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Schopp in Lousiana Law Review (1991) 51. Copyright 1991, Louisiana Law Review. Used by permission.


Contemporary American criminal law prohibits the execution of those who are not competent to face execution. The state cannot execute convicted offenders, including those who have been sentenced to death for capital crimes under valid law and through acceptable procedures, unless those offenders are competent at the time of execution. Although this requirement applies in all states that practice the death penalty and traces its heritage deep into the common law, its exact formulation remains controversial as does the appropriate rationale and the corresponding procedure.'

Five identifiable questions have troubled courts and commentators. First, what rationale justifies this requirement? Second, what is the appropriate standard of competency to face execution? Third, does the eighth amendment of the United States Constitution preclude execution of the incompetent as cruel and unusual punishment? Fourth, what procedural protection is necessary to implement this requirement? Fifth, what ethical dilemmas does this requirement raise for health care professionals who participate in the criminal justice system, and how should these clinicians resolve these issues?

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