NINTH CIRCUIT CAPITAL PUNISHMENT HANDBOOK - 2006
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Chapter 1: Capital Punishment Handbook: Constitutionality And Other General Considerations

        1.4  Requirement of Competency to Execute
               1.4.1  Involuntary Administration Of Anti-Psychotic Drugs
                1.4.2  Competency to “Volunteer”

In Ford v. Wainwright, 477 U.S. 399 (1986), the Supreme Court held that the Eighth Amendment prohibits a state from executing a prisoner who is insane. Although some states have a higher standard, the constitutional threshold for sanity, according to Justice Powell in his Ford concurrence, is the prisoner’s awareness of the execution as well as the reason for it. Most state statutes refer to a prisoner’s “competence” to be executed.

Ford also addressed procedural requirements necessary to determine a condemned inmate’s sanity. If a capital prisoner alleges insanity in a habeas corpus petition, the federal district court must determine if the state afforded the petitioner an adequate fact-finding procedure on the claim. If so, the facts found by the state are entitled to a presumption of correctness under 28 USC 2254(e)(1) (2000). If not, there is no presumption of correctness, and the district court must hold an evidentiary hearing on the claim.

However, the U.S. District Court in Arizona remanded a Ford-based habeas petition to state court for a competency hearing. Poland v. Stewart, 41 F. Supp. 2d 1037 (D. Ariz. 1999). The district court reasoned that, unlike the Florida statute struck down in Ford, Arizona’s statute for determining a capital defendant’s competency was not facially unconstitutional. The court considered the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA) restrictions on evidentiary hearings, and, recognizing “judicial federalism,” concluded the state was the more appropriate forum for conducting the hearing.

The Ford Court left to the states the task of establishing a constitutionally adequate procedure for determining a condemned’s sanity. In rejecting Florida’s procedure as unconstitutional, Ford suggests a few minimum requirements: (1) an opportunity or hearing for the insane prisoner to present evidence and argument, (2) decision-makers at the hearing who are separate from the prosecutorial or executive branch of government, and (3) an opportunity for the prisoner to submit expert psychiatric evidence and argument different from the state’s expert evidence. Justice Powell’s concurrence specifically suggests that states should provide an impartial officer or board to receive evidence, including expert evidence, and argument from the prisoner’s counsel.

In Stewart v. Martinez-Villareal, 523 U.S. 637 (1998), the Supreme Court addressed whether the AEDPA’s prohibition against successive petitions would effectively eliminate the ability of prisoners to bring Ford claims in federal habeas petitions. The Court determined that Villareal’s Ford claim was not a “second or successive” petition, as that term is used in the AEDPA, and was therefore properly before the district court.

Stewart v. Martinez-Villareal, 523 U.S. 637 (1998) (holding that a Ford claim initially brought in a first petition but dismissed as unripe and later brought in a second petition was not a successive petition prohibited by the AEDPA).

Ford v. Wainwright, 477 U.S. 399 (1986) (holding Eighth Amendment prohibits execution of the insane; finding Florida’s (1) failure to include prisoner in truth seeking process, (2) denying prisoner opportunity to challenge state-appointed psychiatrists, and (3) placement of decision-making power wholly in executive branch, amounted to inadequate fact-finding procedure for determining sanity, and thus petitioner entitled to evidentiary hearing on competence to be executed).

Allen v. Ornoski, 435 F.3d 946 (9th Cir.) (denying requests for leave to file SOS petition and for issuance of a certificate of appealability and holding that Ford v. Wainwright was inapposite, because there was nothing in the record that suggested that petitioner's age of 75 and physical infirmities rendered him unable to comprehend the nature and purpose of the death penalty that he faced), cert. denied, 126 S. Ct. 1140 (2006).

District Courts in Ninth Circuit:

Amaya-Ruiz v. Stewart, 136 F. Supp. 2d 1014 (D. Ariz. 2001) (granting evidentiary hearing on competency because state’s statutory scheme offered no hearing after state’s chief medical officer unilaterally determined that the petitioner had regained competency).

Poland v. Stewart, 41 F. Supp. 2d 1037 (D. Ariz. 1999) (remanding a Ford claim brought in habeas petition to state court for a competency hearing).

Rachelle D. Dick, Note, Ford v. Wainright: Warning–Sanity on Death Row May Be Hazardous to Your Health, 47 La. L. Rev. 1351 (1987) (reviewing Ford and focusing on proper procedural requirements for determining competence in Louisiana).

