Incompetency to Be Executed: Continuing Ethical Challenges & Time for a Change in Texas

This Article focuses on a small, but unique group of death row inmates who have largely exhausted their post-conviction procedural rights and have a date set for execution, but while awaiting execution, have become incompetent to be executed because of serious mental illness. The United States Supreme Court has determined that it is unconstitutional to execute an individual who is mentally incompetent. The Court has not, however, ruled as to whether it is constitutionally permissible for a state to order a death row inmate to be medicated forcibly for the purpose of restoring that inmate’s competency to allow an execution to proceed. This Article reviews the constitutional requirement for execution competence, identifies the scope of the ethical concerns related to this very challenging scenario, and addresses state and lower federal court decisions that have considered the issue, as well as United States Supreme Court opinions that have considered other, related medication issues concerning offenders with mental disorders. In particular, however, this Article offers and discusses a possible legislative solution that the Texas Legislature could enact that would avoid the thorny ethical and legal issues that are at stake in such cases.