By: David Gilmore
Volume X – Issue I – Fall 2024
I. INTRODUCTION
Capital punishment has long been a contentious topic, and its usage is intrinsically linked with the perception of those who commit the worst crimes. The Eighth Amendment of the United States Constitution, often used to challenge the death penalty’s constitutionality, forbids the government from inflicting “cruel and unusual” punishments. [1] These challenges have led to exceptions where capital punishment has been held to be unconstitutional no matter the crime, such as for offenders who are juveniles or have an intellectual disability. Unrepresented in these protections are individuals with serious mental illness (SMI), despite meeting the exact same criteria. In order to ensure fair treatment in the justice system, an exception preventing the execution of offenders with a severe mental illness must be put in place, the creation of which is an increasingly pressing issue.
II. HISTORY AND PRINCIPLES
To understand the current implementation of the death penalty, one must understand the principles behind the conflict surrounding it. After being temporarily banned by the 1972 case Furman v. Georgia (408 U.S. 238) due to the arbitrary and unequal way it was applied, capital punishment was reinstated four years later in Gregg v. Georgia (428 U.S. 153 (1976)) with more scrutiny on both the method of punishment and the consistency of its application. [2,3] Under the standards set out by Gregg, the Court did not consider capital punishment as a whole to be cruel and unusual. When considering if a punishment violates the Eighth Amendment, The Supreme Court has held that its cruelty is not only judged by the punishment itself, but also by its proportionality. [4] Assigning a disproportionate punishment to the crime committed is unconstitutional, even if the punishment is not cruel or unusual in and of itself. Due to this, the death penalty is reserved for the most severe crimes, with the Court finding in Kennedy v. Louisiana (554 U.S. 407 (2008)) that the death penalty is impermissible in cases where “the crime did not result, and was not intended to result, in death of the victim.” [5]
As stated in Kennedy, intent is weighed heavily when considering the application of the death penalty. A common term when discussing capital punishment is “aggravating factors,” or circumstances that increase the severity of a crime. [6] These must be present in any crime to make it conscionable to use the death penalty. In addition, these factors must be specific and increase a defendant’s “culpability,” or responsibility, for their actions. For example, in Godfrey v. Georgia (446 U.S. 420 (1976)), the Supreme Court ruled that a Georgia statute permitting an individual to be sentenced to death if their crime was “outrageously or wantonly vile, horrible and inhuman” was unconstitutional due to its scope, as “a person of ordinary sensibility could fairly characterize almost every murder” within those conditions. [7] The supposed aggravating factors did not display especially vile conduct, which made using the death penalty disproportionate and therefore cruel and unusual.
Opposite to aggravating factors are “mitigating factors”; circumstances that reduce a crime’s severity. [8] One common factor is intent, as a crime with intention must be judged harsher than one without. However, mitigating factors can also include characteristics of the offender. For example, an intellectual disability is treated as a mitigating factor, as those with one are often unable to comprehend the full gravity of their actions. This culminated in the 2002 case Atkins v. Virginia (536 U.S. 304 (2002), where the Supreme Court ruled that individuals with an intellectual disability may not be sentenced to death. It primarily affirmed that intellectual disability was a mitigating factor that reduced individual culpability. Drawing on its previous ruling in Godfrey, the majority explained that if a simple murder could lead to the death penalty, “the lesser culpability of the [intellectually disabled] offender surely does not merit that form of retribution.” [9] Secondarily, the Court explained that capital punishment for offenders with intellectual disability failed as a crime deterrent, as the threat of death would only reasonably deter a logical actor. The Court reasoned that people with an intellectual disability were less likely to follow a rational or calculated course of action, thereby minimizing the deterrent value. [10] Notably, the burden of proving intellectual disability is placed on the defense, which is the opposite of most aspects in a criminal trial. Similarly, the Court banned the death penalty for juveniles in Roper v. Simmons (543 U.S. 551 (2005)), reasoning that a juvenile’s impulsiveness and susceptibility to outside influences, factors outside of their control, categorically decrease their culpability.11 Under the same logic as Atkins, capital punishment for juveniles was declared cruel and unusual due to its lack of retributive or deterrent value.
