Mental Illness

Supreme Court Decides that Executing a Person With Dementia Could Be Unconstitutional

The United States Supreme Court has reversed a decision of the Alabama state courts that would have permitted the execution of Vernon Madison (pictured)death-row prisoner whose severe dementia has left him with no memory of the crime for which he was sentenced to death and compromised his understanding of why he was to be executed. The Alabama courts had narrowly construed the Supreme Court’s past rulings that prohibited the execution of prisoners who had become mentally incompetentlimiting those rulings to cases in which a mentally ill prisoner’s lack of understanding of why he was being executed had been caused by psychosis or delusions. In a 5-3 decision on February 27, the Supreme Court ruled that the Eighth Amendment forbids the execution of a prisoner who does not have “a rational understanding of the reason for [his] execution,” irrespective of its cause. Writing for the Court, Justice Elana Kagan said: What matters  is  whether  a  person  has  the  ‘rational  understanding’ [the constitution] requires—not  whether  he  has  any  particular memory or any particular mental illness.” 

In 2015 and 2016, Madison suffered multiple severe strokes that caused him brain damage, vascular dementia, and retrograde amnesia. The strokes also left him with slurred speech, legally blind, incontinent, and unable to walk independentlyIn addition to having no memory of the offense, he can no longer recite the alphabet past the letter G, soils himself because he does not know there is a toilet in his cell, asks that his mother—who is dead—be informed of his strokes, and plans to move to Florida when he is out of jailMadison’s lawyers argued that he had become incompetent to be executed. At a hearing in state court, he presented evidence that he had no memory of the crime for which he was sentenced to death. The state’s expert agreed that Madison exhibited cognitive decline but said there was no evidence that his impairments were a product of psychosis or delusionsState prosecutors also argued to the state courts that the Supreme Court’s caselaw limited incompetency to be executed to cases involving psychotic mental illness. Emphasizing the absence of evidence of delusions or psychosis, the Alabama courts denied Madison’s competency claim.  

The five-justice majority declared that competency determinations are governed by what a prisoner understands, not by what physical or mental health condition impairs his understanding. Lack of memory of a crime, Justice Kagan wrote, is not in itself proof of incompetence, although it may be evidence of it“If Alabama is to execute Madison,” the majority said, “the Eighth Amendment requires, and the state must find, that he’ll understand why.” Expressing no opinion on the ultimate question of Madison’s competency, the Court returned the case to the state courts for a new competency determination using the correct legal standard. In a fiery dissent the majority dismissed as “high dudgeon, Justice Alito, joined by Justices Thomas and Gorsuch, accused the Court of “mak[ing] a mockery of our rules” and rewarding a defense “trick” by deciding the case based on an argument he claimed was not raised in Madison’s petition for certiorariKagan responded that Madison’s petition had “presented two questions — the same two we address here.” Justice Kavanaugh did not participate in the case. 

Madison’s lawyer, Bryan Stevenson of the Equal Justice Initiative, said he was “thrilled that today the Court recognized that people with dementia like Vernon Madison, who cannot consistently orient to time and place, are protected from execution and cruel and unusual punishment under the Eighth Amendment.” Stevenson said that “[p]risoners with dementia or severe mental illness are extremely vulnerable,” and called the Court’s decision enormously important if our system is going to function in a humane and just manner.” Alabama Attorney General Steve Marshall derided Madison’s competency claim as an attempt to “evade” justice and predicted that Alabama’s state courts would again rule that Madison is competent to be executed.  

After More Than Three Decades, Two Death-Row Prisoners Freed in California

Two former California death-row prisoners who had spent a combined 70 years in prison are now free men, after federal courts overturned their convictions and local prosecutors agreed to plea deals on non-capital charges. James Hardy (pictured, left) was freed on February 14, 2019 after pleading guilty to two counts of first-degree murder in exchange for a suspended sentence and release on probation. Freddie Lee Taylor (pictured, right) was released on February 20 after pleading guilty to manslaughter and a sentence of time served. Both men have claims of innocence, but their plea deals make them ineligible for DPIC’s Innocence List. Each spent more than 30 years on death row.

