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May 13, 2009

"Determining When Severe Mental Illness Should Disqualify a Defendant from Capital Punishment"

The title of this post is the title of this piece from Bruce Winick appearing on SSRN. Here is the abstract:

The American Bar Association and other professional organizations have adopted policy statements calling for an exclusion from capital punishment for those with severe mental illness at the time of the offense. If this policy is adopted, either legislatively or judicially under the Eighth Amendment, a procedural question would arise concerning how this mental illness/capital punishment exclusion issue is determined.  Should the issue be determined by pretrial motion made to the trial judge or a special jury convened for this purpose?  Should it be determined by the capital jury at the penalty stage that would follow conviction for a capital crime?

This Chapter analyzes the various factors that should be considered in resolving the procedural question of how this exclusion from capital punishment should be determined, and argues that Eighth Amendment values and considerations of accuracy, cost, and therapeutic jurisprudence all tilt strongly in the direction of having the issue decided pretrial by the trial judge.  The chapter then examines whether having the trial judge make the determination would be inconsistent with Ring v. Arizona (2002), which reflects the Sixth Amendment’s constitutional preference for jury determinations of disputed issues of fact in capital sentencing.  Finally, the chapter analyzes whether the prosecution or the defense should have the burden of persuasion on the Eighth Amendment question, and by what standard of proof that burden should be carried.

May 13, 2009 at 07:47 AM | Permalink


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Aren't juries already able to give effect to mitigating evidence -- such as severe mental illness -- when they assess punishment? Aren't defendants already able to present any mitigating evidence they choose to -- such as severe mental illness -- during punishment? What is it that the ABA is trying to accomplish here that is not already being accomplished? Oh, right. They would like to remove another category of defendants from death eligibility and make it more expensive and more complicated to prosecute a death-penalty case by adding a superfluous procedural requirement to determine a hopelessly subjective fact. What is a "severe" mental illness, anyway? My guess is it's anything the jury believes it to be after another expensive battle of experts concludes. And doesn't that put us right back where we started with plain old mitigating evidence? Asking a jury to make a determination of whether the defendant is sufficiently morally culpable for the crime?

Posted by: Ed | May 13, 2009 10:04:38 AM

These are all pretexts. This is a form of lawyer bad faith on behalf of the criminals that generate lawyer jobs. The insane are no more and no less responsible for their actions than lawyers are for their verbal ability or baseball players for an ability to pitch a ball at 95 mph. If the person is insane, in reality, it should be an aggravating circumstances. They committed their crime for no understandable reason, are impulsive, and more dangerous. These should be put to death as soon as possible, before the contract killer.

Posted by: Supremacy Claus | May 13, 2009 2:08:06 PM

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