The Undiscovered Country: Execution Competency & Comprehending Death

Kentucky Law Journal, Vol. 98, pp. 263-299, 2009/2010

38 Pages Posted: 5 Feb 2010

Date Written: February 4, 2010


The United States Supreme Court has not created a clear Eighth Amendment standard to determine whether or not a capital defendant is competent to be executed. Justice Thomas best summarized the confusion about the Court’s jurisprudence in this area when he criticized the 2007 majority’s opinion in Panetti v. Quarterman as “a half-baked holding.”

This Article addresses one execution competency issue that has been left open by the Court: the question of to what extent a mentally ill capital defendant must understand the concept of death. In other words, to be competent to be executed, must a mentally ill defendant comprehend that execution means the end of one’s physical life?

This Article considers the historical development of the ban on executing the insane, a ban with a murky history that has been passed down from medieval times and through Blackstone and English common law to modern day international law. Because of a long historical pedigree, the Supreme Court essentially accepted the ban as a constitutional given in 1986.

The justifications for the ban, however, need to be the foundation for fashioning a standard out of the Court’s opinions. The Article examines the Supreme Court precedent regarding the ban, statutory definitions of competency, and the other court decisions that have begun to consider whether or not there should be a requirement that a mentally ill defendant can comprehend the end of life to be competent. The Article examines the policies behind the ban, and it uses them to conclude that the history and precedent require a death comprehension standard. The Article proposes a standard that is consistent with the historical underpinnings of the ban on executing the insane and that is consistent with Supreme Court precedent.

Keywords: Capital Punishment, Death Penalty, Competency, Competent, Insane, Insanity, Ford, Panetti, Mental Illness, Mentally Ill, Competent to be Executed, Execution Competency, Execution, Eighth Amendment

JEL Classification: K14, K10, K40, K00

Suggested Citation

Kirchmeier, Jeffrey L., The Undiscovered Country: Execution Competency & Comprehending Death (February 4, 2010). Kentucky Law Journal, Vol. 98, pp. 263-299, 2009/2010, Available at SSRN:

Jeffrey L. Kirchmeier (Contact Author)

CUNY School of Law ( email )

2 Court Square
Long Island City, NY 11101
United States

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