Death Penalty Jurisprudence: “Ford v. Wainwright”

In keeping with our common-law judicial system, it would be prudent to review a few of the Supreme Court’s prior cases that discuss executions of those suffering from mental conditions and/or those whose competency to be executed is in question. Indeed, in Madison v. Alabama, the first question presented before the court directly references two such cases (Ford v. Wainwright and Panetti v. Quarterman) and asks whether executing Mr. Madison comports with the Court’s decisions in those two cases. Thus, the first of these cases we will review is Ford v. Wainwright, 477 U.S. 399 (1986). In short, Ford discussed whether executing a prisoner who is insane violates the Eighth Amendment’s Cruel and Unusual Punishment Clause.


Case Background

In 1974, Alvin Bernard Ford was convicted of murder and sentenced to death. At no point during his offense, trial, or sentencing was there any indication of Ford’s incompetence to be executed. However, beginning in 1982, he began to display changes in his behavior. He became fascinated with the Ku Klux Klan and conjured up the idea of a conspiracy involving the KKK and others designed to force him to commit suicide. Ford also believed the prison guards were taking his family members hostage. This idea continued to expand until Ford claimed the list of hostages included Senator Ted Kennedy, “other political leaders,” and 135 of Ford’s family members. He began to refer to himself as “Pope John Paul, III,” and claimed to have appointed nine new Florida Supreme Court Justices.

Ford’s counsel then tasked two psychiatrists with evaluating Ford’s competency to be executed. The first psychiatrist determined that Ford suffered from “a severe, uncontrollable, mental disease which closely resembles Paranoid Schizophrenia With Suicide Potential.” The second psychiatrist concluded that Ford “had no understanding of why he was being executed, made no connection between the homicide of which he had been convicted and the death penalty, and indeed sincerely believed that he would not be executed because he ‘owned the prisons’ and ‘could control the Governor [of Florida] through mind waves.’”

The Governor then appointed three different psychiatrists to conduct additional evaluations of Ford and his competency to be executed. The additional psychiatrists all diagnosed Ford with differing disorders but agreed that he was aware of his execution and therefore competent to be executed pursuant to Florida state law, thereby contradicting the first two psychiatrists’ competency conclusions. In response, Ford’s counsel attempted to submit additional materials, including the reports of the two previous psychiatrists. The Governor’s office, however, refused to inform counsel whether the additional materials would be reviewed. The Governor then signed Ford’s death warrant without explanation or statement. Ford’s counsel immediately filed for a hearing in state court to re-determine Ford’s competency (Ford v. Wainwright, 451 So.2d 471 (Fla. 1984)), but the hearing was unsuccessful. Ford’s counsel then filed a habeas corpus proceeding in the United States District Court for the Southern District of Florida, seeking an evidentiary hearing to determine anew Ford’s competency. The District Court denied the petition without a hearing. On appeal, the United States Court of Appeals for the Eleventh Circuit affirmed the District Court’s denial of writ (Ford v. Wainwright, 752 F.2d 526 (CA11 1985)).

The questions presented before the Supreme Court were twofold. The first asked whether the Eighth Amendment’s Cruel and Unusual Punishment Clause and the Fourteenth Amendment’s Due Process Clause bar the imposition of the death penalty upon the insane. This question is, of course, relevant to our forthcoming decision in Madison v. Alabama—the only difference being the question of insanity in Ford versus the question of cognitive ailments and resulting mental deficiencies in Madison. The second question asked whether the District Court erred when it declined to hear Ford’s habeas corpus petition. We limit our discussion on the court’s answer to this question insofar as it is not particularly relevant to the facts in Madison.


Justice Marshall’s Majority Opinion

Justice Thurgood Marshall, writing for a 5:4 majority, answered “yes” to both questions. Marshall held that: (1) due to congruent sentiments from both early common law, and contemporary state laws and public opinion, the Eighth Amendment prohibits a state from executing a prisoner who is insane, and; (2) the District Court did err in denying Ford’s insanity hearing plea. The District Court was bound by 28 U.S.C. § 2254(d) and Townsend v. Sain to review Ford’s competency de novo because Florida’s factfinding scheme failed to do so on multiple procedural fronts.

