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March 25, 2017

"End the death penalty for mentally ill criminals"

The title of this post is the title of this new Washington Post commentary that strikes me as notable because it is penned by two former midwestern governors, Bob Taft (who was governor of Ohio from 1999 to 2007) and Joseph Kernan (who was governor of Indiana from 2003 to 2005). Here are excerpts:

Legislators in six states — Indiana, Ohio, South Dakota, Tennessee, Texas and Virginia — have proposed legislation to prohibit the death penalty for individuals with severe mental illness. As former governors of states that are grappling with this issue, we strongly support this effort to end an inhumane practice that fails to respect common standards of decency and comport with recommendations of mental-health experts.

The overwhelming majority of people with severe mental illness are not violent; in fact, they are more likely to be victims than perpetrators of violent crime. For the very small number who do commit a capital crime while suffering from a severe mental disorder, current death-penalty law does not adequately take the effects of their illness into account.

As a result, defendants with severe mental illness — such as schizophrenia, bipolar disorder, post-traumatic stress disorder and traumatic brain injury — continue to be sentenced to death and executed. Last March, Texas executed Adam Ward, a man recognized as “diagnosed with bipolar disorder and placed on lithium as early as age four,” according to appellate court documents.  And in 2015, Georgia executed Andrew Brannan, a decorated Vietnam War veteran who also had a pronounced mental illness. He qualified for 100 percent disability from the Department of Veterans Affairs because of his PTSD and bipolar disorder.

Although their grave illnesses do not excuse these defendants’ crimes, we believe that life imprisonment without the possibility of parole would have been a more appropriate punishment. Illnesses such as schizophrenia and bipolar disorder are characterized by impairments that — when untreated — significantly affect one’s ability to distinguish fact from reality, to make rational decisions or to react appropriately to events and other people. Under these conditions, the degree of culpability may not rise to the level of cold, unimpaired calculus that justifies the ultimate penalty....

Studies have also shown that death- penalty jurors often misunderstand mental illness, which is often viewed as an aggravating factor — that is, a reason to sentence someone to death — rather than as a mitigating factor, which is what it should be. The troubling consequence is that some defendants may end up on death row because of their mental illness.

The fact that the death penalty applies to those with mental illness also means that veterans with demonstrated PTSD may be executed. Even though most of the thousands of veterans struggling with PTSD do not commit the serious crimes that may be eligible for the death penalty, an estimated 10 percent of the United States’ death-row inmates are veterans — some of whom suffered from active and severe symptoms of PTSD at the time of their crime. These veterans have experienced trauma that few others have faced and have made a vital contribution to the safety of our country that deserves our recognition....

The death penalty was not intended for people in the throes of severe delusions, living with schizophrenia or suffering from combat-related PTSD. These are not the blameworthy individuals whose executions can be justified. We come from different political parties, but we join the majority of Americans — supporters and opponents of the death penalty alike — who believe it should not be imposed on defendants with such serious impairments.  This is a fair, efficient and bipartisan reform that would put an end to a practice that is not consistent with current knowledge about mental illness and fundamental principles of human decency.

March 25, 2017 at 10:40 AM | Permalink


I once tried to buy a briefcase in the souk of Fez, Morocco. I said, this looks like plastic, and you are charging for leather. He replied, it is European leather. Ah, I said.

I now support abolition.

1) We should have the European death penalty. It is quite lively, and it is called, suicide. The US prisons accomplished the greatest achievement in psychiatry of the 20th Century, at no cost, no program, no treatment, no additional staff. They nearly eliminated prison suicide by a warden policy change. Meanwhile suicide in European prisons is massive;

2) The opiate overdose epidemic will be causing the attrition of the violent criminal class. That will be thanks to Chinese imported carfentanyl, an opiate 10,000 times more potent than morphine. It standard use is by veterinarians needing to deeply anesthetize elephants for prolonged major surgeries;

3) CRISPR/cas9 technology will soon fix the defects that result in criminality and in addiction. These defects were well described in the mid 19th Century. This change will be despite the all out obstruction by the lawyer profession, trying to save their totally worthless, and toxic, government, make work jobs.

The law, a worthless form of rent seeking, is in deep failure. It never addresses problems, only technology does.

Posted by: David Behar | Mar 25, 2017 11:50:08 AM

When holding them for life without the possibility of parole, their mental health should be factored in, though time on death row with an unclear end point might have special concerns in this area [see, e.g., Justice Breyer's recent dissent from denial].

Upcoming: "But given the ubiquity of plea deals in the criminal justice system and the apparent frequency with which criminal defendants receive bad advice about the immigration consequences of such pleas from their attorneys, this is a case that attorneys and advocates in the field of “crimmigration” will be watching closely."



