SMI Coalition: Arguments of prosecutors and others and responses
The law already allows defendants to raise insanity defense and to say mental illness is mitigation so
this is not needed.
KY Response: The benefit of this new procedure is that it provides for a thorough consideration of
whether a person is seriously mentally ill at the start of the case by a well-trained judge who can
determine if the level of culpability of the defendant merits the costly, lengthy capital litigation process
or not. And it fills a gap in the law for those who were significantly impaired at the time of the offense by
a severe mental disorder short of insanity. These are those that should benefit from the exemption, and
would otherwise be subject to being punished by the ultimate penalty.
OH: The current law is not sufficient. When we look at clemency records of individuals already executed,
there is no doubt we have executed individuals with severe mental illness. This has occurred because of
two factors. The insanity or NGRI standard is far too high for defendants to reach the threshold.
Nationally, NGRI is raised in about 1% of all criminal cases and it is successful only about 1/4 of the time.
The other problem that allows individuals with severe mental illness to pass through inadequate
protections is that the competency bar is too low. If there is a competency issue, we simply send
defendants away to be medicated to the point they can get through the trial. The underlying severe
mental illness does not go away, rather it is masked by the attempts to restore competency.
The bill does not be adequately define serious mentally illness so it will be abused.
KY Response: Judges are skilled at precisely applying definitions to facts a case. We know that because
that is what the yare doing in the situation ofa clai that a person is intellectually disabled.
OH: The bill defines severe mental illness with five diagnoses. Medical professionals have batteries of
tests to evaluate and assess whether an individual has one of the five diagnoses. Because the bill is so
narrow in its applicability, we can be assured it will not be abused.
Precluding the seriously mentally ill from execution will end the death penalty in Kentucky.
KY Response: This is an uninformed concern. It as uninformed as those who made a similar claim when
Kentucky decided to ban executions for intellectually disabled persons, and when Kentucky adopted
statutory standards to protect defendants from prosecutions for death sentences tainted by racial bias.
Neither piece of legislation has resulted in the elimination of the death penalty in Kentucky.
OH: The same argument was raised when execution became off limits for individuals with intellectual
disability following the Atkins ruling. However, looking at the numbers we see this is simply not true. Of
the 330 death sentences in Ohio under the current law, only 8 defendants were removed from death
row because of intellectual disability. Put another way, this argument suggests that only individuals with
severe mental illness are on death row today.
Even though the bill says it is not retroactive, what’s to stop a death row inmate from filing a lawsuit
to say they are mentally ill and deserve relief?
KY Response: Anyone can file a lawsuit about anything. No one can stop that. This is not a real problem
because a judge controls what happens after lawsuit is filed. Filing a lawsuit does not determine
outcome. Plus judges follow the law and are good gatekeepers.
OH: Defense lawyers are officers of the court who have an ethical duty to bring claims with merit.
This bill will open up the floodgates for costly, frivolous litigation that will allow guilty people to
escape appropriate punishment.
KY Response: The proposed bill is narrow and protection of society is insured
* — It does not provide that everyone who has a mental illness should be exempt from capital
punishment, but rather considers the degree and type of mental illness and how it contributed
to the capital crime
* — It only applies to those defendants whose trials commence after enactment of the legislation
* — It specifically excludes from the exemption those diagnosed with conditions that are manifested
primarily by repeated criminal conduct or attributable solely to the acute effects of the
voluntary use of alcohol or other drugs
* Unlike the insanity defense, the proposed bill only takes the penalty of death off the table, and
so protection of society through incapacitation is unimpaired
° — Life without parole remains a sentence for those who are found seriously mentally ill.
OH: When presented with this type of argument, we chose to stress lawyers’ ethical obligations to bring
claims with merit, that it saves money over time (death case vs. non-death case; its not costly to re-
sentence an individual compared to the costs of decades of regular death penalty appeals and litigation
that happens in every death case), that we're dealing with a small number of cases due to the narrow
structure of the bill and no one is escaping accountability.
