In Ford v. Wainwright (1986), the U.S. Supreme Court banned executing the mentally ill, but it wasn’t a unanimous decision.  In a dissenting opinion, Justices Rehnquist and Burger warned that this would invite people to falsely claim insanity.  Echoing this statement more recently, Justice Scalia argued that banning the execution of the mentally retarded would turn capital trials into a “game” because inmates have nothing to lose.  A new study has examined cases since 1986 in which death row inmates have filed claims of mental incompetence and found that spurious claims are a public misconception.

Since 1986, 1,280 people have been executed in the U.S. and 5,724 people sentenced to death (as of this study).  Of the 1,307 people the study considered as “Ford-eligible”, or those cases that reached the point of which a Ford claim was made (these claims are usually made last), only 6.6% filed claims they were not competent to be executed.  Of the cases decided on merit (66 of the 86 cases), 22% of incompetence claims were successful.  A rather large success rate compared to other post-conviction motions in capital cases.  No other claims have a roughly 1 in 4 success rate.

A large majority (62.6%) of inmates whose claims of insanity or incompetence were decided in court had well-documented histories of mental illness, showing legitimacy, even in many of the unsuccessful cases the defendant had this evidence.  In only 18.7% of cases (or 17 of 91 cases), prosecutors suggested that the defendant was feigning mental illness to avoid execution.  The prosecution’s allegation of malingering existed in 1/4th of successful insanity claims as well.

In more than 50% of execution competency cases, competency claims were brought earlier in the case.  25% of inmates who brought successful “competency to be executed” challenges were previously found incompetent to stand trial.  This may point to a failure in pretrial competency procedures.

There was no meaningful difference in the number of people filing competency claims before and after the U.S. Supreme Court decisions that executing the mentally ill and the mentally retarded was unconstitutional.  Despite criticisms it would cause a “flood” of false claims.

Examining success rates, the authors found that white inmates challenged their competency at a success rate of 9.5% even though they make up the largest racial group on death row, African American inmates had a success rate of 31.6%, Hispanic inmates and Native Americans, Asians, and other inmates had success rates of 28.6% and 50% respectively.

Why are African Americans significantly more likely to be found incompetent to be executed?  There are a number of possibilities:

  • Greater judicial willingness to find African Americans incompetent to be executed.
  • Death row inmates with severe mental illness may be treated differently or diagnosed differently based upon race.
  • The effects of long-term confinement may affect different racial groups differently.

The study stated that their best theory on this issue is that at the trial level, African American defendant’s symptoms are more likely to be written off as cultural rather than an illness and racial bias may lead to positive competency findings when the person is not competent.  It is also possible that juries see mental illness as an aggravating factor rather than a mitigating factor more often in African American cases then others.  Whatever the cause, more mentally ill African Americans are found competent to stand trial and be sentenced to death and later found incompetent to be executed.

Success rates do vary by state.  In slightly more than half of death penalty states, not a single individual has been found incompetent to be executed.  In the remaining cases, the success rate is 21.9% to 100% (one person filed for incompetency and was granted the stay).

Some of the study’s conclusions:

  • The fears that frivolous claims would overload the system have not materialized.
  • Claimants often reflect a failure of previous competency tests.  In other words, a “back end” attempt to fix a “front end” issue.
  • An empirical study 6 years ago into Scalia’s fears showed that there was no wave of spurious mentally challenged claims (Atkins v. Virginia).  Only 7% of death row inmates maintained they could not be executed due to being mentally challenged.  Of those, there was a 40% success rate.
  • 5 – 10% of death row inmates are conservatively estimated to have severe mental illness, total claims are lower than this figure, meaning that less claims are being made than could be made.
  • All relevant measures suggest that fears that floodgates are opening, “sport” litigation is rising, or inmates are attempting to “cheat the executioner” are unfounded.
  • In 54.9% of unsuccessful claims, the prisoner had previously challenged competency and in 11.3% of those cases, the prisoner was found incompetent, but later “became” competent and was executed.
  • The failures of pre-trial competency (or competency to stand trial) assessments could be to blame for the executing of the mentally ill.  The competency to stand trial standard is notoriously easy to pass and is seen as very pro-competency.  The study states, “If the old adage that you can indict a ham sandwich is true (and it is), that same ham sandwich would also almost certainly be found competent to stand trial.”  Improvements in medications may also be to blame, many mentally ill prisoners are treated with therapies and medications, so their symptoms may become “masked”, but not cured.
  • Some successful incompetency claims were cases where the defendant should have been found incompetent to stand trial in the first place.

Many people believe that a death row inmate would have nothing to lose when at their last appeal for a stay (usually an insanity appeal or Ford claim), but the study offered several explanations as to why this would not happen:

  • An inmate does not wish to resist execution.  Some people do “volunteer” for execution and forgo appeals.
  • For a competent prisoner, Ford claims only stay an execution for the duration of the evaluation or incompetency.  The period of time for a “malingerer” would be relatively short.
  • The current competency assessment standards, while vague, are very stringent and hard to satisfy.
  • Defense attorneys are aware of the high standard and are also aware of the hostility toward incompetency claims, so they are less likely to argue incompetency to be executed.

Read the study here:  Killing the Oblivious:  An Empirical Study of Competency to be Executed Litigation by John H. Blume, Sheri Lynn Johnson, and Katherine Ensler.  Blume and Johnson are professors of law and work at the Cornell Law School’s Death Penalty Project.  Ensler is the clerk of the U.S. Court of Appeals for the 10th Circuit Judge Stephanie Seymour.

The study did not answer the question of whether incompetent defendants are being executed or at what rate.

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