"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.