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February 21, 2023

"Severe Mental Illness and the Death Penalty: A Menu of Legislative Options"

The title of this post is the title of this notable new paper authored by Richard J. Bonnie and now available via SSRN.  Here is its abstract:

In 2003, the American Bar Association established a Task Force on Mental Disability and the Death Penalty to further specify and implement the Supreme Court’s ruling banning execution of persons with intellectual disability and to consider an analogous ban against imposing the death penalty on defendants with severe mental disorders.  The Task Force established formal links with the American Psychological Association, the American Psychiatric Association, and the National Alliance on Mental Illness and the final report was approved by the ABA and the participating organizations in 2005 and 2006.  This brief article focuses primarily on diminished responsibility at the time of the offense, summarizing the reasons why an exclusion for severe mental illness is needed and reviewing the key drafting issues that can be expected to arise in defining the clinical criteria for exclusion.  A key question is whether state trial judges and judges appointed to state appellate courts embrace their constitutionally grounded duties to assure sparing and humane administration of the death penalty.  Assiduous efforts to prevent execution of prisoners with severe mental illness is a necessary element of that judicial assignment.

February 21, 2023 at 02:47 PM | Permalink


Let me guess: They're ALL going to turn out to have major mental illness.

Nobody's bad, everybody's sick. Have I heard this song before?

Posted by: Bill Otis | Feb 21, 2023 3:23:26 PM

I have a retired lawyer friend who has been down this road with his 30-something year old son, who lived in Texas, where they really do execute murderers. The son is well-educated and highly intelligent, but also profoundly mentally ill -- paranoid schizophrenia. While he was visiting home in Kentucky, his parents got him involuntarily hospitalized in a psych hospital. When the psychiatrists said they were going to release the son on a Thursday, his parents begged them not to. As usual, the son had used his intellect to talk his way thru and around the psychiatrists. Upon release, the son flew home to Austin, Texas on a Friday. The following Tuesday, the son shot and killed his next door neighbor in his apartment complex, and shot and wounded 2 women he didn't even know in the parking lot. The police captured him after several hours of a well-publicized man hunt. His parents spent a lot of money (ultimately, more than $250,000) hiring the best criminal defense lawyer and 2 psychiatrists, one diagnostic and the other forensic. He was medicated for 6 months just to render him capable of being fit to assist his own lawyers and to stand trial. Eventually, the state's psychiatrists agreed with the son's psychiatrists that he was so profoundly mentally ill at the time of the shootings that he should not be held criminally responsible for his misconduct. Texas agreed to a plea of NOT GUILTY BY REASON OF INSANITY. This now 40ish man was sent to a Texas state hospital for the criminally insane, where he will remain until he can demonstrate that he is not longer a danger to himself or others in the community. This has been any parents' worst nightmare. He is their only child. But he certainly didn't deserve the death penalty. He was fortunate to have wealthy parents who could afford good attorneys and psychiatrists to vindicate their son's profound mental illness. If he had come from a poor family, he might well have been convicted of homicide and gun charges and received the death penalty in Texas.

Posted by: Jim Gormley | Feb 22, 2023 7:39:35 AM

Jim Gormley --

Do you think the psychiatrists who supported his release have any legal or moral culpability, and, if so, what do you think should be done to hold them accountable?

Posted by: Bill Otis | Feb 22, 2023 6:04:25 PM

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