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SCOTUS Kills Condemned Ohio Prisoner’s Effort to Secure Evidence of Mental Impairment to Bolster Habeas Petition

by Ben Tschirhart

On June 21, 2022, the U.S. Supreme Court held that cases involving medical transport orders for prisoners seeking evidence of mental impairment to bolster a habeas corpus petition are now among those immediately appealable and do not have to await final judgment.

The Court customarily doesn’t rule on an interlocutory appeal, but the conservative majority used the “collateral order doctrine” to extend its reach to consider the case, making clear it has no patience for efforts to introduce new evidence into a habeas action not previously introduced at trial — even when that evidence shows a prisoner’s mental health “may put an awareness of a link between a crime and its punishment in a context so far removed from reality that the punishment can serve no proper purpose,” which an earlier Court majority said should render the death penalty off-limits. See: Panetti v. Quarterman, 551 U.S. 930 (2007).

At issue is a dilemma raised by the Anti-Terrorism and Effective Death Penalty Act (AEDPA) of 1996, which strictly limits the admissibility of new evidence in federal habeas appeals. As Chief Justice John Roberts noted for the Court’s majority, what’s now required is a constitutional question on which the law is “new” and “previously unavailable,” or else new evidence which “could not have been previously discovered through exercise of due diligence.”

However, an ineffective assistance of counsel claim doesn’t fit either of those exceptions. It’s not something on which the law is new. Nor is it something that the allegedly ineffective counsel would have discovered though due diligence; if he had exercised due diligence, his counsel wouldn’t be ineffective.

Wading into the waters of this catch-22, the Court issued its decision in the case of a condemned Ohio prisoner, Raymond Twyford, who sought medical transport for neurological testing that might bolster his habeas corpus petition. Convicted in 1993 of murder and other charges that earned him the death penalty, Twyford filed a federal habeas appeal in 2003, claiming ineffective assistance of counsel because his appellate attorney failed to mention a self-inflicted gunshot wound which might have left Twyford with a brain injury that rendered him ineligible for the death penalty. Under the All Writs Act, the federal court for the Southern District of Ohio granted the prisoner’s motion for transport to have brain imaging done in support of his claims, and the U.S. Court of Appeals for the Sixth Circuit affirmed in August 2021. [See: PLN, Mar. 2022, p.48.]

But the Court reversed those decisions. Roberts said both lower federal courts erred in allowing Twyford to use the All Writs Act to “circumvent statutory requirements or otherwise binding procedural rules.” Moreover, ordering the state to transport a prisoner like Twyford out into public for medical testing “not only delays resolution of his habeas case, but may also present serious risks to public safety,” Roberts added.

By precedent, the Court bars the death penalty for the insane and the mentally disabled. See Ford v. Wainwright, 477 U.S. 399 (1986); and Atkins v. Virginia, 536 U.S. 304 (2002). But with this decision, the Court said AEDPA can be used to deny a condemned prisoner a chance to prove his attorneys failed to show he fits one of these exceptions. The Court also pointed to its own precedent to chide the lower courts for authorizing a search for evidence without first making a determination that it would be admissible if found.

“Twyford never explained how the results of the neurological testing could be admissible in his habeas proceedings,” the Court said, “and it is hard to see how they could be, since the District Court’s AEDPA review is limited to ‘the record that was before the state court,’” as provided in Cullen v. Pinholster, 563 U.S. 170 (2011). [See also: PLN, Dec. 15, 2013, online.]

Thus the Court concluded that commanding a “search for unusable evidence would not be a ‘necessary or appropriate’ means of aiding a federal court’s limited habeas review.”

In his dissent, Justice Steven Breyer, joined by Justices Sonia Sotomayor and Elena Kagan, took issue with the majority’s extension of the “collateral order doctrine.” First identified in Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949), it “allows interlocutory appeal from a ‘small class’ of orders that ‘finally determine claims of rights separable from, and collateral to, rights asserted in the action,’” Breyer recalled.

