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February 10, 2014

"'Furiosus Solo Furore Punitur': Should Mentally Ill Capital Offenders Be Categorically Exempt from the Death Penalty?"

The title of this post is the title of this new Note by Emily Randolph now available via SSRN.  Here is the abstract:

Rather than continuing to use mental illness as a mitigating factor in determining sentencing of the capital offender, this paper argues that the Eighth Amendment’s protection from cruel and unusual punishments should be extended to cover capital offenders who suffer from debilitating mental illness. More specifically, if a convicted offender has a medically diagnosed mental disorder as outlined by the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition or other similar standard for psychological evaluation, he or she should be exempt from the possibility of the imposition of death as a punishment. This paper discusses the Supreme Court cases of Atkins v. Virginia, 536 U.S. 304 (2004), Ford v. Wainwright, 477 U.S. 399 (1986), Panetti v. Quarterman, 551 U.S. 930 (2007) and Roper v. Simmons, 543 U.S. 551 (2005), and how to extend the Court's reasoning in those cases to cover mentally ill capital offenders.

February 10, 2014 at 06:14 PM | Permalink

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Comments

Does the author realize that antisocial personality disorder is "a medically diagnosed mental disorder as outlined by the Diagnostic and Statistical Manual of Mental Disorders" as well as alcohol use disorder (as well as depression, acute stress, insomnia?)

Posted by: Steve Erickson | Feb 10, 2014 9:02:58 PM

The author notes early on:

This exemption is not intended to cover any and all diagnoses outlined in the DSM-5, but rather to cover offenders with severe disorders, or disorders mental health professionals consider the most serious Axis I diagnoses, which includes disorders resulting in a significant incapacity to “appreciate the nature, consequences, or wrongfulness of criminal conduct;” “exercise rational judgment in relation to the conduct at the time of the crime;” and to “conform one’s conduct to the requirements of law.”

The citation of DSMMD is not meant to count anything cited, but those cited in a certain subset. This is at one point phrased as "a severe mental illness or disorder which significantly affects their ability to conform their conduct to rule of law or society, to appreciate the wrongfulness or consequences of their conduct, or to exercise rational judgment."

If one is against this, okay, but useful to know exactly what is being offered.


Posted by: Joe | Feb 10, 2014 10:53:18 PM

There is no professional agreement as to what constitutes a severe mental disorder. Moreover, why focus on diagnosis at all when, as the author admits, the issue is rationality? And keep in mind that even people with schizophrenia are rational most of the time.

Posted by: Steve Erickson | Feb 11, 2014 9:04:27 AM

I don't think the issue is rationality. If they weren't capable of rational thought, they'd be not guilty by reason of insanity, as opposed to guilty but mentally ill. That being said, while I think there's a good argument that some mental illnesses should be exempt from the death penalty, I'm not sure every mental illness should be treated the same.

Posted by: Erik M | Feb 11, 2014 9:12:33 AM

"There is no professional agreement as to what constitutes a severe mental disorder."

What level of "professional agreement" is in place as to retardation, insanity and other areas that already factor in as to mitigation and complete bars? Again, there are critics even applied there, but I don't really know how much this answers the point. It is a matter of line drawing.

"Moreover, why focus on diagnosis at all when, as the author admits, the issue is rationality? And keep in mind that even people with schizophrenia are rational most of the time."

"The" issue isn't merely rationality. It is an aspect of the equation. With respect, you seem to be continually picking out certain portions of the argument w/o looking at it as a whole.

As to Eric M, I'm not sure what treating every mental illness "the same" means. The piece doesn't think every one warrants exemption. It sets a test and each mental illness would apparently be examined pursuant to it. Thus, if someone has schizophrenia, e.g., "at the time of the crime" (yes, I'm "keeping that in mind") etc. would be examined to see if an exemption is warranted.

Posted by: Joe | Feb 11, 2014 1:55:52 PM

|| I don't think the issue is rationality. If they weren't capable of rational thought, they'd be not guilty by reason of insanity,
as opposed to guilty but mentally ill
||

-- Right as rain, but can't we find some means, by 'hook-or-by-crook,' to categorically prevent even more aggravated murderers
fron execution?
After all, as they say, 'where there's a will, [to excuse punishment for slayers of the innocent] there's a way.'

Posted by: Adamakis | Feb 11, 2014 2:05:32 PM

The first four so called Volumes of the Diagnostical and Statistical Manual (for mental illness) were numbered Roman Numeral style. Now, the DSM 5 comes along with a 5 instead of a V. Big changes happen.
Maybe its because, over time, doctors are dumbed down and would not know what is meant by DMS V. After all, it would be four capital letters in a row. It seems less bi polar. Of course, if someone is bi polar they may not be classified as paranoid schizophrenic and get a pass when it comes to the death penalty. Before the term bi polar it was manic depressive. Before manic depressive it was two way Smith. If someone lives an affluent life in the suburbs, we don't want to label them with mean labels like schizo or manic depressive. This time its bi polar and it will gravitate to "two way Smith". Then the public will perceive it as sexual preference rather than mental illness. The Bears will like it. Chicago has a lot of problems and need not have their team identified with the South Pole.

Posted by: Liberty1st | Feb 12, 2014 8:30:16 AM

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