III. ARGUMENTATION
Offenders who have serious mental illness often exhibit similar characteristics to juveniles or those with intellectual disability, yet no similar protections against capital punishment exist. [12] An individual experiencing psychosis may have delusions and believe something that is not true, or have hallucinations and experience that falsehood. [13] People with bipolar disorder may act impulsively and not follow a rational thought pattern, and post-traumatic stress disorder may damage cognitive function similarly to intellectual disability. [14,15] If an offender experienced any of these symptoms, they would clearly have reduced culpability due to the irrationality of their actions. The question of if the person would have committed the crime if they did not have a serious mental illness is poignant and difficult to answer, as intent is hard enough to prove when a defendant does not have a serious mental illness.
To clarify, individuals who have a mental illness are by no means more violent than those who do not. The vast majority of people with serious mental illness are never violent. [16] Serious mental illness often occurs simultaneously with other socioeconomic factors that predispose even people without mental illness to violence. When accounting for these factors, individuals with serious mental illness may be less likely to commit violent acts than large demographics of non-mentally ill individuals. In a recent study, there was a weaker link between violence and SMI than between violence and “younger age, male gender, lower educational achievement, parental criminal history, history of childhood abuse, alcohol abuse, relationship ending, financial strain, anger, drug abuse, perceived threats, [or] recent victimization.” [17]
Additionally, no discussion of mental illness and capital punishment is complete without mentioning race. Racial and ethnic minorities are historically overrepresented in the justice system, experiencing over-policing, disproportionate sentencing, and an unfair perception as a greater danger. [18] Approximately three quarters of individuals who have been executed were sentenced to death for killing White victims, despite Black individuals being victims of around half of all killings. Since 1976, over ten times more Black defendants with White victims have been executed than vice versa. [19] Minorities additionally experience at a higher rate many socioeconomic conditions that are environmental factors for serious mental illnesses, such as childhood discrimination, violence, poverty, and even simply living in an urban environment. [20] Compounding this, racial minorities are less likely to seek out treatment for mental health conditions. [21] In all, the treatment of mental illness and race in the justice system are highly interconnected issues, each compounding the other.
The issue of serious mental illness and capital punishment is not a small one. It is estimated that at least twenty percent of people on death row have a serious mental illness. [22] Two fifths of people executed between 2000 and 2015 had an SMI such as schizophrenia, bipolar disorder, or PTSD. [23] Even when it was legal, the execution of individuals with intellectual disability was rare. [24] That is not the case with serious mental illness.
Some opposed to a ban on the death penalty for individuals with SMI argue that there are already protections for individuals with mental illness and that people will claim mental illness to avoid punishment, undermining the deterrent value of the death penalty. First and foremost, the assertion that a serious mental illness exception would undermine the deterrent effectiveness of the death penalty is simply incorrect. The same concern was raised in Atkins v. Virginia, but the court reasoned that executing intellectually disabled individuals had no effect, positive or negative, on the deterrence of crime. [25] Those rational enough to understand the consequences of their actions would know that they could still be executed, and those irrational enough to ignore them would never have been deterred in the first place. The same logic applies to individuals with serious mental illness. Thus, the argument returns to the question of culpability–of which offenders with an SMI definitively have less of–and therefore the punitive value of capital punishment is diminished as well.
As for the claim that offenders will plead that they have serious mental illness to escape punishment, it must be noted that they would still be heavily sentenced. People with an intellectual disability and juveniles can still be sentenced to life in prison without parole, and an SMI exception would function the same way. Additionally, faking a mental illness is difficult, as any trial is before a jury and judge who consider all available evidence from both sides. As with intellectual disability, the burden of proof would be on the defense to show mental illness, not simply claim it as fact.
Finally, the current protections for those with serious mental illness are wholly inadequate. The most well-known is the “insanity plea,” where a defendant asserts a lack of culpability due to mental illness. The most common test used when assessing these claims is the “M'Naghten rule” which requires that “at the time of committing the act, the accused was laboring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing or, if he did know it, that he did not know what he was doing was wrong.” [26] In theory, this works fine for mental illnesses like schizophrenia, as it is clear that someone experiencing a delusion or hallucination that leads them to commit a heinous crime was working under “a defect of reason.” However, the effectiveness of the M’Naghten rule falls apart when considering other forms of SMI, such as bipolar disorder, which do not include such clear cut disconnects from reality. Additionally, the insanity plea is an all-or-nothing bargain, with the accused either being entirely exonerated or sentenced in full.
