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May 1, 2012

Making a pitch for exempting the severely mentally ill from capital punishment

The website Jurist has this new commentary by Olga Vlasova headlined "Towards Exempting the Severely Mentally Ill from the Death Penalty."  Here is how it begins and ends:

According to Mental Health America, about 10 percent of all death row inmates suffer from a serious mental illness. Although a severely mentally ill inmate on death row may have his execution delayed due to incompetency, once the individual has regained competence, he can be executed. The Supreme Court has never ruled that the US Constitution prohibits sentencing the mentally ill to death. However, both the Eighth Amendment and the Fourteenth Amendment provide grounds to challenge the use of capital punishment on severely mentally ill offenders....

According to the Supreme Court, the Constitution does not prohibit sentencing the severely mentally ill to death, and Fourteenth Amendment arguments relying on equal protection and due process have not yet convinced the Court to create an exemption for this group. However, in Atkins and Roper, the Supreme Court has recognized that the interpretation of the Eighth Amendment's ban on cruel and unusual punishment must comport with our society's evolving standards of decency. The emerging trends in state legislatures, as well as recommendations of the American Bar Association and other prominent organizations, could open the door for an eventual Supreme Court ruling that finds the Eighth and Fourteenth Amendments to prohibit imposing the death penalty on those suffering from severe mental illness.

May 1, 2012 at 08:36 AM | Permalink


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Even if one accepted the premise on a theoretical level, the possibility of malingering, interminable judicial procedures etc. counsel against this. We have federal judges flipping out over the wrong person certifying the time of death. We have justice delayed in Mississippi over a minor bump on the head.

Once again--federal judges should be completely out of the execution business.

Posted by: federalist | May 1, 2012 9:11:13 AM

Second-year law student

I think this would be very difficult to implement. At what point is a person's mental illness so severe that she or he should be exempted? And aren't all people who commit murders so grisly that the state seeks the death penalty mentally ill to a certain extent? And what if the mental illness can be controlled with medication, but the offender fails to take it (either at the time of the crime or as execution nears)? As someone who is opposed to the death penalty in all cases I welcome any restriction in its application, but I doubt if this rule would even achieve that. I suspect that it would be so strictly applied that anyone who would be spared under this justification would likely also be protected on insanity grounds.

Posted by: Dan K. | May 1, 2012 9:39:28 AM

There is a mirror image to the evolving standard of decency for defendants, one of indecency and crazy cruelty to crime victims. Paranoid schizophrenics kill 2000 ppeople a year. An example is the Virginia Tech massacre. These patients believe they are normal, and others are wrong or mentally ill, or part of the conspiracy. They see no need for treatment.

Such a diagnosis should become an aggravating factor if the sole mature aim of the death penalty, incapacitation, is to be carried out.

The criminal generates massive government make work and jobs for lawyers. The victim generates nothing, and may rot. The lawyer cares about only himself, and victims are a useless nuisance.

Posted by: Supremacy Claus | May 1, 2012 10:04:42 AM

A significantly high percentage of those involved in the administration of the death penalty are severely mentally ill.

All states in the U.S. need to part company with Saudi Arabia, China, North Korea, and Yemen, and join the States that have abolished the barbaric, economically untenable death penalty.

Posted by: Calif. Capital Defense Counsel | May 1, 2012 10:58:40 AM

I see the case for a legislative exemption -- although significant definitional problems remain -- but why jump to the claim that the practice violates the Constitution?

Posted by: Michael J.Z. Mannheimer | May 1, 2012 11:23:15 AM

A significantly high percentage of those involved in the opposition of the death penalty are severely morally ill.

Posted by: Adamakis | May 1, 2012 12:03:27 PM

There is no such thing as mental illness; it's a term of art that frankly has outlived its usefulness. It obscures rather than reveals and it has no scientific basis whatsoever. One can talk about psychopathology but when that is instantiated in the DSM the approach is behaviorist, not psychodynamic. Honestly, the DSM is more akin to sociology than it is to psychology in its historical formulation.

"And aren't all people who commit murders so grisly that the state seeks the death penalty mentally ill to a certain extent?"

Certainly this is true if one adopts a behaviorist approach to psychology. One of the key factors for a DSM diagnosis is that the illness must interfere with the task of daily living. Obviously if a person is hacking people with an ax and stuffing their body parts into the freezer whatever is going on in that murderer's head is interfering with the task of daily living, for themselves and their victims. So one key criteria of a DSM diagnosis is met simply by the virtue of the murderer's conviction. It's not difficult at all to fill in the rest of the blanks.

As I like to tease. If someone acts crazy and admits it to a psychologist they are ill. If someone acts crazy and denies it to a psychologist then they are really, really ill.

Posted by: Daniel | May 1, 2012 3:49:58 PM

I believe all mentally handicapped individuals should be exempt from all national laws no matter what they do.

Posted by: John | Sep 27, 2012 12:42:44 PM

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