TALKING POINTS!
MENTAL DISABILITIES AND THE DEATH PENALTY
3-28-07
A. INTRODUCTION
There is a growing consensus of the need to protect many persons with severe
mental illness from executions while still holding them accountable for their crimes.
Several national organizations, listed below, have adopted position statements regarding the
application of the death penalty to persons with severe mental disabilities. They have
recognized the need to exempt persons with disabling mental disorders when it would be
inappropriate to sentence them to death or execute them. In taking these positions, these
groups are not, in most instances, taking a position on whether the death penalty can otherwise
be justified. Rather, they are saying that, even assuming it is otherwise justified, it is
inappropriate under the circumstances described in their policies.
There is a need to increase public awareness of these issues. Once there is a sufficient core of
informed citizens, they should press states to adopt legislation providing protections for persons
in the criminal justice system suffering from serious cognitive disorders. The following
information is provided in support of those goals.
Serious mental disabilities (SMD) defined.
The death penalty can be inappropriate for persons with serious mental disabilities (brain-based
disorders), including:
> cognitive disorders that cause significant limitations in mental functioning as well as
adaptive behavior, as expressed in conceptual, social, and practical adaptive skills,
resulting from mental retardation,? dementia, or traumatic brain injury.
> severe mental disorders that significantly impair a person’s capacity to:
v appreciate the nature, consequences, or wrongfulness of their conduct;
v_ express rational judgment in relation to conduct; or
v conform their conduct to the requirements of the law.
Not included are disorders manifested only by:
= repeated criminal conduct; or
= acute effects of voluntary use of alcohol or other drugs.
‘These Talking Points were prepared collaboratively in March 2007 by: Judith G. Storandt, J.D., National
Disability Rights Network (NDRN); Ronald Tabak, J.D., Co-chair, Death Penalty Committee, ABA Section
of Individual Rights & Responsibilities; Ron Honberg, J .D., National Alliance on Mental Illness (NAMI); and
David Kaczynski, Executive Director, New Yorkers Against the Death Penalty (NYADP).
2? “Mental retardation” is used in lieu of intellectual disabilities or developmental disabilities because it is
the terminology used in the United States Supreme Court decision that exempts this narrow class of
persons with brain-based disorders from the death penalty, Atkins v. Virginia, 536 U.S. 304 (2002).
Veterans who return with serious mental disorders.
These definitions include veterans who have sustained a traumatic brain injury (TBI) or have
acquired Post-Traumatic Stress Disorder (PTSD) due to exposure to high levels of sustained
violence during periods of prolonged conflict.? These veterans are among the most egregious
examples of those whom the system has failed. Having unselfishly sacrificed for their country,
many have had their mental health needs disregarded. Denied access to adequate treatment, a
few deteriorate to the point of engaging in offenses resulting from an impaired capacity to
respond rationally to life stressors.
George Franklin Page is a Vietnam Veteran with a long history of PTSD. He was sentenced
to death for a killing in 1995 that took place during a manic flashback episode during
which he though he was surrounded by soldiers shooting at him. At trial, the jury was
provided little of the available evidence about his brain disorder and was provided
psychiatric testimony that distorted the content of his military record. Defense counsel
was denied a chance to hire mental health professionals to conduct a full evaluation.
Points in the criminal process when this issue can arise.
1) Trial stage: defendants suffering from a serious mental disability (SMD) at the time of the
offense charged.
2) After a death sentence has been imposed at trial: condemned prisoners who develop
a SMD during post-trial and collateral reviews of their death sentences.
3) Executions: death-row prisoners who have a SMD at the time they are to be executed.
Protections needed for persons with serious mental disabilities.’
1. Trial stage: Protection from having a death sentenced sought or imposed at trial for
persons who were suffering from a serious mental disability at the time of the homicides they
are charged with committing when there is significant reason to believe that, absent the serious
mental disability, the homicide would not have been committed. (See Part C.)
> This is only an exemption from the death penalty, not an exemption from being tried,
convicted, and sentenced to long prison terms pursuant to state laws, including life
without parole where applicable.
> This is an absolute exemption from a death sentences for defendants with mental
retardation (i.e., diagnosed as having an onset before the age specified by state law;
e.g., before age 22) as well as those who are functionally equivalent cognitively but
3\nformation about TBI is available from the Brian Injury Association of American's website,
http://www. biausa.org/aboutbi.htm. Information about PTSD is available from the PTSD Information
Center website, http://www.ncptsd.va.gov/ncmain/information/.
* These is discussed in greater detail below.
have a later onset (e.g., persons who acquire dementia or TBI after the onset age to
diagnose mental retardation).
> The exemption from the death sentence for other serious mental disorders requires a
significant reason to believe the crime would not have been committed absent that
disorder.
2. After trial: Protection during post-trial collateral review proceedings when persons who are
impaired due to a serious mental disability are unable to assist their counsel in identifying
potential claims. In addition, protection against waiving collateral review when such waivers are
likely based on impairments due to a serious mental disability. (See Part D.)
> For defendants who are considered “incompetent” to assist their counsel in pursuing
post-trial collateral reviews of their convictions, this is only a stay of the proceedings
until they become competent; or, if it ultimately appears that they will remain
incompetent indefinitely, an exemption from the death penalty, not an exemption from
having their convictions appealed and reviewed, or having their sentences changed to
long prison terms pursuant to state laws, including life without parole where applicable.