Another option is a “diminished capacity” plea, a partial defense where the defendant seeks conviction of lesser crimes. As a part of this plea, the defendant argues that they were unable to form the intent to commit the crime, which is required for conviction, due to mental impairment or disease. [27]
Both of these pleas ignore a core issue—a defendant in a capital case is always accused of a terrible crime, and jurors often want to ensure proportional punishment. The public and jurors hold a negative opinion of the insanity defense, which can lead to the perception that a guilty verdict is necessary regardless. [28] There are more progressive alternatives to the M’Naghten test, such as the Durham test or the Model Penal Code, but they do little to help as they still run into the same issues with the behavior of juries. The diminished capacity defense is little better, as previous controversies have made juries skeptical of defendants presenting the argument even under valid circumstances. [29]
The constitutional requirement that defendants must be competent to stand trial is another safeguard that could protect defendants with mental illness. However, this does not last indefinitely, and a defendant will still be tried once restored to competence. [30] This can come in the form of medication, which, under the standards established in Sell v. United States (539 U.S. 166 (2003)), may be forcibly administered if “important governmental interests are at stake,” the medication is necessary to further those interests, the medication would not have side effects that would “interfere significantly with the defendant’s ability to assist counsel,” alternative treatments would not be effective, and the administration of the medicine would be “medically appropriate.” [31] In a capital case with a defendant who has a serious mental illness, most of these conditions are inherently fulfilled. The state has an important interest in prosecuting such an individual, and forced medication is often the only way to restore competence. However, a defendant may be considered able to assist their counsel yet still experience side effects of heavy psychotropic medication, namely sedation. [32] Due to this, the perception of defendants with serious mental illness is often negative regardless of circumstance. The lethargic behavior of heavily medicated defendants can be seen as a lack of care towards the severity of their situation, while the demeanor of unmedicated ones can be perceived as dangerous. As a whole, mental illness is often perceived by juries as an aggravating factor instead of a mitigating one, leading to defendants being sentenced to death because of their mental illness, not in spite of it. [33]
The competency protection and its overall ineffectiveness extends past the trial phase as well. In Ford v. Wainwright (477 U.S. 499 (1989)), The U.S. Supreme Court ruled that “the Eighth Amendment prohibits a State from carrying out a sentence of death upon a prisoner who is insane.” [34] However, the question of if an inmate can be forcibly medicated to restore competency is open. In 2002, the Eighth Circuit Court of Appeals heard Singleton v. Norris (319 F.3d 1018 (8 Cir. Ark. 2003)), and declared that the state of Arkansas forcibly administering antipsychotic medication to a prisoner pending execution was constitutional. Charles Singleton, an inmate on death row, suffered no side effects from the medication and “the State’s interest in carrying out its lawfully imposed sentence” overrode the defendant’s desire to not take the medication. [35] The Supreme Court denied certiorari for this case.
It must also be noted that barring offenders with serious mental illness from being executed would bring financial benefits. Capital punishment cases are more expensive for the state from pretrial to execution. [36] Investigations generally take longer and more evidence is used, leading to longer trials. The incarceration of prisoners on death row is more costly. Even the appeals are more expensive for the state. [37] A 2018 study by the American Bar Association found that Tennessee would save between 1.4 and 1.9 million dollars per year by implementing an SMI exception for the death penalty, money that could be directed towards more effective methods of crime deterrent or mental health treatment. [38]
IV. IMPLEMENTATION
This article has not yet given a definition of what constitutes “serious mental illness,” as it is one of the most hotly debated parts of instituting an exception to capital punishment. Medically, the National Institute of Mental Health defines serious mental illness as a disorder which “results in serious functional impairment” and “substantially interferes with... major life activities.” [39] To inform a legal definition of SMI, one must also look at the precedent established for defining intellectual disability. Atkins specifically left the definition up to the states, though throughout the opinion cited “subaverage intellectual functioning” and “significant limitations in adaptive skills.” [40] Florida subsequently set a “bright-line” requirement of a seventy or lower IQ score to be considered intellectually disabled; a medical diagnostic criteria. This was challenged in the case Hall v. Florida (572 U.S. 701 (2014)), where the Court struck down this bright-line requirement. In doing so, the Supreme Court affirmed that “the legal determination of intellectual disability is distinct from a medical diagnosis, but it is informed by the medical community’s diagnostic framework.” [41] When defining serious mental illness, a similar standard must be followed in order to prevent situations like this. Medical diagnoses of specific conditions must remain distinct from legal determinations, which should rely on an individual’s symptoms and overall capability.
