Competency for Execution in the Wake of Panetti: Shifting the Burden to the Government
Volume 82, No. 5, Spring-Summer 2010
By Danielle N. Devens

Approximately two hundred prisoners sitting on death row are mentally ill. Distinguishing mental illness from legal insanity can be a difficult exercise in line drawing, and additional complications arise when determining what procedure is required to protect the constitutional rights of the insane. These matters can be so difficult, in fact, that when handling these issues the Supreme Court tends to leave many of the details up in the air for the states to determine as they see fit.

In Ford v. Wainwright, the Supreme Court unequivocally determined that the Eighth Amendment prohibits executing the insane, but it chose not to define insanity, instead leaving it for the states to determine. This issue returned to the Supreme Court in 2007 when Scott Panetti, a capital defendant alleging he was incompetent for execution, challenged the insanity standard set by the Texas courts, which required only awareness on the part of the defendant of his crime and his punishment. While the Supreme Court held that in order to be competent for execution a prisoner must have more than mere awareness—he must have a rational understanding of the State’s rationale for his execution —it chose not to set out the procedures that must be afforded to the prisoner alleging incompetence for execution. On remand, the district court decided to place a double presumption against the allegedly incompetent defendant—first the defendant must make a substantial showing of insanity to trigger a hearing, and ultimately the defendant must prove by a preponderance of the evidence that he is incompetent to be executed.

The case has been appealed and will likely find its way back up the court system for a more intricate description of the rights that should be afforded to defendants alleging incompetence for execution. It is also just one illustration of the issues faced by defendants attempting to navigate the requirements for incompetency that the Supreme Court has never really finished articulating.

This Comment explores the law leading up to this point in competency for execution, and argues against placing a double burden on the defendant claiming incompetence for execution. Placing the initial burden of triggering the hearing process on the defendant is necessary in order to avoid constant litigation, and is in line with the precedent that a defendant is presumed sane. This Comment argues that once the defendant has triggered that hearing process, the presumption of sanity vanishes and the burden should then shift to the government to prove the defendant’s competence.

Part II of this Comment presents an overview of the relevant law. Part II.A discusses the relationship between mental illness and capital punishment, as well as Supreme Court precedent in other relevant areas such as competency for trial and competence for self-representation. Part II.B discusses competency for execution prior to the Panetti case including the landmark case of Ford v. Wainwright. Part II.C discusses the Panetti opinion in both the lower courts and the Supreme Court.

Part III makes several distinct arguments as to why the burden of proof should fall on the government to prove a defendant’s competency for execution. Part III.A argues that it is inappropriate to place the burden of proof on the defendant because a claim of incompetence for execution is based on contemporary information that was not available at a prior time for litigation. Generally, a defendant attempting to litigate new information is not required to shoulder the burden of proof.

Part III.B describes the clear precedent that has been set throughout death penalty jurisprudence that greater precautions must be taken when a defendant’s life is at stake. This Comment argues that placing a double burden of proof on an allegedly incompetent defendant sentenced to death flies in the face of capital jurisprudence. Part III.C discusses a line of cases culminating in Ring v. Arizona which held that aggravating factors must be treated as akin to essential elements of a crime because absent aggravating factors the defendant cannot be sentenced to death. This Comment argues that following the Ring reasoning, sanity should be considered an essential element of an offense, and accordingly, the prosecution should be required to prove sanity beyond a reasonable doubt in a competence-for-execution proceeding. Finally, Part III.D argues that while the Supreme Court set an appropriate standard for insanity in Panetti, the district court erred in its application of that standard, an error which never would have occurred but for the district court’s double presumption against Panetti.

Overall this Comment argues that not only did the Panetti district court incorrectly assess whether the defendant was insane, but that going forward the double burden should be rejected and the government should shoulder the ultimate burden of proving the defendant competent for execution. Placing the ultimate burden on the government will alleviate the constitutional violations that are sure to follow a procedure that makes death the default position for a defendant of questionable competency.

Read Comment…