I recently returned from an NEH-sponsored seminar on punishment at Amherst College. I learned an enormous amount and am full of ideas for papers on punishment.

One moral issue surrounding punishment that has not received enough attention from moral philosophers is the somewhat perverse insistence that those on death row can only be executed if they are competent to be executed. This issue was thrust back in the public eye in the last year or so thanks to the case of Charles Singleton. Singleton was convicted of murder in 1979, and while on death row, he developed symptoms of paranoid schizophrenia: Singleton heard voices that threatened to kill him, and came to believe that he was the center of a vast corporate and government conspiracy. The state of Arkansas ordered in 1997 that Singleton be given antipsychotic medications which, ironically, reduced his schizophrenic delusions but also enabled him to meet the existing legal standard for competency to execute. That standard, established by the Supreme Court in Ford v. Wainwright, held that an individual is competent to be executed if he understands that he is to be executed and the reasons for his execution. Singleton was executed in January 2004.

Singleton’s case is morally fascinating on a number of levels. It raises worries about: the moral duties of medical professionals to their condemned clients; the execution of the mentally ill and the mentally handicapped (which the U.S. is virtually alone in practicing); whether competency to execute requires meeting the same legal standards of competency for, say, standing trial or issuing a will, or whether competency to execute requires a different standard; and whether ‘artificially induced’ competence (competence without a cure) should count as competence from a legal perspective.

But the ethical literature on competency to execute is somewhat slender, and I’d like to probe the moral underpinnings of the notion of competency to execute. What morally justifies requiring those executed to be competent? What conception of punishment and its rationale, goals, etc., do we need to make sense of this requirement? Is it cruel to execute the incompetent, or is it more cruel to execute the competent instead of the incompetent? What is behind the common moral sentiment that executing, e.g., the mentally handicapped or the incompetent, is particularly inhumane?

Thoughts, rants, provocations welcome!

8 Replies to “Competence and the condemned

  1. Michael,
    Interesting post. I’ve often wondered about, but never really probed, the rationale for not executing the incompetent (on the further assumption that capital punishment is in principle justified). I don’t know what the rationale for not executing the incompetent is supposed to be, but it seems inconsistent with, or at least unmotivated in light of, our general practices. You’ve pointed to the question of how to reconcile the refusal to execute the incompetent with the permission to execute the competent. Another relevant point of comparison, which might set up a dilemma, is our willingness to exterminate non-humans who have posed a danger to humans but who presumably could just as well be locked up (e.g., the recent killing of Tarzan’s [Steve Sipek’s] lion Bobo). If we assume that refusal to execute the legally incompetent is supposed to be based on some sort of lack of rational capacity that the incompetent have, then why don’t we refuse to execute non-human animals? I’m not sure how to justify such practices with respect to non-human animals, but more to the point those practices seem inconsistent with any lack-of-capacity argument. If, on the other hand, we refuse to execute incompetent humans but not non-human animals because of something special about being human, then such a rationale would seem to suggest that we can’t execute any humans. (Note that one couldn’t say that we execute only those humans who are comptetent because only they were responsible for their crimes, because as you point out, Singleton’s incompetence developed after his criminal act.)

  2. The entire concept of punishment is a strange animal to me. Why do we punish at all? Is it some sort of learning tool? Is it some kind of revenge? And what justifies this?
    I don’t think punishment is even justifiable on moral grounds. If punishment in general is justifiable it has to be on some sort of pragmatic grounds, which I honestly do not have a clue about. Should we put insane incompotent people to death? Should we put anyone to death? Should we even punish AT ALL?
    I’m curious what justification exists for punishment simplicitor…

  3. Hi Michael. Thanks for another great post.

    What morally justifies requiring those executed to be competent? What conception of punishment and its rationale, goals, etc., do we need to make sense of this requirement?