3. At the time of execution: Protection from having a death sentenced carried out for
prisoners on death row who have a serious mental disability affecting their ability to appreciate
the nature or reason for their execution. (See Part E.)
National organizations that have recognized the need for these protections.
The following organizations have formally acknowledged the need to protect persons with
severe mental disabilities from death sentences where their execution would be inappropriate.
e American Bar Association (ABA), House of Delegates Resolution 112A (August
2006) [herein the “ABA Resolution”).
> Available at: http://www.ndrn.org/issues/ci/ABA% 20Resolution-
% 20feature% 20article305.pdf
> See Recommendation and Report on the Death Penalty and Persons with Mental
Disabilities, 30 Mental & Physical Disability L. Rep. 668, 668 (2006).
> For further information, contact: Ron Tabak, rtabak@probonolaw.com.
e American Psychiatric Association (APA). Position Statement: Diminished Responsibility
in Capital Sentencing (Dec. 2004); and Mentally Ill Prisoners on Death Row (Dec. 2005).
> Available respectively at:
http://www. psych.org/edu/other_res/lib_archives/archives/200406.pdf; and
http://www.psych.org/edu/other res/lib_archives/archives/200505.pdf
> For further information, contact: Richard Bonnie, jrb6f@virginia.edu
e American Psychological Association (APA). Council of Representatives, Council Policy
Manual: N. Public Interest (incorporating policy adopted by the Council of Representatives in
February 2006)
> Available at: http://www.apa.org/about/division/cpmpubint2.html#8.
> For further information, contact: Donna Beavers, dbeavers@apa.org.
e National Alliance on Mental I IIness (NAMI). Public Policy Platform of the National
Alliance on Mental Illness (8th ed. 2006), p. 49-50.
> Available at:
http://www.nami.org/Template.cfm?Section=NAMI_ Policy Platform&Template=/Con
tentManagement/ContentDisplay.cfm&Contentl D=38245
> For further information, contact: Ron Honberg, ronh@nami.org.
The ABA Resolution®
In 2003, the ABA's Section of Individual Rights and Responsibilities created a task force to
consider the subject of mental disability and the death penalty. This was a multidisciplinary
taskforce of people knowledgeable on this subject including: legal experts; experts in the fields
of psychology and psychiatry; and representatives from several mental disability advocacy
groups. This task force proposed recommendations that were adopted by the ABA House of
Delegates in August 2006. They can be summarized as follows.
1. Intellectual disabilities at the time of offense. Defendants should not be
executed or sentenced to death if, at the time of the offense, they had significant
limitations in both their intellectual functioning and adaptive behavior resulting from
mental retardation, dementia, or a traumatic brain injury.
2. Mental disorders at the time of offense. 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 to: (a) appreciate the nature,
consequences or wrongfulness of their conduct, (b) exercise rational judgment in
relation to conduct, or (c) conform their conduct to the requirements of the law. This
does not include a disorder manifested primarily by repeated criminal conduct or
attributable solely to the acute effects of voluntary use of alcohol or other drugs.
3. Mental disability after sentencing. A sentence of death should not be carried out
if the prisoner has a serious mental disability that significantly impairs his or her capacity
to: (a) make a rational decision not to pursue post-conviction proceedings available to
challenge the validity of the conviction or sentence; (b) understand or communicate
pertinent information or otherwise assist counsel; or (c) understand the nature and
purpose of the punishment, or to appreciate the reason for its imposition.®
5 The resolutions/position statements of the other three national organizations reference in these Talking
Points are identical in content to the ABA Resolution, except that only the ABA Resolution specifically
states, in portions of paragraph 3, that if the death sentence is vacated, the sentence shall become the
next most severe punishment provided by law.
® In addition, procedures are specified to be followed in each of these categories.
4
B. DEATH PENALTY - BACKGROUND I NFORMATION
How death sentences are imposed.
e The United States Supreme Court has held that, in order to prevent the arbitrary and
discriminatory application of the death penalty, it must be imposed by decisionmakers
whose discretion has been informed by consideration of evidence relating to:
\ aggravating factors: circumstances about the offense that makes it more heinous
or cruel (e.g., the murder of a police officer or a murder in the course of a
rape);’ and
\ mitigating factors: any evidence about the defendant that a juror might
reasonably view as a reason to impose a sentence other than death (e.g., no
prior history of criminal activity; remorse; cooperating with law enforcement
officers investigating the offense; a mental disability).
e Capital murder trials consist of two separate phases. During the first, the guilt phase,
evidence is presented to the decisionmaker (typically a jury) to determine whether the
defendant is guilty of the offense(s) charged.
e If the decisionmaker returns a verdict finding the defendant guilty of capital murder, a
sentencing trial, the penalty phase, is held. During the penalty phase, jurors hear
evidence relating to aggravating circumstances and, if presented, mitigating
circumstances.
e In general, if the prosecution fails to establish that the proven aggravating factors out-
weigh the mitigating factors that exist, a death sentence cannot be imposed. (The actual
formulation varies between states.) In most states, the alternative is life in prison without
the possibility of parole.
e |f.adeath sentence is imposed, the defendant can appeal to ask the state’s highest court to
review the legality of the death sentence.
e If the appeal is not successful, death-sentenced prisoners can seek post-conviction review in
state courts, and federal habeas corpus review in federal courts.
e The United States Supreme Court does not automatically review all death sentences; it has
discretion to select which cases to accept for review after direct appeal, after state post-
conviction review, and after federal habeas corpus review.
