Several states, including Ohio, Tennessee, Texas, Virginia, and North Carolina, are "expected to consider severe mental illness exemptions" to their death penalty law next year, said Hilarie Bass, president-elect of the American Bar Association. These legislative proposals are bipartisan, she added, speaking at a keynote luncheon on severe mental illness and the death penalty at Georgetown University.
Getting into the details
What might this prohibition look like and why is it so important to this coalition?
In its new report, the American Bar Association quoted from the American Psychological Association's definition to clarify what mentally ill person might be exempt from the death penalty.
Someone with "severe mental illness" would have a specific diagnosis like schizophrenia, bipolar disorder, or post-traumatic stress disorder, would have had it for at least a year, and would have "comparatively severe impairment in major areas of functioning."
Before a capital murder trial, the judge would need testimony "from a licensed psychiatrist or psychologist who would reevaluate the defendant and his or her health history," Bass explained. Witnesses familiar with the defendant could give testimony for or against their claim of severe mental illness.
It would have to be clear that the judgment of the defendant would have been impaired at the time of their crime, and not just in the present moment.
And these exemptions "would not create a total defense for murder, or mean that the defendant would not be punished if found guilty," Bass insisted, as someone committing a capital crime could still receive a life sentence without parole.
Severe mental illness like schizophrenia can clearly impair someone's judgment to the extent that their guilt for a capital crime is reduced as it is for juvenile offenders and the Intellectually Disabled, Bass argued.
In those cases, she said, "our society considers both groups less morally culpable than the worst of the worst," and "less able to appreciate the consequences of their actions, less able to participate fully in their defense, and more likely to be wrongfully convicted."
Yet the same applies for persons with severe mental illness, she said. Someone could competently plot a crime yet be delusional while doing so – which was the case of Russell Weston, who drove from Illinois to Washington, D.C. and shot two Capitol Hill police officers in 1998.
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According to the Washington Post, Weston afterward told a court-appointed psychologist that he had come to the Capitol seeking "the ruby satellite" which would protect citizens from diseases spread by cannibalism. He had also previously stayed 53 days in a mental hospital.
Calls for greater action
There are some ways that a defendant with mental illness can currently escape a death sentence. Juries can consider their mental health, they can plead insanity, they could be judged incompetent to stand trial, or be judged incompetent at the time of their execution.
However, these aren't reliable methods of ensuring a just sentence, Bass said.
For one, a defendant with severe mental illness could be seriously impaired in court. "It can strongly affect defendants' decision-making about their defense, leading them to refuse to cooperate with their attorneys or reject the presentation of any mitigating evidence related to their illness," the American Bar Association noted in its report.
However, mental illness can also be an aggravating factor for the jury in someone's sentence, "and it is worsened when a defendant has a bizarre or flat affect in the courtroom," the report said. Juries can also "view people with mental illness as intrinsically dangerous," thus bringing "a significant risk" that a death sentence may be imposed because of – not simply in spite of – a defendant's mental illness.