James Hardy was convicted and sentenced to death in Los Angeles in 1984 for the murder of Nancy Morgan and her son, Mitchell Morgan. Hardy was tried along with two co-defendants, Mark Reilly and Clifford Morgan, the husband and father of the victims. Clifford was convicted of hiring Reilly and Hardy to kill his family so he could collect insurance money. Prosecutors argued that Hardy was the actual killer and Reilly the middleman in the conspiracy. On appeal, Hardy argued that his trial attorney had been ineffective because he had failed to investigate or present evidence that the prosecution’s key witness was actually the killer. The California Supreme Court overturned Hardy’s death sentence, and a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit later overturned his conviction, writing, “Hardy’s attorney failed him, and the State of California failed Hardy by putting a man on the stand that it should have known committed the crime.” The court said, “there is a substantial likelihood that the jury would not have convicted Hardy had [his trial lawyer] performed effectively.” Rather than retry Hardy, the Los Angeles District Attorney’s office agreed to a plea deal.

Freddie Lee Taylor was convicted and sentenced to death in Contra Costa County in 1986. Taylor had experienced severe trauma and abuse as a child, started using drugs by the age of 10, and was housed from age 13 to 17 in a juvenile detention center that was described in court records as a “gruesome, dehumanizing and frightening world where rape, beatings and fear were constant.” He was arrested in 1984 during a “family dispute” and was sent to a mental institution, where he attempted suicide. Despite doctors’ recommendations that he be placed in a mental hospital because he was a danger to himself or others, he was released by hospital staff. He burglarized the home of 84-year-old Carmen Vasquez, leaving fingerprints in her home. When she was murdered days later, he was identified as a suspect because his fingerprints were at the crime scene. Taylor’s long history of mental illness was ignored at his trial, where his lawyer never requested and the court did not independently order a competency evaluation. His appeal lawyers argued that his conviction was invalid because he was not competent to stand trial. A federal judge reversed Taylor’s conviction in 2016 and the Ninth Circuit upheld that decision in 2018, saying there was insufficient evidence to accurately assess Taylor’s mental health at the time of the crime and his trial. The federal court gave Contra Costa County prosecutors 60 days to decide whether to retry him, but they instead agreed to the plea deal. “Had he not had the benefit of zealous appellate lawyers dedicated to his cause, Freddie Lee Taylor may well have been executed,” Chief Public Defender Robin Lipetzky said. “His is but one case. Others like him who have meritorious claims may not be so fortunate. There are over 700 more people on death row — many waiting for an attorney to be appointed to their case and others still waiting for their cases to be finally resolved by the courts.”

Virginia Senate Passes Bill to Bar the Death Penalty for Severely Mentally Ill Offenders

By a vote of 23-17, the Virginia State Senate has approved a bill that, if enacted, would ban capital punishment for defendants with severe mental illness. With the support of all nineteen Democratic senators and four Republicans, the bill passed the GOP-controlled Senate on January 17, 2019. It now moves on to the Commonwealth’s House of Delegates, which is comprised of 51 Republicans and 49 Democrats.  

SB 1137 defines severe mental illness as “active psychotic symptoms that substantially impair a person’s capacity to (i) appreciate the nature, consequences, or wrongfulness of the person’s conduct; (ii) exercise rational judgment in relation to the person’s conduct; or (iii) conform the person’s conduct to the requirements of the law.”However, the bill excludes disorders that are “manifested primarily by repeated criminal conduct or attributable to the acute effects of voluntary use of alcohol or any drug.”Under the proposal, the determination of severe mental illness would be made in the sentencing phase of trial, after the defendant already has been convicted. The jury (or the judge, if the defendant waives the right to a jury trial) would decide if the defendant has proven “by a preponderance of the evidence” that he or she was severely mentally ill at the time of the offense. A defendant found to be severely mentally ill would be sentenced to life without parole. The bill also provides for indigent defendants with mental illness claims to receive assistance from a mental health expert appointed by the court. 

