Evaluating competency for execution in older offenders in context of dementia

Marissa Stanziani, The University of Alabama
Jennifer Cox, The University of Alabama
Elizabeth Bownes, The University of Alabama
Keisha D. Carden, The University of Alabama
David S. DeMatteo, Drexel University

In February 2019, the Supreme Court of the United States (SCOTUS) addressed whether dementia and/or dementia-related amnesia of the crime precluded a defendant from being executed (Madison v. Alabama, 2019). Consistent with their previous holdings in Ford v. Wainwright (1986) and Panetti v. Quarterman (2007), SCOTUS reaffirmed the prohibition on the execution of an individual who lacks a rational understanding of the crime he or she committed and their impending punishment. However, SCOTUS did not make a direct determination in Madison’s case and instead remanded the case to lower courts to decide his fate. Two important rulings were proffered: (a) failing to remember the crime does not preclude an individual from execution, and (b) mental illnesses other than psychotic disorders may render an individual incompetent for execution. This article explores the confluence of factors underpinning Madison’s case and the important consequences of these rulings for mental health professionals working with the growing aging prisoner population. More specifically, this article traces the evolution of the competency for execution (CFE) standard, explores dementia and associated effects within the context of the Madison ruling, and discusses Madison v. Alabama and its implications for CFE and forensic evaluators.

death penalty, execution, dementia, competency

“Vernon Madison is a 68-year-old man who has been on Alabama’s death row for over three decades. In 1985, he was convicted of murdering a Mobile County Police Officer. While his case was retried on two occasions because of prosecutorial misconduct, his conviction and death sentence were twice affirmed. In May 2015, Madison suffered a severe stroke that rendered him legally blind with significantly impaired memory and motor function. […] Less than 1 year later, in January 2016, Mr. Madison suffered a second stroke. Jail staff discovered him incontinent and nonresponsive in his prison cell. Once revived, he presented as confused and disoriented, with signs of memory impairment. Following his second stroke, Madison’s presentation drastically changed, indicating significant memory impairment, disorientation, and communication difficulties. […] He appeared to have no memory of committing the crime for which he was sentenced to die or his impending punishment.” (p. 145)

“According to the Supreme Court of the United States (SCOTUS), the Eighth Amendment of the United States Constitution (banning cruel and unusual punishment) prohibits the execution of an incompetent individual. […] Thus, Madison’s presentation raised the question: Was he competent for execution? The answer in Madison’s case was not immediately clear. Applying the same legal standards set by SCOTUS in Ford v. Wainwright (1986) and Panetti v. Quarterman (2007), two forensic evaluators and two courts came to two different conclusions. The ambiguity of the standard outlined by SCOTUS left lower courts unable to reliably and consistently assess the constitutionality of executing an individual with dementia and no independent memory of committing the crime for which he or she is to be executed.” (p. 145)

“In February 2019 SCOTUS proffered two important distinctions. First, they opined that the simple failure to recall a crime did not categorically preclude an individual from being executed. Second, as with the psychotic disorders at issue in Ford and Panetti, SCOTUS clarified that the Eighth Amendment bars execution of an individual who does not understand why he or she is being executed, no matter the cause of the impaired comprehension.” (p. 146)

“But what does that mean? And more specifically what does that mean for forensic evaluators charged with evaluating competency for execution? These issues are the central focus of this article. After tracing the evolution of the competency for execution (CFE) standard, with particular focus on case law pertinent to forensic evaluators, we discuss aging prisoners and define dementia and its associated effects. We then examine the confluence of factors underpinning the decision in Madison v. Alabama (2019). Finally, we explore Madison’s potential consequences on CFE evaluations and suggest areas for future research.” (p. 146)

