Lawmakers consider banning death penalty for seriously mentally ill

Lawmakers around the country are considering bans on death sentences for people with certain serious mental illnesses, reported The Marshall Project. Earlier this year, the South Dakota state legislature rejected a proposal to ban death sentences for people with serious mental illnesses, though it had passed such a proposal through one chamber last year. 

The Virginia state senate approved a similar bill three months ago. Other bills are gaining traction in Texas, Ohio, Tennessee and Missouri. Some include post-traumatic stress disorder, while others are limited to schizophrenia, schizoaffective disorder and bipolar disorder. Many require active psychosis at the time of the crime. Some would let a judge decide who should be exempted, before the trial begins. The Texas bill would let a jury decide during the trial. The Tennessee bill requires a documented medical history before the crime, which might exclude someone like Otto.

Supporters of these bills, with the backing of the American Bar Association, argue that the “insanity defense” tends to be very narrowly defined, and juries are skeptical of it. The Supreme Court has already banned the death penalty for people with intellectual disabilities and those who committed their crimes before the age of 18. Both bans were based on the idea that society views these murderers as “categorically less culpable than the average criminal.” The high court has ruled that death row prisoners must be “competent” to be executed, though lower courts are still debating exactly what that means.

“Defendants who have a mental illness are particularly vulnerable in our criminal justice system,” Amanda Marzullo, director of the Texas Defender Service, told a panel of legislators in her state last month. “They are very likely to fire their defense lawyers, or not cooperate with them, or even try to represent themselves.”

Prosecutors have been wary. “The version of this legislation that is pending in Ohio would effectively end the death penalty,” said Louis Tobin, executive director of the Ohio Prosecuting Attorneys Association. He predicted that everyone facing the punishment would be able to obtain a diagnosis. A defendant can already mount an insanity defense, he pointed out, and then tell the jury about mental illness as a way of persuading them to vote for life without parole instead of death. Ohio’s bill, as of now, would apply retroactively, potentially setting up lengthy legal fights over old cases.

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