No civilized or lawful purpose is served by executing the severely mentally ill

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 medicine.

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 death penalty.

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 mental illness.

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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