“Although the death penalty has been practiced in North America since the colonial era, the modern practice of capital punishment is typically traced back to SCOTUS’s decision in Furman v. Georgia (1972). In the Furman decision, SCOTUS effectively placed a moratorium on the death penalty. […] However, 4 years later in Gregg v. Georgia (1976), SCOTUS ruled that the death penalty is constitutional if state statutes (a) limit sentencing discretion and provide guidance to direct sentencing, and (b) allowed the sentencer to give “particularized consideration” to the character and record of the convicted.” (p. 146)

“Over the last 40 years, SCOTUS has refined the contours of the death penalty with assistance from the mental health field. […] SCOTUS also held that it was unconstitutional to execute an individual if he or she is incompetent (Ford v. Wainwright, 1986), intellectually disabled (Atkins v. Virginia, 2002), or under age 18 at the time of the offense (Roper v. Simmons, 2005). SCOTUS has also consistently emphasized the importance of individualized consideration of each case and defendant during sentencing; thus, highlighting that capital sentencing must be tailored to the individual (Eddings v. Oklahoma, 1982; Lockett v. Ohio, 1978).” (p. 146)

“Ford v. Wainwright (1986) was the first SCOTUS decision to address the constitutionality of executing incompetent individuals. In Ford, SCOTUS held that executing incompetent offenders violated the Eighth Amendment’s cruel and unusual punishment clause for five reasons: (a) executing the incompetent is offensive to humanity; (b) executing the incompetent neither exemplifies nor reaffirms the deterrence value of capital punishment; (c) individuals deemed incompetent are unable to prepare for death in a “spiritual” sense; (d) incompetency is a punishment in its own right; and (e) there is no retributive value in executing an incompetent offender.” (p. 146)

“Although the plurality opinion in Ford did not set forth a precise standard for CFE, most states followed the approach outlined in Justice Powell’s concurring opinion, which stated that the prohibition was only for those individuals “who are unaware of the punishment they are about to suffer and why they are to suffer it,” such that to be deemed competent for execution, an individual must understand the nature, pendency, and purpose of the execution. […] The American Bar Association (ABA) tendered a more robust standard, suggesting a prohibition of the execution of any individual who has a mental disorder that significantly impairs his or her capacity to understand the punishment or appreciate the reason for their punishment” (p. 146)

“For two decades, legal and mental health professions grappled with the Ford decision, while simultaneously hoping SCOTUS might reexamine the CFE standard. Panetti v. Quarterman (2007) delivered somewhat mixed results. […] SCOTUS clarified that a defendant must not only have a factual understanding of the state’s rationale for execution, but also a rational understanding of the meaning of this punishment. Although SCOTUS acknowledged that it was not creating a new standard, the Panetti decision effectively differentiated simple awareness (or factual understanding) from a rational understanding.” (p. 147)

“Conjointly, Ford and Panetti prohibited the execution of incompetent offenders and set a minimum standard of CFE. Despite these steps forward, the term “rational understanding” was undefined in Panetti. As such, states were free to create their own statutes within these bounds; thus, opening the door for potential variability between and within jurisdictions. This ambiguity is highlighted by the Madison case trajectory, with trial and appellate courts offering different interpretations of the Ford/Panetti standard.” (p. 147)

“On February 27, 2019, in a 5–3 decision, SCOTUS refrained from answering the questions of Madison’s individual CFE, but the majority opinion penned by Justice Kagan proffered two important, more general, decisions. […] SCOTUS stated a simple failure to recall the committing of a crime was not sufficient to prevent the State from executing a prisoner under Panetti. SCOTUS pointed out the Panetti decision asks whether an individual understands why he or she is facing capital punishment for a crime, not his or her memory of the offense itself.” (p. 148)

“However, Justice Kagan added that memory loss may still play an important factor in the analysis of a Panetti claim if such a loss occurs synergistically with other cognitive impairments to impede a rational understanding of the State’s reason for exacting capital punishment. […] The specific mental disorder does not matter; rather the downstream consequence of the mental disorder does—insofar as it impedes a rational understanding of the individual’s punishment. Only in such instances does capital punishment offend morality and, consequently, is prohibited under the Eighth Amendment.” (p. 149)