But many standard writs of habeas corpus necessitate movement of prisoners, he continued, and this one didn’t seem “especially ‘important,” borrowing a term from Dig. Equip. Corp. v. Desktop Direct, 511 U.S. 863 (1994).

“The question whether the transportation order was proper un­der the All Writs Act is not conceptually distinct from the merits of respondent’s habeas claims …” Breyer said, and “at this early stage, a district court’s assessment of that issue is only preliminary because it cannot know for certain what evidence will be revealed.

In a separate dissent, Justice Neil Gorsuch also said the Court shouldn’t have extended the collateral order doctrine, quoting Mohawk Indus. v. Carpenter, 558 U.S. 100 (2009), to note that recent legislation has “designated rulemaking … as the preferred means for determining whether and when prejudgment orders should be immediately appealable.”

Twyford was represented before the Court by attorney David A. O’Neil of Debevoise & Plimpton in Washington, DC. See: Shoop v. Twyford, 142 S. Ct. 2037 (2022). 

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Related legal cases

Shoop v. Twyford

Panetti v. Quarterman

550 U.S. 930; 127 S.Ct. 2842; 168 L.Ed.2d 662


No. 06-6407

April 18, 2007, Argued

June 28, 2007, Decided

NOTICE: [*1] The LEXIS pagination of this document is subject to change pending release of the final published version.


DISPOSITION: 448 F.3d 815, reversed and remanded.


Petitioner was convicted of capital murder in a Texas state court and sentenced to death despite his well-documented history of mental illness. After the Texas courts denied relief on direct appeal, petitioner filed a federal habeas petition pursuant to 28 U.S.C. § 2254, but the District Court and the Fifth Circuit rejected his claims, and this Court denied certiorari. In the course of these initial state and federal proceedings, petitioner did not argue that mental illness rendered him incompetent to be executed. Once the state trial court set an execution date, petitioner filed a motion under Texas [*2] law claiming, for the first time, that he was incompetent to be executed because of mental illness. The trial judge denied the motion without a hearing and the Texas Court of Criminal Appeals dismissed petitioner's appeal for lack of jurisdiction.

He then filed another federal habeas petition under § 2254, and the District Court stayed his execution to allow the state trial court time to consider evidence of his then-current mental state. Once the state court began its adjudication, petitioner submitted 10 motions in which he requested, inter alia, a competency hearing and funds for a mental health expert. The court indicated it would rule on the outstanding motions once it had received the report written by the experts that it had appointed to review petitioner's mental condition. The experts subsequently filed this report, which concluded, inter alia, that petitioner had the ability to understand the reason he was to be executed. Without ruling on the outstanding motions, the judge found petitioner competent and closed the case. Petitioner then returned to the Federal District Court, seeking a resolution of his pending § 2254 petition. The District Court concluded [*3] that the state-court competency proceedings failed to comply with Texas law and were constitutionally inadequate in light of the procedural requirements mandated by Ford v. Wainwright, 477 U.S. 399, 410, where this Court held that the Eighth Amendment prohibits States from inflicting the death penalty upon insane prisoners. Although the court therefore reviewed petitioner's incompetency claim without deferring to the state court's finding of competency, it nevertheless granted no relief, finding that petitioner had not demonstrated that he met the standard for incompetency. Under Fifth Circuit precedent, the court explained, petitioner was competent to be executed so long as he knew the fact of his impending execution and the factual predicate for it. The Fifth Circuit affirmed.