The bill’s sponsor, Sen. Barbara Favola (D – Arlington), called the proposal “a vehicle for us to administer justice in a way that’s humane and, I would say, in a way that reflects the values of Virginians.” Sen. Scott Surovell (D – Fairfax), said the mental illness exemption would have limited impact in Virginia because of the decline in death sentences across the state, but was a necessary mental-health reform. “The reality is we have a broken mental health system in this country,” he said. “We have a broken mental health system in this state. We don’t give it enough money.” Senate Minority Leader Richard Saslaw (D – Fairfax), who called himself “a pretty strong proponent of capital punishment,” supported the bill, saying that, when it comes to defendants who are severely mentally ill, “probably we ought to think twice.”

Virginia is second only to Texas in the number of executions carried out since 1976, but it has had a sharp decline in the use of the death penalty in recent years. No one has been sentenced to death in Virginia since 2011, and just two men remain on the state’s death row. In July 2017, lawyers for William Morva, a seriously mentally ill death-row prisoner suffering from a delusional disorder that his lawyers said left him unable to distinguish his delusions from reality, unsuccessfully sought a commutation from Governor Terry McAuliffe. Previously, Governors James Gilmore and Timothy Kaine commuted the death sentences of Calvin Swann and Percy Walton, citing concerns about serious mental illness. Other states are also considering legislation that would ban the death penalty for seriously mentally ill defendants. In 2017, bills were introduced in seven states, including Virginia, calling for such measures. The American Bar Association in 2016 issued a white paper in support of a mental-illness exemption.

Supreme Court Lets Death Sentence Stand for Prisoner Whose Attorney Presented No Mitigating Evidence

Over a sharp dissent by three justices, the United States Supreme Court has let stand the death sentence imposed on a Georgia prisoner who was suffering from dementia, brain damage, and borderline intellectual functioning, but whose trial lawyer failed to present any mitigating evidence. On January 7, 2019, the Supreme Court denied the petition for writ of certiorari filed on behalf of death-row prisoner Donnie Cleveland Lance seeking the Court’s review of the Georgia Supreme Court's denial of relief in his case. Justice Sonia Sotomayor – joined by Justices Ruth Bader Ginsburg and Elena Kagan – dissented, writing that “the Court’s refusal to intervene permits an egregious breakdown of basic procedural safeguards to go unremedied.”

Lance was sentenced to death by a Georgia court for the 1997 murder of his ex-wife and her boyfriend. Lance’s trial lawyer – a solo practitioner who was convinced he could persuade the jury of Lance’s innocence – asked the trial court to appoint a second lawyer to handle any potential penalty phase. The court denied that request and also denied a defense motion for funds to retain expert witnesses to challenge the range of experts hired by the prosecution in the case. After the court denied his motions, Lance’s lawyer conducted no penalty-phase investigation and did nothing to prepare for the penalty phase. Following Lance’s conviction, counsel made no penalty-phase opening statement, called no witnesses, and presented no mitigating evidence. In his cursory closing argument, counsel asked the jury to think of Lance’s family and to not seek vengeance. 

New counsel represented Lance in his state post-conviction proceedings and presented extensive evidence of Lance’s serious cognitive impairments. Four mental health experts agreed that Lance had brain damage in his frontal lobe, that his IQ was on the borderline for intellectual disability, and that he suffered from clinical dementia. While the three defense experts agreed that Lance’s brain damage significantly impaired his ability to control his impulses and conform his conduct to the law, the state’s expert disagreed about the extent of his impairment. The trial court overturned Lance’s death sentence, ruling that counsel had provided ineffective representation. However, the Georgia Supreme Court reversed, holding that while counsel’s performance was deficient, the presentation of mitigating evidence would have been futile given the facts of the murder. On federal habeas corpus review, the Georgia federal courts ruled that the Georgia Supreme Court had not unreasonably applied Supreme Court precedent when it upheld Lance’s death sentence.

The three-justice dissent from the U.S. Supreme Court’s decision not to intervene argued that the Georgia Supreme Court decision was “an objectively unreasonable application” of U.S. Supreme Court precedent and had “mischaracterized or omitted key facts and improperly weighed the evidence.” The evidence of Lance’s “‘serious’ and ‘significant’” mental impairments, Justice Sotomayor wrote, “reasonably could have affected at least one juror’s assessment of whether Lance deserved to die for his crimes, and Lance should have been given a chance to make the case for his life.” Instead, she said, “Lance may well be executed without any adequately informed jury having decided his fate.”