“A Department of Justice (Carson, 2016) report found that the number of prisoners age 55 and older who were sentenced to serve more than 1 year increased 400% between 1993 and 2003. When considering capital defendants, inmates typically spend an average of 20 years on death row, and the average age for a death row inmate in 2016 was 49, with 16.3% of this population—more than 400 death row inmates—being age 60 or older. […] Paralleling this trend, the number of aging offenders with dementia in prison is also increasing […] Therefore, SCOTUS’ Madison decision has important implications for this growing population of death row inmates age 60 and older and for CFE evaluations.” (p. 149)

“Consistent with the American Psychological Association’s (2013) Specialty Guidelines for Forensic Psychology, Zapf et al. (2003) assert that evaluators must be familiar with the relevant case law, statutes, definitions, and criteria in their respective jurisdictions before conducting the evaluation. They further outline general evaluation procedures by highlighting the need to include a clinical-forensic interview, valid and reliable assessment tools (when such tools exist), assessment for malingering, and the need to collect collateral information regarding the offender’s previous and current functioning.” (p. 150)

“Another central consideration of any forensic evaluation, and CFE evaluations in particular, is the possibility of malingering. […] However, psychology has well-established, well-validated measures to identify malingering, including assessment tools specifically designed to identify malingering of memory deficits and other cognitive abilities. Given the high-stakes consequences of CFE evaluations, and the potential skepticism of courts in accepting an offender’s presentation as face-valid, it is imperative that the CFE evaluation include a formal method of malingering assessment.” (p. 150)

“Of particular note when considering CFE and potential dementia, Zapf and colleagues (2003) advise that CFE evaluators should meet with the offender on multiple occasions to assess for consistency, deterioration, and/or improvement in competency-related abilities. This practice may be particularly important when considering potential dementia because cognitive decline is typically fluid and an offender’s presentation may change daily. Further, mental confusion and agitation may increase in the late afternoon and early evening, a phenomenon known as “sundowning” necessitating consideration on the part of the evaluator regarding timing of the evaluation and interpretation of the offender’s presentation.” (p. 150)

“In Madison v. Alabama (2019), the Supreme Court of the United States clarified two important points regarding CFE. First, an offender’s amnesia of the index offense does not protect the offender from execution. Second, SCOTUS clarified and expanded Ford and Panetti by specifying that the offender’s mental health diagnosis was not pertinent to his or her CFE status. Instead, the functional abilities associated with the diagnosis should be the court’s focus.” (p. 151)

“Considering that the older adult prison population has quadrupled in the last three decades (Wilper et al., 2009) and over 16% of inmates on death row are age 60 or older, the judicial system is likely to see an increase in petitions for execution relief because of aging-related cognitive decline. As such, death penalty advocates may consider these data as reason for policy reform with the aim of speeding up the appellate process and lessening the time between sentencing and execution. However, the evolution of the death penalty within the United States has resulted in more safeguards and barriers toward punishment, not less. As such, we believe it is unlikely that policymakers and the courts will be motivated to remove these safeguards for the purpose of hastening executions.” (pp. 151–152)

“Thus, it is likely that forensic mental health professionals will be in demand to assist courts as they grapple with the questions regarding offender competency and dementia-related symptoms. As such, CFE evaluators should consider the competencies necessary to aid the court in decision making” (p. 152)

“In Madison, SCOTUS clarified that courts must consider psychological disorders other than psychosis when determining if an offender is eligible for execution. Forensic evaluators should scrutinize medical history, particularly history during the years immediately before the CFE evaluation. An evaluation should also include appropriate assessment of cognitive and/or neuropsychological functioning to differentiate normative from pathological cognitive changes. Further, the evaluator must explicitly link the relationship between cognitive impairment and competence-related deficits. When such information is available, evaluators can be informed by family medical history, including information regarding relatives’ neurocognitive disease diagnoses.” (p. 150)

