U.S. Supreme Court Ford v. Wainwright, 477
U.S. 399 (1986) Ford v. Wainwright No. 85-5542 Argued April 22, 1986 Decided June 26, 1986 477
U.S. 399 CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE ELEVENTH
CIRCUIT Syllabus 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 Page 477 U. S. 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. 477 U. S.
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. 477 U. S.
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. 477 U. S.
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. 477 U. S.
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 Page 477 U. S. 401 requirements, the States retain substantial discretion to create
appropriate procedures. Pp. 477 U. S.
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. 477 U. S. 418 .
O'CONNOR, J., filed an opinion concurring in the result in part and
dissenting in part, in which WHITE, J., joined, post, p. 477 U. S. 427 .
REHNQUIST, J., filed a dissenting opinion, in which BURGER, C.J.,
joined, post, p. 477 U. S.
431 .

															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.

															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. I Alyin 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. Page 477 U. S. 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 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 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 Page 477 U. S.
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 mental capacity
to understand the nature of the death penalty and the reasons why
it was imposed Page 477 U. S. 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 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 Page 477 U. S. 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). II 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 (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.

															There is now little room for doubt that 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 , 463 U. S.
285 -286 (1983); id. at 463 U. S.
312 -313 (BURGER, C.J., joined by Page 477 U. S. 406 WHITE, REHNQUIST, and O'CONNOR, JJ., dissenting); Furman v.
Georgia, 408 U. S. 238 , 408 U. S. 264 (1972) (BRENNAN, J., concurring); McGautha v. California, 402 U. S. 183 , 402 U. S. 226 (1971) (Black, J., concurring).

															"Although the Framers may have intended the Eighth Amendment to
go beyond the scope of its English counterpart, their use of the
language of the English Bill of Rights is convincing proof that
they intended to provide at least the same protection. . . ." Solem v. Helm, supra, at 463 U. S.
286 .

															Moreover, the Eighth Amendment's proscriptions are not limited
to those practices condemned by the common law in 1789. See
Gregg v. Georgia, 428 U. S. 153 , 428 U. S. 171 (1976) (opinion of Stewart, POWELL, and STEVENS, JJ.). Not bound by
the sparing humanitarian concessions of our forebears, the
Amendment also recognizes the "evolving standards of decency that
mark the progress of a maturing society." Trop v. Dulles, 356 U. S. 86 , 356 U. S. 101 (1958) (plurality opinion). In addition to considering the
barbarous methods generally outlawed in the 18th century,
therefore, this Court takes into account objective evidence of
contemporary values before determining whether a particular
punishment comports with the fundamental human dignity that the
Amendment protects. See Coker v. Georgia, 433 U.
S. 584 , 433 U. S. 597 (1977) (plurality opinion). A We begin, then, with the common law. The bar against executing a
prisoner who has lost his sanity bears impressive historical
credentials; the practice consistently has been branded "savage and
inhuman." 4 W. Blackstone, Commentaries *24-*25 (hereinafter
Blackstone). Blackstone explained:

															"[I]diots and lunatics are not chargeable for their own acts, if
committed when under these incapacities: no, not even for treason
itself. Also, if a man in his sound memory commits a capital
offence, and before arraignment for it, he becomes mad, he ought
not to be arraigned for Page 477 U. S. 407 it: because he is not able to plead to it with that advice and
caution that he ought. And if, after he has pleaded, the prisoner
becomes mad, he shall not be tried: for how can he make his
defence? If, after he be tried and found guilty, he loses his
senses before judgment, judgment shall not be pronounced; and if,
after judgment, he becomes of nonsane memory, execution shall be
stayed: for peradventure, says the humanity of the English law, had
the prisoner been of sound memory, he might have alleged something
in stay of judgment or execution." Ibid. (footnotes omitted).

															Sir Edward Coke had earlier expressed the same view of the
common law of England:

															"[B]y intendment of Law, the execution of the offender is for
example, . . . but so it is not when a mad man is executed, but
should be a miserable spectacle, both against Law, and of extream
inhumanity and cruelty, and can be no example to others."

															3 E. Coke, Institutes 6 (6th ed. 1680) (hereinafter Coke). Other
recorders of the common law concurred. See 1 M. Hale,
Pleas of the Crown 35 (1736) (hereinafter Hale); 1 W. Hawkins,
Pleas of the Crown 2 (7th ed. 1795) (hereinafter Hawkins); Hawles,
Remarks on the Trial of Mr. Charles Bateman, 11 How.St.Tr. 474, 477
(1685) (hereinafter Hawles).

															As is often true of common law principles, see O.
Holmes, The Common Law 5 (1881), the reasons for the rule are less
sure and less uniform than the rule itself. One explanation is that
the execution of an insane person simply offends humanity, Coke 6;
another, that it provides no example to others, and thus
contributes nothing to whatever deterrence value is intended to be
served by capital punishment. Ibid. Other commentators
postulate religious underpinnings: that it is uncharitable to
dispatch an offender "into another world, when he is not of a
capacity to fit himself for it," Hawles 477. It is also said that
execution serves no purpose in these cases because madness is its
own punishment: furiosus Page 477 U. S.
408 solo furore punitur. Blackstone *395. More recent
commentators opine that the community's quest for "retribution" --
the need to offset a criminal act by a punishment of equivalent
"moral quality" -- is not served by execution of an insane person,
which has a "lesser value" than that of the crime for which he is
to be punished. Hazard & Louisell, Death, the State, and the
Insane: Stay of Execution, 9 UCLA L.Rev. 381, 387 (1962). Unanimity
of rationale, therefore, we do not find. "But whatever the reason
of the law is, it is plain the law is so." Hawles 477. We know of
virtually no authority condoning the execution of the insane at
English common law. [ Footnote
1 ]