Tennessee Executes Mentally Ill and Sexually Abused Prisoner by Electrocution

Tennessee executed David Earl Miller (pictured at age 24) in the state’s electric chair on December 6, 2018, after Governor Bill Haslam denied his application for clemency and the U.S. Supreme Court refused to address the denials of his challenges to the constitutionality of Tennessee’s execution methods. Miller, a 61-year-old man with a significant history of mental illness who experienced extensive sexual and physical abuse as a child, opted to be executed by electric chair after the Tennessee Supreme Court denied other prisoners’ challenges to a three-drug lethal-injection process that Miller and his lawyers believed would result in an extended torturous death.

The Tennessee prisoners challenged the state’s three-drug lethal-injection process, seeking to replace it with execution with a single barbiturate, pentobarbital. Miller presented evidence that the three-drug protocol would result in approximately 18 minutes of unnecessary pain and suffering. He submitted an affidavit from one of the nation’s leading anesthesiologists that Billy Ray Irick “was aware and sensate” during his lethal-injection execution on October 11, 2018 “and would have experienced the feeling of choking, drowning in his own fluids, suffocating, being buried alive, and the burning sensation caused by the injection of the potassium chloride.” The prisoners’ challenge was rejected because Miller—prevented from obtaining critical information by Tennessee’s execution secrecy law—was unable to show that pentobarbital was readily available to the state. Miller elected to be executed in the electric chair, but argued that his choice of electrocution instead of lethal injection was coerced and that both methods were unconstitutionally cruel and unusual. The lower courts ruled that Miller had waived his challenge to constitutionality of the electric chair by choosing it over lethal injection, and the U.S. Supreme Court refused to intervene. In dissent, Justice Sonia Sotomayor wrote that “electrocution can be a dreadful way to die,” but there was “credible scientific evidence that lethal injection as currently practiced in Tennessee may well be even worse.” It was “perverse,” she said, to require prisoners to prove that an alternative method was available to kill them. “Such madness should not continue.”

Miller was charged with murdering his intellectually-disabled girlfriend, Lee Standifer, in May 1981. He was 24 years old at the time. Miller’s attorneys submitted an 89-page clemency petition to Tennessee Governor Bill Haslam detailing Miller’s upbringing and childhood abuse, including an instance in which Miller’s stepfather “knocked [Miller] out of a chair, hit him with a board, threw him into a refrigerator with such force it dented the refrigerator and bloodied [Miller’s] head, dragged him through the house by his hair, and twice ran [Miller’s] head through the wall.” Miller’s mother, who drank heavily while he was in utero, sexually abused Miller and forced him to have sex with her on at least three occasions. The document also noted that Miller attempted suicide two times before age ten. Governor Haslam denied the petition with a one-sentence statement: “After careful consideration of David Earl Miller’s clemency request, I am declining to intervene in this case.”

Following the execution, Miller’s lawyer Steve Kissinger said: “If any of you have been reading what we've been submitting to the governor, what we have been sending to the courts for the last 20 years you'll know that he cared deeply for Lee Standifer and she would be alive today if it weren't for a sadistic stepfather and a mother who violated every trust that a son should have. I came up here promising to tell you what we did here today, but I think maybe what I should be doing is ask you all that question. What is it that we did here today?”

Miller is the second death-row prisoner to be executed by electrocution in Tennessee this year. Edmund Zagorski, executed by electrocution on November 1, 2018, was the first. Miller’s last words were “beats being on death row.”

A Veterans Day Review: Recent Cases Highlight Concerns About Veterans and the Death Penalty

As Americans become increasingly aware of the role of combat trauma in the development of Post-Traumatic Stress Disorder (PTSD) and other mental health disorders, the shift in public perceptions towards veterans suffering from these disorders has played out in the courts in recent death penalty cases. In 2018, at least four military veterans facing death sentences have instead been sentenced to life in prison, and another two veterans won relief in their death-penalty cases. One military veteran has been executed so far this year.