1. This Court has statutory authority to adjudicate the claims raised in petitioner's second federal habeas application. Because § 2244(b)(2) requires that "[a] claim presented in a second or successive . . . [§ 2254] application . . . that was not presented in a prior application . . . be dismissed," the State maintains that the failure of petitioner's first § [*4] 2254 application to raise a Ford-based incompetency claim deprived the District Court of jurisdiction. The results this argument would produce show its flaws. Were the State's interpretation of "second or successive" correct, a prisoner would have two options: forgo the opportunity to raise a Ford claim in federal court; or raise the claim in a first federal habeas application even though it is premature. Stewart v. Martinez-Villareal, 523 U.S. 637, 644. The dilemma would apply not only to prisoners with mental conditions that, at the time of the initial habeas filing, were indicative of incompetency but also to all other prisoners, including those with no early sign of mental illness. Because all prisoners are at risk of deteriorations in their mental state, conscientious defense attorneys would be obliged to file unripe (and, in many cases, meritless) Ford claims in each and every § 2254 application. This counterintuitive approach would add to the burden imposed on courts, applicants, and the States, with no clear advantage to any. The more reasonable interpretation of § 2244, suggested by this Court's precedents, is that Congress did not intend the [*5] provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) addressing "second or successive" habeas petitions to govern a filing in the unusual posture presented here: a § 2254 application raising a Ford-based incompetency claim filed as soon as that claim is ripe. See, e.g., Martinez-Villareal, supra, at 643-645. This conclusion is confirmed by AEDPA's purposes of "furthering comity, finality, and federalism," Miller-El v. Cockrell, 537 U.S. 322, 337, "promoting judicial efficiency and conservation of judicial resources, . . . and lending finality to state court judgments within a reasonable time," Day v. McDonough, 547 U.S. 198, 205-206. These purposes, and the practical effects of the Court's holdings, should be considered when interpreting AEDPA, particularly where, as here, petitioners "run the risk" under the proposed interpretation of "forever losing their opportunity for any federal review of their unexhausted claims," Rhines v. Weber, 544 U.S. 269, 275. There is, finally, no argument in this case that petitioner proceeded in a manner that could be considered an abuse of [*6] the writ. Cf. Felker v. Turpin, 518 U.S. 651, 664. To the contrary, the Court has suggested that it is generally appropriate for a prisoner to wait before seeking the resolution of unripe incompetency claims. See, e.g., Martinez-Villareal, supra, at 644-645. Pp. 9-15.

2. The state court failed to provide the procedures to which petitioner was entitled under the Constitution. Ford identifies the measures a State must provide when a prisoner alleges incompetency to be executed. Justice Powell's opinion concurring in part and concurring in the judgment in Ford controls, see Marks v. United States, 430 U.S. 188, 193, and constitutes "clearly established" governing law for AEDPA purposes, § 2254(d)(1). As Justice Powell elaborated, once a prisoner seeking a stay of execution has made "a substantial threshold showing of insanity," 477 U.S., at 424, the Eighth and Fourteenth Amendments entitle him to, inter alia, a fair hearing, ibid., including an opportunity to submit "expert psychiatric evidence that may differ from the State's own psychiatric examination," id., at 427. The procedures [*7] the state court provided petitioner were so deficient that they cannot be reconciled with any reasonable interpretation of the Ford rule. It is uncontested that petitioner made a substantial showing of incompetency. It is also evident from the record, however, that the state court reached its competency determination without holding a hearing or providing petitioner with an adequate opportunity to provide his own expert evidence. Moreover, there is a strong argument that the court violated state law by failing to provide a competency hearing. If so, the violation undermines any reliance the State might now place on Justice Powell's assertion that "the States should have substantial leeway to determine what process best balances the various interests at stake." Id., at 427. Under AEDPA, a federal court may grant habeas relief, as relevant, only if a state court's "adjudication of [a] claim on the merits . . . resulted in a decision that . . . involved an unreasonable application" of the relevant federal law. § 2254(d)(1). If the state court's adjudication is dependent on an antecedent unreasonable application of federal law, that requirement is satisfied, and [*8] the federal court must then resolve the claim without the deference AEDPA otherwise requires. See, e.g., Wiggins v. Smith, 539 U.S. 510, 534. Having determined that the state court unreasonably applied Ford when it accorded petitioner the procedures in question, this Court must now consider petitioner's claim on the merits without deferring to the state court's competency finding. Pp. 15-21.

3. The Fifth Circuit employed an improperly restrictive test when it considered petitioner's claim of incompetency on the merits. Pp. 21-28.

