At a December 6 – 7 nation­al sum­mit on severe men­tal ill­ness and the death penal­ty, the American Bar Association Death Penalty Due Process Review Project released a new white paper that it hopes will pro­vide law mak­ers with infor­ma­tion and pol­i­cy analy­sis to ​“help states pass laws that will estab­lish clear stan­dards and process­es to pre­vent the exe­cu­tion of those with severe men­tal ill­ness.” The ABA does not take a posi­tion on the death penal­ty itself, but believes that “[i]ndividuals with severe men­tal dis­or­ders or dis­abil­i­ties … should not be sub­ject to cap­i­tal pun­ish­ment.” The white paper describes the range of prob­lems faced by seri­ous­ly men­tal­ly ill defen­dants in cap­i­tal cas­es and sets forth pos­si­ble leg­isla­tive approach­es for exempt­ing them from cap­i­tal sanc­tions. The white paper, and ABA President-elect Hilarie Bass in her address to the sum­mit, likened the dimin­ished moral cul­pa­bil­i­ty of the severe­ly men­tal­ly ill to that of two oth­er ​“vul­ner­a­ble groups” — juve­nile offend­ers and defen­dants with intel­lec­tu­al dis­abil­i­ties — whom the court has exempt­ed from the death penal­ty. The appli­ca­tion of the death penal­ty to these defen­dants, she said, ​“has been deemed uncon­sti­tu­tion­al because our soci­ety con­sid­ers both groups less moral­ly cul­pa­ble than the ​‘worst of the worst’ mur­der­ers for whom the death penal­ty is intend­ed. They are less able to appre­ci­ate the con­se­quences of their actions, less able to par­tic­i­pate ful­ly in their own defense and more like­ly to be wrong­ful­ly con­vict­ed. These exact char­ac­ter­is­tics apply to indi­vid­u­als with severe men­tal ill­ness.” Citing nation­al polls in 2014 and 2015, Bass said the American pub­lic ​“support[s] a severe men­tal ill­ness exemp­tion from the death penal­ty by a 2 to 1 major­i­ty.” At least 8 state leg­is­la­tures are expect­ed to con­sid­er seri­ous men­tal ill­ness exemp­tions in 2017. Among those states is Virginia, where just this year, a jury dis­re­gard­ed pros­e­cu­tion and defense experts in the death penal­ty tri­al of Russell Brown and found him guilty despite tes­ti­mo­ny that he was insane and did not under­stand the nature or con­se­quences of his actions. The jury ulti­mate­ly sen­tenced Brown to life in prison, but, as University of Virginia Law Professor Brandon Garrett explained, ​“there was no statu­to­ry pro­tec­tion avail­able against the high­est pun­ish­ment for a man who, by the admis­sion of all experts, did not have the high­est cul­pa­bil­i­ty.” As does the ABA, Professor Garrett argues that a seri­ous men­tal ill­ness exemp­tion is a safe­guard that is nec­es­sary to reduce unfair­ness in the admin­is­tra­tion of cap­i­tal pun­ish­ment. ​“If law­mak­ers believe that we should retain the death penal­ty in Virginia,” he wrote, ​“we must be con­fi­dent that we are not sen­tenc­ing to death severe­ly men­tal­ly ill peo­ple who can­not be ful­ly blamed for their actions.” 

(“Severe Mental Illness and the Death Penalty,” American Bar Association Death Penalty Due Process Review Project, December 2016; H. Bass, ​“Remarks of Hilarie Bass President-elect of the American Bar Association Summit on Severe Mental Illness and the Death Penalty,” American Bar Association, December 6, 2016; B. Garrett, ​“Severe men­tal ill­ness and Virginia’s death penal­ty,” Richmond Times-Dispatch, December 3, 2016.) See Mental Illness.

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