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  • Kathryn Canning

Could a Prisoner be “Unhealthy” Enough to Execute?

Updated: Oct 19, 2023

There has been a debate on whether a prisoner is “healthy” enough to execute. Consistent with the Eighth Amendment, and this Court’s decisions in Ford v. Wainwright, 477 U.S. 399 (1986), and Panetti v. Quarterman, 551 U.S. 930 (2007), a state may execute a prisoner whose mental disability leaves him without memory of his commission of the capital offense. But, it does not allow a state to execute a prisoner who has lost his cognitive ability to rationally understand the circumstances of his scheduled execution.

Under Ford, a person’s dementia and neurological disease can be outside the scope of protection under the Eighth Amendment. However, it is possible for another inmate with dementia to establish his condition has eliminated his rational understanding of the crime and punishment. Is a person’s failure to remember his commission of the crime really that distinct from a failure to rationally comprehend the concepts of crime and punishment? For example, a history major may have no independent recollection of World War II, but could still understand the conflict that existed.

Under Panetti, if a person’s perception of reality is not distorted, then he should not be deemed incompetent to stand execution. Is it enough that a person shares the community’s understanding of crime and punishment?

Is there really a debate? The highest courts of 33 states have held that the prisoner’s inability to recall the crime does not itself render him incompetent, and among the remaining states, nine intermediate appellate courts have held the same view. There has been only one state appellate decision that held that amnesia about a crime was enough to show incompetency. However, the issue was not the prisoner’s lack of rational understanding, but rather there was no evidence that could be extrinsically reconstructed without his testimony.

Should there be an extension of Panetti and Ford? Courts have interpreted Panetti and Ford narrowly to only apply in cases where a person’s mental illness bars execution. Courts have never limited the types of medical conditions that could potentially trigger Eighth Amendment protection. Since there are many neurological conditions that cause memory loss, prisoners could take advantage of the situation and assert false claims to bar execution. The only person who actually knows whether a person can recall the crime is the person himself. Even one of the main assessment’s that a mental-health professional factors into their determinations of whether a person is competent to stand trial is the clinical interview

On the other hand, with advances in medical research and technology, the effects of dementia can be documented and show what level of dementia a person has. Through these examinations and tests to a person who potentially has dementia, it could provide enough evidence to demonstrate to a court that a person’s diagnosis of dementia impeded his ability to rationally understand the circumstances of his scheduled execution. Although a person’s medical diagnosis of dementia may differ from other prisoner’s medical conditions, and would require doctors to thoroughly make a case-by-case determination, there is sufficient medical research and technology to demonstrate when a person’s diagnosis of dementia actually limits his understanding of the concepts of crime and punishment and the surrounding circumstances of his scheduled execution.

In my opinion, it is enough that upon a person’s conviction, he was competent to stand trial and understand the proceedings against him. Just because a person’s natural aging process causes a person’s memory loss should not negate the constitutionality of the punishment. It is irrelevant to whether a person’s execution would advance retribution and deterrence served by the death penalty. A prisoner’s development of a memory impairment does not have any impact on his moral culpability at the time when he committed the crime. A person’s later diagnosis of a memory impairment must not excuse a person’s accountability for one’s actions.


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