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An Evolution of Execution: The Mentally Ill and the Eighth Amendment

Written by Colin Crawford

Mental illnesses have historically proven to be an obstacle in the legal realm. As the stakes in a legal situation increase, so too does the need for greater legal competence. The measure of an individual’s legal competency–which is a standard of mental capacity–requires a mental capacity test. A mental capacity test assesses reasoning, the ability to comprehend information to communicate a response or decision, and an understanding of one’s circumstances.[1] The third component—an understanding of one’s circumstances—has been a factor in capital punishment decisions involving mentally ill defendants under the Eight Amendment’s Cruel and Unusual Punishment clause. Such a clause prohibits punishment that is deemed unacceptable due to pain and humiliation. This inability to understand one’s circumstances can result in failure to comprehend the reasoning behind one’s execution or failure to remember one’s crime due to mental disease. In cases like Ford v. Wainwright, Panetti v. Quarterman, and Madison v. Alabama, applying the legal standard of mental capacity to capital punishment under the Eight Amendment has significantly narrowed. Thus, the past four decades have gradually seen qualifiers on capital punishment exemptions.

In 1974, Alvin Ford was charged with murder and, upon being found guilty, given the death penalty in Florida. Throughout his trial process, Ford’s mental capacity was never questioned. But following his sentence, Ford and his lawyers appealed because they argued his mental capacity made him unfit for a fair trial and execution.[2] Eight years into the appeal process, Ford began to show revealing signs of both incompetence and insanity. In one instance, Ford read a newspaper article about the Ku Klux Klan and believed he was a member. On another occasion, Ford accused prison guards of killing people and torturing his female relatives.3 Later, he convinced himself he was Pope John Paul III. In addition to these questionable behaviors, Ford spoke to his lawyers in code that he created and only he understood, which compelled them to request a psychiatrist’s evaluation of his condition. After over a year of assessment, the psychiatrist concluded Ford had contracted a critical mental condition that impaired his ability to help his lawyers appeal his death sentence. Per a Florida statute to assist in determining the mental capacity of an inmate, Florida Governor Reubin Askew appointed three psychiatrists to assess whether Ford could comprehend the death penalty and why he received it. Ultimately, psychiatrists concluded he was capable enough to understand his death sentence, despite confirming he suffered from a mental health issue. This decision gave Askew authority to sign Ford’s death warrant. Ford’s lawyers then asked for a hearing to question the three psychiatrists, but the Governor’s office denied the request. After petitioning the federal district court to review Ford’s ruling, the court denied the appeal. Ford further appealed this rejection by filing a writ of habeas corpus; unfortunately, the U.S. Court of Appeals for the Eleventh Circuit agreed with the district court that Ford was not entitled to a hearing.[3]

Following that decision, Ford was granted certiorari in 1985 by the United States Supreme Court on the basis of the Eighth Amendment. The Court was tasked with deciding whether the Amendment allowed Florida to sentence a psychologically incompetent individual to death. Did the protection against Cruel and Unusual Punishment prohibit capital punishment for the incompetent or insane? In Ford v. Wainwright, 477 U.S. 399 (1986), a 7-2 Supreme Court majority overwhelmingly ruled in favor of Ford. The Court wrote that (1) executing the insane “simply offends humanity” and (2) the competency of procedures executed by the appointed psychologists was inadequate.5 In an incredibly impactful concurrence, Justice Powell determined that “the test for whether a prisoner is insane for Eighth Amendment purposes is whether the prisoner is aware of his impending execution and of the reason for it.”[5] Powell’s reasoning created the first legal precedent for capital punishment for the mentally ill. Specifically, the Court found that such individuals are absolutely protected from capital punishment by the Eight Amendment’s Cruel and Unusual Punishment clause. Over the years, however, similar cases transformed this broad standard.

In 1992, Scott Louis Panetti received the death sentence for the murder of his wife’s parents in Texas. Nine years later, Panetti petitioned the state court to examine his competency before execution. The court subsequently appointed a psychologist and psychiatrist who both deemed Panetti competent. The state court then denied Panetti’s petition without a hearing; however, upon petitioning the federal district court for a writ of habeas corpus one year later, “the district court found error in the state court’s failure to hold a competency hearing, pursuant to Ford v. Wainwright.” Thereafter, the district court held a hearing and observed that each mental health professional found Panetti had some form of mental illness due to his impaired cognitive processes, delusional character, and belief that he was being executed for “preaching the gospel.”[6] Regardless, the court maintained its original decision. Panetti appealed to the Fifth Circuit Court as his counsel still believed him too incompetent for execution. The Fifth Circuit Court agreed with the district court because “Panetti’s awareness of the essential facts of his impending execution” justified his execution, regardless of whether Panetti had a rational understanding of the reasons for his execution.[7] After Supreme Court review in the case of Panetti v. Quarterman, 551 U.S. 930 (2007), Justice Anthony Kennedy wrote for a 5-4 majority that, “We do not attempt to set down a rule governing all competency determinations.”[8] Instead, the Court opted to wait on expert psychiatric evidence that determined which delusions might distort an inmate’s sense of reality. However, the Court did rule that the Eighth Amendment prohibits a state from executing individuals whose mental capacity prevents rational comprehension of the reasoning behind their punishment. Thus, they reversed and remanded the Fifth Circuit Court’s ruling, arguing that it employed an incorrect interpretation of Ford by failing to consider how Panetti’s gospel-preaching delusion may have prohibited him from reasonably comprehending the rationale for his punishment.[9] In Panetti v. Quarterman, the Court thus cemented the notion that rational comprehension of the reasoning behind an inmate's execution should be considered.