															Further indications suggest that this solid proscription was
carried to America, where it was early observed that "the judge is
bound" to stay the execution upon insanity of the prisoner. 1 J.
Chitty, A Practical Treatise on the Criminal Law *761; see 1 F. Wharton, A Treatise on Criminal Law § 59 (8th ed. 1880). B This ancestral legacy has not outlived its time. Today, no State
in the Union permits the execution of the insane. [ Footnote 2 ] It Page 477 U. S. 409 is clear that the ancient and humane limitation upon the State's
ability to execute its sentences has as firm a hold upon the
jurisprudence of today as it had centuries ago in England. The
various reasons put forth in support of the common law restriction
have no less logical, moral, and practical force than they did when
first voiced. For today, no less than before, we may seriously
question the retributive value of executing a person who has no
comprehension of why he has been singled out and stripped of his
fundamental right to life. See Note, The Eighth Amendment
and the Execution of the Presently Incompetent, 32 Stan.L.Rev. 765,
777, n. 58 (1980). Similarly, the natural abhorrence civilized
societies feel at killing one who has no capacity to come to grips
with his own conscience or deity is still vivid today. And the
intuition that such an execution simply offends humanity is
evidently shared across this Nation. Faced with such widespread
evidence of a restriction upon sovereign power, this Court is
compelled to conclude that the Eighth Amendment Page 477 U. S. 410 prohibits a State from carrying out a sentence of death upon a
prisoner who is insane. Whether its aim be 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. III The Eighth Amendment prohibits the State from inflicting the
penalty of death upon a prisoner who is insane. Petitioner's
allegation of insanity in his habeas corpus petition, if proved,
therefore, would bar his execution. The question before us is
whether the District Court was under an obligation to hold an
evidentiary hearing on the question of Ford's sanity. In answering
that question, we bear in mind that, while the underlying social
values encompassed by the Eighth Amendment are rooted in historical
traditions, the manner in which our judicial system protects those
values is purely a matter of contemporary law. Once a substantive
right or restriction is recognized in the Constitution, therefore,
its enforcement is in no way confined to the rudimentary process
deemed adequate in ages past. A In a habeas corpus proceeding, "a federal evidentiary hearing is
required unless the state court trier of fact has after a full
hearing reliably found the relevant facts." Townsend v.
Sain, 372 U. S. 293 , 372 U. S.
312 -313 (1963). The habeas corpus statute, following
this Court's decision in Townsend, provides that, in
general,

															"a determination after a hearing on the merits of a factual
issue, made by a State court of competent jurisdiction . . shall be
presumed to be correct,"

															and an evidentiary hearing not required. 28 U.S.C. § 2254(d). In
this case, it is clear that no state court has issued any
determination to which that presumption of correctness could be
said to attach; indeed, no court played any role in the rejection
of petitioner's claim of insanity. Thus, quite simply, Page 477 U. S. 411 Townsend and § 2254 require the District Court to grant
a hearing de novo on that question.

															But our examination does not stop there. For even when a state
court has rendered judgment, a federal court is obliged to hold an
evidentiary hearing on habeas corpus if, among other factors, "the
factfinding procedure employed by the State court was not adequate
to afford a full and fair hearing," § 2254(d)(2); or "the material
facts were not adequately developed at the State court hearing," §
2254(d)(3); or "the applicant did not receive a full, fair, and
adequate hearing in the State court proceeding." § 2254(d)(6). If
federal factfinding is to be avoided, then, in addition to
providing a court judgment on the constitutional question, the
State must also ensure that its procedures are adequate for the
purpose of finding the facts. B The adequacy of a state court procedure under Townsend is largely a function of the circumstances and the interests at
stake. In capital proceedings generally, this Court has demanded
that factfinding procedures aspire to a heightened standard of
reliability. See, e.g., Spaziano v. Florida, 468 U.
S. 447 , 468 U. S. 456 (1984). This especial concern is a natural consequence of the
knowledge that execution is the most irremediable and unfathomable
of penalties; that death is different. See Woodson v. North
Carolina, 428 U. S. 280 , 428 U. S. 305 (1976) (opinion of Stewart, POWELL, and STEVENS, JJ.).

															Although the condemned prisoner does not enjoy the same
presumptions accorded a defendant who has yet to be convicted or
sentenced, he has not lost the protection of the Constitution
altogether; if the Constitution renders the fact or timing of his
execution contingent upon establishment of a further fact, then
that fact must be determined with the high regard for truth that
befits a decision affecting the life or death of a human being.
Thus, the ascertainment of a prisoner's sanity as a predicate to
lawful execution calls for no less stringent standards than those
demanded in any Page 477 U. S. 412 other aspect of a capital proceeding. Indeed, a particularly
acute need for guarding against error inheres in a determination
that "in the present state of the mental sciences is at best a
hazardous guess however conscientious." Solesbee v.
Balkcom, 339 U.S. at 339 U. S. 23 (Frankfurter, J., dissenting). That need is greater still because
the ultimate decision will turn on the finding of a single fact,
not on a range of equitable considerations. Cf. Woodson v.
North Carolina, supra, at 428 U. S. 304 .
In light of these concerns, the procedures employed in petitioner's
case do not fare well. C Florida law directs the Governor, when informed that a person
under sentence of death may be insane, to stay the execution and
appoint a commission of three psychiatrists to examine the
prisoner. Fla.Stat. § 922.07 (1985 and Supp.1986,). "The
examination of the convicted person shall take place with all three
psychiatrists present at the same time." Ibid. After
receiving the report of the commission, the Governor must determine
whether "the convicted person has the mental capacity to understand
the nature of the death penalty and the reasons why it was imposed
on him." Ibid. If the Governor finds that the prisoner has
that capacity, then a death warrant is issued; if not, then the
prisoner is committed to a mental health facility. The procedure is
conducted wholly within the executive branch, ex parte, and provides the exclusive means for determining sanity. Ford
v. Wainwright, 451 So. 2d at 475.