U.S. Constitution’s ban on excessive punishments.
The Eighth Amendment to the United States Constitution declares: Excessive bail shall not be
required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
The ban on cruel and unusual punishment prohibits: certain gruesome methods of punishment
(e.g., torture, burning at the stake, crucifixion); punishments that are grossly disproportionate
to (too harsh for) the particular crime; and death sentences that have not been decided in a fair
7 Each state has by statute adopted a list of aggravating factors that can be considered when relevant in
a particular case.
manner and by an impartial jury, or that are disproportionate, given the relatively less moral
culpability of the defendant.
Persons currently exempt from the death penalty.
The United States Supreme Court has held the death penalty is an excessive punishment for
two groups of individuals who have significantly diminished moral culpability for their crimes in
comparison with the "average murderer."
These two groups are defendants who, at the time they committed a capital offense (an offense
for which the death penalty otherwise could be imposed):
= Had mental retardation.
Construing and applying the Eighth Amendment in the light of our “evolving
standards of decency,” we therefore conclude that . . . the Constitution “places a
substantive restriction on the State’s power to take the life” of a mentally retarded
defendant. Atkins v. Virginia, 526 U.S. 304 (2002).
= Were minors (younger than 18 years old).
Retribution is not proportional if the law's most severe penalty is imposed on one
whose culpability or blameworthiness is diminished to a substantial degree, by
reason of youth and immaturity. Roper v Simmons, 543 U.S. 551 (2005).
Key factors in recognizing diminished culpability in Atkins and Roper.
The Supreme Court decisions exempting persons with mental retardation and minors from the
death penalty recognized several key factors in arriving at those conclusions.
> retribution is related to culpability, and this justification for the most severe punishment
does not exist when culpability for a crime is reduced by developmental immaturity;
> decreased capacity to understand and process information;
> impaired logical reasoning;
> poor impulse control;
> inability to comprehend reactions of others;
> lack of maturity, undeveloped sense of responsibility;
> vulnerability or susceptibility to negative influences and outside pressures;
> concerns about whether jurors can fairly weigh, as mitigating, evidence relating to
diminished responsibility of these defendants;
> lack of evidence that capital punishment will deter other individuals with mental
retardation or who are minors;
> retribution is related to culpability, and this justification for the most severe punishment
does not exist when culpability for a crime is reduced by developmental immaturity;
> concerns about procedural due process for defendants with impaired ability to assist
counsel.
Mental retardation is not the only brain-based disability that needs to be
exempt from the death penalty, in appropriate circumstances.
It is profoundly inconsistent to exempt people with mental retardation from the death penalty
while others remain exposed to it who had serious mental disabilities likely to have affected
them at the time of the crime. Both groups of defendants are impaired by brain-based disorders
that they have not chosen to have. More importantly, both are substantially less morally
culpable than the "average murderer."
Persons with untreated, or inappropriately treated, serious mental disorders can engage in
actions that they would likely not have otherwise taken. Severe mental disorders can cause
individuals to experience impairments that can affect their actions.
Impairments in: * orientation to reality (hallucinations, delusions, perceptions
of persecution)
¢ logical reasoning
* processing and comprehension of information
¢ impulse control
*® memory and concentration
The symptoms and functional effects of severe mental illness, if they exist at the time of a
capital crime, can diminish criminal culpability sufficiently to make the imposition of the death
penalty disproportionate and, thus, inappropriate (as it is for those with mental retardation or
who are minors).
Given the rationale provided in both the Atkins and Simmons rulings of exempting the death
penalty for those with “reduced moral culpability,” it is appropriate to extend this in appropriate
cases to those suffering from serious mental disorders at the time of their offenses. Persons
suffering from a serious mental disability at the time they committed a capital offense are
significantly less culpable than the "average murderer.” Therefore, they need similar protections
to those accorded to defendants who have mental retardation or who were minors at the time
of their offenses.
The ABA Resolution proposes two categories of exemptions from the death penalty (but not
from being tried, convicted and sentenced to the prison term provided for under state law):
> An absolute exemption from a death sentences for defendants with mental retardation
(diagnosed as having an onset before the age specified by state law; e.g., before age
22) as well as those who have functionally equivalent cognitive impairments but with a
later age of onset (e.g., persons who acquire dementia or TBI after the age of onset to
diagnose mental retardation).
> An exemption for other serious mental disorders when there is a significant reason to
believe the crime would not have been committed absent that disorder (see Definitions
above on page 1).
The Supreme Court did not initially recognize the Constitutional exemptions for those who had
mental retardation or were minors at the time they committed capital offenses. It only
recognized these exemptions after prohibitions were in existence in many states as a result of
legislation or state court decisions protecting these groups of defendants. Similarly, it is likely
that any exemptions with regard to people with serious mental disorders will be created initially
by the action of legislative bodies and, perhaps, some state courts interpreting their state
constitutions.
