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76 Tenn. L. Rev. 713 (2008-2009)
Competency for Execution: The Implications of Communicative Model of Retribution

handle is hein.journals/tenn76 and id is 721 raw text is: COMPETENCY FOR EXECUTION: THE IMPLICATIONS OF A COMMUNICATIVE MODEL OF RETRIBUTION PAMELA A. WILKINS* I. INTRODUCTION In 1962, law professors David Louisell and Geoffrey Hazard noted that, although existing law recognized a right not to be executed while insane, the law was exceedingly vague regarding the actual test for insanity in this context.' Since then, more than forty-five years have passed. The Warren, Burger, and Rehnquist Courts have come and gone, and John Roberts, who was only seven years old in 1962,2 now presides as Chief Justice of the United States. The Court's understanding of the constitutional restrictions on the states' imposition of capital punishment has changed dramatically,3 with the once humble Eighth Amendment4 asserting its primacy in seemingly countless5 and, according to some, contradictory ways.6 Likewise, scientific understanding of * Assistant Professor of Law, University of Detroit Mercy School of Law. The author would like to thank Professor John Blume of the Cornell Law School and Professors Nicholas Kyser and Andrew Moore of the University of Detroit Mercy School of Law for reading and commenting on drafts of this article. 1. Geoffrey C. Hazard, Jr. & David W. Louisell, Death, the State, and the Insane: Stay of Execution, 9 UCLA L. REv. 381,394 (1962). 2. See The Justices of the Supreme Court, http://www.supremecourtus.gov/about/ biographiescurrent.pdf (last visited Mar. 9, 2009). 3. Compare McGauthav. California, 402 U.S. 183,207(1971) (stating that [in light of history, experience, and the present limitations of human knowledge, we find it quite impossible to say that committing to the untrammeled discretion of the jury the power to pronounce life or death in capital cases is offensive to anything in the Constitution) (emphasis added), with Furman v. Georgia, 408 U.S. 238, 239-40 (1972) (finding that Georgia's capital punishment scheme violated the Eighth Amendment to the United States Constitution because the statute vested in the jury the untrammeled discretion to decide life or death). 4. The Eighth Amendment prohibits cruel and unusual punishments. U.S. CONST. amend. VIII. 5. See, e.g., Atkins v. Virginia, 536 U.S. 304, 304 (2002) (finding that the Eighth Amendment prohibits imposition of death sentences upon mentally retarded offenders); Lockett v. Ohio, 438 U.S. 586, 604 (1978) (finding that the Eighth Amendment requires admission of all relevant mitigating evidence regarding a capital defendant's character, record, or circumstances of the offense); Gregg v. Georgia, 428 U.S. 153, 156 (1976) (finding that the Eighth Amendment requires the discretion of the sentencers be guided in order to avoid risk of arbitrary imposition of death penalty). 6. See Walton v. Arizona, 497 U.S. 639, 664 (1990) (Scalia, J., concurring in part and

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