Incompetency to Be Executed: Continuing Ethical Challenges & Time for a Change in Texas

Brian D. Shannon

Texas Tech University School of Law

Victor R. Scarano



Texas Tech Law Review, Vol. 45, 2013

This Article focuses on a small, but unique group of death row inmates who have largely exhausted their post-conviction procedural rights and have a date set for execution, but while awaiting execution have become incompetent to be executed because of serious mental illness. The United States Supreme Court has determined that it is unconstitutional to execute an individual who is mentally incompetent. The Court has not, however, ruled as to whether it is constitutionally permissible for a state to order a death row inmate to be medicated forcibly for the purpose of restoring that inmate’s competency to allow an execution to proceed. This Article discusses the scope of the serious ethical concerns related to this very challenging scenario, and reviews state and lower federal court decisions that have considered the issue, as well as United States Supreme Court opinions that have considered other, related medication issues concerning offenders with mental disorders. In particular, however, the Article offers and discuss a possible legislative solution that the Texas Legislature could enact that would avoid the thorny ethical and legal issues that are at stake in such cases.

Number of Pages in PDF File: 33

Keywords: death row, inmates, post-conviction, procedural rights, execution, incompetent, mental illness, Supreme Court, mentall incompetent, force, medication, ethical concerns, offenders, mental disorders, legislation, Texas

JEL Classification: K19

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Date posted: September 7, 2012 ; Last revised: July 11, 2014

Suggested Citation

Shannon, Brian D. and Scarano, Victor R., Incompetency to Be Executed: Continuing Ethical Challenges & Time for a Change in Texas (2012). Texas Tech Law Review, Vol. 45, 2013. Available at SSRN: https://ssrn.com/abstract=2142845

Contact Information

Brian D. Shannon (Contact Author)
Texas Tech University School of Law ( email )
1802 Hartford
Lubbock, TX 79409
United States
806-742-1355 (Phone)
806-742-0251 (Fax)
Victor R. Scarano
Independent ( email )
No Address Available
Feedback to SSRN

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