Some legal definitions have already been recommended. In 2006, the American Bar Association passed a resolution stating that “Defendants should not be executed or sentenced to death if, at the time of the offense, they had a severe mental disorder or disability that significantly impaired their capacity (a) to appreciate the nature, consequences or wrongfulness of their conduct, (b) to exercise rational judgment in relation to conduct, or (c) to conform their conduct to the requirements of the law.” This proposal was also endorsed by the American Psychiatric Association and the American Psychological Association, with a similar position being taken by the National Alliance on Mental Illness (NAMI). [42,43] Most crucial is the phrase “significantly impaired,” a lower bar which protects defendants who would otherwise be ignored by the M’Naghten test but nevertheless have diminished culpability.
As of now, two states have passed bills that exempt people with serious mental illness from capital punishment: Ohio and Kentucky. Ohio House Bill 136 of the 133rd general assembly prevents an individual from being sentenced to death if they had a serious mental illness at the commission of the crime. Serious mental illnesses are defined as schizophrenia, schizoaffective disorder, bipolar disorder, or delusional disorder, and a defendant must show that this mental illness “significantly impaired the person's capacity to exercise rational judgment” relating to their conduct. [44] Kentucky House Bill 269 of the 2022 Regular Session prevents an individual from being sentenced to death if, at the time of the offense, they “had active symptoms and a documented history, including a diagnosis” of the same four mental illnesses. [45] Both of these bills have glaring issues. For one, they require a formal diagnosis of specific conditions. The Kentucky bill requires that the diagnosis be present before the time of the offense, a condition that will prevent many defendants with serious mental illness, especially from poorer or rural areas that may not have access to mental health care, from being protected. Additionally, the Kentucky bill does not work retroactively, meaning even those who meet the criteria who have already been sentenced do not have grounds to submit a new appeal and may still be executed. Nevertheless, these bills are large steps in the right direction, and were products of broad bipartisan support.
V. CONCLUSION
As of now, serious mental illness exceptions to capital punishment are a stalled affair. However, their importance cannot be understated. Twenty-one states have an active death penalty, with an average of 22.3 executions per year over the past ten years. [46] Additionally, a further six states and the federal government have execution moratoriums which can change on a whim. For example, thirteen prisoners were executed by the federal government for the first time in over fifteen years in the waning months of Donald Trump’s first term. [47] Considering the estimate that twenty percent of people on death row suffer from serious mental illness, dozens of individuals who would be declared unable to be executed or not placed on death row in the first place under effective legislation have already been killed. As of July 2024, there are approximately 2,213 inmates sitting on death row, and it is probable that hundreds of them would be impacted by retroactive serious mental illness exceptions. [48] Capital punishment is a costly method of justice, both in a monetary and moral sense, and it is clear that a serious mental illness exception is both correct and necessary. Stagnation will only lead to more executions of individuals whose death will serve no value.
Endnotes
[1 U.S. Const. amend. VIII.
[2] Furman v. Georgia, 408 U.S. 238 (1972), https://supreme.justia.com/cases/federal/us/408/238/.
[3] Gregg v. Georgia 428 U.S. 153 (1976), https://supreme.justia.com/cases/federal/us/428/153/.
[4] Solem v. Helm, 463 U.S. 277 (1983), https://supreme.justia.com/cases/federal/us/463/277/.
[5] Kennedy v. Louisiana, 554 U.S. at 412 (2008), https://supreme.justia.com/cases/federal/us/554/407.
