Meaningful consideration of competence to be executed

Over 20 years ago, the Supreme Court, in Ford v. Wainright (1986), ruled that the United States Constitution prohibited the execution of incompetent inmates. The Ford court, however, did not identify the rationale(s) for this Constitutional prohibition, or the specific abilities and capacities required of men and women facing execution. As a result, lower courts came to different conclusions regarding what factors should be considered when the competence-related abilities of condemned inmates were raised as an issue, and mental health professionals asked to assess inmates whose competence-related abilities were questioned developed a variety of assessment strategies. This lack of clarity was partly addressed by the Supreme Court's recent decision in Panetti v. Quarterman (2007). In the second case it has heard regarding the issue of competence to be executed, the Court offered more specific guidance regarding not only the Constitutional basis for the prohibition against executing incompetent persons, but also exactly what capacities an inmate must have before the ultimate sentence can be imposed. In this chapter, I review the legal background surrounding competence to be executed, discuss how a variety of psychological impairments may affect these abilities, and offer some strategies for specific assessment of these capacities.