Competence to Be Executed

Facts of the Case

In 2004, Benjamin Cole was convicted and sentenced to death for the first-degree child abuse murder of his infant daughter. In 2015, Mr. Cole filed a 28 U.S.C. § 2254 habeas application in the Northern District of Oklahoma, claiming that he was incompetent to be executed, and that his execution would violate the Eighth and Fourteenth Amendments, as interpreted in Ford v. Wainwright, 477 U.S. 399 (1986) and Panetti v. Quarterman, 551 U.S. 930 (2007). Mr. Cole's execution was stayed from 2015 until 2022 after the Western District of Oklahoma entered judgment against Mr. Cole and other Oklahoma death-row inmates in a case challenging Oklahoma's method of execution. Given the stay, the district court administratively closed Mr. Cole's habeas proceeding; it later granted Mr. Cole's motion to reopen the matter and reinstate his original habeas application.

In June 2022, the district court approved a mental health evaluation, which was conducted by Dr. Scott Orth. Dr. Orth opined that Mr. Cole was competent to be executed and noted that Mr. Cole had a rational understanding of the reason he was being executed and that his execution was imminent. Mr. Cole argued that the “large quantum” of evidence he presented concerning his severe mental illness and incompetence for execution provided good reason to believe that he was not competent to be executed.

After Mr. Cole's execution date was rescheduled for October 20, 2022, he continued to assert his incompetence to be executed. Mr. Cole argued that Okla. Stat. tit. 22, § 1005 (2021) violated the U.S. Constitution, as interpreted by Ford, by making the prison warden, who is an executive officer and the executioner, the gatekeeper who decides whether to seek a competence trial. Mr. Cole asked prison warden Jim Farris to refer him for competence proceedings, citing that there was “good reason” to believe that he had become incompetent to be executed. The warden declined to make the referral, stating that upon careful consideration of the materials Mr. Cole provided, he had not become insane since his delivery to the Oklahoma State Penitentiary for execution.

Mr. Cole then sought mandamus relief from the Oklahoma courts to override the warden's decision and obtain a jury trial concerning his competence. After holding an evidentiary hearing, the state district court denied relief. The Oklahoma Court of Criminal Appeals (OCCA) subsequently also denied mandamus relief, finding that the state district court did not abuse its discretion when it determined that Mr. Cole did not meet the required substantial threshold showing of insanity, and that the warden therefore did not abuse his discretion by refusing to make the referral for competence to be executed proceedings.

On October 18, 2022, two days before his scheduled execution, Mr. Cole filed a supplemental petition for writ of habeas corpus, and requested a stay of execution. The district court denied habeas relief, the supplemental petition, a certificate of appealability, and Mr. Cole's emergency motion for a stay of execution. Mr. Cole appealed and sought a certificate of appealability concerning the following points: whether he made a substantial threshold showing of insanity sufficient to entitle him to a competence hearing under Okla. Stat. tit. 22, § 1005 that satisfied the Ford and Panetti due process standard; whether the statutory procedure outlined in Okla. Stat. tit. 22, § 1005 violates the Fourteenth Amendment by placing a warden, who is directly involved in carrying out an execution, in the position of a gatekeeper who decides whether to seek a competence trial; and whether Oklahoma's execution protocol violates the Eighth Amendment by failing to provide safeguards for an inmate who may be incompetent.

Ruling and Reasoning

The U.S. Court of Appeals for the Tenth Circuit denied the certificate of appealability, dismissed the matter, and denied the requested stay of execution as moot.

The Tenth Circuit referred to Panettii and held that Mr. Cole must demonstrate that he offered evidence sufficient to make a “substantial threshold showing of insanity” (Cole, p 1079) sufficient to trigger the state's duty to offer him a competence hearing. The Tenth Circuit held that, after reviewing the evidence (which included Warden Farris's testimony at the evidentiary hearing, and Dr. Orth's evaluation of Mr. Cole's competence to be executed), Mr. Cole did not meet the required substantial threshold that would have entitled him to further competence proceedings. The Tenth Circuit concluded that it was “clear that [Mr. Cole], while exhibiting some peculiar behaviors, completely and rationally understood the nature of the proceedings against him, what he was tried for, and that his execution was imminent” (Cole, p 1180). The Tenth Circuit ruled that Mr. Cole had provided no new evidence regarding his competence, other than Dr. Orth's report which opined that he was competent to be executed. The Tenth Circuit also held that, although Mr. Cole contended that Warden Farris improperly made his own determination of whether to refer him for competence to be executed proceedings, two levels of the Oklahoma courts had reviewed the warden's decision, including holding an evidentiary hearing, and found that Mr. Cole did not meet the substantial threshold requirement for a showing of insanity.

The Tenth Circuit rejected Mr. Cole's claim that Okla. Stat. tit. 22, § 1005 violates the Fourteenth Amendment, as interpreted by Ford, by placing the warden in the position of a gatekeeper who decides whether to seek a competence trial. The Tenth Circuit cited unpublished decisions that upheld the constitutionality of § 1005 against similar challenges and said that although these unpublished opinions were not binding precedent, their reasoning was persuasive. The Tenth Circuit noted that the concern the Court expressed in Ford about having an executive branch official serve as the sole gatekeeper for competence to be executed claims was attenuated here, because in Oklahoma the warden functions de facto as an initial gatekeeper whose decision is subject to judicial review through mandamus proceedings.

The Tenth Circuit rejected Mr. Cole's claim that Oklahoma's execution protocol was inadequate because “Mr. Cole failed to present it, in any form, to the OCCA” (Cole, p 1182). The Tenth Circuit noted that “Mr. Cole's only argument concerning the district court's procedural rationale” was that “competency is not a static concept, but can arise at any time during a proceeding” (Cole, p 1183). The Tenth Circuit held that “this merits-based argument is frivolous. The issue of Mr. Cole's competency had obviously arisen by the time of the state competency proceedings, and he fails to explain why he could not have presented this argument during those proceedings” (Cole, p 1183).