6/27/08; 7/21/08 D-R-A-F-T
An act relating to the severely mentally ill
to preclude a severely mentally ill defendant at the time of the charged
offense from being executed for trials commencing after enactment of act
Mentally Retarded. Currently, a mentally retarded defendant as defined in KRS 532.130
cannot be executed because mental retardation reduces culpability and is not of the
person’s choosing. KRS 532.135 sets up a pretrial procedure to make the determination
of whether the defendant meets the statutory definition of mental retardation.
Severely Mentally Ill. The below proposed bill would set up an analogous pretrial
procedure to determine whether a defendant is severely mentally ill at the time of the
charged offense. If it is shown that the defendant is severely mentally ill at the time of the
charged offense as defined in KRS 532.130 then the defendant cannot be executed. Such
a defendant can be sentenced to any other penalty authorized for a capital offense,
including life without parole.
Growing National Consensus. The position of prohibiting execution of severely
mentally ill defendants and the narrow definition of who is a severely mentally ill
defendant is called for by important national leaders:
O The American Bar Association in its August 7-8, 2006 Recommendation and
Report on the Death Penalty and Persons with Mental Disabilities;
O The American Psychiatric Association in Diminished Responsibility in Capital
Sentencing; Death Sentences for Persons with Dementia or Traumatic Brain
Injury; Mentally Ill Prisoners on Death Row: available at
http://www.psych.org/edu/other_res/lib_archives/archives/200406.pdf,
200508.pdf, 200505. pdf.
© American Psychological Association, 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).
Ol The National Alliance on Mental Illness (see Public Policy Platform Eight Edition
October 2007).
Youth and those with Mental Retardation are not as Culpable as Others. In 2002,
the United States Supreme Court held that execution of people with mental retardation
violates the Eighth Amendment's ban on cruel in Atkins v. Virginia, 536 U.S. 304 (2002)
and in 2005 it held that the execution of juveniles who commit crimes while under the
age of eighteen is prohibited by the Eighth Amendment in Roper v. Simmons, 125 U.S.
1183 (2005).
In reaching its holding in Atkins, the Court emphasized that execution of people with
mental retardation is inconsistent with both the retributive and deterrent functions of the
death penalty. More specifically, it held that people with mental retardation who kill are
both less culpable and less deterrable than the average murderer, because of their
"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." 536 U.S. at 318. As the
Court noted, "[iJf the culpability of the average murderer is insufficient to justify the most
extreme sanction available to the State, the lesser culpability of the mentally retarded
offender surely does not merit that form of retribution." Id. at 319. Similarly, with respect
to deterrence, the Court stated, "[e]xempting the mentally retarded from [the death
penalty] will not affect the 'cold calculus that precedes the decision’ of other potential
murderers." Id.
The Court made analogous observations in Simmons. With respect to culpability, the
Court stated: “Whether viewed as an attempt to express the community's moral outrage or
as an attempt to right the balance for the wrong to the victim, the case for retribution is
not as strong with a minor as with an adult. 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. 125 S.Ct. at 1196.
Culpability of Those with Severe Mental Illness is Diminished. The same reasoning
applies to people who have a "severe mental disorder or disability." People whose mental
processes are distorted by mental illness have reduced individual culpability. People
whose mental processes are distorted by mental illness aren't responsible or culpable in
any way for the fact of their own mental illness. Mental illness is not of the person’s
choosing as opposed to the use of drugs or alcohol.
The proposed bill is narrow and protection of society is insured:
11 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.
(1) It specifically excludes from the exemption those diagnosed with conditions that
are primarily manifested by criminal behavior and those whose abuse of
psychoactive substances, standing alone, renders them impaired at the time of the
offense.
(1 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.
Proposed bill
532.130 Definitions for KRS 532.135 and 532.140.
(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 capacity (a) to appreciate the nature,
consequences or wrongfulness of his conduct, (b) to exercise rational judgment in
relation to conduct, or (c) to conform his conduct to the requirements of the law is
referred to in KRS 532.135 and 532.140 as a severely mentally ill defendant. A
disorder manifested primarily by repeated criminal conduct 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 provision
Effective: July 13, 1990
History: Created 1990 Ky. Acts ch. 488, sec. 1, effective July 13, 1990.
