| have quickly drafted some possible responses. Feel free to change,
edit, etc.:
The mental disability that causes the types of impairments described
in the provision--such as schizophrenia--are all biological in origin,
although environmental factors can trigger or exacerbate them. The
key issue is whether these impairments exist at the time of the crime.
Although they are most likely to be present when the individual has not
recently been treated, they might exist even when the individual is
under treatment, because medication is not always successful at
eliminating delusions and other thought disorders.
Most experts do not differentiate between mental disability, mental
disorder and mental illness, although if there is a difference, the latter
phrase probably comes closest to capturing the type of severe
dysfunction that this provision is designed to cover. As the
commentary states, the "rational judgment" language is meant to get
at people who, liked Andrea Yates, may have known the act was wrong
and was not significantly volitionally impaired, but acted for delusional
reasons. While such people deserve punishment, they do not deserve
the ultimate punishment.
If the word "incapable" were substituted for "substantially incapacity"
this provision would be irrelevant because people who are incapable of
appreciating the wrongfulness of their conduct should be found insane.
However, in a state that does not recognize a "volitional prong" to the
insanity defense, the language in that part of the formulation could be
changed to "incapable of conforming behavior to the requirements of
the law." People who meet only this part of the test would not be
found insane in states that recognize insanity only in cases involving
cognitive impairment.
The law on the exculpatory effect of substance abuse is well-
established: unless use of substances has been long-term and resulted
in an organic deficit, it is considered voluntary, meaning that most
people who commit crimes while under the influence would not benefit
from this provision. Put another way, a person who was unable to
conform their behavior to the requirements of the law due to
substance abuse would not benefit from this provision unless he or she
suffered from dementia due to long-term substance abuse.
Defendants do try to fake mental illness, but it's very unlikely experts
could be fooled in these types of cases. Without a history of mental
illness a claim under this provision is likely to fail. Furthermore, today
there are well-researched instruments that can detect malingering.
Finally, the research shows that experts are at least as accurate
diagnosing serious mental disorder such as schizophrenia as they are
at diagnosing mental retardation.
If a person suffers from severe symptoms at the time of the offense
because they voluntarily stopped taking medication knowing that they
might act violently, then they should be treated the same way we treat
people who voluntarily ingest alcohol or drugs (in others, in most
states there is little or no mitigation once the person is convicted).
However, many people who go off medication do so while in a state of
significant confusion, in which case their situation is not analogous to
the person who abuses psychoactive substances.
If judges decide the mental retardation question, it makes sense to
have them decide the mental illness question. Regardless of the
decision maker, care should be taken to have the factfinder
concentrate on whether the mental disability is mitigating. Research
shows that juries are apt to focus instead on whether the person is
dangerous. That is not the issue, and in any event, people with mental
disability are not necessarily any more dangerous than people without
such a disorder. Judges may be less likely to fall prey to this conflation
of the culpability and dangerousness issues.
Connecticut exempts from the death penalty people with serious
mental disorder who are impaired in the way described in this
provision. Although no other state has followed suit to date, several
other judges have argued that people with serious mental illness at the
time of the offense are at least as impaired as people with mental
retardation and juveniles, both groups that are exempt from the death
penalty, given Atkins and Roper. So, as an equal protection matter,
this provision makes sense and arguably is constitutionally required.
See Christopher Slobogin, 33 New Mexico Law Review 293 (2003).
-----' Original Message-----
From: Tabak, Ronald J [mailto:ronald.tabak@probonolaw.com]
Sent: Monday, October 18, 2010 3:38 PM
To: Richard J. Bonnie (rbonnie@virginia.edu); Slobogin, Christopher;
James W. Ellis (ellis@law.unm.edu)
Cc: 'delahantyp@bellsouth.net'; 'donaldvish@att.net'
Subject: Kentucky Mental Illness Legislation: Questions
Dear Richard, Chris & Jim:
The following is an edited version of a recent letter from Pat
Delahanty. I'm hoping that despite the delay on my end in getting this
to you (& the fact that the color-coding didn't make it through), you
can provide Pat & his colleague Don (both of whom I'm
cc'ing) with reactions to Pat's questions & perhaps also make
comments in light of the questions asked & assertions made by
legislators. | have attached a pdf of the below, in case that is easier to
read.
The current draft legislation is set forth at the end of both this e-mail
and the attached pdf.
All the best. Ron
October 7,2010
Ron,
Per our conversation a week or so ago, | have had Don Vish, who is
our full time staff person at the Ky Coalition to Abolish the Death
Penalty, review the DVD of the Judiciary Committee hearing and
summarize pertinent parts of it for you. In addition to what he
prepared, | have added questions of my own....