Posted by: Joe | Mar 25, 2017 1:46:28 PM

There is no basis for lessened culpability for even the most demented defendant.

If any of you retributionists ever argue there is, you must return your above average salaries. You are no more nor less responsible for your achievement than the most mentally ill defendant is for his crimes. The insanity defense is just a made up, false, lawyer propaganda lie. It is as fictitious as all their other just made up, lying doctrines. All behavior, even the greatest achievements, are brain based with influences by cultural and personal relationship factors.

Only 1 in million people can pitch a baseball at 95 mph for 3 hours at a baseball game. That ability is brain based. However, that person's Daddy taught him baseball, and encouraged the talented person. The person put in 10,000 hours of hard work to get really good enough to compete with the other talented pitchers.

Those factors, including the 10,000 hours of hard practice were made possible by human and other infrastructure. That pitcher did not have get his own food, for example. There is absolutely no reason to pay $10 million for that skill, if you believe the mentally ill are not fully culpable.

Paranoid people kill 2000 people a year, thanks to the Supreme Court. Over 40 years ago, it decide to take over psychiatry. This was to provide jobs for a prosecutor, a defense lawyer, and the lawyer asshole in between. One had to prove a dangerous act and mental illness, as opposed to just the need for mental health treatment. You can thank the Supreme Court for 10% of the murders since 1976. These include all rampage murders. Every single one is 100% the fault of the lawyer profession.

The usual commitment hearing in Philadelphia is like The Trial of the Century. The lawyer defends the insane with every procedural tactic, every motion for continuances, every demand for records. So, I am breathlessly running into a court, apologizing for my 5 minute's lateness. The judge says, no problem, and hands me the commitment papers. He says, "And, take the patient with you."

The city's fastest commitment hearing had taken place. This patient was a janitor for the court at City Hall.

Posted by: David Behar | Mar 25, 2017 9:49:27 PM

This defines this effort as, strictly, anti death penalty, as most of them are:

"Although their grave illnesses do not excuse these defendants’ crimes, we believe that life imprisonment without the possibility of parole would have been a more appropriate punishment"


If the murderer is legally, morally and mentally culpable for the murder, so as to serve a life sentence, then the determination that they are legally, morally and mentally culpable, so as to be given a death sentence should be left of to the judge or jury.

It all comes down to a one vote difference by the jury, 8% of the jury. If one juror does not believe that the guilty murderer's mental illness does not mitigate against the death penalty, they deserve the death penalty.


Posted by: Dudley Sharp | Mar 26, 2017 8:02:20 AM

The majority of criminals have antisocial personality disorder. It is a mental illness with defined criteria. The diagnosis predicts the future of the individual. It is the only psychiatric diagnosis that has its own physiologic test.

It runs in families, and is likely genetically determined, no matter the upbringing. Because of their sexual promiscuity, they have more children, and are increasing at a rate faster than the population.

It is a devastating and highly established mental illness. Why not use it as an excuse, and free almost all the prisoners, to maintain the mitigating factor of mental illness?

Posted by: David Behar | Mar 26, 2017 11:07:59 AM

The remarks by DS require one to accept the premise.

The system as applied basically sets up a subset as eligible to death and a judge/jury determines specifically as applied to a certain person if they are "legally, morally and mentally culpable for the murder."

The law sets forth the subset, different states having different rules. The article wants to make the rules more strict in a certain fashion, narrow the subset some. This is "anti-death penalty" in that fashion, but so would narrowing the subset to those over eighteen (now a result of a SCOTUS opinion, but state law can say this above and beyond that) or whatnot.

The "simplicity" of allowing the margins here to turn on one juror can be phrased in various ways, including how simply problematic living and dying turning on that is.

Posted by: Joe | Mar 26, 2017 12:54:35 PM

My problem with the argument is that -- unless specifically defined -- severe is ambiguous. Severe can apply both to the nature of the mental disorder and to the impact of the disorder on the individual. This is particularly true for disorders which are treatable or partially treatable by medications. A person may have sporadic episodes in which the disorder has a significant impact on behavior, but otherwise be fully functional. I would not be inclined to have an automatic rule that somebody who suffers from PTSD is ineligible for the death penalty if the PTSD had no impact on their criminal conduct. On the other hand, I would be inclined to return a lesser sentence (or find them not guilty by reason of mental disease) if they were having a flashback at the time of the crime. The current system allows a jury to sort out these facts and give them weight.

Posted by: tmm | Mar 27, 2017 5:15:58 PM

The linked article provides a link as well to specific legislation.

Those interested to follow the links and examine the texts to determine if they are specific enough and so forth.

Posted by: Joe | Mar 28, 2017 12:26:36 PM

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