C. OFFENSE I SSUES:
DEFENDANTS WITH SERIOUS MENTAL DISABILITIES
AT THE TI ME OF THE OFFENSE
There is no safety net to protect people with serious mental disabilities at the time of their
offenses from being sentenced to death or executed.
Larry Robinson was diagnosed with paranoid schizophrenia three years before
the murders for which he was sentenced to die. His mother repeatedly sought
help, but was told that the state had no resources unless he turned violent. He
was executed by the state of Texas in 2000.
The insanity defense does not protect all persons with mental disabilities.
The definition of severe mental disorder or disability used in the ABA Resolution was adapted
from the Model Penal Code (MPC) test for insanity used in many jurisdictions. However, not all
jurisdictions have adopted the MPC. Other jurisdictions either do not recognize an insanity
defense or define it more narrowly than the MPC test.
Even in jurisdictions that follow the MPC, a ban on the death penalty for persons with serious
mental disorders/disabilities at the time of their offenses is still needed. In jurisdictions that
allow for a verdict of “not guilty by reason of insanity,” jurors often are reluctant to return an
insanity verdict in cases involving aggravated murders because the defendant is not convicted
of the murders.®
Recognized purposes of the death penalty are not served by executing
persons with mental disabilities at the time of their offense.
The recognized purposes of the death penalty are: deterrence (to stop people from committing
capital offenses out of fear of being executed); and retribution (punishment proportionate to,
and warranted by, the crime).
Deterrence
= People do not choose to have mental disabilities. The existence of the death penalty
cannot deter people from becoming psychotic or having distorted reasoning.
= We know how to treat the symptoms of mental disabilities. Early identification and
making available community-based mental-health services that are affordable,
appropriate, adequate, and patient- and family-centered is the most effect solution for
ensuing public safety, and cost-effective.
= All too often pleas for help from persons with mental disabilities, or their loved ones,
have gone unheeded for a long time prior to their engaging in crime.
= After a person with a psychiatric disability has committed a violent crime, providing
appropriate treatment and care is adequate to prevent future offenses.
8 Christopher Slobogin, Mental //Iness and the Death Penalty, 1 Calif. Crim L. Rev., art. 3 (2000),
www. boalt.org/CCLR
Texas ranks 49" out of the 50 states in terms of the amount of money spent
per capital in the treatment of the mentally ill (including funds for mental
health services in jails or prisons). However, it spends an average of $2.3
million dollars to try a death penalty case.
Retribution
= A punishment for the purpose of retribution must be proportionate to the nature of the
offense. In a civilized society, capital punishment is excessive for minor crimes, crimes
committed in legitimate self-defense, crimes unknowingly or involuntarily committed,
and crimes committed by persons with reduced culpability due to immature brains
(youth) or brain-based disorders (persons with mental retardation).
= Similarly, the death penalty is excessive for persons who commit capital murder due to
other brain-based disorders, such as severe mental disabilities.
Defendants with serous mental disabilities who go to trial are at risk of being
wrongfully sentenced to death.
When defendants have a serious mental disability at the time of their trials, there is a significant
risk that they will be wrongfully sentenced to death.
Their ability to assist their attorneys often is impaired, resulting in important mitigating
information not being investigated and presented for jurors to consider during the penalty
phase.
Anthony Larette was assigned a trial lawyer with no capital experience. The jury was
left entirely unaware of his history of mental illness, the symptoms of which included
blackouts and hallucinations, and after a sentencing phase that lasted less than an
hour, they voted for a death sentence. He was executed in Missouri in 1995.
Serving as a juror in a capital murder trial is a stressful and difficult experience. J urors want to
render the appropriate verdict based on all relevant information. It is fundamentally unfair to
deprive jurors of relevant information when defendants are impaired in their ability to assist
counsel, or are in denial about their mental illness and refuse to allow evidence about it to be
presented at trial.
Another way in which jurors are deprived of relevant information is when defense counsels
decide not to allow defendants to testify due to concerns about their testimony and demeanor
while testifying being compromised by the symptoms of their mental disorders. Other
defendants are so delusional that they insist on representing themselves without the assistance
of counsel. Sometimes this is due paranoid beliefs that defense counsel is part of a conspiracy
to harm the defendant, or delusional beliefs of defendants about their ability to represent
themselves.
10
Guy LeGrand was allowed to represent himself during his trial in North Carolina.
As a result, his jury never heard the extensive evidence of his psychosis, which
manifested itself during his trial in bizarre and self-destructive ways.
These situations typically result in an unreliable sentencing decision at trial. These and related
problems are attenuated by adopting the protections proposed by the ABA Resolution.
Demeanor issues at trial.
As with many individuals with mental retardation, persons with serious mental disorders often
look and act differently, especially when their illnesses are aggravated by the stress of arrest,
pre-trial incarceration, and trial. Due to lack of experience with and understanding about mental
illness, most jurors are unable to interpret unusual courtroom behaviors caused by mental
disorders.