What | hope you and others you mentioned can do is give us your
best advice about how we respond to the concerns of certain
legislators regarding the language and intent of the bill, referred to as
HB 16 -- which was its number in the past session of the General
Assembly. We plan to introduce the same language this time, unless
you think we could make some changes that might accommodate the
concerns raised here, but without changing the intention of this
legislation in any way. We want language that exempts the severely
mentally ill from facing death without opening Any door to every
defendant making a claim of this type.
lam not worried about the comments of Harry Moberly, a die-hard
advocate of the death penalty. He is retiring and will have no vote on
this issue. Nor am | too concerned about Senator Jones, who also
supports the death penalty and whose comments were not meant to
be helpful. | don't think there is much advantage in arguing about
whether the judge or the jury makes the determination until the person
has demonstrated he supports the concept and is now looking for the
best way to prevent executing severely mentally ill persons. Senator
Jones is not there yet.
Enclosed are the summary prepared by Don & the text of HB 16
introduced this past session....
| really appreciate any time you can give this. We have 7 votes on
the House committee and need 8 which is why | would like to win over
Fischer, Kerr, and Hoover - or at least one of them. Then we can worry
about the Senate, which will be a harder sell, but not impossible.
My cell phone is 502 494 3298 and Don's is 502 299 0155.
My email: delahantyp@bellsouth.net;Don:donaldvish@att.net
Thank you very much for your help.
Pat Delahanty
Chair
KCADP
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 III (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 |. 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? If a 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. Fischer: (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
‘ilIness.'?
Answer: None.
Pat Delhanty's 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: Fischer says they're the same thing - Ernie concedes there is
overlap). 58:02.
Pat Delahanty's 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].
Pat Delahanty's 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 or a 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).
Pat Delahanty's 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. Can a 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. If a 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. | 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.
Pat Delahanty's 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 should we change the language so the
intent of the legislation to limit this so 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. Moberly (78:00)
20. As a criminal defense lawyer, Rep. Moberly 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. | support 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 laws 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. Fischer (88:15)
29. How many states have adopted the severe mental illness law?
Answer: None that we know of. 88:32.
AN ACT relating to mental illness.
Be it enacted by the General Assembly of the Commonwealth of
Kentucky:
Section 1. KRS 532.130 is amended to read as follows:
(1) An adult, or a minor under eighteen (18) years of age who may be
tried as an adult, convicted of a crime and subject to sentencing, is
referred to in KRS 532.135 and 532.140 as a defendant.
(2) A defendant with significant subaverage intellectual functioning
existing concurrently with substantial deficits in adaptive behavior and
manifested during the developmental period is referred to in KRS
532.135 and 532.140 as a seriously mentally retarded defendant.
"Significantly subaverage general intellectual functioning" is defined as
an intelligence quotient (1.Q.) of seventy (70) or below.
(3) A defendant who at the time of the offense. had a severe mental
disorder or disability that significantly impaired his or her capacity to
appreciate the nature.
consequences. or wrongfulness of his or her conduct. exercise rational
judgment in relation to conduct. or conform his or her conduct to the
requirements of the law. is referred to in KRS 532.135 and KRS
532.140 as a severely mentally ill defendant. A mental disorder
manifested primarily by repeated criminal conduct or attributable
solely to the acute effects of voluntary use of alcohol or other drugs
shall not. standing alone. constitute a mental disorder or disability for
purposes oOhis subsection.
Section 2. KRS 532.135 is amended to read as follows:
(1) At least thirty (30) days before trial, the defendant shall file a
motion with the trial court wherein the defendant may allege that he is
a seriously mentally retarded Q!.
severely mentally ill defendant and present evidence with regard
thereto. The Commonwealth may offer evidence in rebuttal.
(2) At least ten (10) days before the beginning of the trial, the court
shall determine whether or not the defendant is a seriously mentally
retarded or severely mentally ill defendant in accordance with the
definition in KRS 532.130.
(3) The decision of the court shall be placed in the record.
(4) The pretrial detennination of the trial court shall not preclude the
defendant from raising any legal defense during the trial. If it is
determined the defendant is a seriously mentally retarded or severely
mentally ill offender, he shall be sentenced as provided in KRS
532.140.
Section 3. KRS 532.140 is amended to read as follows:
(1) KRS 532.010, 532.025, and 532.030 to the contrary
notwithstanding, no offender who has been determined to be a
seriously mentally retarded or severely mentally ill offender under the
provisions of KRS 532.135, shall be subject to execution. The same
procedure as required in KRS 532.025 and 532.030 shall be utilized in
determining the sentence of the seriously mentally retarded or
severely mentally ill offender under the provisions of KRS 532.135 and
532.140.
(2) The provisions of KRS 532.135 and 532.140 do not preclude the
sentencing of a seriously mentally retarded or severely mentally ill
offender to any other sentence authorized by KRS 532.010, 532.025, or
532.030 for a crime which is a capital offense.
(3) The provisions ofKRS 532.135 and 532.140 shall apply only to trials
commenced after July 13, 1990. for seriously mentally retarded
offenders and after the effective date of this Act. for severely mentally
ill offenders.
