Declining Competency: Protecting Defendants with Worsening Mental Illness on Death Row from the Death Penalty

In 1986, in Ford v. Wainwright, the U.S. Supreme Court held that the Eighth Amendment’s protection against cruel and unusual punishment exempts anyone deemed incompetent from receiving the death penalty. In 2007, in Panetti v. Quarterman, the Supreme Court attempted to define incompetency, citing a lack of rational understanding of the reasons for and consequences of a death sentence. The Court appeared to expand the scope of incompetency in 2019, in Madison v. Alabama, by exempting those with any mental condition, not only diagnosed mental illnesses, provided that they lack a rational understanding. Nevertheless, the presumption of competency deprives the Ford protection of practical meaning, enabling experts and courts to overlook the purpose of a rational understanding, along with a defendant’s declining mental health on death row. This Note first shows how competency-for-execution challenges are not only rare, but largely unsuccessful. This Note then argues that, although a categorical exemption from the death penalty based on mental illness is both unlikely and normatively undesirable, the presumption of competency should be reversed at the time of execution to account for the detrimental impact on death row for defendants with past or present signs of Serious Mental Illness.