Kentucky General Assembly
Judiciary Committee Meeting
August 11, 2010
Frankfort
Eliminating Death Penalty for Mentally Ill (HB 16, 2010 Session)
Opening Statement by lawyer Ernie Lewis in Support of HB 16, Eliminating Death
Penalty for Mentally Ill (50:51).
There is a gap in the penal code between persons who are “not insane but who are
more than impaired’. HB 16 would bridge the gap between legal ‘insanity’ (which
impacts guilt or innocence) and ‘extreme emotional disturbance’ (which is
considered by the jury in mitigation of guilt). HB 16 fills the gap between the two
extremes where there is more than impairment but less than insanity. Lewis cited
the following hierarchy:
(1) If there’s mental impairment (extreme emotional disturbance), the jury is
required to consider it in mitigation phase.
(2) If the actor ‘lacks substantial capacity’ (mental illness) then the actor is not
guilty.
The “significant impairment’ category fills the gap between the two. That is the
purpose of HB 16.
Rep. Yonts: (52:57
1. What is relationship between “severe mental illness” and I. Q.? Can there be
severe mental illness and high 1.Q.?
2. What causes ‘severe mental illness’? Is it biological, genetic, social or
psychological?
3. Is it possible to restore mental capacity without curing the underlying mental
illness problem? (55:02). [Implied: So how is this condition treated under
HB 16? Ifa person who is suffering from a ‘severe mental illness’ but has
their mental capacity restored and commits a crime while the capacity is
restored but the underlying condition is not, is such a person eligible for the
death penalty?]
Rep. Fisher: (55:30
4. HB 16 is entitled “An Act Relating to Mental Illness” but all the testimony is
about ‘severe mental illness’ and the language of the bill uses terms like
‘severe mental disorder”, ‘severe mental disability’ and ‘mental illness’.
What is the difference between a ‘disorder’, a ‘disability’ and an ‘illness.’?
Answer: None. Question: In the context of the language in the bill as
proposed, is this the correct answer? If not, what is the correct answer? And,
again, if it is the correct answer, then would a reasonable option be to change
the language to make it more consistent if it would bring Mr. Fischer to vote
for the bill or help others understand its intent.
5. (To Ernie Lewis): “HB 16 defines severe mental illness as a ‘significant
impairment in the ability to exercise rational judgment in relation to
conduct.’ Is this new language or is it the same as ‘insanity’ language? (Ernie
responds that insanity as defined in the statute means either a person does
not know right from wrong or cannot conform one’s conduct to what one
knows to be right and wrong. HB 16 language deals with impaired ability to
exercise rational judgment in relation to conduct.’ Fisher says they're the
same thing—Ernie concedes there is overlap). 58:02. Question: is this all
that we could say to Mr. Fischer? What else could we say to help him
understand the need for the legislation and how it differs from the insanity
standard?
6. Is ‘rational judgment’ in relation to conduct even necessary under current
law? [Ernie says there is some overlap in KRS 504]. Question: what else
could be said here to help us win Mr Fischer's support or at least keep him
neutral?
Rep. Kerr: (59:28
7. How would you feel about changing the language of HB 16 so that a disorder
ora disability is defined as a condition that renders the actor “incapable” of
conforming conduct to law or exercising rational judgment as opposed to
‘significantly impairs ability to appreciate (consequences of the act), conform
(conduct to requirements of law) or exercise rational judgment’? In other
words, replace the word ‘impaired’ with the word ‘incapable.’ (Ernie Lewis
answer. The change would make ‘severe mental illness’ synonymous with
insanity. The purpose of HB 16 is to create a new tier between insanity and
impairment. The ‘incapability’ standard would not achieve this. 60: 32
through 61:20). Question: how would you have answered the question of Mr.
Kerr? We really would like his support. He is reasonable and was won over
on the question of mental retardation years ago. Any thoughts on how to win
him over on this issue?
Rep. Hoover: (61:33
8. Cana person with a mental illness ‘voluntarily use alcohol or drugs? (61:33-
62:05). Answer: Yes.
9. But that’s not true under the language of HB 16, Rep. Hoover rejoined. Ifa
person cannot conform their conduct or exercise rational judgment how can
they be deemed to have voluntarily used drugs or alcohol? 62:53—63:33.