															Petitioner received the statutory process. The Governor selected
three psychiatrists, who together interviewed Ford for a total of
30 minutes, in the presence of eight other people, including Ford's
counsel, the State's attorneys, and correctional officials. The
Governor's order specifically directed that the attorneys should
not participate in the examination in any adversarial manner. This
order was consistent with the present Governor's

															"publicly announced policy Page 477 U. S. 413 of excluding all advocacy on the part of the condemned from the
process of determining whether a person under a sentence of death
is insane." Goode v. Wainwright, 448 So. 2d
999 , 1001 (Fla.1984).

															After submission of the reports of the three examining
psychiatrists, reaching conflicting diagnoses but agreeing on the
ultimate issue of competency, Ford's counsel attempted to submit to
the Governor some other written materials, including the reports of
the two other psychiatrists who had examined Ford at greater
length, one of whom had concluded that the prisoner was not
competent to suffer execution. The Governor's office refused to
inform counsel whether the submission would be considered. The
Governor subsequently issued his decision in the form of a death
warrant. That this most cursory form of procedural review fails to
achieve even the minimal degree of reliability required for the
protection of any constitutional interest, and thus falls short of
adequacy under Townsend, is self-evident. IV The first deficiency in Florida's procedure lies in its failure
to include the prisoner in the truth-seeking process.
Notwithstanding this Court's longstanding pronouncement that "[t]he
fundamental requisite of due process of law is the opportunity to
be heard," Grannis v. Ordean, 234 U.
S. 385 , 234 U. S. 394 (1914), state practice does not permit any material relevant to the
ultimate decision to be submitted on behalf of the prisoner facing
execution. In all other proceedings leading to the execution of an
accused, we have said that the factfinder must "have before it all
possible relevant information about the individual defendant whose
fate it must determine." Jurek v. Texas, 428 U.
S. 262 , 428 U. S. 276 (1976) (plurality opinion). And we have forbidden States to limit
the capital defendant's submission of relevant evidence in
mitigation of the sentence. Skipper v. South Carolina, 476 U. S. 1 , 476 U. S. 8 Page 477 U. S. 414 (1986); Lockett v. Ohio, 438 U.
S. 586 , 438 U. S. 604 (1978) (joint opinion). It would be odd were we now to abandon our
insistence upon unfettered presentation of relevant information,
before the final fact antecedent to execution has been found.

															Rather, consistent with the heightened concern for fairness and
accuracy that has characterized our review of the process requisite
to the taking of a human life, we believe that 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.

															"[T]he minimum assurance that the life-and-death guess will be a
truly informed guess requires respect for the basic ingredient of
due process, namely, an opportunity to be allowed to substantiate a
claim before it is rejected." Solesbee v. Balkcom, supra, at 339 U. S. 23 (Frankfurter, J., dissenting).

															We recently had occasion to underscore the value to be derived
from a factfinder's consideration of differing psychiatric opinions
when resolving contested issues of mental state. In Ake v.
Oklahoma, 470 U. S. 68 (1985), we recognized that, because

															"psychiatrists disagree widely and frequently on what
constitutes mental illness [and] on the appropriate diagnosis to be
attached to given behavior and symptoms,"

															the factfinder must resolve differences in opinion within the
psychiatric profession "on the basis of the evidence offered by
each party" when a defendant's sanity is at issue in a criminal
trial. Id. at 470 U. S. 81 .
The same holds true after conviction; without any adversarial
assistance from the prisoner's representative -- especially when
the psychiatric opinion he proffers is based on much more extensive
evaluation than that of the state-appointed commission -- the
factfinder loses the substantial benefit of potentially probative
information. The result is a much greater likelihood of an
erroneous decision. Page 477 U. S. 415 B A related flaw in the Florida procedure is the denial of any
opportunity to challenge or impeach the state-appointed
psychiatrists' opinions. "[C]ross-examination . . . is beyond any
doubt the greatest legal engine ever invented for the discovery of
truth." 5 J. Wigmore, Evidence § 1367 (J. Chadbourn rev.1974).
Cross-examination of the psychiatrists, or perhaps a less formal
equivalent, would contribute markedly to the process of seeking
truth in sanity disputes by bringing to light the bases for each
expert's beliefs, the precise factors underlying those beliefs, any
history of error or caprice of the examiner, any personal bias with
respect to the issue of capital punishment, the expert's degree of
certainty about his or her own conclusions, and the precise meaning
of ambiguous words used in the report. Without some questioning of
the experts concerning their technical conclusions, a factfinder
simply cannot be expected to evaluate the various opinions,
particularly when they are themselves inconsistent. See
Barefoot v. Estelle, 463 U. S. 880 , 463 U. S. 899 (1988). The failure of the Florida procedure to afford the
prisoner's representative any opportunity to clarify or challenge
the state experts' opinions or methods creates a significant
possibility that the ultimate decision made in reliance on those
experts will be distorted. [ Footnote 3 ] Page 477 U. S. 416 C Perhaps the most striking defect in the procedures of Fla.Stat.
§ 922.07 (1986 and Supp.1986), as noted earlier, is the State's
placement of the decision wholly within the executive branch. Under
this procedure, the person who appoints the experts and ultimately
decides whether the State will be able to carry out the sentence
that it has long sought is the Governor, whose subordinates have
been responsible for initiating every stage of the prosecution of
the condemned, from arrest through sentencing. The commander of the
State's corps of prosecutors cannot be said to have the neutrality
that is necessary for reliability in the factfinding
proceeding.

															Historically, delay of execution on account of insanity was not
a matter of executive clemency ( ex mandato regis ) or
judicial discretion ( ex arbitrio judicis ); rather, it was
required by law ( ex necessitate legis ). 1 N. Walker, Crime
and Insanity in England 196 (1968). Thus, history affords no better
basis than does logic for placing the final determination of a
fact, critical to the trigger of a constitutional limitation upon
the State's power, in the hands of the State's own chief executive.
In no other circumstance of which we are aware is the vindication
of a constitutional right entrusted to the unreviewable discretion
of an administrative tribunal.

