The Afterlife of Ford and Panetti: Execution Competence and the Capacity to Assist Counsel

The capacity to assist counsel and communicate a defense once held a central place in assessing competence for execution. Since Ford v. Wainwright (1986), however, courts have discarded this measure, viewing Justice Powell’s concurring opinion, which required only that a prisoner understand the execution as mortal punishment for a capital crime, as the Eighth Amendment rule. In a significant development, the Supreme Court’s decision in Panetti v. Quarterman (2007) - its first interpreting Ford - sends notice that Justice Powell’s statements on the substantive standard are not Ford\u27s rule, providing a long overdue opportunity to address whether executing prisoners with severe mental illness who lack the capacity to assist counsel contravenes evolving standards of decency. Current concerns with the execution of innocent prisoners and difficulties determining execution competence since Ford support reinstating the capacity to assist counsel in the Eighth Amendment test. This Article, urging future work in courts and scholarship, initiates a discussion about the proper scope of the Ford prohibition