Even when mental disorders are treated with medications, the medications often have side
effects that can prejudice jurors against a defendant. These include:
Vv parkinsonism (stiffness of the trunk, arms, or legs, a decrease in facial expression,
tremor, some forms of paralysis, and certain problems with control of movement);
\ akathisia (a feeling of inner restlessness and the urge to move, often manifested by
rocking while standing or sitting, lifting feet as if marching on the spot, and crossing and
uncrossing the legs while sitting);
V_ dystonia (a neurological movement disorder in which sustained muscle contractions
cause twisting and repetitive movements or abnormal postures.);
\_ tardive dyskinesia (involuntary movements of the tongue, lips, face, trunk, and
extremities).
Defendants with serous mental disorders at the time of a capital offense can be protected from
this cruel Catch 22 at trial by exempting them from the death penalty when they meet the
criteria proposed by the ABA Resolution (i.e., when there is a significant reason to believe that
the offense would not have occurred absent the disorder).
Danger of mental illness being used as an aggravating factor rather than a
mitigating circumstance related to diminished culpability.
Every state has laws that include mental disease or defect as a mitigating factor. However,
ignorance and fear about mental illness can result in jurors erroneously using mental illness as
an aggravating factor rather than a mitigating factor despite jury instructions that attempt to
guide jurors in the proper use of this evidence.
In some cases, prosecutors have played on jurors’ fears of those with severe mental disorders
by convincing them that such persons pose a threat of future dangerousness.
11
Herbert Welcome had mental retardation and mental iliness in 1981 when he became
involved in the heat-of-passion fatal shooting of an aunt and her boyfriend who had
been exploiting and abusing him. Illiterate and unable to comprehend his trial
proceedings, he sometimes slept in the courtroom and routinely smiled at everyone (an
adaptive behavior he learned to use with strangers to seek their approval). Jurors were
not informed of his intellectual impairments, and the prosecutor told them that his
smiling during trial was a sign that he lacked remorse. Jurors sentenced him to death.
Defendants with serious mental disorders who ask to be sentenced to death.
Another way in which mental disorders can negatively affect the reliability of a capital murder
trial is when defendants demand during their trial testimony that a death sentence be imposed.
!n 1997, Christina Riggs, who came from a family with a history of mental iliness and
Suicidal tendency, killed her two children and attempted to commit suicide by injecting
herself with potassium chloride (a substance used in lethal injection executions in the
US). That suicide attempt failed, but at her sentencing hearing she asked the jury for
a death sentence: "! want to die. | want to be with my babies. | started this out seven
months ago. And | want you to give me the death penalty. | don’t want you to feel
guilty." The jury granted her request for the death penalty, and on May 2, 2000, the
state executing Christina Riggs using the same substance with which she had
attempted suicide.
The standards for competency to stand trial fail to protect defendants
with serious mental disabilities.
Although the U.S. Constitution requires that defendants be capable of participating knowingly
and fully in their own defense, state competency standards are quite low and at times
misunderstood and unevenly applied. There are defendants who were allowed to proceed to
trial, and even represent themselves, despite serious questions about their competency.
Although serious questions existed about his competency to stand trial, Scott Panetti
was allowed to fire his attorneys and represent himself. At trial, he wore a cowboy
outfit, constantly used old western terminology, and asked irrational questions,
frequently citing Biblical passages and engaging in incoherent and confused streams
of consciousness. He was sentenced to death.
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D. POST-TRI AL I SSUES:
DEATH ROW PRISONERS WITH SERIOUS MENTAL DISABILITIES
DURING POST-CONVICTION REVIEWS.
Appeals and collateral review -- the process.
After defendants have been convicted of capital murder and sentenced to death, they have a
right to ask state and federal courts to review legal errors affecting the results of their trial,
both the conviction as well as the sentence. The first step is an appeal to a higher state court
(typically the highest court in the state). The direct appeal involves a paper review of the trial-
court proceedings. There is no evidence or testimony presented. If the appeal is unsuccessful,
the prisoner can then ask the U.S. Supreme Court to accept the case to review certain kinds of
errors. That Court rarely accepts capital cases for review at this point.
The next phase of review involves collateral review in state courts, often referred to as state
post-conviction or state habeas review. If there are factual issues (e.g., whether the
prisoner was denied effective assistance of counsel at trial or the prosecution withheld
significant evidence), an evidentiary hearing can be held. Typically, collateral review petitions
are filed in the lower courts of the state. If unsuccessful, they are appealed to the highest state
court. Collateral review in the state courts of alleged trial errors not dealt with on direct appeal
(known as exhausting state-court remedies) is required before prisoners can seek review in the
federal courts. After exhausting state-court remedies, the prisoner can again ask the U.S.
Supreme Court to accept the case for review of certain types of errors. It is uncommon for that
Court to accept capital cases for review at this point.
After exhausting state-court remedies, condemned prisoners can seek review in the federal
courts by filing a writ of habeas corpus in the applicable United States District Court (there is
at least one District Court in each state). In limited circumstances, that court can hold an
evidentiary hearing to resolve factual issues. If unsuccessful in the District Court, the prisoner
can request the appropriate federal Court of Appeals (the United States is divided into 12 Courts
of Appeals) to review the results in the District Court. If that also is unsuccessful, the prisoner
can ask the Supreme Court to accept the case for review. If the Supreme Court does not accept
the case, or accepts the case and does not decide it in favor of the prisoner, a warrant of
execution (setting an execution date) is likely to be issued by the state court or state official
with authority to issue a warrant.
Impediments to a full and fair review of death sentences.