In January, retired Marine Corps Lieutenant General John Castellaw (pictured) wrote in support of exempting mentally ill veterans from capital punishment, saying, "we can do better at recognizing the invisible wounds that some of our veterans still carry while ensuring they get the treatment that they deserve and that we owe them for their sacrifice. ...[W]e can do better by staying tough on crime but becoming smarter on sentencing those whose actions are impacted by severe mental illness." Prosecutors and juries in Indiana, Florida, Colorado, and Virginia have considered the military service and service-related disorders of murder defendants and determined that life sentences were more appropriate than the death penalty. In the Virginia trial of Iraq war veteran Ronald Hamilton, his attorneys presented evidence that he had been a model soldier who had saved the life of a fellow serviceman, but faced PTSD-related disorders and a deteriorating family life when he returned home. At Glen Law Galloway's trial in Colorado, Denver public defender Daniel King presented four days of testimony about Galloway’s character and background, including how the former Army veteran “snapped” following the collapse of his relationship with his girlfriend. King argued, “Mr. Galloway is not just the worst thing that he’s done. He’s committed many acts of kindness, friendship, service, love and duty.” In May, prosecutors withdrew the death penalty in exchange for guilty pleas in two unrelated cases involving military veterans Darren Vann in Indiana and Esteban Santiago in Florida. Santiago faced federal charges for a mass shooting, but prosecutors agreed to a plea deal because Santiago, an Iraq war veteran, suffers from schizophrenia and auditory hallucinations, had unsuccessfully sought treatment and assistance from the Veterans Administration, and had been committed to a mental hospital because of the seriousness of his mental illness.

Two death-sentenced prisoners were granted relief this year as a result of failures by their defense counsel to investigate and present mitigating evidence related to their military service and their service-related mental health disorders. Andrew Witt, an air force veteran who had been on U.S. military death row, received a life sentence after a court found his attorneys ineffective for failing to present mitigating evidence that he had suffered a traumatic brain injury. Robert Fisher's death sentence was reversed by a Pennsylvania federal court in part because his lawyer did not investigate or present evidence related to his service in Vietnam. Fisher was a Purple Heart recipient who struggled with brain damage, drug abuse, and mental health problems after his service.

On July 18, Ohio executed Robert Van Hook, an honorably discharged veteran who was suffering from long-term effects of physical and sexual abuse as a child and untreated mental health issues at the time of the offense. Van Hook had been unable to obtain care for his mental health and addiction issues from veterans service agencies after his discharge.

A 2015 report by the Death Penalty Information Center, Battle Scars: Military Veterans and the Death Penalty, estimated that approximately 300 veterans are on death row across the United States, many suffering from mental illness caused or exacerbated by their military service.

Arkansas Supreme Court Strikes Down State's Death-Penalty Mental Competency Law

A divided Arkansas Supreme Court has struck down the state’s death-penalty mental competency law, holding that statutory provisions giving the state’s prison director exclusive authority to determine a death-row prisoner’s competency to be executed violate due process. The 4-3 rulings on November 1, 2018 were a victory for two mentally ill death-row prisoners, Bruce Ward (pictured, left) and Jack Greene (pictured, right), who had come within days of execution in 2017. The appeals court directed the Arkansas trial courts to conduct hearings to determine the men’s mental status and their competency to be executed.

Ward, who has been diagnosed with paranoid schizophrenia, was scheduled to be executed on Monday, April 17, 2017. A Pulaski County trial court had denied his motion for a hearing to determine his competency to be executed, saying it had no legal authority to rule on the issue. The state supreme court stayed Ward's execution on April 14 to decide whether counsel should be permitted to litigate Ward’s competency to be executed. Greene suffers from psychotic delusions and, according to court pleadings, believes that his attorneys and prison officials are conspiring to torture him. His delusions include that “his spinal cord has been removed and his central nervous system has been destroyed,” in response to which, his lawyers say, Greene “constantly twist[s] his body and stuff[s] his ear and nose with toilet paper to cope with the pain.” Arkansas had scheduled his execution for November 9, but the Arkansas Supreme Court granted a stay on November 7 to resolve whether the state's mechanism to determine competency was constitutional.