    Here’s a stab. Perhaps the rationale has something to do with the notion that, because death is such a terrible punishment (!), a person who is to be put to death has some kind of right (perhaps based on autonomy, fairness, disastrous consequences of a mistaken execution, etc?) to defend himself or herself from having such a punishment carried out, or at least be able to participate in such a defense, until the execution actually takes place. So, if a person is incompetent, presumably that person cannot defend himself or herself, nor assist in his or her own defense, and so the applying the death penalty in such a case would be morally impermissible.
    Again, that was just a stab. I think all of the questions you raised are very interesting–and important.

  4. Great post. I have been thinking about related issues recently. Here’s the gist of it. The idea of requiring that the agent be competent when punished may sound odd at first (and more so when we think of capital punishment), but it may well be the extension of an intuitively plausible idea: when we sanction somebody (I’m thinking of moral blame in particular, but the point can be generalized), we want them to acknowledge their wrongdoing. This acknowledgment may be either part of, or the effect of, the sanctioning practice. Despite the retributionist flavor of this last claim, I think it need not commit us to any particular view on punishment. What seems odd is to sanction somebody without them being able to appreciate what’s going on. Among other things, this is because the sanction won’t have any effect –whatever we take this effect to be. (Again, note that this need not commit us to any particular view on punishment). Also, because the particular act itself seems to be more justified (or at least more humane) if the person whom we sanction understands why we are doing what we do when we sanction them. It could be argued that the fact that we don’t blame animals, for instance, shows that the capacity for acknowledgment is an implicit requirement of blame in particular and of sanction in general. (We don’t sanction animals; we train them. We may use the term “sanction” as a metaphor only). A requirement to be an appropriate target of blame (and of sanctions in general) is to have certain capacities –rational capacities–, among which the capacity to acknowledge wrongdoing should be included. This doesn’t mean that part of the actual practice of blaming (or sanctioning in general) requires that the person in fact acknowledges his or her wrongdoing: obviously we can and do blame people without them acknowledging their wrongdoing. But I take it that we implicitly demand that the person be at least potentially capable of acknowledging her wrongdoing. Hence the requirement of competence.
    Now, the problem arises when we apply this line of reasoning to more harsh sanctions –let alone to the case of capital punishment. The perversity that Michael Cholbi refers to in his post does not come from the requirement itself (otherwise it should manifest itself in other forms of sanction) but from the particular mode of punishment in question, i.e., capital punishment. My conjecture is that taking this requirement to the fore might help to see the untenability of capital punishment. I grant all these claims need argumentation. But this is already too long! (And I haven’t addressed some good points by J. Glasgow!). I’m writing on it. I’ll post something in The Garden of Forking Paths soon.

  5. I oversimplify greatly. But think of moral responsibility practices in general, and punishment in particular, as analogous to a conversation. There’s no point to engaging in a conversation with someone who does not speak the language. Suppose that moral responsibility is analyzed in terms of reasons-responsiveness; then, in a certain sense, reasons are the language of responsibility. If someone does not as it were speak this language, the language of reasons, then there is no point to “speaking to him”.
    The above is rough and over-simple. There are nice ruminations on the analogy between moral responsibility and a conversation in Gary Watson’s paper on Strawson’s theory and Robert Alton Harris, “Responsibility and the Limits of Evil.”