Concerns about a prisoner's mental competence and suitability for execution can arise at any
time after imposition of the death sentence. The stress of having a death sentence coupled with
the harsh conditions on death row can cause prisoners to deteriorate mentally, especially those
who are emotionally fragile due to undiagnosed and/or untreated mental disorders.
Some of the obstacles to fair and meaningful review of death sentences are concerns that arise
about a prisoner's lack of capacity to:
13
= apprise their counsel or courts of facts that, if raised in a timely manner, could provide a
basis for relief in post-conviction proceedings; and
= make a rational decision regarding whether to pursue post-conviction proceedings (i.e.,
proceed with their execution without further review of their death sentences).
The ABA Resolution: para. 3(a)
A death sentence should not be carried out if:
® acondemned prisoner has a mental disability, and
e that disability significantly impairs the prisoner's capacity to:
= make a rational decision to waive or terminate available post-conviction
proceedings, or
= understand or communicate pertinent information or otherwise assist his counsel
with regard to legal issues requiring the prisoner's participation.
Prisoners who ask to waive post-conviction proceedings.
Competent prisoners, including those on death row, are entitled to choose not to pursue
appeals of their death sentences (known as “waiving” review). If a prisoner is not competent,
the standard procedure is to allow someone (e.g., a relative or the attorney) to act as a "next
friend" to pursue post-conviction review on behalf of the prisoner.
The ABA Resolution: para. 3(b)
e When a condemned prisoner has a mental disability that significantly impairs the
prisoner's ability to make a rational decision, and
e the prisoner seeks to waiver post-conviction proceedings:
= the court should permit a next friend acting on the prisoner's behalf to initiate and
pursue available remedies to set aside the conviction or death sentence.
Reportedly, 13% of the prisoners executed under modern death-penalty statues (those adopted
since 1972) have been "volunteers" - prisoners who asked to be executed without completing
available review of their death sentences. Many of them were executed despite having a mental
disorder or disability that significantly impaired their ability to make a rational decision.
A three-step test is typically used by federal courts to determine competency to waive post-
conviction reviews and proceed with an execution.
(1) Does the prisoner have a mental disorder?
14
(2) If so, does this condition prevent the prisoner from understanding his or her legal
position and the options available to the prisoner?
(3) Even if understanding is unimpaired, does the condition nonetheless prevent the
prisoner from making a rational choice among the options?
The primary focus tends to be the third step: whether the prisoner's decision is attributable to
the mental disorder or to a "rational choice." In most cases, the condemned prisoner gives
reasons that might seem "rational" under the circumstances; e.g., a desire to take responsibility
for one's actions and a belief that one deserves the death penalty; a preference for the death
penalty over life imprisonment. Troublesome are the cases in which apparently "rational"
reasons are intertwined with emotional distress (especially depression), feelings of guilt and
remorse, and hopelessness. Choices that may otherwise seem "rational" could be rooted in
suicidal motivations. When a prisoner is depressed and suicidal but has stated a desire to take
responsibility and be executed, courts are ill suited to determine which is the predominant
motivation.
A study of 106 prisoners who had volunteered for execution found recorded diagnoses of:
schizophrenia for 14 prisoners; depression or bipolar disorder for 23; PTSD for 10; borderline
personality disorder for 4; and multiple personality disorder for2; and another 12 had
unspecified histories of mental illness. Given this high prevalence of mental illness, courts
should be more willing to acknowledge suicidal motivations when they are evident and should
be more inclined to attribute suicidal motivations to mental illness when there is a convincing
link to clinical evidence of such.
A relatively high degree of rationality should be required in order to find condemned prisoners
competent to waive review of the validity of their sentences. The appropriate test should be: Is
the prisoner who seeks execution able to give plausible reasons for doing so that are clearly not
grounded in symptoms of mental disorder?
Prisoners lacking competence to assist counsel in post-conviction
proceedings.
The reliability of post-conviction proceedings is compromised when condemned prisoners are
incompetent to assist counsel representing them. Courts should suspend post-conviction
proceedings upon proof that a prisoner is incompetent to assist counsel and the prisoner's
participation is necessary for a fair resolution of a specific claim.
The ABA Resolution: para. 3(c)
e The court should suspend proceedings if:
= a condemned prisoner has a mental disability that impairs capacity to assist
counsel and
= the prisoner's participation is necessary for a fair resolution of specific claims
relating to the validity of the conviction or death sentence.
° John Blume, Killing the Willing: Volunteers, Suicide and Competency, 103 Mich. L. REV. 939, 959 (2005).
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e If the court determines that restoration of competency is unlikely in the
foreseeable future:
= a death sentence should be reduced to lesser punishment. ?°
Since 1973, over 120 prisoners have been released from death row based on evidence of their
innocence. Many more have had their death sentences overturned and replaced with prison
terms due to the discovery of mitigating evidence not presented at trial that jurors should have
heard in deciding the appropriate penalty. It is possible that incompetent prisoners are unable
to assist their counsel in reconstructing factual or legal claims that would render their death
sentences invalid. Hence, condemned prisoners who are incompetent to assist counsel should
not be executed.