After canvassing the factual background and procedural history of the case, Marshall begins his discussion on the merits by acknowledging that interpretations of the Death Penalty and Due Process clauses have “evolved substantially” since the Supreme Court had last dealt with questions pertaining to executing the insane. Accordingly, because the Eighth Amendment was not incorporated against the states until 1962, the Court had yet to address “whether the Constitution places a substantive restriction on the State’s power to take the life of an insane prisoner.” Despite this, Marshall asserts that the Eighth Amendment’s provision against cruel and unusual punishment includes the same types of punishments that were considered cruel and unusual when the Bill of Rights was originally adopted. It also considers “the evolving standards of decency that mark the progress of a maturing society” (quoting Trop v. Dulles, 356 U.S. 86, 101 (1958) (plurality opinion)). Therefore, the Court must analyze both early common law and “objective evidence of contemporary values” to determine whether a certain type of punishment (to wit, execution of the insane) is not cruel and unusual.

Marshall cites five early common-law sources that advocate against executing the insane. Most prominently, Marshall references the oft-cited Commentaries on the Constitution by William Blackstone. Blackstone writes that a man who sanely commits a capital offense but who loses his sanity before trial should not then be brought to trial; “for how can he make his defence?” (4 W. Blackstone, Commentaries *24-*25). Similarly, if an individual loses his sanity after sentencing, he should not be executed, because “had the prisoner been of sound memory, he might have alleged something in stay of judgment or execution” (ibid.).

Marshall admits that the reasons behind the common-law consensus against executing the insane vary. Arguments include the ideas that it: offends humanity; does not contribute to the value of deterrence; violates religious ideals; is irrelevant because madness is inherently its own punishment, and; does not serve the community’s quest for equivalent retribution. The rationale behind the rule notwithstanding, however, the law itself is plain and clear: a consensus of early common law indicates that execution of the insane is cruel and unusual.

Having ascertained the common law’s stance on the issue, Marshall then turns to the contemporary values of society in regard to executing the insane. Marshall first points out that, currently, no state permits the execution of the insane, because “today, no less than before, we may seriously question the retributive value of executing a person who has no comprehension of why he has been singled out and stripped of his fundamental right to live.” He further notes that civilized societies have a “natural abhorrence” when it comes to killing an individual “who has no capacity to come to grips with his own conscience or deity,” and that this sentiment is “still vivid today.” As a result, due to widespread evidence throughout our country’s history against the humanity of such a punishment, Marshall writes that “this Court is compelled to conclude that the Eighth Amendment prohibits a State from carrying out a sentence of death upon a prisoner who is insane.”

Having answered the first question, Marshall then turns to the claim that the District Court ought to have granted the evidentiary hearing on Ford’s competency plea. In short, Marshall agrees that the District Court should have done so. (As we stated previously, our discussion on this point will be limited as it is not relevant jurisprudence to the questions presented in Madison.) He finds that Florida did not dismiss Ford’s insanity claim pursuant to the federal habeas corpus statute on two grounds. First, the Governor of Florida arbitrarily and without regard to the two original psychiatrists’ findings signed Ford’s death warrant. Second, the subsequent hearing in state court on Ford’s competency to be executed “fail[ed] to achieve even the minimal degree of reliability required for the protection of any constitutional interest, and thus [fell] short of adequacy under [Townsend v. Sain, 372 U.S. 293 (1963)].” Therefore, since Florida “denied a factfinding procedure ‘adequate to afford a full and fair hearing’” on the issue of Ford’s sanity, Ford is “entitled to an evidentiary hearing in the District Court, de novo, on the question of his competency to be executed” (quoting Townsend, at 312).


Justice Powell: Elaborating on the Standard?

Justice Lewis F. Powell, Jr., filed an opinion concurring in part and concurring in the judgment. In short, Powell argues that the majority opinion’s conclusion leaves two issues: the true meaning of “insanity” within the context of the opinion, and; the procedures states must follow so as to avoid triggering de novo review in federal courts under 28 U.S.C. § 2254(d).

