The Supreme Court's decision in Ford v. Wainwright held that the eighth amendment prohibits execution of the insane. As a result, prisoners awaiting execution now have a constitutional right not to be executed if they are found incompetent. By constitutionalizing what had been largely a common law or statutory right, the Court also instructed states to establish procedures to insure that execution of the insane did not in fact occur. Historically, those procedures that governed the determination of competency to suffer execution centered around "competency to be executed examinations" performed by mental health professionals. Many of these procedures failed to take into account ethical and practical dilemmas inherent in the performance of such examinations. Today most states, including Nebraska, have yet to reform their laws to comply with the Court's holding in Ford. The purpose of this Comment is to present a psycholegal analysis examining how psychology may best be considered when constructing constitutional statutes. Part II of this comment outlines the contours of the legal context which govern "competency to be executed" evaluations. Primarily, this is accomplished by noting the recent Supreme Court decision that both establishes a substantive right for prisoners and suggests procedures a state may adopt to safeguard this right. Part III explores the nature of the specific assessment of competency by examining both legal and psychological tests. Specifically reviewed are the ethical and practical considerations facing an evaluator called upon to perform a ''competency to be executed" evaluation. In Part IV, Nebraska's current statutory procedure for determining competency to suffer executions is analyzed and shown to be constitutionally defective. Finally, recommendations are made to both remedy Nebraska's statute and facilitate the interaction of law with psychology in conducting assessments of competency to suffer execution.
Mark A. Small,
Performing "Competency to Be Executed" Evaluations: A Psycholegal Analysis for Preventing the Execution of the Insane,
67 Neb. L. Rev.
Available at: https://digitalcommons.unl.edu/nlr/vol67/iss3/8