Death, Mental Illness and the U.S. Supreme Court

Justices have slated a review of diminished responsibility and capital punishment

The Pennsylvania Law Weekly
July 12, 2010

Last month, the U.S. Supreme Court agreed to hear a case that deals with the burgeoning issue of mental illness and the death penalty.

In Cullen v. Pinholster, the court will not directly deal with the issue of whether a severely mentally ill person should be subject to the death penalty. Instead, it will decide whether the appellant should get a new penalty hearing because his counsel was ineffective for failing to present appellant's mental illness as a mitigating factor at the original penalty phase hearing.

The more fundamental question — should a severely mentally ill person be subject to the death penalty — has remained unresolved.

In the last decade, the Supreme Court established two groups, juveniles and the mentally retarded, that have, by the nature of their condition, diminished responsibility and are categorically exempt from the application of the death penalty.

The categorical approach was used to ban the death penalty for the mentally retarded in a 2002 case, Atkins v. Virginia; the execution of juveniles in a 2005 case, Roper v. Simmons; the death penalty for nonhomicide offenses in a 2008 case, Kennedy v. Louisiana; and, earlier this year, life without parole for juveniles convicted of nonhomicide offenses, Graham v. Florida.

The analysis for the categorical approach begins with "indicia of national consensus." The court relied on legislative action in both Atkins and Roper when it noted that 35 states had abolished the death penalty for the mentally retarded and juveniles. At the time the court decided Kennedy, 45 states prohibited capital punishment for all offenses except first degree murder.

However, the court in Graham acknowledged but rejected Florida's suggestion that there was no national consensus against juvenile life without parole because only six states ban life in prison for juveniles.

The court held that "there are measures of consensus other than legislation."

The court may need to take that same approach if it decides to review the propriety of applying the death penalty to those deemed severely mentally ill at the time of their offense.

Prohibiting the death penalty for the seriously mentally ill is not a new idea.

The American Psychiatric Association, American Psychological Association, the American Bar Association, the National Alliance on Mentally Illness, Mental Health America and the National Disability Rights Network have all adopted policies calling for the abolition of the death penalty for the seriously mentally ill. A 2002 Gallup Poll found that 75 percent of Americans oppose executing offenders with serious mental illness.

Connecticut is the only state that prohibits executing an offender who is mentally ill. In Connecticut General Statute § 53a-46a (h)(3) (2009), a capital defendant is exempt from execution if his "mental capacity was significantly impaired or his ability to conform his 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 — including Indiana, Kentucky, North Carolina and Tennessee — have proposed legislation to exempt offenders with severe mental illness from facing the death penalty.

Will the U.S. Supreme Court, applying the reasoning set forth in Atkins and Roper, ban the death penalty for the mentally ill?

While there are some similarities between mental retardation, maturity and mental illness with regard to cognitive ability, there are also some obvious differences. Namely, how to distinguish between those with diminished capacity and those who are laboring under a mental defect that is not consequential with regard to culpability or deterability.

In banning the execution of juveniles, the court established an easily ascertainable bright line rule that no one under 18 years old will be subject to the death penalty.

The issue with regard to mental retardation is a little more difficult. The court did not establish a bright line rule. Instead of finding that anyone with an IQ under 70 would not be subject to the death penalty, the court deferred to individual states to establish their own criteria.

How might severe mental illness be determined?

A look at the court's analysis in prior decisions dealing with mental illness and execution is instructive.

In 1986, the court in Ford v. Wainwright ruled on a mentally ill offender's competence to be executed. Alvin Ford was convicted in 1974 of killing a police officer and was sentenced to death. While on death row, Ford developed paranoid schizophrenia, according to the opinion.

The court ruled that the Eighth Amendment prohibited the execution of an insane offender and that Ford had the right to a judicial hearing to determine his competence to be executed, according to the opinion.

However, the Ford decision neither defined competence for execution nor did it mandate specific procedures that must be followed by individual states to determine whether an inmate is legally insane. The result has been different standards in different states.

A more recent decision by the court in 2007 in Panetti v. Quaterman found that criminal defendants sentenced to death may not be executed if they do not understand the reason for their imminent execution; and that once the state has set an execution date, death-row inmates may litigate their competency to be executed in habeas corpus proceedings.

The decision reaffirmed the court's prior holdings in Ford.

Though the Panetti decision did not directly deal with mental illness at the time of offending, it does shed light on the analysis the court might use in cases of mental illness at the time of the offense.

As compared to legal insanity — where an accused does not appreciate the nature and consequences of his actions or simply that they are wrong — the Panetti holding requires a seemingly less restrictive burden — the presence of gross delusions or cognitive defects that impact the offender's appreciation for the wrongfulness of his conduct — according to Bruce J. Winick in The Supreme Court's Emerging Death Penalty Jurisprudence: Severe Mental Illness as the Next Frontier.

The court, once again, left the exact definition to individual states as it did in Atkins regarding mental retardation.

The court's near silence on the issue of the death penalty and mental illness at the time of the offense has left state courts with some rather unusual options.

In 2004, Arkansas executed Charles Singleton, a schizophrenic who was drugged in order to ensure his competency to be executed pursuant to Ford. The 8th Circuit U.S. Court of Appeals ruled that Arkansas could forcibly medicate Singleton and the Supreme Court refused to hear Singleton's appeal.

Two years ago in Pennsylvania, state Supreme Court concluded in Commonwealth v. Sam that forced medication of a n offender to determine whether he wished to pursue relief under the Post Conviction Relief Act, or PCRA, following his death sentence did not violate the federal due process clause.

Inducing competency seems akin to keeping an offender on life support so that he can be executed two months down the road.

The U.S. Supreme Court needs to address the issue of serious mental illness and capital punishment if those states that mete out death are going to do so in a fair and consistent manner.