															Having identified various failings of the Florida scheme, we
must conclude that the State's procedures for determining sanity
are inadequate to preclude federal redetermination of the
constitutional issue. We do not here suggest that only a full trial
on the issue of sanity will suffice to protect the federal
interests; we leave to the State the task of developing appropriate
ways to enforce the constitutional restriction Page 477 U. S. 417 upon its execution of sentences. [ Footnote 4 ] It may be that some high threshold showing on
behalf of the prisoner will be found a necessary means to control
the number of nonmeritorious or repetitive claims of insanity. Cf. Pate v. Robinson, 383 U. S. 375 , 383 U. S. 387 (1966) (hearing on competency to stand trial required if
"sufficient doubt" of competency exists). Other legitimate
pragmatic considerations may also supply the boundaries of the
procedural safeguards that feasibly can be provided.

															Yet the lodestar of any effort to devise a procedure must be the
overriding dual imperative of providing redress for those with
substantial claims and of encouraging accuracy in the factfinding
determination. The stakes are high, and the "evidence" will always
be imprecise. It is all the more important that the adversary
presentation of relevant information be as unrestricted as
possible. Also essential is that the manner of selecting and using
the experts responsible for producing that "evidence" be conducive
to the formation of neutral, sound, and professional judgments as
to the prisoner's ability to comprehend the nature of the penalty.
Fidelity to these principles is the solemn obligation of a
civilized society. B Today we have explicitly recognized in our law a principle that
has long resided there. It is no less abhorrent today than it has
been for centuries to exact in penance the life of one whose mental
illness prevents him from comprehending the reasons for the penalty
or its implications. In light of the Page 477 U. S. 418 clear need for trustworthiness in any factual finding that will
prevent or permit the carrying out of an execution, we hold that
Fla.Stat. § 922.07 (1985 and Supp.1986) provides inadequate
assurances of accuracy to satisfy the requirements of Townsend
v. Sain, 372 U. S. 293 (1963). Having been denied a factfinding procedure "adequate to
afford a full and fair hearing" on the critical issue, 28 U.S.C. §
2254(d)(2), petitioner is entitled to an evidentiary hearing in the
District Court, de novo, on the question of his competence
to be executed. Townsend v. Sain, supra, at 372 U. S.
312 .

															The judgment of the Court of Appeals is reversed, and the case
is remanded for further proceedings consistent with this
opinion. It is so ordered. [ Footnote 1 ]

															At one point, Henry VIII enacted a law requiring that, if a man
convicted of treason fell mad, he should nevertheless be executed.
33 Hen. VIII, ch. 20. This law was uniformly condemned. See Blackstone *25; 1 Hale 35; 1 Hawkins 2. The "cruel and
inhumane Law lived not long, but was repealed, for in that point
also it was against the Common Law. . . ." Coke 6.

															[ Footnote 2 ]

															Of the 50 States, 41 have a death penalty or statutes governing
execution procedures. Of those, 26 have statutes explicitly
requiring the suspension of the execution of a prisoner who meet
the legal test for incompetence. See Ala.Code § 15-16-23
(1982); Ariz.Rev.Stat.Ann. § 13-4023 (1978); Ark.Stat.Ann. §
43-2622 (1977); Cal.Penal Code Ann. § 3703 (West 1982);
Colo.Rev.Stat. § 16-8-112(2) (Supp.1985); Conn.Gen.Stat. § 54-101
(1985); Fla.Stat. § 922.07 (1986 and Supp.1986); Ga.Code Ann. §
17-10-62 (1982); Ill.Rev.Stat., ch. 38, � 1005-2-3 (1982);
Kan.Stat.Ann. § 22-4006(3) (1981); Ky.Rev. Stat § 431.240(2)
(1985); Md.Ann.Code, Art. 27, § 75(c) (Supp.1985); Miss. Code Ann.
§ 99-19-57(2) (Supp.1985); Mo.Rev. Stat § 552.060 (1978); Mont.Code
Ann. § 46-14-221 (1984); Neb.Rev.Stat. § 29-2537 (1979);
Nev.Rev.Stat. § 176.445 (1985); N.J.Stat.Ann. § 30:4-82 (West
1981); N.M.Stat.Ann. § 31-14-6 (1984); N.Y.Correc.Law § 656
(McKinney Supp.1986); N.C.Gen.Stat. § 1001 (1983); Ohio Rev.Code
Ann. § 2949.29 (1982); Okla.Stat., Tit. 22, § 1008 (1986);
S.D.Codified Laws § 23A-27A-24 (1979); Utah Code Ann. § 77-19-13
(1982); Wyo.Stat. § 7-13-901 (Supp.1986). Others have adopted the
common law rule by judicial decision. See State v. Allen, 204 La. 513, 515, 15 So. 2d 870, 871 (1943); Commonwealth v.
Moon, 383 Pa. 18, 22-23, 117 A.2d 96, 99 (1965); Jordan v.
State, 124 Tenn. 81, 89-90, 135 S.W. 327, 329 (1911); State v. Davis, 6 Wash. 2d 696, 717, 108 P.2d 641, 651
(1940). Still others have more discretionary statutory procedures
providing for the suspension of sentence and transfer to mental
facilities for convicted prisoners who have developed mental
illness. See Del.Code Ann., Tit. 11, § 406 (1979);
Ind.Code § 11-10-4-2 (1982); Mass.Gen.Laws, ch. 279, § 62 (1984);
R.I.Gen.Laws § 40.1-5.3-7 (1984); S.C.Code § 44-23-220 (1985); Tex.
Code Crim.Proc.Ann., Art. 46.01 (1979); Va.Code § 19.2-177 (1983).
The remaining four States having a death penalty have no specific
procedure governing insanity, but have not repudiated the common
law rule.

