Competency for Execution: The Implications of a Communicative Model of Retribution

Abstract

In Panetti v. Quarterman, 551 U.S. 930 (2007), the United States Supreme Court opined that executions of mentally incompetent inmates lack retributive value and, for that reason, violate the Eighth Amendment. To date, however, the Court has failed to articulate a theory of retribution that makes sense of the ban on executing the incompetent. Importantly, the purely desert-based view of retribution that is the focus of most of the Court’s Eighth Amendment jurisprudence cannot account for the ban.

This article attempts to articulate a theory of retribution that accounts for the Eighth Amendment ban and then explores the procedural and substantive implications of that theory. It argues that only a two-pronged theory of retribution adequately explains the ban: the quantum of punishment is a function of the offender’s moral desert, but the justifying aim of the punishment is communicative. Under this model, executions have retributive value only when the condemned inmate (1) deserves the punishment (moral desert prong), and (2) is capable of understanding the message the punishment is intended to send (communication prong).

When considered in light of this theory of retribution, the Court’s due process holding in Panetti (as carried over from Ford v. Wainwright) is flawed. The article argues that the communicative model compels the conclusion that condemned inmates are entitled to at least the same procedural protections defendants receive at determinations of competency to stand trial. Finally, the article explores a variety of potential substantive tests for competency for execution, concluding that either ABA Resolution 122A(3)(iii) or a modified psychosis test would satisfy the Eighth Amendment.

Keywords: competency for execution, Panetti, incompetent to be executed, communicative retribution, Eighth Amendment, ABA Resolution 122A