Roberta M. Harding, “Endgame:” Competency and the Execution of Condemned Inmates–A Proposal to Satisfy the Eighth Amendment’s Prohibition Against the Infliction of Cruel and Unusual Punishment, 14 St. Louis U. Pub. L. Rev. 105 (1994) (addressing need to revise competency-to-execute model in light of Ford to resolve Eighth Amendment dilemmas left after Ford and reduce number of executions which violate Supreme Court law).

Joseph H. Hickey, Note, Ford v. Wainright: The Supreme Court Reconsiders the Procedural Requirements for Post-Conviction Sanity Determinations, 18 Toledo L. Rev. 919 (1987) (reviewing Ford and analyzing requirements and ramifications of Ford on state procedure for determining sanity of death row inmates).

Stephen L. Ihm, Note, Ford v. Wainright, The Eighth Amendment, Due Process and Insanity on Death Row, 7 N. Ill. U. L. Rev. 89 (1986) (analyzing existing precedent found not to control issue of execution of insane, historical background of Ford, and basis for Ford decision, and also examining practical impact on states when attempting to meet constitutional requirements in executing the insane).

Gordon L. Moore III, Note, Ford v. Wainright: A Coda in the Executioner’s Song, 72 Iowa L. Rev. 1461 (1987) (analyzing Ford’s lack of standards for minimum due process of state procedures for determining insanity, and arguing for stricter standards to back up Ford basic requirements).

Sanford M. Pastroff, Note, Eighth Amendment–The Constitutional Rights of the Insane on Death Row, 77 J. Crim. L. & Criminology 844 (1986) (summarizing Ford opinion and interpreting what procedures necessary to satisfy due process requirements for determining sanity).

Robert F. Schopp, Wake Up and Die Right: The Rationale, Standard, and Jurisprudential Significance of the Competency to Face Execution Requirement, 51 La. L. Rev. 995 (1991) (analyzing existing justifications for rule that insane may not be executed, and proposing alternative rationales and jurisprudential issues).

Esmeralda D. Yu, Note, Constitutional Law: The Death Penalty and the Insanity Defense–Ford v. Wainwright, 10 Harv. J.L. & Pub. Pol. 253 (1987) (summarizing Ford and critiquing rationales of each Justice)

In Washington v. Harper, 494 U.S. 210 (1990), the Supreme Court held that treating a mentally ill prisoner with anti-psychotic drugs against his or her will does not violate substantive due process if the prisoner is dangerous to himself or herself or others and the treatment is in the prisoner’s medical interest. In Perry v. Louisiana, 498 U.S. 38 (1990), the Court examined the constitutionality of the involuntary administration of such drugs to treat death row prisoners to competency. Instead of answering the question, however, the Supreme Court remanded the case for reconsideration in light of Harper. On remand, the Louisiana Supreme Court found that such involuntary medication was both cruel and unusual punishment and a violation of privacy. The court did not apply Harper because it recognized that medication used on death row prisoners is administered for neither the protection nor the medical interest of the prisoner.

The Supreme Court has addressed the constitutionality of administering drugs to incompetent detainees against their will in order to make them competent for trial. In Riggins v. Nevada, 504 U.S. 127 (1992), the Court found that forced administration of such drugs before or during trial is unconstitutional without a showing that the drugs are in the defendant’s best medical interest, because it may interfere with the Sixth and Fourteenth Amendment rights to a full and fair trial and a due process liberty interest in freedom from unwanted drugs.

Riggins v. Nevada, 504 U.S. 127 (1992) (holding forced administration of antipsychotic drug to defendant at trial violates Sixth and Fourteenth Amendment rights where no showing that drugs given in prisoner’s best medical interest). 

Perry v. Louisiana, 498 U.S. 38 (1990) (vacating Louisiana trial court’s decision that state may administer psychotropic drugs to render mentally ill prisoner competent to be executed and remanding for reconsideration in light of Washington v. Harper, 494 U.S. 210 (1990)).

Washington v. Harper, 494 U.S. 210 (1990) (holding that forcible injection of medication into nonconsenting person’s body is substantial interference with liberty interest, but, because of state’s unique interest in prison safety and security, due process allows such involuntary treatment where there is determination that inmate is dangerous to self or others and treatment is in inmate’s medical interest).

State v. Perry, 610 So. 2d 746 (La. 1992) (holding involuntary medication of incompetent death row prisoners violates state constitutional prohibition against cruel and unusual punishment and right to privacy; Harper inapplicable because medication administered for neither protection nor medical interest of death row prisoner).