															[ Footnote 3 ]

															The adequacy of the factfinding procedures is further called
into question by the cursory nature of the underlying psychiatric
examination itself. While this Court does not purport to set
substantive guidelines for the development of expert psychiatric
opinion, cf. Barefoot v. Estelle, 463 U.
S. 880 , 463 U. S. 903 (1983), we can say that the goal of reliability is unlikely to be
served by a single group interview, with no provision for the
exercise of the psychiatrists' professional judgment regarding the
possible need for different or more comprehensive evaluative
techniques. The inconsistency and vagueness of the conclusions
reached by the three examining psychiatrists in this case attest to
the dubious value of such an examination.

															[ Footnote 4 ]

															Instructive analogies may be found in the State's own procedures
for determining whether a defendant is competent to stand trial,
Fla.Stat. §§ 916.11-916.12 (1985 and Supp.1986), or in the
comprehensive safeguards that Florida ensures to those subjected to
involuntary commitment proceedings, Fla.Stat. § 394.467 (1986). The
parties' interests are of course somewhat different in those
contexts; nevertheless, all such inquests share the common goal of
reaching a fair assessment of the subject's mental state.

															JUSTICE POWELL, concurring in part and concurring in the
judgment.

															I join Parts I and II of the Court's opinion. As JUSTICE
MARSHALL ably demonstrates, execution of the insane was barred at
common law precisely because it was considered cruel and unusual.
In Solem v. Helm, 463 U. S. 277 (1983), we explained that, while the Framers

															"may have intended the Eighth Amendment to go beyond the scope
of its English counterpart, their use of the language of the
English Bill of Rights is convincing proof that they intended to
provide at least the same protection." Id. at 463 U. S. 286 .
It follows that the practice of executing the insane is barred by
our own Constitution.

															That conclusion leaves two issues for our determination: (i) the
meaning of insanity in this context, and (ii) the procedures States
must follow in order to avoid the necessity of de novo review in federal courts under 28 U.S.C. § 2254(d). The Court's
opinion does not address the first of these issues, and as to the
second, my views differ substantially from JUSTICE MARSHALL's. I
therefore write separately. Page 477 U. S. 419 I The Court holds today that the Eighth Amendment bars execution
of a category of defendants defined by their mental state. The
bounds of that category are necessarily governed by federal
constitutional law. I therefore turn to the same sources that give
rise to the substantive right to determine its precise definition:
chiefly, our common law heritage and the modern practices of the
States, which are indicative of our "evolving standards of
decency." Trop v. Dulles, 356 U. S.
86 , 356 U. S. 101 (1958) (plurality opinion). See Solem v. Helm, supra, at 463 U. S.
284 -286; Gregg v. Georgia, 428 U.
S. 153 , 428 U. S.
175 -176 (1976) (opinion of Stewart, POWELL, and STEVENS,
JJ.). A As the Court recognizes, ante at 477 U. S.
407 -408, the ancient prohibition on execution of the
insane rested on differing theories. Those theories do not provide
a common answer when it comes to defining the mental awareness
required by the Eighth Amendment as a prerequisite to a defendant's
execution. On the one hand, some authorities contended that the
prohibition against executing the insane was justified as a way of
preserving the defendant's ability to make arguments on his own
behalf. See 1 M. Hale, Pleas of the Crown 35 (1736) ("if
after judgment he become of non sane memory, his execution shall be
spared; for were he of sound memory he might allege somewhat in
stay of judgment or execution"); accord, 4 W. Blackstone,
Commentaries *388-*389. Other authorities suggest, however, that
the prohibition derives from more straightforward humanitarian
concerns. Coke expressed the view that execution was intended to be
an "example" to the living, but that the execution of "a mad man"
was such "a miserable spectacle . . . of extream inhumanity and
cruelty" that it "can be no example to others." 3 E. Coke,
Institutes 6 (1794). Hawles added that it is "against christian
charity to send a great offender quick . . . into another world,
when he is not of a capacity to fit himself for it." Page 477 U. S. 420 Hawles, Remarks on the Trial of Mr. Charles Bateman, 11
How.St.Tr. 474, 477 (1685).

															The first of these justifications has slight merit today. Modern
practice provides far more extensive review of convictions and
sentences than did the common law, including not only direct appeal
but ordinarily both state and federal collateral review. [ Footnote 2/1 ] Throughout this process, the
defendant has access to counsel, by constitutional right at trial,
and by employment or appointment at other stages of the process
whenever the defendant raises substantial claims. Nor does the
defendant merely have the right to counsel's assistance; he also
has the right to the effective assistance of counsel at
trial and on appeal. Evitts v. Lucey, 469 U.
S. 387 (1985); Strickland v. Washington, 466 U. S. 668 (1984). See Kimmelman v. Morrison, ante at 477 U. S.
392 -393 (POWELL, J., concurring in judgment). 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.