10. I understand, Shelia, that what you are trying to do is to distinguish people
who have a severe mental illness because they voluntarily decided to use
alcohol and drugs from those who are severely mentally ill for other reasons.
But as the bill is drafted, someone with a severe mental illness cannot be said
to have voluntarily decided to use drugs or alcohol. 63:55. So it seems to me
that in every case where there are drugs and alcohol involved, the user will
argue that could not voluntarily use drugs. Shelia replied at 64:24 “That's an
excellent point.”
11. So, as the bill is written, every person with a severe mental illness who
commits a crime under the influence of drugs and alcohol will argue their
intoxication was not voluntary and, therefore, drug use is a defense to
imposition of the death penalty.
12. If use of drugs is not voluntary because of severe mental illness, then being
under the influence of drugs is a defense. 66:01. Question: As you can see Mr.
Hoover feels the bill opens the door much wider than intended. What is the
proper response to Mr. Hoover? When we go to visit him, what needs to be
said that will make it clear that his interpretation of the language here is not
accurate? Or, if accurate, how change the language so the intent of the
legislation to limit this to persons who are severely mentally ill at the time of
the commission of the crime do not face the death penalty? Did we get
sidetracked by the way he originally put the question and then led to a false
conclusion?
Rep. Lee: (66:50
13. Is severe mental illness biological? Is there a biological reason for severe
mental illness in every case?
14. Can you determine with 100% accuracy those who are faking severe mental
illness?
15. Why wouldn’t you want the jury to decide the mental illness question?
Would you possibly get a better result than relying solely on the judge? 70:15.
Chris Cohron (Commonwealth Attorney) (74:00)
16. Opposes adding severe mental illness as a condition that exempts one from
the death penalty, noting that the courts of Indiana, Pennsylvania, Georgia and
Ohio have rejected this position.
17. The proposed definition of mental illness in HB 16 (KRS 504.060 (6)) is so
broad that every killer could qualify. 74:30.
18. KRS 504.020 exempts the mentally ill from the death penalty by allowing the
jury to return a verdict of guilty but mentally ill. 75:30.
19. Existing statues protect the mentally incompetent from execution so the
proposal (HB 16) is unnecessary. 76.56
Rep. Mobley (78:00
20. Asa criminal defense lawyer, Rep. Mobley thinks juries are the best judge of
mental capacity, not judges.
21. Rep. Hoover made a good point about mental illness and voluntary drug
use. What about people who are severely mentally ill whose symptoms are
relieved by medication but they stop taking the medication. Have they done so
voluntarily? Would they be exempt from the death penalty because they
voluntarily stopped their medication so their symptoms of severe mental illness
returned? (78:28). Answer: That’ a good question. There’s not a good answer.
79:06-20.
22. So under the terms of this bill, they would be exempted even though they
voluntarily went off of their medication? 79:26.
23. Why is this law necessary? There is ample opportunity to consider mental
illness before trial, during trial, during the mitigation phase of the trial. 81:30--
82:20. Both the judge and the jury look at mental illness at different times
under the current system.
24. (Comment and question addressed to Ernie Lewis): You can make an
argument for this gap (i.e., the gap described by witness Ernie Lewis) you say
exists but it may be an imagined gap (82:30) and as Rep. Hoover points out
trying to fill the gap may create too many other legal problems.
25. Mr. Lewis, do you know of anyone on death row in Kentucky who fits the
definition of severely mentally ill that’s in HB 16? 84:00. Answer: I'm not the
Public Advocate anymore. 84:08.
Sen. Jones (85:09).
26. Isupport the jury system. Mr. Lewis, isn’t the defendant much better off
having the jury rather than the judge decide severe mental illness?
27. You have created a large loophole in HB 16 by providing that it applies only
to those convicted and sentenced after the effective date of the new law. Everyone
on death row will challenge this provision and argue they are entitled to the law’s
protection. 86:25.—87.02.
28. Can’t you fix the problem you see in the current system by providing more
resources to the public defenders so they can investigate and present evidence of
mental illness through experts? 87:05.
Rep. Fisher (88:15
29. How many states have adopted the severe mental illness law? Answer: None
that we know of. 88:32.
End----88:35.
DV
October 6, 2010
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