JURIST Guest Columnist Olga Vlasova, Brooklyn Law School Class of 2013, is the Sparer Public Interest Law Fellow. She argues for prohibiting the death penalty for severely mentally ill offenders…

According to Mental Health America, about 10 percent of all death row inmates suffer from a serious mental illness. Although a severely mentally ill inmate on death row may have his execution delayed due to incompetency, once the individual has regained competence, he can be executed. The Supreme Court has never ruled that the US Constitution prohibits sentencing severely mentally ill offenders to death. However, both the Eighth Amendment and the Fourteenth Amendment provide grounds to challenge the use of capital punishment on severely mentally ill offenders.

Imposing the death penalty on severely mentally ill offenders raises a possible challenge to the Eighth Amendment’s ban against cruel and unusual punishment. In Gregg v. Georgia, the Supreme Court defined cruel and unusual punishment as a punishment that is excessive and that does not comport with the dignity of man. To be excessive, the punishment must involve “the unnecessary and wanton infliction of pain,” and it must be “grossly out of proportion to the severity of the crime.” Imposing the death penalty on the severely mentally ill is unnecessary and amounts to wanton infliction of pain, as it does not serve the principal social purposes of capital punishment: deterrence and retribution. Making an example of a severely mentally ill individual is unlikely to serve as a deterrent to others. And capital punishment is even less likely to deter future severely mentally ill offenders. Despite a long history of stigmatizing mental illness, our society is beginning to realize that serious mental illness can drastically impact an individual’s actions and impair one’s ability to appreciate those actions. Therefore, finding alternatives to the traditional penal system might be more plausible now than before.

Furthermore, imposing the death penalty on severely mentally ill offenders could be considered excessive. In Roper v. Simmons, the Supreme Court stated that the death penalty should be reserved for the worst offenders, those who commit “a narrow category of the most serious crimes” and whose extreme culpability makes them “the most deserving of execution.” Those suffering from severe mental illness at the time of their offense cannot be considered to fall into the group characterized by “extreme culpability.”

Additionally, the Supreme Court has repeatedly stated that the Eighth Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society. This principle was the grounds for the Supreme Court’s decision in Atkins v. Virginia, which overruled Penry v. Lynaugh. In Atkins, the Supreme Court concluded that society’s contemporary standards reflect the view that imposing the death penalty on the intellectually disabled constitutes excessive punishment and thus, violates the Eighth Amendment.

The unconstitutionality of imposing the death sentence on intellectually disabled offenders may eventually become the grounds for finding that seriously mentally ill offenders should also be exempted from the death penalty. However, at this time, there is no clear trend toward changing the law. Of the 34 states that use the death penalty, only Connecticut exempts a defendant from being sentenced to death if “the defendant’s mental capacity was significantly impaired or the defendant’s ability to conform the defendant’s conduct to the requirements of law was significantly impaired but not so impaired in either case as to constitute a defense to prosecution.” Other states, such as Kentucky, North Carolina and Indiana have proposed similar legislation, but it has failed to pass.

Nevertheless, there are some indicators that our society is moving toward rejecting the imposition of the death penalty on the severely mentally ill. Recently, a number of Kentucky prosecutors called for legislation exempting the severely mentally ill from the death penalty. A bill is pending before the Kentucky General Assembly, HB 145, which could accomplish this. Also, the American Bar Association has made a recommendation [PDF] against executing or sentencing to death defendants if, “at the time of the offense, they had a severe mental disorder or disability that significantly impaired their capacity to appreciate the nature, consequences or wrongfulness of their conduct, to exercise rational judgment in relation to conduct, or to conform their conduct to the requirements of the law.” The American Psychiatric Association, the American Psychological Association and the National Alliance for the Mentally Ill have endorsed very similar resolutions calling for an exemption of those suffering from severe mental illness from the death penalty. Finally, according to a Gallup poll, 75 percent of Americans surveyed in May of 2002, opposed the death penalty for the mentally ill.

The Fourteenth Amendment arguments for exempting severely mentally ill offenders from the death penalty are derived from the Equal Protection and Due Process Clauses. Currently, our laws already exempt intellectually disabled offenders and juvenile offenders from the death penalty. In establishing these exemptions, the Supreme Court primarily relied on two premises. The first being that people whose judgment is substantially impaired or people who are immature have diminished personal responsibility for their actions, and the second being that the adverse impact of immaturity or mental impairment on an offender’s ability to make rational judgments or to control his or her behavior make an offender less culpable, and thus, not deserving of the death sentence. It can be argued that severely mentally ill offenders represent a group that is not significantly different from offenders suffering from intellectual disability or juvenile offenders. Offenders who suffered from severe mental illness at the time they committed their crimes had the same characteristics as the intellectually disabled group, which is mental deficiency that results in functional impairment. Accordingly, the legal analysis of culpability should focus on the severity of the impairment caused by mental deficiency and not on the actual medical diagnosis of an offender. The concern should not be whether the diagnosis is intellectual disability or paranoid schizophrenia. If both diagnoses would result in a similar degree of impairment, the legal analysis should be the same. Therefore, treating severely mentally ill offenders differently from intellectually disabled and juvenile offenders should be found to violate the Equal Protection Clause of the Fourteenth Amendment.

The due process argument relies on the unfairness that results from the way a fact-finder can treat mental illness during sentencing. Mental illness and insanity traditionally have been viewed as mitigating circumstances that reduce an offender’s culpability for the crime, and modern state statutes reflect this view. Nevertheless, studies have shown that in reality judges and juries often treat mental illness as an aggravating rather than mitigating factor. In fact, one study from Professor Christopher Slobogin’s article, Mental Illness and the Death Penalty, demonstrates that a failed insanity defense is one of the most accurate predictors of who will receive the death penalty. The states’ failure to assure that mental illness is treated as a mitigating factor results in prejudice that violates a defendant’s constitutional right to a fair trial. Slobogin argues that this failure constitutes a violation of the Due Process Clause of the Fourteenth Amendment. Also, the states’ failure makes the imposition of the death penalty arbitrary and unconstitutional as applied, in clear violation of Furman v. Georgia, a seminal case in which the Supreme Court’s plurality agreed that the Fourteenth and the Eighth Amendments cannot tolerate arbitrariness in the imposition of the death penalty.

According to the Supreme Court, the Constitution does not prohibit sentencing the severely mentally ill to death, and Fourteenth Amendment arguments relying on equal protection and due process have not yet convinced the Court to create an exemption for this group. However, in Atkins and Roper, the Supreme Court has recognized that the interpretation of the Eighth Amendment’s ban on cruel and unusual punishment must comport with our society’s evolving standards of decency. The emerging trends in state legislatures, as well as recommendations of the American Bar Association and other prominent organizations, could open the door for an eventual Supreme Court ruling that finds the Eighth and Fourteenth Amendments to prohibit imposing the death penalty on those suffering from severe mental illness.

Olga Vlasova holds a B.A. in Psychology from Hunter College and a M.A. in Forensic Psychology from John Jay College of Criminal Justice. Before starting law school, Olga worked in the field of crisis intervention, as a social worker and a family violence prevention program coordinator.

Suggested citation: Olga Vlasova, Towards Exempting the Severely Mentally Ill from the Death Penalty, JURIST – Dateline, Apr. 30, 2012, http://jurist.org/dateline/2012/04/olga-vlasova-death-penalty.php.