															In addition, in cases tried at common law, execution often
followed fairly quickly after trial, so that incompetence at
the Page 477 U. S. 421 time of execution was linked as a practical matter with
incompetence at the trial itself. Our decisions already recognize,
however, that a defendant must be competent to stand trial, and
thus the notion that a defendant must be able to assist in his
defense is largely provided for. See Drope v. Missouri, 420 U. S. 162 (1975). [ Footnote 2/2 ] B The more general concern of the common law -- that executions of
the insane are simply cruel -- retains its vitality. It is as true
today as when Coke lived that most men and women value the
opportunity to prepare, mentally and spiritually, for their death.
Moreover, today, as at common law, one of the death penalty's
critical justifications, its retributive force, depends on the
defendant's awareness of the penalty's existence and purpose. Thus,
it remains true that executions of the insane both impose a
uniquely cruel penalty and are inconsistent with one of the chief
purposes of executions generally. For precisely these reasons,
Florida requires the Governor to stay executions of those who "d[o]
not have the mental capacity to understand the nature of the death
penalty and why it was imposed" on them. Fla.Stat. § 922.07 (1985
and Supp.1986). See also Ill.Rev.Stat., ch. 38, �
1005-2-3(a) (1985) ("A person is unfit to be executed if because of
a mental condition he is unable to understand the nature and
purpose of such sentence"); State v. Pastet, 169 Conn.13,
28, 363 A.2d 41, 49 (question is "whether the defendant was able to
understand the nature of the sentencing proceedings, i.e., why he was being punished and the nature of his punishment"), cert. denied, 423 U.S. 937 (1975). A number of Page 477 U. S. 422 States have more rigorous standards, [ Footnote 2/3 ] 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.
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.
App. 65-67. If this assessment is correct, petitioner Page 477 U. S. 423 cannot connect his execution to the crime for which he was
convicted. Thus, the question is whether petitioner's evidence
entitles him to a hearing in Federal District Court on his
claim. II Petitioner concedes that the Governor of Florida has determined
that he is not insane under the standard prescribed by Florida's
statute, which is the same as the standard just described.
Petitioner further concedes that there is expert evidence that
supports the Governor's finding. Thus, if that finding is entitled
to a presumption of correctness under 28 U.S.C. § 2254(d), there is
no ground for holding a hearing on petitioner's federal habeas
corpus petition.

															I agree with JUSTICE MARSHALL that the Governor's finding is not
entitled to a presumption of correctness under § 2254(d). I reach
this conclusion for two independent reasons. First, § 2254(d)
requires deference to the factual findings of "a State court of
competent jurisdiction." The term "State court" may have a certain
amount of flexibility, [ Footnote
2/4 ] but no amount of stretching can extend it to include the
Governor. The essence of a "court" is independence from the
prosecutorial arm of government and, as JUSTICE MARSHALL correctly
notes, the Governor is "[t]he commander of the State's corps of
prosecutors." Ante at 477 U. S. 416 .
Unless the relevant language is to be read out of the statute, I
see no basis for affording any deference to the Governor's
determination.

															Second, the presumption of correctness does not attach to the
Governor's implicit finding of sanity, because the State did not
give petitioner's claim "a full and fair hearing," 28 U.S.C. §
2254(d)(2). This statutory phrase apparently was drawn from the
Court's opinion in Townsend v. Sain, 372 U.
S. 293 , 372 U. S. 313 (1963). There, the Court concluded that, where the state court's
"factfinding procedure . . . was not Page 477 U. S. 424 adequate for reaching reasonably correct results," or where the
process "appear[ed] to be seriously inadequate for the
ascertainment of the truth," no presumption of correctness would
attach to the state court's findings when those findings were
challenged on federal habeas corpus. Id. at 372 U. S.
316 .

															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." Indeed, fundamental fairness is the hallmark of the
procedural protections afforded by the Due Process Clause. See
Lassiter v. Department of Social Services of Durham County, 452 U. S. 18 , 452 U. S. 24 -25
(1981). 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 477 U. S. 430 (quoting Grannis v. Ordean, 234 U.
S. 385 , 234 U. S. 394 (1914)). In this case, petitioner was deprived of that opportunity.
The Florida statute does not require the Governor to consider
materials submitted by the prisoner, and the present Governor has a
"publicly announced policy of excluding" such materials from his
consideration. Goode v. Wainwright, 448 So. 2d
999 , 1001 (Fla.1984). Thus, the determination of petitioner's
sanity appears to have been made solely on the basis of the
examinations performed by state-appointed psychiatrists. Such a
procedure invites arbitrariness and error by preventing the
affected parties from offering contrary medical evidence, or even
from explaining the inadequacies of the State's examinations. It
does not, therefore, comport with due process. It follows that the
State's procedure was not "fair," and that the District Page 477 U. S. 425 Court on remand must consider the question of petitioner's
competency to be executed. III While the procedures followed by Florida in this case do not
comport with basic fairness, I would not require the kind of
full-scale "sanity trial" that JUSTICE MARSHALL appears to find
necessary. See ante at 477 U. S.
413 -416, 477 U. S. 418 .
Due process is a flexible concept, requiring only "such procedural
protections as the particular situation demands." Mathews v.
Eldridge, 424 U. S. 319 , 424 U. S. 334 (1976); Morrissey v. Brewer, 408 U.
S. 471 , 408 U. S. 481 (1972). See also post at 477 U. S. 429 (O'CONNOR, J., concurring in result in part and dissenting in
part). In this instance, a number of considerations support the
conclusion that the requirements of due process are not as
elaborate as JUSTICE MARSHALL suggests.

															First, the Eighth Amendment claim at issue can arise only after
the prisoner has been validly convicted of a capital crime and
sentenced to death. Thus, in this case, the State has a substantial
and legitimate interest in taking petitioner's life as punishment
for his crime. That interest is not called into question by
petitioner's claim. Rather, the only question raised is not whether, but when, his execution may take place.
[ Footnote 2/5 ] This question is
important, but it is not comparable to the antecedent question
whether petitioner should be executed at all. It follows that this
Court's decisions imposing heightened procedural requirements on
capital trials and sentencing proceedings -- e.g., Lockett v.
Ohio, 438 U. S. 586 (1978) (plurality opinion); Turner v. Murray, 476 U. S.
28 (1986) -- do not apply in this context.

															Second, petitioner does not make his claim of insanity against a
neutral background. On the contrary, in order to Page 477 U. S. 426 have been convicted and sentenced, petitioner must have been
judged competent to stand trial, or his competency must have been
sufficiently clear as not to raise a serious question for the trial
court. The State therefore may properly presume that petitioner
remains sane at the time sentence is to be carried out, [ Footnote 2/6 ] and may require a substantial
threshold showing of insanity merely to trigger the hearing
process. Cf. Ake v. Oklahoma, 470 U. S.
68 , 470 U. S. 82 -83
(1985).