532.135 Determination by court that defendant is mentally retarded or severely
mentally ill.
(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 or
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 determination 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.
History: Created 1990 Ky. Acts ch. 488, sec. 2, effective July 13, 1990.
532.140 Mentally retarded or severely mentally ill offender not subject to execution —
Authorized sentences.
(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 of KRS 532.135 and 532.140 shall apply only to trials commenced
after July 13, 1990 for seriously mentally retarded offenders and after July 15, 2009
for severely mentally ill offenders.
Effective: July 13, 1990
History: Created 1990 Ky. Acts ch. 488, sec. 3, effective July 13, 1990.
Further explanation of the bill
The Severe Mental Disorder or Disability Requirement. The predicate for exclusion from
capital punishment is that offenders have a "severe" disorder or disability, which is meant
to signify a disorder that is roughly equivalent to disorders that mental health
professionals would consider the most serious "Axis I diagnoses." See DSM-IV-TR,
supra note 9, at 25-26 (distinguishing Axis I diagnoses from Axis II diagnoses). These
disorders include schizophrenia and other psychotic disorders, mania, major depressive
disorder, and dissociative disorders — with schizophrenia being by far the most common
disorder seen in capital defendants. In their acute state, all of these disorders are typically
associated with 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. See id., at 275-76
(schizophrenia); 301 (delusional disorders); 332-33 (mood disorder with psychotic
features); 125 (delirium); 477 (dissociative disorders). Some conditions that are not
considered an Axis I condition might also, on rare occasions, become "severe." For
instance, some persons whose predominant diagnosis is a personality disorder, which is
an Axis II disorder, may at times experience more significant dysfunction. Thus, people
with borderline personality disorder can experience "psychotic-like symptoms ... during
times of stress." See id., at 652. Other Axis II diagnoses that might produce psychotic-
like symptoms include Autistic Disorder, id. at 75, and Asperger's Disorder. Id. at 84.
However, only if these more serious symptoms occur at the time of the capital offense
would the predicate for this exemption be present.
The Significant Impairment Requirement. To ensure that the exemption only applies to
offenders less culpable and less deterrable than the average murderer, this part of the
proposed bill further requires that the disorder significantly impair cognitive or volitional
functioning at the time of the offense. Atkins held the death penalty excessive for every
person with mental retardation, and the Supreme Court therefore dispensed with a case-
by-case assessment of responsibility. However, preclusion of a death sentence based on
diagnosis alone would not be sensible, because the symptoms of these disorders are much
more variable than those associated with retardation.
The first specific type of impairment that is recognized as a basis for exemption from the
death penalty (if there was a severe disorder at the time of the offense) is a significant
incapacity "to appreciate the nature, consequences, or wrongfulness" of the conduct
associated with the offense (section (a)). This provision is meant to encompass those
individuals with severe disorder who have serious difficulty appreciating the
wrongfulness of their criminal conduct. For instance, people who, because of psychosis,
erroneously perceived their victims to be threatening them with serious harm would be
covered by this language, (This is a fairly common perception of people with
schizophrenia who commit violent acts. See Dale E. McNiel, The Relationship Between
Aggressive Attributional Style and Violence by Psychiatric Patients, 71 J.
CONSULTING & CLINICAL PSYCHOLOGY 404, 405 (2003)) as would delusional
offenders who believed that God had ordered them to commit the offense.
Section (a) also refers to offenders who fail to appreciate the "nature and consequences"
of the crime. This language would clearly apply to offenders who, because of severe
disorder or disability, did not intend to engage in the conduct constituting the crime or
were unaware they were committing it. It would also apply to delusional offenders who
intended to commit the crime and knew that the conduct was wrongful, but experienced
confusion and self-referential thinking that prevented them from recognizing its full
ramifications. For example, a person who experiences delusional beliefs that electric
power lines are implanting demonic curses, and thus comes to believe that he or she must
blow up a city's power station, might understand that destruction of property and taking
the law into one's own hands is wrong but might nonetheless fail to appreciate that the act
would harm and perhaps kill those who relied on the electricity.