(a) The Fifth Circuit's incompetency standard is too restrictive to afford a prisoner Eighth Amendment protections. Petitioner's experts in the District Court concluded that, although he claims to understand that the State says it wants to execute him for murder, his mental problems have resulted in the delusion that the stated reason is a sham, and that the State actually wants to execute him to stop him from preaching. The Fifth Circuit held, based on its earlier decisions, that such delusions are simply not relevant to whether a prisoner can be executed so long as he is aware that the State has identified the link [*9] between his crime and the punishment to be inflicted. This test ignores the possibility that even if such awareness exists, gross delusions stemming from a severe mental disorder may put that awareness in a context so far removed from reality that the punishment can serve no proper purpose. It is also inconsistent with Ford, for none of the principles set forth therein is in accord with the Fifth Circuit's rule. Although the Ford opinions did not set forth a precise competency standard, the Court did reach the express conclusion that the Constitution "places a substantive restriction on the State's power to take the life of an insane prisoner," 477 U.S., at 405, because, inter alia, such an execution serves no retributive purpose, id., at 408. It might be said that capital punishment is imposed because it has the potential to make the offender recognize at last the gravity of his crime and to allow the community as a whole, including the victim's surviving family and friends, to affirm its own judgment that the prisoner's culpability is so serious that the ultimate penalty must be sought and imposed. Both the potential for this recognition [*10] and the objective of community vindication are called into question, however, if the prisoner's only awareness of the link between the crime and the punishment is so distorted by mental illness that his awareness of the crime and punishment has little or no relation to the understanding shared by the community as a whole. A prisoner's awareness of the State's rationale for an execution is not the same as a rational understanding of it. Ford does not foreclose inquiry into the latter. To refuse to consider evidence of this nature is to mistake Ford's holding and its logic. Pp. 21-28.

(b) Although the Court rejects the Fifth Circuit's standard, it does not attempt to set down a rule governing all competency determinations. The record is not as informative as it might be because it was developed by the District Court under the rejected standard, and, thus, this Court finds it difficult to amplify its conclusions or to make them more precise. It is proper to allow the court charged with overseeing the development of the evidentiary record the initial opportunity to resolve petitioner's constitutional claim. Pp. 28-30.

448 F.3d 815, reversed and remanded. [*11]

JUDGES: KENNEDY, J., delivered the opinion of the Court, in which STEVENS, SOUTER, GINSBURG, and BREYER, JJ., joined. THOMAS, J., filed a dissenting opinion, in which ROBERTS, C. J., and SCALIA and ALITO, JJ., joined.

OPINION: JUSTICE KENNEDY delivered the opinion of the Court.

"The Eighth Amendment prohibits a State from carrying out a sentence of death upon a prisoner who is insane." Ford v. Wainwright, 477 U.S. 399, 409-410 (1986). The prohibition applies despite a prisoner's earlier competency to be held responsible for committing a crime and to be tried for it. Prior findings of competency do not foreclose a prisoner from proving he is incompetent to be executed because of his present mental condition. Under Ford, once a prisoner makes the requisite preliminary showing that his current mental state would bar his execution, the Eighth Amendment, applicable to the States under the Due Process Clause of the Fourteenth Amendment, entitles him to an adjudication to determine his condition. These determinations are governed by the substantive federal baseline for competency set down in Ford.

Scott Louis Panetti, referred to here as petitioner, was [*12] convicted and sentenced to death in a Texas state court. After the state trial court set an execution date, petitioner made a substantial showing he was not competent to be executed. The state court rejected his claim of incompetency on the merits. Filing a petition for writ of habeas corpus in the United States District Court for the Western District of Texas, petitioner claimed again that his mental condition barred his execution; that the Eighth Amendment set forth a substantive standard for competency different from the one advanced by the State; and that prior state-court proceedings on the issue were insufficient to satisfy the procedural requirements mandated by Ford. The State denied these assertions and argued, in addition, that the federal courts lacked jurisdiction to hear petitioner's claims.

