Court Rulings Raise Questions of What Constitutes Incompetency and How is it Determined

Two recent high court rul­ings have raised ques­tions of whether death-row pris­on­ers are suf­fi­cient­ly men­tal­ly impaired to be deemed incom­pe­tent to be exe­cut­ed and who gets to make that deter­mi­na­tion. On November 7, the Arkansas Supreme Court issued an order stay­ing the exe­cu­tion of death-row pris­on­er Jack Greene (pic­tured, left) to resolve whether that state’s mech­a­nism to deter­mine com­pe­ten­cy — giv­ing the direc­tor of the Arkansas Department of Correction (“ADC”) sole dis­cre­tion to make the deci­sion — vio­lates due process. One day ear­li­er, a unan­i­mous United States Supreme Court per­mit­ted the exe­cu­tion of Alabama death-row pris­on­er, Vernon Madison (pic­tured, right), to go for­ward — despite evi­dence that strokes have left him legal­ly blind, incon­ti­nent, unable to walk inde­pen­dent­ly, and with no mem­o­ry of the offense for which he was sen­tenced to death — say­ing that the Alabama Supreme Court’s rul­ing that Madison had a ratio­nal under­stand­ing of his exe­cu­tion was not con­trary to or an unrea­son­able appli­ca­tion of clear­ly estab­lished fed­er­al con­sti­tu­tion­al law. Greene’s lawyers had argued to the Arkansas Supreme Court that Arkansas had vio­lat­ed his right to due process when cor­rec­tions direc­tor Wendy Kelley ruled him com­pe­tent to be exe­cut­ed with­out hav­ing con­duct­ed any inde­pen­dent men­tal health eval­u­a­tion or pro­vid­ing Greene’s lawyers any oppor­tu­ni­ty to con­test her deter­mi­na­tion. According to court fil­ings, Greene is severe­ly men­tal­ly ill and psy­chot­ic, delu­sion­al­ly believes that the ADC has destroyed his cen­tral ner­vous sys­tem, engages in ​“extreme phys­i­cal con­tor­tions and self-muti­la­tions” to attempt to com­bat the pain, and thinks the state and his lawyers are col­lud­ing to exe­cute him to pre­vent dis­clo­sure of the injuries he believes have been inflict­ed by the state. In his Last Will and Testament, signed on November 1, he asked that his head be sur­gi­cal­ly removed after the exe­cu­tion and exam­ined by a tele­vi­sion real­i­ty show doc­tor in an effort to prove that he has been sub­ject­ed to ​“per­cus­sion con­cus­sion brain injuries … inflict­ed by the Arkansas Department of Corrections since July 5, 2004.” His lawyers have been seek­ing a court hear­ing on Greene’s men­tal sta­tus to deter­mine his com­pe­ten­cy. In ther Alabama case, the Supreme Court reversed a deci­sion of the U.S. Court of Appeals for the 11^th Circuit that had found Madison incom­pe­tent to be exe­cut­ed. The fed­er­al appeals court had reject­ed the state court’s find­ing that Madison was aware of the rea­sons for his impend­ing exe­cu­tion, say­ing that because of his stroke-induced ​“mem­o­ry loss, dif­fi­cul­ty com­mu­ni­cat­ing, and pro­found dis­ori­en­ta­tion and con­fu­sion,” he lacked an under­stand­ing of the ​“con­nec­tion between his crime and his exe­cu­tion.” The Supreme Court reversed the low­er court’s deci­sion, hold­ing that there was no clear­ly estab­lished law con­cern­ing when ​“a pris­on­er is incom­pe­tent to be exe­cut­ed because of a fail­ure to remem­ber his com­mis­sion of the crime,” as ​“dis­tinct from a fail­ure to ratio­nal­ly com­pre­hend the con­cepts of crime and pun­ish­ment as applied in his case.” Prosecutors in Arkansas said that they will not seek rehear­ing of the deci­sion in Greene’s case, and state attor­neys in Alabama have not yet asked for an exe­cu­tion date for Madison.

(N. Baptiste, ​“Arkansas Supreme Court Just Halted Execution of a Severely Mentally Ill Man,” Mother Jones, November 7, 2017; J. Moritz & Associated Press, ​“Arkansas Supreme Court halts death-row inmate’s exe­cu­tion; attor­ney gen­er­al won’t appeal deci­sion,” Arkansas Democrat-Gazette; J. Rosenberg, ​“Arkansas Supreme Court stays exe­cu­tion of Jack Greene,” Arkansas Times, November 7, 2017; A. Chung, ​“Supreme Court revers­es rul­ing spar­ing killer who for­got the crime,” Reuters, November 6, 2017; I. Hrynkiw, ​“Supreme Court rules Alabama death row inmate can be exe­cut­ed,” Birmingham News, November 6, 2017; A. Liptak, ​“Justices Allow Execution of Inmate Who Cannot Recall His Crime,” New York Times, November 6, 2017.) Read Statement from Jack Greene’s Attorney. See Stays of Execution, Mental Illness, U.S. Supreme Court.