Recommendation
The diminished culpability of defendants with mental retardation arises from their intellectual
and adaptive limitations, not the cause of these limitations.*” Accordingly, persons who suffer
from these limitations should be afforded the same protection under the law, irrespective of the
cause of the disability.
The Assessment Team, therefore, recommends that Virginia adopt a law prohibiting the
application of the death penalty to anyone who, at the time of the offense, suffered from
significant limitations in both their general intellectual functioning and adaptive behavior,
whether resulting from mental retardation, dementia, traumatic brain injury, or other disease or
disability. The defendant would have to prove that s/he suffers from the same intellectual
functioning and adaptive behavior limitations as a person with mental retardation.
D. Protocol #4
The jurisdiction should forbid death sentences and executions with regard to
everyone who, at the time of the offense, had a severe mental disorder or disability
that significantly impaired the capacity (a) to appreciate the nature, consequences
or wrongfulness of one’s conduct, (b) to exercise rational judgment in relation to
conduct, or (c) to conform one’s conduct to the requirements of the law. A disorder
manifested primarily by rep i criminal d or attributable solely to the
acute effects of voluntary use of alcohol or other drugs does not, standing alone,
constitute a mental disorder or disability for purposes of this recommendation.
Following the U.S. Supreme Court’s decision in Atkins v. Virginia banning the application of the
death penalty to persons with mental retardation,” the ABA adopted a policy calling for the
prohibition of the execution of persons who suffer from severe mental disorders.*** Much as the
ban on executing persons with mental retardation was supported by the American Association on
Intellectual and Developmental Disabilities, this proposal is supported by three leading mental
health groups: the American Psychiatric Association,» the American Psychological
Association,*”° and the National Institute on Mental IIIness.*°”
This Protocol, based on ABA policy, is carefully drawn to ensure that the exemption would
apply only to a narrow class of the severely mentally ill. The mental disorder must be “severe,”
3 See Atkins v. Virginia, 536 U.S. 304, 318 (2002) (holding that mentally retarded defendants’ “deficiencies . . .
diminish their personal culpability”).
304 ABA, supra note 3.
*°5 Position on Diminished Ri ibility in Capital Se ing, AM. PSYCHIATRIC ASS’N,
http://www.psychiatry. org/File%20Library/Advocacy%20and% /Position? ps2005_Dimi
nishedResponsibility, pdf (last visited Dec. 18, 2012).
*° ABA, supra note 3, at 3 (citing Am. Psychological Ass’n, Excerpt from the Council of Representatives 2005
Meeting Minutes (Feb. 18-20, 2005); Excerpt from the Council of Representatives 2006 Meeting Minutes (Feb. 17.
19, 2006).
7 Criminal Justice and Forensic Issues, NAT’L ALLIANCE ON MENTAL ILLNESS,
http://www.nami.org/Template.cfm?Section=NAMI Policy _Platform& Template=/ContentManagement/ContentDis
play.cfm&ContentID=41302 (last visited Dec. 18, 2012).
392
meaning a serious psychotic disorder such as schizophrenia, mania, major depressive disorder, or
a dissociative disorder that causes “delusions (fixed, clearly false beliefs), hallucinations (clearly
erroneous perceptions of reality), extremely disorganized thinking, or very significant disruption
of consciousness, memory and perception of the environment.”* The disorder must
“significantly impair cognitive or volitional functioning at the time of the offense” and therefore
“only applies to offenders less culpable and less deterrable than the average murderer.”*”
Moreover, the exemption would not apply to persons with disorders, such as antisocial
personality disorder and other Axis II personality disorders, which manifest primarily by
repeated criminal conduct or are attributable solely to the acute effects of voluntary use of
alcohol or other substances.
This position extends the logic of the U.S. Supreme Court’s decisions in Atkins—prohibiting the
execution of those with mental retardation—and Roper v. Simmons—prohibiting the execution of
juvenile offenders—to those with severe mental illnesses because the application of the death
penalty in those cases is “inconsistent with both the retributive and deterrent functions of the
death penalty.”*!° Like persons with mental retardation, persons suffering from these severe
mental illnesses or disorders possess “diminished capacities to understand and process
information, to communicate, to abstract from mistakes and learn from experience, to engage in
logical reasoning, to control impulses, and to understand the reactions of others.”*'! For these
reasons, the execution of those with a severe mental illness similarly does not serve the death
penalty’s deterrent and retributive purposes.”