We conclude we have statutory authority to adjudicate the claims petitioner raises in his habeas application; we find the state court failed to provide the procedures to which petitioner was entitled under the Constitution; and we determine that the federal appellate court employed an improperly restrictive test when it considered petitioner's claim of incompetency on the merits. [*13] We therefore reverse the judgment of the Court of Appeals for the Fifth Circuit and remand the case for further consideration.


On a morning in 1992 petitioner awoke before dawn, dressed in camouflage, and drove to the home of his estranged wife's parents. Breaking the front-door lock, he entered the house and, in front of his wife and daughter, shot and killed his wife's mother and father. He took his wife and daughter hostage for the night before surrendering to police.

Tried for capital murder in 1995, petitioner sought to represent himself. The court ordered a psychiatric evaluation, which indicated that petitioner suffered from a fragmented personality, delusions, and hallucinations. 1 App. 9-14. The evaluation noted that petitioner had been hospitalized numerous times for these disorders. Id., at 10; see also id., at 222. Evidence later revealed that doctors had prescribed medication for petitioner's mental disorders that, in the opinion of one expert, would be difficult for a person not suffering from extreme psychosis even to tolerate. See id., at 233 ("I can't imagine anybody getting that dose waking up for two to three days. You cannot take that kind of medication [*14] if you are close to normal without absolutely being put out"). Petitioner's wife described one psychotic episode in a petition she filed in 1986 seeking extraordinary relief from the Texas state courts. See id., at 38-40. She explained that petitioner had become convinced the devil had possessed their home and that, in an effort to cleanse their surroundings, petitioner had buried a number of valuables next to the house and engaged in other rituals. Id., at 39. Petitioner nevertheless was found competent to be tried and to waive counsel. At trial he claimed he was not guilty by reason of insanity.

During his trial petitioner engaged in behavior later described by his standby counsel as "bizarre," "scary," and "trance-like." Id., at 26, 21, 22. According to the attorney, petitioner's behavior both in private and in front of the jury made it evident that he was suffering from "mental incompetence," id., at 26; see also id., at 22-23, and the net effect of this dynamic was to render the trial "truly a judicial farce, and a mockery of self-representation," id., at 2

Ford v. Wainwright

477 U.S. 399; 106 S. Ct. 2595; 91 L. Ed. 2d 335


No. 85-5542

Argued April 22, 1986

June 26, 1986




In 1974, petitioner was convicted of murder in a Florida state court and sentenced to death. There is no suggestion that he was incompetent at the time of the offense, at trial, or at sentencing. But subsequently he began to manifest changes in behavior, indicating a mental disorder. This led to extensive separate examinations by two psychiatrists at his counsel's request, one of whom concluded that petitioner was not competent to suffer execution. Counsel then invoked a Florida statute governing the determination of a condemned prisoner's competency. Following the statutory procedures, the Governor appointed three psychiatrists, who together interviewed petitioner for 30 minutes in the presence of eight other people, including petitioner's counsel, the State's attorneys, and correctional officials. The Governor's order directed that the attorneys should not participate in the examination in any adversarial manner. Each psychiatrist filed a separate report with the Governor, to whom the statute delegates the final decision. The reports reached conflicting diagnoses but were in accord on the question of petitioner's competency. Petitioner's counsel then attempted to submit to the Governor other written materials, including the reports of the two psychiatrists who had previously examined petitioner, but the Governor's office refused to inform counsel whether the submission would be considered. The Governor subsequently signed a death warrant without explanation or statement. After unsuccessfully seeking a hearing in state court to determine anew petitioner's competency, his counsel filed a habeas corpus proceeding in Federal District Court, seeking an evidentiary hearing, but the court denied the petition without a hearing, and the Court of Appeals affirmed.

Held: The judgment is reversed, and the case is remanded.

752 F. 2d 526, reversed and remanded.

JUSTICE MARSHALL delivered the opinion of the Court with respect to Parts I and II, concluding that the Eighth Amendment prohibits the State from inflicting the death penalty upon a prisoner who is insane. The reasons at common law for not condoning the execution of the insane -- that such an execution has questionable retributive value, presents no example to others and thus has no deterrence value, and [*400] simply offends humanity -- have no less logical, moral, and practical force at present. Whether the aim is to protect the condemned from fear and pain without comfort of understanding, or to protect the dignity of society itself from the barbarity of exacting mindless vengeance, the restriction finds enforcement in the Eighth Amendment. Pp. 405-410.