Powell agrees that the common law sentiment (that the execution of the insane is “simply cruel”) is just as applicable now as before. Both early common law and contemporary values agree that most people appreciate the ability to “prepare, mentally and spiritually, for their death.” Both agree that capital punishment is justified by its retributive force, and this inherently relies on the defendant’s “awareness of the penalty’s existence and purpose.” Thus, just as in the common law, executing the insane “impose[s] a uniquely cruel penalty” and contradicts “one of the chief purposes of executions.”

Powell then attempts to carve out a standard to determine whether a mental deficiency invokes Eighth Amendment protection. He ultimately finds that “the retributive goal of [capital punishment] is satisfied” when “the defendant perceives the connection between his crime and his punishment.” Therefore, Powell holds that “the Eighth Amendment forbids the execution only of those who are unaware of the punishment they are about to suffer and why they are to suffer it.” Of course, when applied in Ford v. Wainwright, Ford’s insanity claim would “plainly fit[] within this standard” based on any of the five psychiatric reports.

Powell then discusses his differing opinion as to why the District Court erred in denying the evidentiary hearing. Due to its inapplicability to Madison, we need not discuss it in further detail.


A Half-Dissent and a Full Dissent

Justice Sandra Day O’Connor also filed a separate opinion, concurring in part and dissenting in part. She first notes that she wholly agrees with Justice Rehnquist’s dissent that the Eighth Amendment does not protect against the execution of the insane, thereby indicating her dissent from the majority opinion and its reasoning. The only reason she concurs is that she agrees with the result of remanding the case so that a state court can conduct a hearing consistent with due process requirements. She argues that “Florida positive law has created a protected liberty interest in avoiding execution while incompetent,” but Florida did “not provide even those minimal procedural protections required by due process in this area.” She also disagrees with the majority opinion on the idea that federal courts can have a role in determining a prisoner’s competency to be executed. She concludes by saying that once the case is remanded and the procedures are conducted adequately, “a federal court has no authority to second-guess a State’s substantive competency determination.”

Finally, Justice Rehnquist filed a succinct, four-page dissenting opinion, which was joined by Chief Justice Warren Burger. Rehnquist begins by arguing that the majority opinion’s reliance on both early common law and current state law regarding executions of the insane is marred by the fact that the Florida procedure (which the majority opinion found unconstitutional) is “fully consistent” with both such sources of law. He further argues that while the majority opinion gives great weight to the “common-law bar against executing a prisoner who has lost his sanity,” it does so without acknowledging that at common law, “it was the executive who passed upon the sanity of the condemned.”

Rehnquist then expands upon this claim by referencing Supreme Court precedent; namely, Solesbee v. Balkcom, 339 U.S. 9 (1950), another capital punishment case discussing whether vesting discretionary authority in a state Governor to determine sanity vel non of a condemned prisoner comports with the prisoner’s due process rights. Rehnquist first notes that the Supreme Court in Solesbee found that a stay of execution due to insanity “bears a close affinity . . . to reprieves of sentences in general.” This power to reprieve has originated from “the same source as the power to pardon,” which of course “has traditionally rested in governors or the President.” Rehnquist then attempts to point out a flaw in the majority opinion by arguing that it fails to cite any source signaling a change in any state’s determinations of sanity since the Court’s decision in Solesbee. Thus, Rehnquist argues that “Florida’s scheme,” which hinges executions of the insane upon the state executive branch’s evaluations, “is more faithful to both traditional and modern practice” than the majority opinion.

Rehnquist then moves to refute a claim by Ford arguing that Florida’s bar on executions of the insane creates a right to a determination of sanity in a trial-type procedure. Again, we decline to go into specifics on Rehnquist’s comments here because they do not substantially affect the jurisprudence of the questions in Madison.

Rehnquist concludes by raising concerns about instituting a right to a determination of sanity before the fulfillment of a sentence. In our judicial system, a defendant may raise a claim of insanity at any point before sentencing and may raise another claim if it was originally rejected. Therefore, if such a right is created, Rehnquist argues that a prisoner who is “found sane two days before execution” but who “claim[s] to have lost his sanity the next day” would be entitled to “another judicial determination of his sanity and presumably another stay of his execution.” This naturally creates a significant problem for the efficiency of our judicial system and thus is a valid concern.