Should society exempt severely mentally ill people from the death penalty?
The story of Andre Lee Thomas, on death row in Texas,
raises that question, writes Sally Satel in the National Review.
On the morning of March 27, 2004, Thomas, just barely
21, woke to the voice of God telling him to kill his estranged wife, their
four-year-old son, and his 13-month-old-step daughter. He cut out their hearts
(mistakenly taking part of his wife’s lung) to “set them free from evil.”
Thomas then stabbed himself in the chest, intending to
die. When he survived, he turned himself in, asking police, “Will I be forgiven?”
In jail he said, “I thought I was doing the will of God.” As he sat in Grayson
County Jail, believing that his family wasn’t really dead, Thomas read the
Bible. When he came upon Matthew 5:29 — “If your right eye causes you to sin,
gouge it out and throw it away” — he did just that.
Thomas’s mental difficulties were longstanding. He was
diagnosed with schizophrenia, as were two of his brothers. At his murder trial
in March 2005, his plea of not guilty by reason of insanity lost because the
prosecution argued that he brought it on himself through the ingestion of cough
On death row, Thomas continued to suffer delusions and
extracted his remaining eyeball, which he then swallowed to ensure that the
government could not hear his thoughts.
Last month, his lawyers asked Governor Greg Abbott and
the Texas Board of Pardons and Paroles to stay his execution set for April 5
and to commute his sentence to life in prison. At the very least, his lawyers
sought a 120-day reprieve to give them time to determine whether Thomas, who
still experiences hallucinations and delusions, is competent to be executed.
Although the Grayson County District Court recently withdrew the April
execution date, that only postponed the determination of his competency. The
district attorney is still seeking his execution.
How did we get to the point where we have to even ask
if someone as mentally ill as Thomas should be executed? According to the
Supreme Court in Panetti v. Quarterman (2007), the execution of
condemned prisoners who fail to understand the reason for their imminent demise
constitutes cruel and unusual punishment under the Eighth Amendment. Yet no court has ever addressed a more fundamental matter:
the eligibility of someone as mentally ill as Thomas, clearly psychotic at the
time of the crime, to receive a death sentence in the first place.
The Supreme Court has, however, ruled, on the
mitigating power of mental defect under the Eighth Amendment, in Atkins v.
Virginia (2002). In a 6–3 decision, the Court held that people with
intellectual disability (“mentally retarded persons,” in the language of the
majority opinion) are constitutionally ineligible for the death penalty.
“Evolving standards of decency” prohibit the death penalty for offenders with
intellectual deficits that compromise their capacity for moral reasoning. Those
deficits, as the Court identified them, were “diminished capacities to understand
and process information, to communicate, to abstract from mistakes and learn
from experience, to engage in logical reasoning, to control impulses, and to
understand the reactions of others.”
The same judicial sensibility can and should apply to severely mentally ill
defendants. Mentally ill defendants, that is, who kill in response to
hallucinated commands or delusional beliefs, suffer diminished rationality,
which in turn diminishes their culpability and means, ultimately, that their
offense warrants a lesser penalty.
True, the insanity defense exists for mentally disordered
individuals who have lost the ability to distinguish what is morally right from
wrong. (The insanity defense protects against any criminal punishment, not just
the death penalty, although defendants do not go free; they face many years in
a secure psychiatric facility.) But the requirements to qualify for the
insanity defense set the bar so high that few mentally ill defendants can meet it.
And while judges and juries have the discretion to
consider mental illness a mitigating factor when setting sentences, they
do not reliably use it. Sometimes, in fact, juries regard mental illness as an aggravating factor.
It may seem counterintuitive to hold mental illness against defendants,
but jurors may interpret their flat or bizarre emotional state as lack of
remorse (rather than as a manifestation of their psychiatric condition). Also,
jurors often make decisions based on their judgment of future dangerousness.
Their determinations, therefore, might be swayed by their perception of
mentally ill people, generally, as violent. Too, the effects of sedating
medication can make such defendants seem apathetic or poorly responsive as a
witness. (See page 32 of the white paper linked to here.)
There needs to be a middle ground for mentally ill
defendants who do not meet the standards for the insanity defense but who,
because their reasoning is too impaired, cannot be held fully responsible for
their crime. They should face life imprisonment or, what would be more
compassionate, confinement for life to a psychiatric facility, but not the
A number of states are starting to endorse the idea that some
people are too mentally ill to be sentenced to death. In 2021, Ohio became the first state to pass a law — it had strong bipartisan support — exempting
people with severe mental illness from the death penalty. Defendants must meet
two criteria. First, by a preponderance of the evidence presented in pretrial
evaluations, they must prove that they suffered from either schizophrenia,
schizoaffective disorder, bipolar disorder, or delusional disorder at the time
of the alleged offense. Second, they must show that their condition
“significantly” impaired their capacity to exercise “rational judgment” with
respect either to conforming their conduct to the law or to “appreciating the
nature, consequences, or wrongfulness” of their conduct.
Mentally ill defendants who prove to meet both
conditions will be exempt from execution and face an automatic sentence of life
without parole. The exemption can apply before trial if the defendant is deemed
ineligible for the insanity defense, or after an insanity defense has been
rejected at trial. Furthermore, convicted prisoners already on death row are
allowed to petition the state to overturn their sentence because of severe
Kentucky legislators followed in 2022, though the
state’s new law does not allow relief for previously sentenced death-row
inmates. In South Dakota and Virginia, bipartisan bills with similar provisions
passed one house of the legislature. “In 2021, the Texas House of
Representatives passed a bill with strong bipartisan support, and it
was just reconsidered in committee on March 7. Tennessee, Arizona,
Arkansas, Florida, Indiana, Missouri, North Carolina, and Iowa (were the death
penalty to be reinstated in Iowa) also introduced bills. These bills would
protect defendants with severe mental illness against the death penalty if they
fail to attain the full excuse from responsibility afforded by the rarely
successful insanity defense.
No civilized or lawful purpose is served by executing
the severely mentally ill.
More legislatures should follow Ohio and, in doing so,
influence courts to exempt from capital punishment those whose severe mental
illness distorted their moral logic. When an appropriate case comes before the
Supreme Court, it should interpret the Eighth Amendment as barring execution of
mentally ill individuals whose commitment of murder was the result of their
deranged thinking. If this were already the law of the land — or of Texas — we
would not be looking at the possibility that Andre Thomas might be executed.
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