On the execution of the death penalty.

Only a small fraction of the 3,700 inmates who sit on death rows nationwide will ever be executed. Far more death row inmates die of natural causes than by execution of their sentences. The number of people executed in the United States in any given year has yet to exceed the number killed by lightning. There are several ways executions are delayed or avoided. After the trial stage is completed, the court machinery continues to operate for some time. Appeals can be made at all levels of the state courts as well as in the federal courts. John Wayne Gacy, who confessed to killing 33 young males, filed 523 separate appeals, none of them based on a claim of innocence, and so delayed his execution by 14 years. When court procedures are finally exhausted, when review is no longer pending, the fate of the prisoner passes into the hands of the executive branch of the government. In many jurisdictions, the governor has to order the execution, and he often avoids the decision as long as possible. Reprieves are commonplace. Then, too, the condemned prisoner must be competent to be executed. In 1986, in Ford v. Wainwright, the U.S. Supreme Court ruled that the Constitution precludes a state from executing those who have temporarily or permanently become incompetent or insane. More recently, the Court ruled that the mentally retarded (whatever that means) are also exempt from execution (though their condition may be no different from when they were found criminally responsible). Even before the decision in Ford, the rule on executing the insane was well established in most states, either by statute or common law, although the logic behind the rule is vague. In Ford, the plurality of the Court did not set forth what standard was applicable in determining whether a person is incompetent to be executed. Justice Powell, the swing vote in the opinion, proposed a standard when he stated in a concurrence, “I would hold that the Eighth Amendment forbids the execution only of those who are unaware of the punishment they are about to suffer and why they are to suffer it.” He acknowledged that the states may have a different standard. Alvin Ford, the inmate involved in the case, died a natural death in 1991 while on death row. The Supreme Court in 1950, in Solesbee v. Balkcom, said that postponement of execution because of postconviction insanity bears a close affinity not to trial but to reprieves of sentences, which is an executive power, and “seldom, if ever, has this power of executive clemency been subjected to review by the courts.” In Solesbee the Court found that Georgia had not violated due process in constituting its governor an “apt and special tribunal” for determining, in ex parte proceedings, the sanity of a condemned man at the time of execution. (In federal and military cases, Abraham Lincoln was apparently the first president to intercede in an execution on account of supervening insanity.) Inquiries have been held entirely behind closed doors without any opportunity for submission of facts on behalf of the person whose sanity is to be determined. It was long recognized that due process does not require that a condemned man who asserts supervening insanity be given a full judicial proceeding to adjudicate his claim. In 1897, in Nobles v. Georgia the Supreme Court said that if such proceedings were required “it would be wholly at the will of a convict to suffer any punishment whatever, for the necessity of his doing so would depend solely Dr. Slovenko is Professor of Law and Psychiatry at Wayne State University Law School, Detroit, MI. Address correspondence to: Ralph Slovenko JD, PhD, Wayne State University Law School, 471 W. Palmer, Detroit, MI 48202.