States Move to Exempt People With SMI From Death Penalty

Last October, in Dayton, Ohio, a man who had committed a murder when he was younger sought help at a mental health facility, screaming, “I want my medications.” He was seeking Risperdal and Prozac and became unruly—throwing chairs, pulling things off the walls, and trying to grab pills out of the pharmacy.

Police were called and transported him to a second medical facility, where he was discharged, still without the medication or the help he sought. Next, he went to someone’s home and shot to death three people. The prosecutor plans to seek the death penalty.

In the past couple of years, proposals to prohibit the use of the death penalty for those with serious mental illness appear to be gaining ground. Such legislation has been proposed in at least seven states, including Arkansas, Indiana, Ohio, South Dakota, Tennessee, Texas, and Virginia. Most of the state proposals define specific disorders that would qualify as a serious mental illness, such as schizophrenia, bipolar disorder, major depressive disorder, delusional disorder, and posttraumatic stress disorder.

Rouse Photgraphy Group

More than 12 years ago, APA, along with the American Bar Association (ABA) and several other mental health organizations, adopted a policy opposing the death penalty for individuals with severe mental disorders at the time a crime is committed. It holds defendants should not be executed or sentenced to death if at the time of the offense they had a severe mental disorder that significantly impaired their ability to conform their conduct to the law; exercise rational judgment; or appreciate the nature, consequences, or wrongfulness of their conduct.

Just under 3,000 people are now on death row, but it is not clear how many would be exempt under new state laws. A nationwide study of people executed found significant evidence of mental illness among six of the 23 people executed in 2017 and among six of the 20 people executed in 2016, according to data from the Death Penalty Information Project.

Ohio’s proposed law mirrors the APA position statement and adds an extra requirement that the defendant be currently diagnosed with one of several listed serious mental disorders. In Ohio, at least 21 of the 137 people now on death row (15 percent) are believed to have a severe mental illness that might exempt them from capital punishment if the proposed law passed, according to an analysis of public data provided by Ohioans to End the Death Penalty.

Exclusion for SMI ‘Chipping Away’ at Death Penalty

APA Past President and forensic psychiatrist Paul Appelbaum, M.D., said the goal of the recent state efforts seems to be chipping away at the use of the death penalty, now that the Supreme Court barred its use on those with intellectual disability or offenders younger than 18 years of age. “Opponents of capital punishment have decided that people with mental disorders are the next logical place to start,” he said.

Appelbaum is the chair of APA’s Committee on Judicial Action and the Elizabeth K. Dollard Professor of Psychiatry, Medicine, and Law and director of the Division of Law, Ethics, and Psychiatry at Columbia University.

But this is a complicated area, he said, because there are overlapping layers of restrictions already in place on the use of capital punishment on people with serious mental disorders. Defendants who were seriously mentally ill at the time of the crime can present evidence about their serious mental disorder in attempting an insanity defense or use it as a mitigating factor with regard to their sentencing or even at an appeal. Finally, an attorney can move to halt a defendant’s execution if a convict is found to be psychotic or incompetent to understand the punishment.

Road to Death Row for People With SMI

Robert A. Lisak

The reality is that there are many ways a defendant with serious mental illness can end up on death row under current law. “The likelihood of a successful insanity defense is very, very low,” said Howard V. Zonana, M.D., a professor of psychiatry at Yale University, a clinical professor (adjunct) of law at Yale Law School, and a consultant to APA’s Judicial Action Committee. “People are very dubious about a defendant getting away with something. That’s why the insanity defense is so difficult. It can be very hard to explain how someone can be delusional yet plan and execute a crime in a very organized fashion. The illness is controlling them. These people aren’t like the rest of us in a very significant way.”

In the first trial for Andrea Yates, a woman who waited until her husband left for work to systematically drown her five children in a bathtub to save them from Satan, a jury convicted her of capital murder. The jury disregarded her history of severe postpartum psychosis and depression, Zonana pointed out. Compounding the issue is that jurors who sit on a capital jury must be willing to say they’d give the death penalty, he added, “so they tend to be much harsher.”

(Yates’ conviction was overturned by an appeals court because an expert witness gave inaccurate testimony about a television show that was believed to influence Yates’ behavior.)

Appelbaum pointed out representation for mentally ill defendants, who are typically indigent, is often less than optimal, and the assessment of a defendant’s mental illness is often done poorly. Making matters worse, people with mental illness are less able to participate in their defense. And public defenders may make strategic decisions to withhold information about a defendant’s serious mental illness because of the stigma surrounding mental disorders.

There have been a number of cases in which the delusions of a seriously mentally ill defendant led him to fire his attorneys, such as Scott Panetti, who had been long diagnosed with paranoid schizophrenia when he murdered his wife’s parents in Fredericksburg, Texas. During trial preparation, Panetti came to believe his attorney was conspiring to convict him and decided to represent himself. Panetti attempted to call the pope, John F. Kennedy, and Jesus Christ as witnesses in his case. Some 20 years later, his death sentence is still being appealed, with APA and other mental health organizations filing amicus briefs on his behalf.

Still, Applebaum takes issue with proposed state laws that are based largely on the presence of a particular diagnosis. “Why does the defendant get a pass from the death penalty simply by having a diagnosis?” he asked. “For any given psychiatric diagnosis, there can be a broad range of functional impairment.” For example, even with schizophrenia, some individuals are quite functional: they may hold a job, be married, and have a driver’s license, he pointed out, whereas others are so highly impaired that they have no social interactions and no prospects of holding gainful employment and are completely disorganized.

“Both have schizophrenia, but their experiences differ greatly,” said Appelbaum. Like intellectual disability, mental illness should be considered a bar on the death penalty only when it reaches a certain level of functional impairment, he said.

Ultimately, Zonana said, “There are a certain number of people who feel that that in certain cases, the death penalty is warranted.” The question now is how to exclude people with serious mental illness from execution, a punishment intended for the “worst of the worst.” ■