JUSTICE MARSHALL, joined by JUSTICE BRENNAN, JUSTICE BLACKMUN, and JUSTICE STEVENS, concluded in Parts III, IV, and V, that Florida's statutory procedures for determining a condemned prisoner's sanity provide inadequate assurance of accuracy to satisfy the requirement of Townsend v. Sain, 372 U.S. 293, and that, having been denied a factfinding procedure "adequate to afford a full and fair hearing" on the critical issue as required by 28 U.S.C. § 2254(d)(2), petitioner is entitled to a de novo evidentiary hearing in the District Court on the question of his competence to be executed. Pp. 410-418.

(a) No state court has issued any determination to which the presumption of correctness under § 2254(d) could attach, and indeed no state court played any role in the rejection of petitioner's claim of insanity. P. 410.

(b) The first defect in Florida's procedures is the failure to include the prisoner in the truth-seeking process. Any procedure that precludes the prisoner or his counsel from presenting material relevant to his sanity or bars consideration of that material by the factfinder is necessarily inadequate. A related flaw in the procedures is the denial of any opportunity to challenge or impeach the state-appointed psychiatrists' opinions, thus creating a significant possibility that the ultimate decision made in reliance on those experts will be distorted. And perhaps the most striking defect in the procedures is the placement of the ultimate decision wholly within the Executive Branch. The Governor, who appoints the experts and ultimately decides whether the State will be able to carry out the death sentence and whose subordinates have been responsible for initiating every stage of the prosecution, cannot be said to have the neutrality that is necessary for reliability in the factfinding proceedings. Pp. 413-416.

JUSTICE POWELL concluded that the test for whether a prisoner is insane for Eighth Amendment purposes is whether the prisoner is aware of his impending execution and of the reason for it. He further concluded that petitioner's claim falls within this definition, and that because petitioner's claim was not adjudicated fairly within the meaning of due process or of 28 U.S.C. § 2254(d), petitioner is entitled to have his claim adjudicated on remand by the District Court. Finally, he concluded that the States could satisfy due process by providing an impartial officer or board that can receive evidence and argument from the prisoner's counsel, including expert psychiatric evidence. Beyond these requirements, the States retain substantial discretion to create appropriate procedures. Pp. 419-427.

MARSHALL, J., announced the judgment of the Court and delivered an opinion of the Court with respect to Parts I and II, in which BRENNAN, BLACKMUN, POWELL, and STEVENS, JJ., joined, and an opinion with respect to Parts III, IV, and V, in which BRENNAN, BLACKMUN, and STEVENS, JJ., joined. POWELL, J., filed an opinion concurring in part and concurring in the judgment, post, p. 418. O'CONNOR, J., filed an opinion concurring in the result in part and dissenting in part, in which WHITE, J., joined, post, p. 427. REHNQUIST, J., filed a dissenting opinion, in which BURGER, C.J., joined, post, p. 431.

COUNSEL: Richard H. Burr III argued the cause for petitioner. With him on the briefs were Richard L. Jorandby, Craig S. Barnard, and Laurin A. Wollan, Jr.

Joy B. Shearer, Assistant Attorney General of Florida, argued the cause for respondent. With her on the brief was Jim Smith, Attorney General. *

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -

* Briefs of amici curiae urging reversal were filed for the American Psychiatric Association by Joel I. Klein and Robert D. Luskin; for the American Psychological Association et al. by Donald N. Bersoff and Bruce J. Ennis, Jr.; and for the Capital Collateral Representative et al. by Sanford L. Bohrer.

- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

JUDGES: Burger, Brennan, White, Marshall, Blackmun, Powell, Rehnquist, Stevens, O'Connor

OPINION: [*401] [***341] [**2597] JUSTICE MARSHALL announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I and II and an opinion with respect to Parts III, IV, and V, in which JUSTICE BRENNAN, JUSTICE BLACKMUN, and JUSTICE STEVENS join.