Many issues raised in collateral proceedings can be adjudicated without the prisoner's
participation, and these matters should be litigated according to customary practice. However,
post-conviction proceedings should be suspended if the prisoner's counsel makes a substantial
and particularized showing that the prisoner's impairment would prevent a fair and accurate
resolution of specific claims.
Once the post-conviction proceedings have been suspended due to a prisoner's incompetence
to assist counsel, the death sentence should not remain under an indefinite stay. A judicial
finding that a prisoner's competence to assist counsel is not likely to be restored in the
foreseeable future should result in a reduction of the death sentence to the relevant sentence
under state law for capital offenders when execution is not an option.
10 This approach is analogous to the suspension of criminal proceedings before trial due to incompetence
to stand trial; in that context, the proceedings are typically terminated and charges are dismissed after a
specified period of time if a court finds competence is not likely to be restored in the foreseeable future.
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E. TIME OF EXECUTION I SSUES:
DEFENDANTS WITH SEROUS MENTAL DISABILITIES
AT THE TI ME OF THE! R EXECUTION.
In 1986, the U.S. Supreme Court ruled that the execution of prisoners who are insane (those
who do not understand the reason for, or the reality of, their punishment) violates the U.S.
Constitution, Ford v. Wainwright, 477 U.S. 399 (1986). The Ford decision did not define
incompetence to be executed, or outline the procedures that states should use to make those
determinations. It left that up to each state. |n many states there are inadequate protections to
prevent the execution of prisoners who have a serious mental disability at the time of their
execution that prevents them from understanding they are to be executed as punishment for
their crimes.
Prisoners unable to understand the punishment or its purpose should not be
executed.
Condemned prisoners with mental disabilities should not be executed if they lack a factual or a
rational understanding regarding his or her execution. For example, an execution should not
take place if a condemned prisoner lacks the capacity to understand that her execution will
result in death and she will never be revived or alive afterwards; or if the condemned
irrationally believes that his conviction and death sentence have been reversed and there is a
conspiracy by the FBI and aliens to keep that a secret in order to kill him because they believe
he has stolen classified information that they do not want revealed.
The ABA Resolution, para. 3(d)
A death sentence should be reduced to the maximum prison term available when:
= collateral review proceedings have concluded and an execution date has been set,
and
= a prisoner has a mental disability that significantly impairs the prisoner's ability:
= to understand the nature and purpose of the punishment, or
= to appreciate the reason for its imposition in the prisoner's own case.
Clemency does not protect the insane from being executed.
Often for political reasons, governors tend to be hesitant to grant clemency on behalf of
prisoners on death row seeking clemency to commute their death sentences to life
imprisonment. Only a few governors have had the courage and understanding to commute
death sentences due to concerns about executing mentally ill offenders.
There are many examples of persons with severe mental illness who have been executed since
the Ford decision.
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Bobby Wilcher, who suffered from bi-polar disorder and had a long history of
psychological problems was executed in Mississippi in 2006.
Donald Beardslee was executed in California in 2005 despite suffering from severe
mental illness and brain damage.
It is unethical for medical professionals to use drugs to induce competency
to be executed.
It is profoundly ironic for prisoners with serious mental disabilities to have been denied medical
treatment prior to their crimes and then for the government to seek to forcibly medicate them
in order to make them competent to be executed. It also raises ethical issues for health care
professionals, trained in the healing arts, to prescribe treatment for the primary purpose to
enable the state to carry out an execution of someone who has been found incompetent to be
executed.
By the early 1990s, Charles Singleton was regularly put on various anti-psychotic
drugs. When he did not take the medication, or he needed increased or different
medication, his symptoms would worsen. When his iliness became severe, he was
put on an involuntary medication regime. When his psychotic symptoms abated, the
State of Arkansas executed him in 2004 (after he had spent 24 years on death row).
After a prisoner has been found incompetent for execution, the only one sensible policy is for a
death sentence to be automatically commuted to alternative term of imprisonment available
under the applicable state law.
F. STIGMA ISSUES
Addressing concerns that exemption
from the death penalty might be stigmatizing
It is undeniable that it still is very stigmatizing in our society for persons to be regarded as
having a mental illness. Persons known to have with mental illness, even when it is being
appropriately treated and without active symptoms, have experienced discrimination in the
workplace and other aspects of their lives.
It can be anticipated that some self-advocates and advocates will wonder if initiatives to ban
the death penalty for persons with severe mental disorders will increase the stigma of mental
illness - that these initiatives will generate incorrect perceptions that people with mental illness
are prone to commit violent crimes.
Initiatives to protect people with mental disabilities from the death penalty can actually help
address stigma issues and reduce prejudice and bias about mental illness. These initiatives
inevitably must be accompanied by a public awareness campaign to help the public to:
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e understand that nobody is exempt from acquiring a mental disorder; and
¢ appreciate the challenges of living with a mental illness in a society that is uninformed
and unsupportive.
Failure of the mental-health care system to meet known needs.
Capital defendants who have a serious mental often have a history of mental illness that had
never been diagnosed or, if diagnosed, was left untreated. The failure of the mental health
systems in the United States to appropriately deal with mental health problems is well
documented. The President's New Freedom Commission on Mental Health has called it a badly
fragmented “system in shambles” (/nterim Report to the President, October 29, 2002).
