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June 23, 2019

"Madison and the Mentally Ill: The Death Penalty for the Weak, Not the Worst"

The title of this post is the title of this new paper authored by Corinna Lain and available via SSRN. Here is its abstract:

Time and again, we are told that the death penalty is for the worst of the worst offenders, so how is it that the severely mentally ill end up in the snare of the capital justice system in the first place?  This essay — a transcribed (and slightly edited) version of a keynote speech given at Regent University’s 2018 law review symposium on mental health and the law — endeavors to answer that question.

The journey starts with deinstitutionalization of the severely mentally ill in the 1970s, and reinstitutionalization through the criminal justice system thereafter.  It then turns to the capital justice process, which not only fails to screen out those with severe mental illness, but is filled with hazards that make this cohort of offenders even more likely to be convicted and sentenced to death.  Next it turns to death row, and the conditions of solitary confinement in which the sick get sicker, and languish that way until it is time to die. Finally, the discussion turns to the doctrinal failsafe of competency to be executed, and explains why so many with severe mental illness fall through the cracks. 

The reality of the death penalty is that it is not for the worst of the worst.  It is for the weak among the worst — the most vulnerable offenders in a variety of ways, and executing those with severe mental illness is just a testament to the truth of that claim.

June 23, 2019 at 11:08 PM | Permalink

Comments

Is it not possible that encouraging pluralism can be compared to a self-denigration of the personhood you are interested in "rehabilitating", or do cruelty and ruthlessness persuade forgiveness and benefit in your account? The least can be ministered to without harm, the worst of the worst inmates are those who start racial conflict and gang warfare. Your culture of fear persuades me to believe that life is not sacred in the eyes of the law, not as much as intercourse or tax law.

Posted by: Neil P White | Jun 28, 2019 2:30:21 AM

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