Virginia Law on the Application of the Death Penalty to Persons with Severe Mental Disorders
Virginia law does not prohibit the application of the death penalty to persons who suffer from
severe mental disorders or mental disabilities other than mental retardation.”
Virginia does permit a criminal defendant to prove that s/he is not guilty by reason of insanity.*!*
Criminal insanity can be demonstrated in one of two ways: (1) by proving that, at the time of the
offense, the defendant “was labouring 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 he was doing what was wrong”; or (2) by proving that his/her “mind has become so
impaired by disease that [s/Jhe is totally deprived of the mental power to control or restrain
his[/her] act.”*'5 Virginia’s two insanity tests differ significantly from the severe mental illness
standard articulated in this Protocol.
%°8 ABA, supra note 3, at 6.
5° Id. at 6-7.
310 Id. at 5. See also Roper v. Simmons, 543 U.S. 551, 578 (2005); Atkins v. Virginia, 536 U.S. 304, 320-321
(2003).
*' Atkins, 536 U.S. at 318. See also Roper, 543 US. at 551 Retribution is not proportional if the law’s most
severe penalty is imposed on one whose culpat or is shed, to a suk ial degree, by
reason of youth and immaturity.”).
ABA, supra note 3, at 6.
See Juniper v. Warden, 707 S.E.2d 290, 310-11 (Va. 2011) (noting that there was no “controlling authority” to
support the argument that executing the seriously mentally ill is unconstitutional).
ae Morgan v. Commonwealth, 646 S.E.2d 899, 902 (Va. Ct. App. 2007).
Jd. (internal quotation marks omitted). These standards are known as the M’Naghten Rule and the irresistible
impulse test, respectively. Id.
313,
315
393
Conclusion
Virginia law does not forbid the execution of persons who were severely mentally impaired as
described in this Protocol. Thus, Virginia is not in compliance with Protocol #4.
Recommendation
The Assessment Team recommends that Virginia enact a law forbidding death sentences for and
executions of persons who, at the time of the offense, had a severe mental disorder or disability
that significantly impaired the capacity (a) to appreciate the nature, consequences or
wrongfulness of one’s conduct, (b) to exercise rational judgment in relation to conduct, or (c) to
conform one’s conduct to the requirements of the law. The law should make explicit that a
disorder manifested primarily by repeated criminal conduct, such as antisocial personality
disorder, or attributable solely to the acute effects of voluntary use of alcohol or other drugs does
not, standing alone, constitute a mental disorder or disability for purposes of exclusion from
capital punishment.
This procedure only would affect a defendant’s eligibility for the death penalty. Those
defendants qualifying as having a severe mental disorder under this standard would still be
eligible to stand trial. If found guilty of capital murder, the defendant would be sentenced to life
in prison without parole in accordance with Virginia law.
E. Protocol #5
To the extent that a mental disorder or disability does not preclude imposition of a
death sentence pursuant to a particular provision of law (see Protocols #3-4 as to
when it should do so), jury instructions should communicate clearly that a mental
disorder or disability is a mitigating factor, not an aggravating factor, in a capital
case; that jurors should not rely upon the factor of a mental disorder or disability to
conclude that the defendant represents a future danger to society; and that jurors
should distinguish between the defense of insanity and the defendant’s subsequent
reliance on mental disorder or disability as a mitigating factor.
As the U.S. Supreme Court has noted, capital defendants suffering from disabilities such as
mental retardation face a special risk of wrongful execution because the disability “can be a two-
edged sword that may enhance the likelihood that the aggravating factor of future dangerousness
will be found by the jury.”2!° Moreover, empirical studies have found that jurors are more likely
to impose a death sentence when a defendant is mentally ill or emotionally disturbed,
irrespective of whether the evidence of mental illness is offered as a mitigating factor.*!’
316
317
Atkins, 536 U.S. at 321.
See, e.g., David Baldus et al., Racial Discrimination and the Death Penalty in the Post-Furman Era: An
Empirical and Legal Overview, with Recent Findings from Philadelphia, 83 CORNELL L. REV. 1638, 1688-89
(1998) (noting, in Table 6, that submission of a defendant’s “extreme emotional disturbance” as a mitigating
i the likelihood of a death sentence in capital cases in Philadelphia between 1983 and 1993).
See also Phoebe C. Ellsworth et al., The Death-Qualified Jury and the Defense of Insanity, 8 Law & HUM. BEHAV.
81 (1984).
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