Several months before David Lynch (a Navy veteran with no prior criminal record)
was sentenced to death in 1993, he voluntarily admitted himself to a psychiatric
hospital following a suicide attempt. He told examiners that he had considered
killing himself and others, said he heard persistent sounds that others did not, and
shared that he felt persecuted by his neighbors. Doctors concluded he was merely
depressed and prescribed Prozac, and discharged him after two weeks.
The criminal justice system has increasingly become the de facto mental health treatment
system in the United States, largely due to the unavailability of psychiatric treatment and
mental health services for those in need."? In some states severely mentally ill individuals
cannot receive state-sponsored care until they have been proved to be violent and a danger to
society.
Larry Robison, who was executed in Texas in 2000 had been diagnosed with
paranoid schizophrenia three years before the murders for which he was
sentenced to die. His mother repeatedly sought help but was told that the state
could not provide any resources unless he turned violent.
The vast majority of people with serious mental disorders do not need costly, long-term in-
patient commitments to establish a treatment regimen. Providing timely and appropriate
community-based health-care services to those in need is the least expensive and generally
most effective approach to meeting their needs and maintaining public safety.
Highly vulnerable population.
As discussed in Part D, above, defendants with serious mental disabilities are at special risk of
being wrongfully sentenced to death. Hence, this small number of defendants should be exempt
from the death penalty in accordance with the ABA Resolution.
1 See Frontline, The New Asylums. http://www.pbs.org/wgbh/pages/frontline/shows/asylums/ .
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Anthony Larette was assigned a trial lawyer with no capital experience. The jury
was not made aware of his history of mental iliness, the symptoms of which
included blackouts and hallucinations. After a sentencing phase that lasted less
than an hour, the jury voted for a death sentence and Larette was executed in
Missouri in 1995.
G. ADDITIONAL INFORMATION AND RESOURCES
Articles
* Bonnie, R.J. Mentally III Prisoners on Death Row: Unsolved Puzzles for Courts and
Legislatures. 54 Cath. U.L.Rev. 1123 (2005).
* Honberg, R. The Injustice of Imposing Death Sentences on People with Severe Mental
Illnesses. 54 Catholic U. L. Rev., 1153 (2005).
* Tabak, R. J. Executing People with Mental Disabilities: How We Can Mitigate an Aggravating
Situation. 25 St. Louis U. Pub. L. Rev. 2 (2006).
* Slobogin, C. Mental Disorder as an Exemption from the Death Penalty: The ABA-IRR Task
Force Recommendations. 54 Catholic U. L. Rev. 1133 (2005).
Websites
* Death Penalty Information Center, www.deathpenaltyinfo.org.
* NAMI website (general, comprehensive information about mental illnesses, including legal
issues), www.nami.org.
* National Mental Health Association, Death Row Inmates Resource Center,
http: //www1.nmha.org/position/deathPenalty/index.cfm
H. FACTS AND FIGURES
> Fact: Capital murder trials do not always protect innocent people from being
sentenced to death. Persons with serious mental disabilities are at greater
risk of being convicted and sentenced to death for offenses they did not
commit.
/n 1998 Anthony Porter came within 48 hours of execution for a crime he did not
commit. His execution was stayed on a claim that Porter had mental retardation and
was incompetent for execution (in August of 1998, his !Q was measured at 51).
While a competency hearing was pending, some journalism students investigated
the case and uncovered evidence of Porter's innocence of the crime for which he
had spent some 17 years on death row. He was ultimately exonerated and freed.
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a
Vv
>
Fact: We know how to safely treat persons with mental disabilities who are in
prison.
Due to a mental health system in this country that is broken, persons who were suffering
from serious mental disorders at the time they committee a capital offense often did not
have access to affordable, adequate and appropriate treatment to manage the symptoms of
their disorders. The problem is not lack of knowledge about how to treat and care for
people with serious mental disorders, but a lack of accessible resources, especially early
identification and intervention through community-based services.
Fact: The death penalty is expensive and diverts resources away from effective
crime prevention and mental health treatment programs.
Because life is at stake, capital trials take longer and require more careful review. Conditions
of confinement and supervision on death row are more expensive.
The California death penalty system costs taxpayers $114 million per year beyond the costs
of keeping convicts locked up for life. Taxpayers have paid more than $250 million for each
of the state’s executions.
The most comprehensive study in the country found that the death penalty costs North
Carolina $2.16 million per execution over the costs of sentencing murderers to life
imprisonments. The majority of those costs occur at the trial level.
Fact: Not all persons with serious mental disabilities are violent or dangerous.
Although some persons with mental disabilities have symptoms that set them apart, such as
talking to themselves or voices only they can hear, it is incorrect to automatically assume
that they are dangerous or prone to violence.
Despite media coverage that conveys a different impression, serious mental illness is
quite rare, and therefore contributes very little to the overall rate of violence in the
general population. It is much lower than that associated with substance abuse, for
example.
Most people with schizophrenia, major depression, or bipolar disorders do not commit
assaultive acts. In addition, there is no different between the risk of violence between
people with a psychiatric disorder being treated and people without such disorders.
Fact: People with SMD are more likely to be victims rather than victimizers.’?
2 Swanson, JW, et al., A National Study of Violent Behavior with Schizophrenia, Archives of General
Psychiatry, 63:490-499 (May 2006).
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