The first section of this Article provides a brief historical overview of the proscription against executing the incompetent and the proffered rationales. This section also examines key factors contributing to the increase in the number of mentally dysfunctional condemned inmates. Then the Article explores the traditional competency-to-execute model that remains in use. This analysis will include a discussion of specific issues, such as: the term used to describe the requisite mental affliction, how that term is defined in order to identify who may ultimately benefit from the rule in Ford v. Wainwright, what standard is appropriate to determine whether an inmate is entitled to Ford's exemption from execution, and the proper consequence after the protection afforded by Ford is activated. The examination of these specific issues incorporates an assessment of the problems with the present competency-to-execute model. This section also examines two other important problems that emerge from the utilization of the present scheme: the present scheme's inability to constitutionally accommodate the issue of restoration of competency; and the current model's greater propensity to result in decisions that violate the prohibition against the arbitrary, capricious, and unpredictable imposition of the death penalty.
The final section of the Article presents a competency-to-execute plan designed to comport with the requirements of the Eighth Amendment and with the rule established in Ford. The proposed competency-to-execute plan is composed of four critical components. The first variable disposes of the archaic terms "incompetent" and "insane" and requires the adoption of an alternative term, such as "severe mental impairment." The second factor requires that this new term be adequately and uniformly defined in order to identify those condemned inmates who may ultimately become members of the exempted group. The third component requires selecting a standard to measure the degree of mental incapacitation that is necessary so a condemned inmate can exercise the substantive right granted in Ford. The last component proposes an alternative means for the final resolution of cases that satisfy the previous factors. This final section of the Article includes an analysis of several concerns that might be raised if the new proposal is adopted.
Thus, this Article advocates the design and implementation of a proposal to resolve the Eighth Amendment dilemmas left in the wake of Ford. An additional objective is that the creation and implementation of this new plan will result in a reduction of the number of executions that violate not only Ford, but also Furman v. Georgia and Woodson v. North Carolina.
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).