| Punishment in the United States is not supposed to be a random act. It is supposed to communicate to the person being punished the social condemnation of the crime they committed. |
| Punishment can, of course, serve other purposes: rehabilitation, deterrence, incapacitation, etc. But if it does not communicate to the criminal that message of condemnation, it fails to satisfy the requirements of justice. |
| This is especially true where the punishment is death. Even the most ardent supporters of capital punishment should want its meaning to register on the condemned. |
| That is why we should not punish or execute those with serious cognitive impairments or those who have no rational understanding of the link between their crime and their punishment. Or at least we aren’t supposed to punish them. |
| On August 29, the Utah Supreme Court put a stop to the state’s plan to put Ralph Menzies to death by firing squad on September 5. It found that Menzies had “alleged a substantial change of circumstances and raised a significant question as to his competency to be executed,” and ordered a district court to “re-evaluate his competency.” |
| But that decision should not distract us from seeing the Menzies case as an example of the lengths to which death penalty states will go to carry out executions even of people who lack the capacity to understand what is being done to them and why. Menzies, who suffers from vascular dementia that prevents him from comprehending why he is being punished, for the 1986 abduction and killing of a mother of three. |
| While there were serious errors in his trial and sentencing, his current condition would make his execution especially cruel. In addition to his serious cognitive deficits, Menzies gets around in a wheelchair and depends on an oxygen tank to breathe. |
| As Ben Miller, a Utah lawyer (who is not representing Menzies) rightly observes, “Whatever led him to commit the horrendous crime is long since gone. Whoever he was then is not the person we see today.” |
| Before looking more at the Menzies case, let me say more about why the capacity to understand the link between crime and punishment is so important. |
| Writing more than fifty years ago, the philosopher Herbert Morris advanced the controversial proposition that humans have a “right to be punished for violations of the law.” He acknowledged that “People do not normally value pain and suffering. Punishment is associated with pain and suffering. ….” |
| Despite that aversion, Morris insists that society should respect the right of any criminal to be punished. Mercy or rehabilitative treatment denigrates that right. |
| That right, he says, “derives from a fundamental human right to be treated as a person” capable of making choices, including the choice to break the law. Punishment respects the choices people make when they commit crimes |
| It is a “natural, inalienable, and absolute right.” But even Morris recognizes the injustice of punishing people who lack the cognitive capacity to comprehend why they are being punished. |
| Morris’s insight is reflected in a series of what Professors John Blum and Stephen Ceci call “landmark” Supreme Court rulings on the cruelty of executing the insane or people with serious cognitive impairments. As they note, those decisions establish that no one should be put to death if they lack the “competency to be executed” or the “mental suitability for undergoing state-sanctioned homicide.” |
| Competency to be executed is not the same as competency to stand trial for a crime. “It becomes relevant only when a defendant’s guilt has been established, other appeals have been unsuccessfully pursued, and the execution date has been set.” |
| In the first of the Court’s landmark decisions, Ford v. Wainwright, Justice Lewis Powell noted that competency to be executed depends on:” (1) an awareness of the execution and (2) an awareness of the reason for the execution.” |
| As Powell put it, “Such a standard appropriately defines the kind of mental deficiency that should trigger the Eighth Amendment prohibition. If the defendant perceives the connection between his crime and his punishment, the retributive goal of the criminal law is satisfied.” |
| It is cruel to execute “those who are unaware of the punishment they are about to suffer and why they are to suffer it.” |
| The next case, decided two decades after Ford, involved a death row inmate with a “delusional belief—that his execution was, in fact, part of a satanic conspiracy to keep him for preaching the gospel rather than a punishment for his crimes.” Justice Anthony Kennedy, citing the majority opinion in Ford, held that “'the execution of an insane person simply offends humanity’…[and] 'provides no example to others.’” |
| It is, Kennedy wrote “uncharitable to dispatch an offender into another world, when he is not of a capacity to fit himself for it.” |
| The final case in this trilogy of landmark cases, Madison v. Alabama, directly addressed the competency to be executed of a person who, like Menzies, was suffering from dementia. The Court decided that while “[t]he Eighth Amendment does not prohibit a state from executing a prisoner who cannot remember committing his crime,… it does prohibit executing a prisoner who cannot rationally understand the reasons for his execution, whether that inability is due to psychosis or dementia.” |
| In all of these cases, the defendant carried the burden of proving those facts. |
| This brings us back to Menzies. |
| His dementia has gotten worse over time, the result of the shrinking of his brain and damage to the remaining brain tissue. As his lawyers noted in a July 16 clemency petition, “vascular dementia, a terminal illness…has left him unable to take care of his basic needs, remember people he has known for decades, or comprehend the legal proceedings in his case….” |
| As they explained to the clemency board, “He no longer remembers the details of his crime, trial, or sentencing.” |
| But expert witnesses presented by the state testified that they “found little evidence of cognitive decline.” They attributed memory issues to “depression, made worse by the state ramping up its effort in the last year to execute him.” |
| In the end, Utah’s clemency board refused to commute Menzies’s sentence to life in prison without parole. That should not have come as a surprise. |
| The board has never recommended clemency in a capital case. And as courts have said, “the bar for competence to be executed is not a high one.” |
| That is why, since the Supreme Court’s decisions, only twenty-eight death row inmates have been found not competent to be executed. It is why, even after the Utah Supreme Court’s decision, there is a real prospect that Menzies will not be spared. |
| Be will again face a battle of experts in which he will have the burden of proving his incompetence. |
| Therein lies the problem. To fix it, courts should make the state carry the burden of proving that an inmate is competent to be executed. If it cannot, no one who alleges incompetency should be put to death. |
| Until this change is made, the high-minded and well-intentioned pronouncements of Justices like Powell, Kennedy, and their colleagues about not executing people who cannot understand what is happening to them or why will not stop states like Utah from continuing to do so. |
| As bad as it is to execute anyone, it is worse to do that to people who suffer from mental illness or dementia. Those conditions may, as Menzies’ clemency petition noted, strip “a person of memory, personality, dignity, and the ability to understand the world around them.”. |
| If Menzies is executed, it will be a grotesque reminder that “[e]xecuting a person…[with those conditions] is not holding them accountable, it is a hollow, inhumane spectacle devoid of moral or societal value.” |
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