Florida 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 v. 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.
Id. 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.

16For 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 
in 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 1s and Ford's 

contention that due process requires 
the State to provide full adversarial 

judicial proceedings, subject to 

appellate review, is to invite never- 

ending litigation. Ford's execution



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 204
West Palm Beach, FL 33401 
(305) 837-5062
Counsel for Respondent



APPENDIX



A-l
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 G r a h a m _
GOVERNOR

ATTEST:
/s/ George Firestone 
SECRETARY OF STATE