[***HR1A] [1A]
For centuries no jurisdiction has countenanced the execution of the insane, yet this Court has never decided whether the Constitution forbids the practice. Today we keep faith with our common-law heritage in holding that it does.


Alvin Bernard Ford was convicted of murder in 1974 and sentenced to death. There is no suggestion that he was incompetent at the time of his offense, at trial, or at sentencing. [*402] In early 1982, however, Ford began to manifest gradual changes in behavior. They began as an occasional peculiar idea or confused perception, but became more serious over time. After reading in the newspaper that the Ku Klux Klan had held a rally in nearby Jacksonville, Florida, Ford developed an obsession [**2598] focused upon the Klan. His letters to various people reveal endless brooding about his "Klan work," and an increasingly pervasive delusion that he had become the target of a complex conspiracy, involving the Klan and assorted others, designed to force him to commit suicide. He believed that the prison guards, part of the conspiracy, had been killing people and putting the bodies in the concrete enclosures used for beds. Later, he began to believe that his women [***342] relatives were being tortured and sexually abused somewhere in the prison. This notion developed into a delusion that the people who were tormenting him at the prison had taken members of Ford's family hostage. The hostage delusion took firm hold and expanded, until Ford was reporting that 135 of his friends and family were being held hostage in the prison, and that only he could help them. By "day 287" of the "hostage crisis," the list of hostages had expanded to include "senators, Senator Kennedy, and many other leaders." App. 53. In a letter to the Attorney General of Florida, written in 1983, Ford appeared to assume authority for ending the "crisis," claiming to have fired a number of prison officials. He began to refer to himself as "Pope John Paul, III," and reported having appointed nine new justices to the Florida Supreme Court. Id., at 59.

Counsel for Ford asked a psychiatrist who had examined Ford earlier, Dr. Jamal Amin, to continue seeing him and to recommend appropriate treatment. On the basis of roughly 14 months of evaluation, taped conversations between Ford and his attorneys, letters written by Ford, interviews with Ford's acquaintances, and various medical records, Dr. Amin concluded in 1983 that Ford suffered from "a severe, uncontrollable, mental disease which closely resembles 'Paranoid [*403] Schizophrenia With Suicide Potential'" -- a "major mental disorder . . . severe enough to substantially affect Mr. Ford's present ability to assist in the defense of his life." Id., at 91.

Ford subsequently refused to see Dr. Amin again, believing him to have joined the conspiracy against him, and Ford's counsel sought assistance from Dr. Harold Kaufman, who interviewed Ford in November 1983. Ford told Dr. Kaufman that "I know there is some sort of death penalty, but I'm free to go whenever I want because it would be illegal and the executioner would be executed." Id., at 65. When asked if he would be executed, Ford replied: "I can't be executed because of the landmark case. I won. Ford v. State will prevent executions all over." Id., at 66. These statements appeared amidst long streams of seemingly unrelated thoughts in rapid succession. Dr. Kaufman concluded that Ford had no understanding of why he was being executed, made no connection between the homicide of which he had been convicted and the death penalty, and indeed sincerely believed that he would not be executed because he owned the prisons and could control the Governor through mind waves. Id., at 67. Dr. Kaufman found that there was "no reasonable possibility that Mr. Ford was dissembling, malingering or otherwise putting on a performance . . . ." Id., at 65. The following month, in an interview with his attorneys, Ford regressed further into nearly complete incomprehensibility, speaking only in a code characterized by intermittent use of the word "one," making statements such as "Hands one, face one. Mafia one. God one, father one, Pope one. Pope one. Leader one." Id., at 72.