  6. Thanks (again!) everyone for these comments. A few thoughts of my own to advance the discussion:
    Chris – The literature on the justification of criminal punishment is vast, but tends to divide along utilitarian/retributivist lines. You might look at two articles in the Stanford Encyclopedia of Philosophy (plato.stanford.edu), Bedau on punishment, and Duff on legal punishment.
    Gustavo and John are correct to highlight the connection between competence and the condemned person’s rationality. Requiring that the condemneed person know that he will die and why seems to reflect a certain respect for his rational agency — that to kill a person who fails to understand these matters is express a certain disregard for his standing as a rational agent. Many theories of punishment emphasize that punishment must be justifiable even to the punished, and in the case of the incompetent, their inability to understand their appreciation means we cannot justify their punishment to them. In this respect, the insistence on competency seems to reflect a sort of Kantian perspective or the view that punishment is essentially a communicative act (Feinberg, R.A. Duff). If the condemned doesn’t hear the message that he’s being punished, then in a certain respect, executing him doesn’t count as punishment! Both of you point out that punishing the incompetent might be pointless in light of the typical aims of punishment: the incompetent are not likely to be able to repent or seek forgiveness and atonment thanks to the threat of punishment, are not likely to feel the prick of retributive justice, cannot be deterred, etc. But for me, this raises the intriguing question of why it is cruel to execute a person whose diminished rationality prohibits him from appreciating these reasons.
    Josh and Gusatvo’s remarks regarding animals make me see the issue this way: It’s less cruel to kill animals quickly and without their being aware of their pending deaths than it is to terrify them before hand. Hence, enlightened slaughterhouses strive to kill quickly and unexpectedly. Now part of what makes capital punishment a kind of punishment (i.e., a deprivation or harm) is that it robs the executed of future life opportunities and happiness. But surely part of the harm is also due to being aware of the time and manner of one’s death, and, being incarcerated, having compartively few resources to alleviate the psychological torture such awareness involves. So might it not be the case that being executed while incompetent is not as bad as being executed while competent, since the incompetent are spared the exquisite anxiety and fear that awareness of one’s situation would bring? From which it seems to follow that being executed while incompetent is not as cruel as being executed while incompetent, and so (a) being executed in either situation is cruel, or (b) perhaps executing the competent is cruel but executing the incompetent is not! I’m not sure if I accept this myself: I share the common intuition that, e.g., executing the mentally retarded is simply immoral. Yet the grounds for this intuition are more elusive than they appear.
    Dan- Your ‘stab’ has a basis in common law and in the Ford decision. But it could of course be argued that the best defense for the incompetent is to stay incompetent!
    Finally, a couple of passing thoughts:
    1. The number of prisoners who develop the sorts of mental illnesses associated with incompetence is pretty high. this might suggest that the conditions of confinement (isolation, violence, etc.) contribute to mental breakdown and incompetence, thus making the state to some degree responsible for the prisoner’s incompetence.
    2. The cynic in me suspects that requiring competence for execution is less about the condemned’s competence to be executed than about our competence to execute him. I mean, given that we probably are naturally averse to killing other human beings, we need reassurance that the conditions we believe must be met in order to justify such killing really are met. One such condition is that we are killing a morally responsible human being who committed a criminal act, and that in killing him, we are acknowledging his standing as a responsible agent. My sense is that competency to execute is as important for what it says about the values (and anxieties) of the moral community in question as it is for what it says about the condemned.

  7. I would proffer that humans prefer to punish choices and give pass to reflexive actions (such as self-defense) and choices only occur with an intact freewill. The mental ill are absent freewill and therefore unable to make moral choices and are “Hinkly-ed”. Choices are options available in a finite time period. If we are consistent in the desire to punish only choices then, we have to consider the circumstances including the time. Was freewill intact at the moment of the options in question? If proven in the negative, subsequent competence is irrelevant and the criminal is NOT subject to the maximum sentence. Then the burden shifts to the competence of those professionals determining the timeline of competence. Since absolute competence is unabtainable from the professionals, perfect justice is unachievable.

  8. The issue of competency to execute is one thing, but what about the issue of medication without the inmate’s consent to render him competent to be executed? It would be wrong to read Ford v. Wainright, which prohibits execution of the incompetent, as giving the state permission to forcibly medicate to render a person competent. It sounds like Singleton was medicated because of the fear that he was dangerous to himself and others without medication – too bad the medication made him non-dangerous as well as competent to be executed. But what if a non-dangerous, incompetent death row inmate refuses medication?

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