The Register Report, Fall 2007 Working Together: Integrated Health Care Limiting Execution of the Mentally Ill: Highlights of the 2006-2007 Term of the Supreme Court by Steven R. Smith, J.D. Return to Table of Contents

The 2006-2007 Term of the U.S. Supreme Court is described by most Court watchers as evidencing a shift to the right. While there is truth in this conventional wisdom, it would be simplistic and somewhat early to diagnose this as a long-term trend.

In many ways, this was a Term that focused on Justice Anthony Kennedy. In a Term with an unusual proportion of 5-4 decisions, Justice Kennedy was on the prevailing side in each one of the 54 cases. He also wrote many of the most important opinions. John Roberts may be the Chief Justice, but Anthony Kennedy was the Deciding Justice.

During the Term the Court decided several cases of interest to psychologists. The Court:

-Limited the execution of the mentally ill by expanding hearings to determine competency to be executed and by broadening the definition of incompetency in this context.

-Narrowed the permissible use of race-based school assignments by public schools.

-Exempted home health care workers from federal wage and hour laws, even when these persons are hired by agencies rather than directly by families.

-Decided several cases involving the makeup of capital juries and instructions to juries in capital cases.

-Further limited punitive damages in civil cases.

-Decided other important cases involving the federal False Claims Act, civil rights and disabilities claims, immigrants’ rights, the Clean Air Act, free speech rights of students and campaign finance reform.

After reviewing these and other cases of the Term, this article will turn to an analysis of the Term and its meaning for psychologists.

EXECUTING THE MENTALLY ILL

In 1986 the Court determined that the Eighth Amendment to the Constitution “prohibits a state from carrying out a death sentence upon a prisoner who is insane.”1 This Term, in a 5-4 decision, the Court clarified some procedural issues and considered the standard to be used in determining when the persons with mental illness may be executed.2

The law uses the term incompetency to mean several different things. It may describe persons who are not legally capable of making business and personal care decisions for themselves (guardianship or conservatorship). It may also refer to someone who does not have sufficient mental capacity to make a valid will. Mental health professionals frequently address incompetency questions raised before the beginning of a trial, where they are called upon to help courts determine whether someone is capable of standing trial. The test for competency to stand trial is whether defendants are capable of understanding the charges against them and mentally able to assist in their own defense. Psychologists may also be called upon to help courts determine whether defendants are competent to waive counsel and represent themselves at trial or whether they were competent to waive certain rights when a confession was given.

These forms of incompetency are frequently confused with the insanity defense. They are, however, quite different in terms of relevant time, standards, consequences and procedures. Insanity concerns the mental state of the defendant at the time the crime was committed; incompetency to stand trial involves the mental state of the defendant at the time of trial. As contrasted with the standard for competency to stand trial (whether the defendant can reasonably assist with and participate in the trial), the standard for insanity is whether the defendant knew at the time of the crime what he or she was doing, and that it was wrong. The consequence of a successful insanity plea is that the defendant is found not guilty; the consequence of being found incompetent to stand trial is that the trial is delayed and the defendant can be tried once competency is restored. In short, incompetency is not a defense to the crime, but insanity is.

Competency to be executed focuses on the mental state of a capital defendant near the time a person is scheduled to be executed. As some have put it: The question is whether the defendant is too crazy to be hanged. A defendant may have been competent to stand trial and make other important trial decisions, but later became crazy, so psychotic or delusional as to preclude his execution. The consequence of being found incompetent to be executed is that the execution must be delayed until the competency of the defendant is restored.

The cruel and unusual punishment prohibition of the Eighth Amendment precludes the execution of someone who, because of mental illness, is unable to comprehend the reasons for the penalty or its implications. Put another way, it “forbids the execution of those who are unaware of the punishment they are about to suffer and why they are to suffer it.”3 There is a long history of not executing the incompetent. The reasons for precluding the execution of the incompetent include that it “provides no example to others” and therefore is not really a deterrent, that it is “uncharitable to dispatch an offender into another world when he is not of a capacity to fit himself for it,” and that executing the insane “simply offends humanity.”4 In Panetti v. Quarterman the Court first faced a procedural question of whether the defendant could raise his claim in a federal habeas corpus (a traditional legal challenge to the legality of being held or executed) proceeding under the provisions of the Anti-Terrorism and Effective Death Penalty Act of 1996. The Court narrowly held that he could bring this habeas claim. continued

 

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