# Ford v. Wainwright/Dissent Rehnquist

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United States Supreme Court
477 U.S. 399
Ford v. Louie L. Wainwright
No. 85-5542. Argued: April 22, 1986 --- Decided: June 26, 1986
JUSTICE REHNQUIST, with whom THE CHIEF JUSTICE joins, dissenting.
The Court today holds that the Eighth Amendment prohibits a State from carrying out a lawfully imposed sentence of death upon a person who is currently insane. This holding is based almost entirely on two unremarkable observations. First, the Court states that it "know[s] of virtually no authority condoning the execution of the insane at English common law." Ante at 408. Second, it notes that "[t]oday, no State in the Union permits the execution of the insane." Ibid. Armed with these facts, and shielded by the claim that it is simply "keep[ing] faith with our common law heritage," ante at 401, the Court proceeds to cast aside settled precedent and to significantly alter both the common law and current practice of not executing the insane. It manages this feat by carefully ignoring the fact that the Florida scheme it finds unconstitutional, in which the Governor is assigned the ultimate responsibility of deciding whether a condemned prisoner is currently insane, is fully consistent with the "common law heritage" and current practice on which the Court purports to rely.
The Court places great weight on the "impressive historical credentials" of the common law bar against executing a prisoner who has lost his sanity. Ante at 406-408. What it fails to mention, however, is the equally important and unchallenged fact that, at common law, it was the executive who passed upon the sanity of the condemned. See 1 N. Walker, Crime and Insanity in England 194-203 (1968). So when the Court today creates a constitutional right to a determination of sanity outside of the executive branch, it does so not in keeping with, but at the expense of, "our common law heritage." [p432]
InSolesbee v. Balkcom, 339 U.S. 9 (1950), a condemned prisoner claimed that he had a constitutional right to a judicial determination of his sanity. There, as here, the State did not approve the execution of insane persons, and vested in the Governor the responsibility for determining, with the aid of experts, the sanity vel non of persons sentenced to death. In rejecting the prisoner's claim, this Court stated:
   Postponement of execution because of insanity bears a close affinity not to trial for a crime, but rather to reprieves of sentences in general. The power to reprieve has usually sprung from the same source as the power to pardon. Power of executive clemency in this country undoubtedly derived from the practice as it had existed in England. Such power has traditionally rested in governors or the President, although some of that power is often delegated to agencies such as pardon or parole boards. Seldom, if ever, has this power of executive clemency been subjected to review by the courts.
Id. at 11-12.
Despite references to "evolving standards of decency," ante at 406, and "the jurisprudence of today," ante at 409, the Court points to no change since Solesbee in the States' approach to determining the sanity of a condemned prisoner. Current statutes quite often provide that initiation of inquiry into and/or final determination of post-sentencing insanity is a matter for the executive or the prisoner's custodian. [*] The Court's profession of "faith to our common law heritage" and [p433] "evolving standards of decency" is thus, at best, a half-truth. It is Florida's scheme -- which combines a prohibition against execution of the insane with executive branch procedures for evaluating claims of insanity -- that is more faithful to both traditional and modern practice. And no matter how longstanding and universal, laws providing that the State should not execute persons the executive finds insane are not themselves sufficient to create an Eighth Amendment right that sweeps away as inadequate the procedures for determining sanity crafted by those very laws.
Petitioner makes the alternative argument, not reached by the Court, that even if the Eighth Amendment does not prohibit execution of the insane, Florida's decision to bar such executions creates a right in condemned persons to trial-type procedures to determine sanity. Here, too, Solesbee is instructive:
   Recently we have pointed out the necessary and inherent differences between trial procedures and postconviction procedures such as sentencing. Williams v. New York, 337 U.S. 241. In that case, we emphasized that certain trial procedure safeguards are not applicable to the process of sentencing. This principle applies even more forcefully to an effort to transplant every trial safeguard to a determination of sanity after conviction. As was pointed out in [Nobles v. Georgia, 168 U.S. 398 (1897)], to require judicial review every time a convicted defendant suggested insanity would make the possibility of carrying out a sentence depend upon "fecundity in making suggestion after suggestion of insanity." Nobles v. Georgia, supra, at 405-406. See also Phyle v. Duffy, [ 334 U.S. 431 (1948)]. To protect itself, society must have power to try, convict, and execute sentences. Our legal system demands that this governmental duty be performed with scrupulous fairness to the accused. We cannot say that it offends due process to leave the question of a convicted person's sanity to the solemn responsibility [p434] of a state's highest executive with authority to invoke the aid of the most skillful class of experts on the crucial questions involved.
339 U.S. at 12-13. Even the sole dissenter in Solesbee, Justice Frankfurter, agreed that, if the Constitution afforded condemned prisoners no substantive right not to be executed when insane, then the State would be free to place on the Governor the responsibility for determining sanity. Id. at 15.
Petitioner argues that Solesbee is no longer controlling, because it was decided "at a time when due process analysis still turned on the right-privilege distinction." Brief for Petitioner 8. But, as petitioner concedes, his due process claim turns on a showing that the Florida statute at issue here created an individual right not to be executed while insane. Even a cursory reading of the statute reveals that the only right it creates in a condemned prisoner is to inform the Governor that the prisoner may be insane. Fla.Stat. § 922.07(1) (1985). The only legitimate expectation it creates is that
   [i]f the Governor decides that the convicted person does not have the mental capacity to understand the nature of the death penalty and why it was imposed on him, he shall have him committed to a Department of Corrections mental health treatment facility.
§ 922.07(3) (Supp.1986) (emphasis added). Our recent cases in this area of the law may not be wholly consistent with one another. See Olim v. Wakinekona, 461 U.S. 238 (1983); Hewitt v. Helms, 459 U.S. 460 (1983); Vitek v. Jones, 445 U.S. 480 (1980); Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1 (1979); Meachum v. Fano, 427 U.S. 215 (1976). I do not think this state of the law requires the conclusion that Florida has granted petitioner the sort of entitlement that gives rise to the procedural protections for which he contends.
In any event, I see no reason to reject the Solesbee Court's conclusion that wholly executive procedures can satisfy due process in the context of a post-trial, post-appeal, post-collateral-attack challenge to a State's effort to carry out [p435] a lawfully imposed sentence. Creating a constitutional right to a judicial determination of sanity before that sentence may be carried out, whether through the Eighth Amendment or the Due Process Clause, needlessly complicates and postpones still further any finality in this area of the law. The defendant has already had a full trial on the issue of guilt, and a trial on the issue of penalty; the requirement of still a third adjudication offers an invitation to those who have nothing to lose by accepting it to advance entirely spurious claims of insanity. A claim of insanity may be made at any time before sentence and, once rejected, may be raised again; a prisoner found sane two days before execution might claim to have lost his sanity the next day, thus necessitating another judicial determination of his sanity, and presumably another stay of his execution. See Nobles v. Georgia, 168 U.S. 398, 405-406 (1897).
Since no State sanctions execution of the insane, the real battle being fought in this case is over what procedures must accompany the inquiry into sanity. The Court reaches the result it does by examining the common law, creating a constitutional right that no State seeks to violate, and then concluding that the common law procedures are inadequate to protect the newly created but common-law-based right. I find it unnecessary to "constitutionalize" the already uniform view that the insane should not be executed, and inappropriate to "selectively incorporate" the common law practice. I therefore dissent.

## Notes

* See Ariz.Rev.Stat.Ann. § 13-4021 (1978); Ark.Stat.Ann. 43-2622 (1977); Cal.Penal Code Ann. § 3701 (West 1982); Conn.Gen.Stat. § 54-101 (1985); Ga.Code Ann. § 17-10-61 (1982); Kan.Stat.Ann. § 22-4006 (1981); Md.Ann.Code, Art. 27, § 75(c) (Supp.1986); Mass.Gen.Laws § 279:62 (1984); Miss.Code Ann. § 99-19-57 (Supp.1985); Neb.Rev.Stat. § 29-2537 (1979); Nev.Rev.Stat. § 176.425 (1985); N.M.Stat.Ann. § 31-14-4 (1984); N.Y.Correc.Law § 655 (McKinney Supp.1986); Ohio Rev.Code Ann. § 2949.28 (1982); Okla.Stat., Tit. 22, § 1005 (1986); Utah Code Ann. § 77-19-13(1) (1982); Wyo.Stat. § 7-13-901 (Supp.1986).
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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