See Generally:

Keith A. Byers, Incompetency, Execution, and the Use of Anti-psychotic Drugs, 47 Ark. L. Rev. 361 (1994) (summarizing legal, medical, and ethical issues in use of antipsychotic drugs to render condemned prisoners competent for execution, and reviewing latest law on subject, including Ford, Perry, and Harper).

Kristen W. Crosby, Comment, State v. Perry: Louisiana’s Cure-to-Kill Scheme Forces Death Row Inmates to Choose Between a Life Sentence of Untreated Insanity and Execution, 77 Minn. L. Rev. 1193 (1993) (critiquing Ford and Perry, arguing drug induced competence is insufficient for execution).

M. Catherine Healy, Comment, Riggins v. Nevada: Are “Synthetically Sane” Criminal Defendants Competent to Stand Trial?, 20 New Eng. J. on Crim. & Civ. Confinement 384 (1994) (analyzing Riggins v. Nevada).

Douglas Mossman, M. D., The Psychiatrist and Execution Competency: Fording Murky Ethical Waters, 43 Case W. Res. L. Rev. 1 (1992) (analyzing psychiatrists’ ethical dilemmas of treating mentally incompetent death row prisoners).

William P. Ziegelmueller, Supreme Court Review: Sixth Amendment–Due Process on Drugs: The Implications of Forcibly Medicating Pretrial Detainees with Antipsychotic Drugs: Riggins v. Nevada, 83 J. Crim. L. 836 (1993) (reviewing Riggins and anti-psychotic drugs in general and arguing that Riggins should be read as requiring strict scrutiny of any governmental administration of unwanted anti-psychotic drugs to pretrial detainees).

NINTH CIRCUIT CAPITAL PUNISHMENT HANDBOOK - 2006

1.4.2 Competency to “Volunteer”

Courts are seeing an increasing number of death row inmates wishing to forgo their appeals, sometimes at the state level and sometimes later during federal habeas proceedings. Either the condemned’s attorney, if the condemned is represented at the time, or a next friend, will petition either the state or federal court for a competency determination. The court’s inquiry is twofold: firstly, is the condemned competent to withdraw his consent to proceed with his appeal and, secondly, is the condemned competent to be executed. See §§ 6.2.6, et. seq. and 6.3.4.4.4, infra, for additional discussion.

Dennis ex rel. Butko v. Budge, 378 F.3d 880 (9th Cir.) (holding that prisoner’s capacity to make decision to forego further appeals of his death sentence was not substantially affected by mental illness, and therefore prisoner’s former attorney failed to establish “next friend” status; holding that to establish next friend status one must (1) provide an adequate explanation–such as inaccessibility, mental incompetence, or other disability–why the real party in interest cannot appear to prosecute the action; and (2) next friend must be truly dedicated to the best interests of the person on whose behalf he or she seeks to litigate; also holding that evidence showing that prisoner’s decision to seek execution is the product of a mental disease does not show that prisoner lacks the capacity to make a rational choice and that it is the latter that matters; concurring in the judgment, Judge Berzon would explicitly adopt the three-pronged approach of Rumbaugh v. Procunier, 753 F.2d 395 (5th Cir.1985): (1) Is the person suffering from a mental disease or defect? (2) If the person is suffering from a mental disease or defect, does that disease or defect prevent him from understanding his legal position and the options available to him? (3) If the person is suffering from a mental disease or defect which does not prevent him from understanding his legal position and the options available to him, does that disease or defect, nevertheless, prevent him from making a rational choice among his options), cert. denied, 542 U.S. 959 (2004).

Miller v. Stewart, 231 F.3d 1248 (9th Cir.) (staying execution and remanding for hearing whether petitioner is competent to elect to die; finding that state court’s Faretta hearing in 1998 did not address issue whether in November 2000 petitioner is competent to forgo his federal habeas appeals; finding next friend status of petitioner’s former attorney sufficient for evidentiary hearing. But see dissent by Rymer, J., finding that next friend did not make threshold showing of petitioner’s incompetence and concluding that evidentiary hearing not warranted), stay vacated sub. nom. Stewart v. Miller, 531 U.S. 986 (2000).

John H. Blume, Killing the Willing: “Volunteers,” Suicide and Competency, 103 Mich. L. Rev. 361 (2005) (summarizing the current legal standards for volunteering and assisted suicide and proposing a standard for assessing waiver which takes in takes into account the prevalence of a suicidal motivation among volunteers).