															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 , 441 U. S.
429 -430 (1979); cf. Barefoot v. Estelle, 463 U. S. 880 , 463 U. S.
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." Addington, supra, at 441 U. S. 430 .
This combination of factors means that ordinary adversarial
procedures -- complete with live testimony, cross-examination, and
oral argument by counsel -- are not necessarily the best means of
arriving at sound, consistent judgments as to a defendant's sanity. Cf. Parham v. J. R., 442 U. S. 584 , 442 U. S. 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"). Page 477 U. S. 427 We need not determine the precise limits that due process
imposes in this area. In general, however, my view is that a
constitutionally acceptable procedure may be far less formal than a
trial. The State should provide an impartial officer or board that
can receive evidence and argument from the prisoner's counsel,
including expert psychiatric evidence that may differ from the
State's own psychiatric examination. Beyond these basic
requirements, the States should have substantial leeway to
determine what process best balances the various interests at
stake. As long as basic fairness is observed, I would find due
process satisfied, and would apply the presumption of correctness
of § 2254(d) on federal habeas corpus. IV Because petitioner has raised a viable claim under the Eighth
Amendment, and because that claim was not adjudicated fairly within
the meaning of due process or of § 2254(d), petitioner is entitled
to have his claim adjudicated by the District Court on federal
habeas corpus. I therefore join the Court's judgment.

															[ Footnote 2/1 ]

															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.
This petition for relief was denied, Brown v.
Wainwright, 392 So. 2d
1327 (Fla.1981), and this Court again denied certiorari. 454 U. S. 1000 (1981). Petitioner filed a motion for postconviction relief in
state court, and relief was again denied. Ford v.
State, 407 So. 2d 907 (Fla.1981). Following these unsuccessful attempts to obtain relief
from his conviction or execution in state court, petitioner filed a
petition for habeas corpus in federal court. Relief was again
denied, Ford v. Strickland, 696 F.2d 804 (CA11) (en banc), cert. denied, 464 U.S. 865 (1983). Only after all of these
challenges had been resolved against him did petitioner challenge
his impending execution on the ground of insanity.

															[ Footnote 2/2 ]

															Moreover, a standard that focused on the defendant's ability to
assist in his defense would give too little weight to the State's
interest in finality, since it implies a constitutional right to
raise new challenges to one's criminal conviction until sentence
has run its course. Such an implication is false: we have made
clear that States have a strong and legitimate interest in avoiding
repetitive collateral review through procedural bars. See
Kuhlmann v. Wilson, post at 477 U. S.
452 -454 (plurality opinion).

															[ Footnote 2/3 ]

															A number of States have remained faithful to Blackstone's view
that a defendant cannot be executed unless he is able to assist in
his own defense. E.g., Miss.Code Ann. § 99-19-57(2)(b)
(Supp.1986); Mo.Rev.Stat. § 552.060(1) (1978); Utah Code Ann. §
77-15-2 (1982). The majority of States appear not to have addressed
the issue in their statutes. Modern case authority on this question
is sparse, and while some older cases favor the Blackstone view, see 24 C.J.S., Criminal Law § 1619 (1961), those cases
largely antedate the recent expansion of both the right to counsel
and the availability of federal and state collateral review.
Moreover, other cases suggest that the prevailing test is "whether
the condemned man was aware of his conviction and the nature of his
impending fate" -- essentially the same test stated by Florida's
statute. Note, Insanity of the Condemned, 88 Yale L.J. 533, 540
(1979); see Hazard & Louisell, Death, the State, and
the Insane: Stay of Execution, 9 UCLA L.Rev. 381, 394, and n. 44
(1962) (discussing cases). Under these circumstances, I find no
sound basis for constitutionalizing the broader definition of
insanity, with its requirement that the defendant be able to assist
in his own defense. 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.

															[ Footnote 2/4 ]

															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.

															[ Footnote 2/5 ]

															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.

															[ Footnote 2/6 ] Cf. Addington v. Texas, 441 U.
S. 418 (1979). In Addington, the Court held
that States must require proof by clear and convincing evidence in
order to involuntarily commit an individual to a mental hospital
for treatment. In this context, it is the defendant, and not the
State, who seeks to overcome the presumption that he is sane;
moreover, he does so following a trial and sentencing at which his
sanity was either conceded or determined by the court.

															JUSTICE O'CONNOR, with whom JUSTICE WHITE joins, concurring in
the result in part and dissenting in part.

															I am in full agreement with JUSTICE REHNQUIST's conclusion that
the Eighth Amendment does not create a substantive right not to be
executed while insane. Accordingly, I do not join the Court's
reasoning or opinion. Because, however, the conclusion is for me
inescapable that Florida positive law has created a protected
liberty interest in avoiding execution while incompetent, and
because Florida does not provide even those minimal procedural
protections required by due process in this area, I would vacate
the judgment and remand to the Court of Appeals with directions
that the case be returned to the Florida system so that a hearing
can be held in a manner consistent with the requirements of the Due
Process Clause. I cannot agree, however, that the federal Page 477 U. S. 428 courts should have any role whatever in the substantive
determination of a defendant's competency to be executed.