[6] LII / Legal Information Institute. “Aggravating Factor,” June 2022. https://www.law.cornell.edu/wex/aggravating_factor.
[7] Godfrey v. Georgia, 446 U.S. at 428-429 (1976), https://supreme.justia.com/cases/federal/us/446/420/.
[8] LII / Legal Information Institute. “Mitigating Factor,” July 2023. https://www.law.cornell.edu/wex/mitigating_factor.
[9] Atkins v. Virginia, 536 U.S. 304 at 319 (2002), https://supreme.justia.com/cases/federal/us/536/304/.
[10] Atkins, 536 U.S. 304, at 320.
[11] Roper v. Simmons, 543 U.S. 551 (2005), https://supreme.justia.com/cases/federal/us/543/551/.
[12] Irick v. Mays NO. 3:18-cv-00737 (2020), Amicus Brief of National Alliance On Mental Illness, NAMI Tennessee, Mental Health America, MHA Tennessee, Tennessee Mental Health Consumers’ Association, and Tennessee Coalition for Mental Health and Substance Abuse Services in Support of Petitioner.
[13] National Institute of Mental Health. “Understanding Psychosis.” Accessed November 7, 2024. https://www.nimh.nih.gov/health/publications/understanding-psychosis.
[14] Cleveland Clinic. “Mania: What Is It, Causes, Triggers, Symptoms & Treatment,” September 14, 2021. https://my.clevelandclinic.org/health/diseases/21603-mania.
[15] Qureshi, Salah U., Mary E. Long, Major R. Bradshaw, Jeffrey M. Pyne, Kathy M. Magruder, Timothy Kimbrell, Teresa J. Hudson, Ali Jawaid, Paul E. Schulz, and Mark E. Kunik. “Does PTSD Impair Cognition Beyond the Effect of Trauma?” The Journal of Neuropsychiatry and Clinical Neurosciences 23, no. 1 (January 2011): 16–28. https://doi.org/10.1176/jnp.23.1.jnp16.
[16] DeAngelis, Tori. “Mental Illness and Violence: Debunking Myths, Addressing Realities.” https://www.apa.org, American Psychological Association, July 11, 2022. https://www.apa.org/monitor/2021/04/ce-mental-illness.
[17] Elbogen, Eric B., Paul A. Dennis, and Sally C. Johnson. “Beyond Mental Illness: Targeting Stronger and More Direct Pathways to Violence.” Clinical Psychological Science 4, no. 5 (2016): 747–59. https://doi.org/10.1177/2167702615619363.
[18] National Conference of State Legislatures. “Racial and Ethnic Disparities in the Criminal Justice System,” May 24, 2022. https://www.ncsl.org/civil-and-criminal-justice/racial-and-ethnic-disparities-in-the-criminal-justice-system.
[19] Death Penalty Information Center. “Race and the Death Penalty by the Numbers,” January 1, 2023. https://deathpenaltyinfo.org/policy-issues/race/race-and-the-death-penalty-by-the-numbers.
[20] Brown, Alan S. “The Environment and Susceptibility to Schizophrenia.” Progress in Neurobiology 93, no. 1 (2010): 23. https://doi.org/10.1016/j.pneurobio.2010.09.003.
[21] National Institute of Mental Health. “Mental Illness - National Institute of Mental Health (NIMH),” September 2024. https://www.nimh.nih.gov/health/statistics/mental-illness.
[22] Mental Health America. “Death Penalty and People with Mental Illnesses,” June 2016. https://www.mhanational.org/issues/death-penalty-and-people-mental-illnesses.
[23] Roemer, Leah. “Under Recent State Legislation, Courts in Ohio and Kentucky Rule Four Men Ineligible for Execution Due to Serious Mental Illness.” Death Penalty Information Center, September 25, 2024. https://deathpenaltyinfo.org/under-recent-state-legislation-courts-in-ohio-and-kentucky-rule-three-men-ineligible-for-execution-due-to-serious-mental-illness.
[24] Atkins, 536 U.S. 304, at 316.
[25] Atkins, 536 U.S. 304, at 320.
[26] LII / Legal Information Institute. “Insanity Defense,” June 2023. https://www.law.cornell.edu/wex/insanity_defense.