“The Madison ruling also highlights the need for CFE evaluators to understand the developmental trajectory of normative and nonnormative cognitive functioning, particularly in later life. Although developmental psychology is core competency of accredited clinical doctoral programs, CFE evaluations may also require specific understanding of the behavioral indications of cognitive decline in older offenders. This includes knowledge of how incarceration may impact cognitive functioning and facilitate cognitive decline.” (p. 150)

“Madison further highlights Zapf’s (2009) assertion for CFE evaluators to consider any potentially relevant competency information. Specifically, although the Ford/Panetti standard does not currently include a prong specifically related to the defendant’s ability to assist counsel, Zapf points out that courts continue to delineate the CFE standard. Thus, in the future, courts may more broadly interpret the CFE standard to be consistent with Dusky (Dusky v. United States, 1960) and require that a defendant has the capacity to assist in his or her own defense. As such, CFE evaluators should consider and report all competence-related abilities, with the intention of providing the decision maker with any and all relevant information.” (p. 150)

“The Madison ruling highlights recent discussion surrounding the unique challenges of practicing in niche arenas such as forensic neuropsychology or forensic geropsychology. Individuals practicing in arenas where these fields overlap likely arrive from subspecialties with varying professional competencies. For example, a practitioner may have forensic assessment expertise yet receive a referral involving an older offender. Alternatively, one might specialize in geropsychology but find him or herself involved in a forensic referral. To further complicate matters, it is possible neither a geropsychologist nor forensic psychologist will have sufficient neuropsychological competence to conduct certain CFEs.” (pp. 150–151)

“CFE evaluators assessing an older adult with possible cognitive impairment or neurocognitive disorder must be thoughtful and vigilant in navigating associated ethical complexity. Specifically, it is not only important that evaluators in such cases have demonstrated skill in general clinical and psycho-legal areas, but they must also acquire sufficient competency in geropsychological or neuropsychological areas relevant to the referral question. Expertise in clinical neuropsychology requires general clinical coursework and lengthy training in specialized areas, including functional neuroanatomy, neurological and related disorders, neurochemistry, and the neuropsychology of behavior.” (p. 151)

“This is not to imply that every forensic evaluator must complete training and demonstrate competency in all areas of neuropsychology, geropsychology, and forensic psychology. On the contrary, only a proportion of CFE evaluations include neurocognitive related issues and it is conceivable that supplemental training and education would provide the CFE evaluator with sufficient competencies to assist the trier of fact. Instead, we [emphasize] the importance of knowing the limitations to one’s own training and rejecting any referral when this expertise is not sufficient. Forensic evaluators might consider consulting with another examiner who has complimentary proficiencies or may refer such evaluations to other who possess the requisite training for the evaluations.” (p. 151)

“Madison highlighted the importance of expanding the research on cognitive aging and dementia within the prison population. […] Although there are some rigorous published studies examining the impact of incarceration on cognitive aging, this area is relatively unexplored. This is especially true among offenders on death row, who are typically housed in conditions more austere than the general prison population. Future studies are needed to examine the trajectory of cognitive aging in incarcerated offenders, and the extent to which incarceration relates to and impacts cognitive and neuropsychological functioning and associated ethical and legal implications.” (p. 151)

“Researchers may consider adapting empirically based cognitive functioning screeners (e.g., Montreal Cognitive Assessment; Nasreddine et al., 2005) specifically for use with a death row population. More generally, researchers may explore the validity and feasibility of cognitive screenings for aging prisoners and how these forensic assessments may aid correctional staff, forensic evaluators, and courts in assessing interventions needs.” (p. 151)

“Although there is research on how evaluators approach forensic evaluations, standard practice in CFE evaluations is relatively unknown. While Zapf and colleagues (2003) offer guidelines for CFE evaluators, future research may inform if and how these guidelines are applied.” (p. 151)

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