															As we explained in Hewitt v. Helms, 459 U.
S. 460 , 459 U. S. 466 ,
(1983),

															"[l]iberty interests protected by the Fourteenth Amendment may
arise from two sources -- the Due Process Clause itself and the
laws of the States." See also Meachum v. Fano, 427 U.
S. 215 , 427 U. S.
223 -227 (1976). With JUSTICE REHNQUIST, I agree that the
Due Process Clause does not independently create a protected
interest in avoiding the execution of a death sentence during
incompetency. See also Solesbee v. Balkcom, 339 U. S.
9 (1960). The relevant provision of the Florida statute,
however, provides that the Governor " shall " have the
prisoner committed to a "Department of Corrections mental health
treatment facility" if the prisoner "does not have the mental
capacity to understand the nature of the death penalty and why it
was imposed on him." Fla.Stat. § 922.07(3) (1985 and Supp.1986).
Our cases leave no doubt that, where a statute indicates with
"language of an unmistakable mandatory character" that state
conduct injurious to an individual will not occur "absent specified
substantive predicates," the statute creates an expectation
protected by the Due Process Clause. Hewitt v. Helms,
supra, at 459 U. S.
471 -472. See also Vitek v. Jones, 445 U.
S. 480 , 445 U. S.
488 -491 (1980); Greenholtz v. Nebraska Penal
Inmates, 442 U. S. 1 , 442 U. S. 10 (1979) (entitlement created where under state law "there is [a] set
of facts which, if shown, mandate a decision favorable to the
individual"). That test is easily met here. Nor is it relevant that
the statute creating the interest also specifies the procedures to
be followed when the State seeks to deprive the individual of that
interest. As we reaffirmed last Term, "[t]he categories of
substance and procedure are distinct." Cleveland Board of
Education v. Loudermill, 470 U. S. 532 , 470 U. S. 541 (1985). Thus, regardless of the procedures the State deems adequate
for determining the preconditions to adverse official action,
federal law defines the kind of process Page 477 U. S. 429 a State must afford prior to depriving an individual of a
protected liberty or property interest. Id. at 470 U. S.
541 .

															Although the state-created entitlement to avoid execution while
insane unquestionably triggers the demands of the Due Process
Clause, in my judgment those demands are minimal in this context.
"It is axiomatic that due process is flexible, and calls for
such procedural protections as the particular situation
[requires].'" Greenholtz v. Nebraska Penal Inmates, supra, at 442 U. S. 12 ,
quoting Morrissey v. Brewer, 408 U.
S. 471 , 408 U. S. 481 (1972). And there are any number of reasons for concluding that
this "particular situation" warrants substantial caution before
reading the Due Process Clause to mandate anything like the full
panoply of trial-type procedures. The prisoner's interest in
avoiding an erroneous determination is, of course, very great. But
I consider it self-evident that, once society has validly convicted
an individual of a crime and therefore established its right to
punish, the demands of due process are reduced accordingly. Meachum v. Fano, supra, at 427 U. S. 224 .
Moreover, the potential for false claims and deliberate delay in
this context is obviously enormous. Nobles v. Georgia, 168 U. S. 398 , 168 U. S.
405 -406 (1897). This potential is exacerbated by a
unique feature of the prisoner's protected interest in suspending
the execution of a death sentence during incompetency. By
definition, this interest can never be conclusively and finally
determined: regardless of the number of prior adjudications of the
issue, until the very moment of execution, the prisoner can claim
that he has become insane sometime after the previous determination
to the contrary. Hazard & Louisell, Death, the State and the
Insane: Stay of Execution, 9 UCLA L.Rev. 381, 399-400 (1962). These
difficulties, together with the fact that the issue arises only
after conviction and sentencing, convince me that the Due Process
Clause imposes few requirements on the States in this
context. Even given the broad latitude I would leave to the States in
this area, however, I believe that one aspect of the Florida Page 477 U. S. 430 procedure for determining competency to be executed renders that
procedure constitutionally deficient. If there is one "fundamental
requisite" of due process, it is that an individual is entitled to
an "opportunity to be heard." Grannis v. Ordean, 234 U. S. 385 , 284 U. S. 394 (1914). As currently implemented, the Florida procedure for
determining competency violates this bedrock principle. By
Executive Order, the present Governor has provided that

															"[c]ounsel for the inmate and the State Attorney may be present
[at the competency hearing] but shall not participate in the
examination in any adversarial manner."

															Exec.Order No. 83-137 (Dec. 9, 1983). See also Goode v.
Wainwright, 448 So. 2d
999 , 1001 (Fla.1984) (describing the Governor's "publicly
announced policy of excluding all advocacy on the part of the
condemned from the process of determining whether a person under a
sentence of death is insane"). Indeed, respondent does not dispute
that the Governor's office has steadfastly refused to acknowledge
whether it would even review the extensive psychiatric materials
submitted by petitioner concerning his present mental state. While
I would not invariably require oral advocacy or even
cross-examination, due process at the very least requires that the
decisionmaker consider the prisoner's written submissions.

															I conclude therefore that Florida law has created a protected
expectation that no execution will be carried out while the
prisoner lacks the "mental capacity to understand the nature of the
death penalty and why it was imposed on him." Fla.Stat. § 922.07(3)
(1985). Because Florida's procedures are inadequate to satisfy even
the minimal requirements of due process in this context, I would
vacate the judgment below with instructions that the case be
returned to Florida so that it might assess petitioner's competency
in a manner that accords with the command of the Fourteenth
Amendment. In my view, however, the only federal question presented
in cases such as this is whether the State's positive law has
created a liberty interest and whether its procedures Page 477 U. S. 431 are adequate to protect that interest from arbitrary
deprivation. Once satisfied that the procedures were adequate, a
federal court has no authority to second-guess a State's
substantive competency determination.

															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 477 U. S. 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 477 U. S. 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 477 U. S.
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." Page 477 U. S. 432 In Solesbee 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 339 U. S.
11 -12.

															Despite references to "evolving standards of decency," ante at 477 U. S. 406 ,
and "the jurisprudence of today," ante at 477 U. S. 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 Page 477 U. S. 433 "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 168 U. S.
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 Page 477 U. S. 434 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 339 U. S. 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 339 U. S. 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 Page 477 U. S. 435 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 , 168 U. S.
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.

															* 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).