Julie, | have prepared this for your possible use. In the beginning
you can do the usual thank yous to the chair and the committee
persons for this opportunity to present a very important piece of
legislation.
Senate Bill 154 is a mental health bill that seeks to prevent
the execution of a defendant who at the time of the offense has a
documented history of one of the severe mental illnesses listed in
Section 1, lines 18 -22 of the bill.
This diagnosis can legally be made by a qualified mental
health professional as already defined in the law at KRS
202A.011. They can include psychiatrists, physicians,
psychologists, licensed clinical social workers and others included
in Kentucky law who are licensed to make these kinds of
diagnoses.
Persons suffering from one or more the severe mental
illnesses identified in this legislation lack the capability of rational
thought. They are, to put it simply, serious cognitively impaired
when it comes to making rational decisions. Their judgement is
severely disordered.
Because their mental processes are distorted by serious
mental illness named in this bill, they have reduced individual
culpability. They are not responsible for the fact of their own
serious mental illness. They did not choose to be mentally ill.
Because their responsibility and culpability are reduced,
important national mental health and legal leaders are calling for
a prohibition of execution for this narrow class of defendants.
These include the National Alliance on Mental Illness and its
Kentucky affiliates; The American Psychiatric Association, the
American Psychological Association and the American Bar
Association. In addition, in a recent poll, December 2018,
conducted by the Mason-Dixon Polling group, 82% of Kentucky
voters said they oppose the death penalty for persons with severe
mental illness. The poll shows support by Kentuckians across all
demographic groups and parties.
The bill is narrow and the protection of society is insured: It
does not provide that everyone who has a mental illness should
be exempt from capital punishment. Rather it considers the
degree and type of mental illness.
In Section 1, in addition to listing illnesses for which one is
exempted from the death penalty, there is language that
excludes others. The language in section 1, subsection 3b
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. This is meant to
deny the death penalty exemption to those offenders whose
only diagnosis is Antisocial Personality Disorder. This
language broadens the category of offenders whose
responsibility is not considered sufficiently diminished to
warrant an exemption from capital punishment. The
language here also denies the death penalty exemption to
offenders who lack appreciation or control of their actions
due solely to the acute effects of the voluntary use of alcohol
or other drugs. Because 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.
Unlike the insanity defense, the proposed bill only precludes
the penalty of death, and so protection of society through
incapacitation is unimpaired. Life without parole remains a
possible sentence for those who are found seriously mentally
ill.
In section 3, subsection 3b the language of the bill makes it
clear that this bill is not retroactive and only applies to those
defendants whose trials commence after enactment of the
legislation. Some have said that there will be many post-
conviction motions filed by those already on our death row. |
can’t say whether that will happen or not. What | know is
that KRS 446.080 is clear that laws are not construed as
retroactive unless they explicitly state they are retroactive.
The Kentucky Supreme Court has made it clear in Rogers v
Commonwealth that this type of measure will not be applied
retroactively. So if some on death row challenge this law,
judges and prosecutors will know how to properly apply it.
A very important feature of the bill is found in Section 2,
which describes the pretrial procedure for determining the
mental state and degree of illness.
Our existing law found in KRS 532.135 sets up a pretrial
procedure for a judge to consider all of the evidence and
make the determination about whether the defendant meets
the statutory definition of serious intellectual disability. This
procedure has been in place since 1990. It has been a very
functional process.
Senate Bill 154 builds on that and sets up an analogous
pretrial procedure to determine whether a defendant is
seriously mentally ill. If it is proven to a judge that the
defendant is seriously mentally ill then the defendant cannot
be subject to a death sentence. The defendant will still be
held accountable and face a trial where he or she can be
sentenced to any other penalty authorized for a capital
offense, including life without parole.
Someone asked why there is no burden of proof
language in the bill and that is because there is no need for.
In Bowling v. Commonwealth, the Kentucky Supreme Court
has determined that the burden of proof is preponderance of
the evidence.
| have persons in the room today who can answer
specific questions that you might have and | am happy to try
and answer your questions or address any concerns you
have.
The National Institute for Mental Health estimates that
about 4.5% of our population suffers from the types of
severe mental illnesses described in the bill. That means
that it will have a very limited effect in terms of preventing
an execution. But it seems to me, regardless of what you
think about the death penalty, the last thing any of us want
to do is execute someone who was not culpable for his or her
actions due to an illness that was not preventable. | urge you
to vote Yes and send this to the full Senate.
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