In April 1985, Corporal Julius Schulte of the Mobile Police Department received a report that Cheryl Greene’s child was missing. Investigating the report, he traveled to the house of Ms. Greene and waited for another police officer to come. While waiting, Ms. Greene and her boyfriend, Vernon Madison, argued angrily. Corporal Schulte told Madison to leave, and Madison shot and killed Schulte.[10] He was therefore convicted of capital murder. Over the next thirty years in prison, he suffered two strokes that severely impaired his cognitive abilities, most importantly developing vascular dementia and subsequent memory loss. As a result, he claimed to have no memory of Schulte’s murder. Court-appointed doctor Karl Kirkland affirmed Madison’s mental incapacities but claimed that Madison had a rational understanding of his past crime and reasons for punishment. The state court therefore found Madison eligible for the death penalty.[11] After Madison attempted several appeals, the Supreme Court decided to hear the case in 2018. Written by Justice Kagan, the Court’s 5-3 majority opinion held that if “a person lacking memory of his crime [can] rationally understand why the State seeks to execute him,” then the Eighth Amendment does not prohibit execution. But, “if a person suffering from dementia may be unable to rationally understand the reasons for his sentence,” the Eighth Amendment does prohibit execution. The Supreme Court also ruled that the district court inaccurately interpreted the results of Ford and Panetti to reach its initial decision. The Court remanded the case to further review Madison’s ability to rationally comprehend the reasons for his punishment.[12] In Madison v. Alabama, 586 U.S. ___ (2019), the Court maintained the standard of rational comprehension introduced in Panetti but further specified that execution is prohibited if rational comprehension is hindered by dementia or psychosis.

Across forty years and three major court cases, the Supreme Court’s position on capital punishment for the mentally ill has evolved from a broad stance to a more specific one. This is likely a result of advancements in mental health research, the composition of each Court, and the individual circumstances of each case. In Ford, the Court delivered its most far-reaching decision of the three cases, ruling that anyone mentally incompetent or psychologically insane cannot be executed under the Eight Amendment. In Panetti, the Court made an important distinction to this legal standard by applying the “rational comprehension” rule. And in Madison, the standard was narrowly tailored to include that execution may be prohibited if rational comprehension is affected by mental disorders like dementia or psychosis. Such a transformation in the legal guidelines for executing insane criminals exemplifies how judicial interpretations can either expand or restrict constitutional law. This principle holds especially true in the specified capacity of the Eighth Amendment’s protection of capital punishment and the mentally ill.


[1] Alec Buchanan, Mental capacity, legal competence and consent to treatment, 97 J R Soc Med 415-420 (2004),

[2] Steven J. Huff, Ford v. Wainwright, Statutory Changes and a New Test for Sanity: You Can’t Execute Me, I’m Crazy, 35 Cleveland State Law Review (1987),

[3] Ford v. Wainwright. 477 U.S. 399, 106 S. Ct. 2595, 91 L.Ed.2d 235 (1986),

[4] Kevin E. Cox, Note, Execution of the Insane Criminal: Ford v. Wainwright, 41 SW L.J. 745 (1987),

[5] Supra note 3.

[6] Kristin H. Cuellar, U.S. Supreme Court Must Prevent Execution of Scott Panetti, TCADP (2014),

[7] American Psychological Association, Panetti v. Quarterman Amicus Brief (2007),

[8] Panetti v. Quarterman. 551 U.S. 930, 127 S. Ct. 2842, 168 L.Ed.2d 662 (2007),

[9] Panetti v. Quarterman. 551 U.S. 930, 127 S. Ct. 2842, 168 L.Ed.2d 662 (2007),

[10] Madison v. Alabama. 568 U.S. ___, 139 S. Ct. 718, 203 L.Ed.2d 103 (2019),

[11] Id.

[12] Id.

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