The court’s two rulings determined that Arkansas’s competency law violated the two prisoners’ rights to due process under both the United States and Arkansas constitutions. The statute, Chief Justice John Kemp wrote, failed to “provide for an evidentiary hearing that comports with the fundamental principles of due process,” as set forth in the U.S. Supreme Court’s competency decisions in Ford v. Wainwright and Panetti v. Quarterman. John C. Williams, a federal public defender representing the inmates, told Associated Press that the defense was “pleased the court held the statute unconstitutional, and we look forward to litigating our clients’ competence.”

Texas Court Stays Execution of Mentally Ill Prisoner with Schizophrenia

The Texas Court of Criminal Appeals on October 19, 2018 stayed the execution of Kwame Rockwell (pictured), a severely mentally ill death-row prisoner suffering from schizophrenia, who had been scheduled to die on October 24. The court found that Rockwell had raised “substantial doubt that he is not competent to be executed” and reversed a ruling by the Tarrant County District Court that had rejected Rockwell’s competency claim without an evidentiary hearing and without providing funds for him to obtain a competency evaluation. The appeals court ordered the trial court to appoint “at least two mental-health experts” to evaluate Rockwell’s competency. On October 16, Rockwell’s lawyers had appealed the Tarrant County order arguing that the trial court had abused its discretion in rejecting his competency claim The appeal argued that Rockwell “does not understand he is to be executed,” “has no understanding that he was convicted of capital murder and sentenced to death,” and “does not comprehend that he has been incarcerated on death row since 2012 or even that he is presently incarcerated in a Texas prison.”

The U.S. Supreme Court ruled in Ford v. Wainwright (1986) that the Eighth Amendment prohibits the execution of prisoners who have become “insane”—which the Court defined as being “unaware of the punishment they are about to suffer and why they are to suffer it.” In 2007, in the Texas case of Panetti v. Quarterman, the Court explained that a prisoner whose delusions prevent him from having a “rational understanding” of these circumstances is incompetent to be executed. A neuropsychologist who examined Rockwell in July reported that Rockwell said he saw snakes and demons that were inside of him, appeared to be hearing voices, and, in response to a question about his name, said “my name is God.” The doctor’s affidavit said Rockwell “does not understand or appreciate where he is, the nature of his charges, why he is in prison, or the nature of his punishment.” Rockwell’s lawyers also presented the court with evidence of his significant family history of psychotic illness, including twelve family members across three generations of his family with mental illness diagnoses, and Rockwell’s own mental illness in childhood and as an adult. Citing prison records, the appeal states: “Rockwell has consistently experienced intense hallucinations and auditory delusions, despite spending the majority of his sentence on four or more antipsychotic medications concurrently. He is haunted by snakes and demons. No medications have been able to eliminate his hallucinations or delusions.”

The U.S. Supreme Court has never categorically excluded people with serious mental illness from being sentenced to death or executed. A 2014 poll found that Americans by a two-to-one margin oppose executing people with mental illness. Several states have recently considered, but not adopted, legislation to bar the death penalty for people with severe mental illnesses. Rockwell’s trial lawyer did not present to the jury mitigating evidence of Rockwell’s schizophrenia or his family’s history of psychotic mental illness. Nonetheless, the Texas state and federal courts denied Rockwell’s claim that he had been provided ineffective representation at sentencing. In an opinion piece for Pacific Standard written before the Texas Court of Appeals granted the stay, David M. Perry compared the courts’ treatment of Rockwell’s case with the recent stay of execution granted to fellow Texas prisoner Juan Segundo. Segundo was granted a stay so the Tarrant County court could reconsider his claim of intellectual disability after the Supreme Court had ruled that the standard Texas had previously applied unconstitutionally risked that some people with intellectual disability would still be executed. “America still doesn't have clear protections for people with severe mental illness,” Perry explains. “These two cases in Texas remind us of the unfortunate diagnostic limitations that protect only some people with disabilities from the death penalty.”

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