Lewis F. Powell, Jr.

“ And only if the defendant is aware that his death is approaching can he prepare himself for his passing. Accordingly, I would hold that the Eighth Amendment forbids the execution only of those who are unaware of the punishment they are about to suffer and why they are to suffer it.
Petitioner's claim of insanity plainly fits within this standard. According to petitioner's proffered psychiatric examination, petitioner does not know that he is to be executed, but rather believes that the death penalty has been invalidated. ”

“ 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. ”

“ These guarantees are far broader than those enjoyed by criminal defendants at common law. It is thus unlikely indeed that a defendant today could go to his death with knowledge of undiscovered trial error that might set him free. ”

“ 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. ”

“ States are obviously free to adopt a more expansive view of sanity in this context than the one the Eighth Amendment imposes as a constitutional minimum.
4. Although we need not decide the issue in this case, the term "State court" may well encompass an independent panel of psychiatric experts who might both examine the defendant and determine his legal sanity.
5. It is of course true that some defendants may lose their mental faculties and never regain them, and thus avoid execution altogether. My point is only that, if petitioner is cured of his disease, the Sate is free to execute him. ”

“ States have more rigorous standards, [n3] but none disputes the need to require that those who are executed know the fact of their impending execution and the reason for 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. ”

“ 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. ”

“ Thus, the question in this case is whether Florida's procedures for determining petitioner's sanity comport with the requirements of due process.
Together with JUSTICE MARSHALL and JUSTICE O'CONNOR, I would hold that they do not. As JUSTICE O'CONNOR states, " [i] f there is one ‘fundamental requisite' of due process, it is that an individual is entitled to an ‘opportunity to be heard.'" Post at 430 (quoting Grannis v. Ordean, 234 U.S. 385, 394 (1914) ) . In this case, petitioner was deprived of that opportunity. ”

“ At least in the context of competency determinations prior to execution, this standard is no different from the protection afforded by procedural due process. It is clear that an insane defendant's Eighth Amendment interest in forestalling his execution unless or until he recovers his sanity cannot be deprived without a "fair hearing." ”

“ 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. ”

“ Finally, the sanity issue in this type of case does not resemble the basic issues at trial or sentencing. Unlike issues of historical fact, the question of petitioner's sanity calls for a basically subjective judgment. See Addington v. Texas, 441 U.S. 418, 429-430 (1979) ; cf. Barefoot v. Estelle, 463 U.S. 880, 898-901 (1983) . And unlike the determination of whether the death penalty is appropriate in a particular case, the competency determination depends substantially on expert analysis in a discipline fraught with "subtleties and nuances." ”

“ J. R., 442 U.S. 584, 609 (1979) ("Common human experience and scholarly opinions suggest that the supposed protections of an adversary proceeding to determine the appropriateness of medical decisions for the commitment and treatment of mental and emotional illness may well be more illusory than real") . ”

“ I therefore join the Court's judgment.
1. Petitioner offers a good example. Petitioner was convicted of first-degree murder in 1974. On direct appeal, his conviction and sentence were affirmed, Ford v. State, 374 So.2d 496 (Fla.1979) , and this Court denied certiorari. 445 U.S. 972 (1980) . Petitioner then joined 122 other death row inmates in seeking extraordinary relief from the Florida Supreme Court, based on that court's allegedly improper procedure for review of capital cases. ”