[27] LII / Legal Information Institute. “Diminished Capacity,” October 2022. https://www.law.cornell.edu/wex/diminished_capacity.
[28] Michael L. Perlin, “Myths, Realities, and the Political World: The Anthropology of Insanity Defense Attitudes,” Bulletin of the American Academy of Psychiatry & the Law 24, no. 1 (1996).
[29] LII / Legal Information Institute. “Twinkie Defense,” September 2021. https://www.law.cornell.edu/wex/twinkie_defense; LLI / Legal Information Institute, “Diminished Capacity”
[30] LII / Legal Information Institute. “Competency for Trial.” Accessed November 8, 2024. https://www.law.cornell.edu/constitution-conan/amendment-5/competency-for-trial.
[31] Sell v. United States, 539 U.S. 166 (2003), https://supreme.justia.com/cases/federal/us/539/166/.
[32 John Muench and Ann M. Hamer. “Adverse Effects of Antipsychotic Medications.” American Family Physician 81, no. 5 (2010): 617–22.
[33] American Civil Liberties Union. “Report: Mental Illness and the Death Penalty,” May 5, 2009. https://www.aclu.org/publications/report-mental-illness-and-death-penalty.
[34] Ford v. Wainwright, 477 U.S. 499 (1989), https://supreme.justia.com/cases/federal/us/477/399/.
[35] Singleton v. Norris, 319 F.3d 1018 (8 Cir. Ark. 2003), https://caselaw.findlaw.com/court/us-8th-circuit/1213175.html.
[36] Robert L. Spangenberg and Elizabeth R. Walsh, “Capital Punishment or Life Imprisonment? Some Cost Considerations.” Loyola University of Los Angeles Law Review 23, no. 1 (1989): 45–58. https://digitalcommons.lmu.edu/cgi/viewcontent.cgi?article=1614&context=llr.
[37] Death Penalty Information Center. “Costs.” Accessed November 8, 2024. https://deathpenaltyinfo.org/policy-issues/costs.
[38] American Bar Association. “Potential Cost-Savings of a Severe Mental Illness Exclusion from the Death Penalty: An Analysis of Tennessee Data,” June 2018. https://www.americanbar.org/content/dam/aba/administrative/crsj/deathpenalty/2018-smi-cost-analysis-w-tn-data.pdf.
[39] National Institute of Mental Health. “Mental Illness ,” September 2024. https://www.nimh.nih.gov/health/statistics/mental-illness.
[40] Atkins, 536 U.S. 304, at 317-318.
[41] Hall v. Florida, 572 U.S. 701 (2014), https://supreme.justia.com/cases/federal/us/572/701/.
[42] American Bar Association. “ABA Mental Illness Resolution,” August 7, 2006. https://www.americanbar.org/content/dam/aba/administrative/death_penalty_representation/dp-policy/2006_am_122a.pdf.
[43] National Alliance on Mental Illness. “Death Penalty.” Accessed November 8, 2024. https://www.nami.org/advocacy/policy-priorities/stopping-harmful-practices/death-penalty/.
[44] “Prohibit death penalty if mentally ill at time of offense,” H.B. 136, 133rd General Assembly of Ohio (2021), https://search-prod.lis.state.oh.us/api/v2/general_assembly_133/legislation/hb136/05_EN/pdf/.
[45] “AN ACT relating to mental illness,” 22 R.S. H.B 296, 2022 Kentucky General Assembly, https://apps.legislature.ky.gov/recorddocuments/bill/22RS/hb269/orig_bill.pdf.
[46] Death Penalty Information Center. “Executions by State and Region Since 1976,” 2024. https://deathpenaltyinfo.org/executions/executions-overview/number-of-executions-by-state-and-region-since-1976.
[47] Death Penalty Information Center. “Executions Under the Federal Death Penalty,” 2021. https://deathpenaltyinfo.org/state-and-federal-info/federal-death-penalty/executions-under-the-federal-death-penalty.
[48] Dunham, Robert. “Death Row U.S.A. Summer 2024.” Legal Defense Fund, July 1, 2024. https://www.naacpldf.org/wp-content/uploads/DRUSASummer2024.pdf.