Counsel for Ford invoked the procedures of Florida law governing the determination of competency of a condemned inmate, Fla. Stat. § 922.07 (1985). Following the procedures set forth in the statute, the Governor of Florida appointed a panel of three psychiatrists to evaluate whether, under § 922.07(2), Ford had "the [***343] mental capacity to understand the nature of the death penalty and the reasons why it was imposed [*404] upon him." At a single meeting, the three psychiatrists together interviewed Ford for approximately 30 minutes. Each doctor then filed a separate two- or three-page report with the Governor, to whom the statute delegates the final decision. One [**2599] doctor concluded that Ford suffered from "psychosis with paranoia" but had "enough cognitive functioning to understand the nature and the effects of the death penalty, and why it is to be imposed on him." App. 103. Another found that, although Ford was "psychotic," he did "know fully what can happen to him." Id., at 105-106. The third concluded that Ford had a "severe adaptational disorder," but did "comprehend his total situation including being sentenced to death, and all of the implications of that penalty." Id., at 99-100. He believed that Ford's disorder, "although severe, seem[ed] contrived and recently learned." Id., at 100. Thus, the interview produced three different diagnoses, but accord on the question of sanity as defined by state law.

The Governor's decision was announced on April 30, 1984, when, without explanation or statement, he signed a death warrant for Ford's execution. Ford's attorneys unsuccessfully sought a hearing in state court to determine anew Ford's competency to suffer execution. Ford v. Wainwright, 451 So. 2d 471, 475 (Fla. 1984). Counsel then filed a petition for habeas corpus in the United States District Court for the Southern District of Florida, seeking an evidentiary hearing on the question of Ford's sanity, proffering the conflicting findings of the Governor-appointed commission and subsequent challenges to their methods by other psychiatrists. The District Court denied the petition without a hearing. The Court of Appeals granted a certificate of probable cause and stayed Ford's execution, Ford v. Strickland, 734 F. 2d 538 (CA11 1984), and we rejected the State's effort to vacate the stay of execution. Wainwright v. Ford, 467 U.S. 1220 (1984). The Court of Appeals then addressed the merits of Ford's claim and a divided panel affirmed the District [*405] Court's denial of the writ. 752 F. 2d 526 (CA11 1985). This Court granted Ford's petition for certiorari in order to resolve the important issue whether the Eighth Amendment prohibits the execution of the insane and, if so, whether the District Court should have held a hearing on petitioner's claim. 474 U.S. 1019 (1985).


Since this Court last had occasion to consider the infliction of the death penalty upon the insane, our interpretations of the Due Process Clause and the Eighth Amendment have evolved substantially. In Solesbee v. Balkcom, 339 U.S. 9 (1950), a condemned prisoner claimed a due process right to a judicial determination of his sanity, yet the Court did not consider the possible existence of a right under the Eighth Amendment, which had not yet been applied to the States. The sole question the Court addressed was whether Georgia's procedure for ascertaining sanity adequately effectuated that State's own policy of sparing the insane from execution. See also Caritativo v. California, 357 U.S. 549 [***344] (1958); United States ex rel. Smith v. Baldi, 344 U.S. 561 (1953); Phyle v. Duffy, 334 U.S. 431 (1948); Nobles v. Georgia, 168 U.S. 398 (1897). Now that the Eighth Amendment has been recognized to affect significantly both the procedural and the substantive aspects of the death penalty, the question of executing the insane takes on a wholly different complexion. The adequacy of the procedures chosen by a State to determine sanity, therefore, will depend upon an issue that this Court has never addressed: whether the Constitution places a substantive restriction on the State's power to take the life of an insane prisoner.

[***HR2] [2]
There is now little room for doubt that HN1 the Eighth Amendment's ban on cruel and unusual punishment embraces, at a minimum, those modes or acts of punishment that had been considered cruel and unusual at the time that the Bill of Rights was adopted. See Solem v. Helm, 463 U.S. 277, 285-286 (1983); id., at 312-313 [**2600] (BURGER, C.J., joined by [*406] WHITE, REHNQUIST, and O'CONNOR, JJ., dissenting); Furman v. Georgia, 408 U.S. 238, 264 (1972) (BRENNAN, J., concurring); McGautha v. California, 402 U.S. 183, 226 (1971) (Blac