The second type of impairment recognized as a basis for exemption from the death
penalty (in section (b)) is a significant incapacity "to exercise rational judgment in
relation to the conduct" at the time of the crime. Numerous commentators have argued
that irrationality is the core determinant of diminished responsibility. As used by these
commentators, and as made clear by the threshold requirement of severe mental
disability, "irrational" judgment in this context does not mean "inaccurate," "unusual" or
"bad" judgment. Rather, it refers to the type of disoriented, incoherent and delusional
thinking that only people with serious mental disability experience. Furthermore, the
irrationality must occur in connection with the offense, rather than simply have existed
prior to the criminal conduct.
Under these conditions, offenders who come within section (b) would often also fail to
appreciate the "nature, consequences, or wrongfulness" of their conduct. But there is a
subset of severely impaired individuals who may not meet the latter test and yet who
should still be exempted from the death penalty because they are clearly not as culpable
or deterrable as the average murderer. For instance, a jury rejected Andrea Yates' insanity
defense despite strong evidence of psychosis at the time she drowned her five children.
Apparently, the jury believed that, even though her delusions existed at the time of the
offense, she could still appreciate the wrongfulness (and maybe even the fatal
consequences) of her acts. Yet that same jury spared Yates the death penalty, probably
because it believed her serious mental disorder significantly impaired her ability to
exercise rational judgment in relation to the conduct.
The third and final type of offense-related impairment recognized as a basis for
exemption from the death penalty by this part of the Recommendation is a significant
incapacity "to conform [one's] conduct to the requirements of law" (section (c)). Most
people who meet this definition will probably also experience significant cognitive
impairment at the time of the crime. However, some may not. For example, people who
have a mood disorder with psychotic features might understand the wrongfulness of their
acts and their consequences, but nonetheless feel impervious to punishment because of
delusion-inspired grandiosity. Because a large number of offenders can make plausible
claims that they felt compelled to commit their crime, however, enforcement of the
requirement that impairment arise from a "severe" disorder is especially important here.
Exclusions. In addition to the severe disability threshold and the requirement of
significant cognitive or volitional impairment at the time of the offense, a third way this
bill assures that those it exempts from the death penalty are less culpable and deterrable
than the average murderer is to exclude explicitly from its coverage those offenders
whose disorder is "manifested primarily by repeated criminal conduct or attributable
solely to the acute effects of voluntary use of alcohol or other drugs." The reference to
mental disorders "manifested primarily by repeated criminal conduct" is meant to deny
the death penalty exemption to those offenders whose only diagnosis is Antisocial
Personality Disorder. This language is virtually identical to language in the Model Penal
Code's insanity formulation, which was designed to achieve the same purpose. However,
the bill uses the word "primarily" where the MPC uses the word "solely" because
Antisocial Personality Disorder consists of a number of symptom traits in addition to
antisocial behavior, and therefore the MPC language does not achieve its intended effect.
Compared to the MPC's provision, then, the bill’s language broadens the category of
offenders whose responsibility is not considered sufficiently diminished to warrant
exemption from capital punishment. Similarly, the bill denies the death penalty
exemption to those offenders who lack appreciation or control of their actions at the time
of the offense due "solely to the acute effects of voluntary use of alcohol or other drugs."
Substance abuse often plays a role in crime. When voluntary ingestion of psychoactive
substances compromises an offender's cognitive or volitional capacities, the law
sometimes is willing to reduce the grade of offense at trial, especially in murder cases,
and evidence of intoxication should certainly be taken into account if it is offered in
mitigation in a capital sentencing proceeding. However, in light of the wide variability in
the effects of alcohol and other drugs on mental and emotional functioning, voluntary
intoxication alone does not warrant an automatic exclusion from the death penalty. At the
same time, this bill is not meant to prevent exemption from the death penalty for those
offenders whose substance abuse has caused organic brain disorders or who have other
serious disorders that, in combination with the acute effects of substance abuse,
significantly impaired appreciation or control at the time of the offense.
Possible comments
Though some will claim that to preclude the severely mentally ill from execution will end the death penalty
in Kentucky, they are as uninformed as those who expounded a similar claim when Kentucky decided to
ban executions for mentally retarded 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.
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