At Least Seven States Introduce Legislation Banning Death Penalty for People with Severe Mental Illness

Bills to exempt individuals with severe mental illness from facing the death penalty are expected in at least seven states in 2017. Legislators in Idaho, Indiana, North Carolina, Ohio, South Dakota, Tennessee, and Virginia have either introduced such legislation or announced that they plan to. Six of the seven states have sponsorship from Republican legislators, indicating bipartisan support for the measures. The author of Indiana's bill, Sen. James Merritt (pictured, R-Indianapolis), says he supports the death penalty but draws a “bright line of distinction” around executing people with severe mental illness. There are some variations in the bills, but each creates a process in which a determination is made—usually by a judge—whether the defendant qualifies for the exemption. Some bills define serious mental illness by particular diagnoses, others by behavioral impairments in functioning. Qualifying diagnoses under the exemption typically included Schizophrenia and Schizoaffective Disorder, Bipolar Disorder, Major Depressive Disorder, Post-Traumatic Stress Disorder, and Traumatic Brain Injury. Defendants found to be suffering from severe mental illness would not be exempted from criminal responsibility, but would be subject to a maximum sentence of life without parole. Numerous mental health organizations have called for an exemption to the death penalty for individuals with severe mental illness. The measures have the support of the American Psychiatric Association, the American Psychological Association, the National Alliance on Mental Illness (NAMI), Mental Health America (MHA), and state-level coalitions of mental health advocates. In December 2016, the American Bar Association held a national summit and issued a white paper in support of a severe mental illness exemption. Several religious leaders also have spoken out in favor of the exemption. Richard Cizik, President of the New Evangelical Partnership for the Common Good, wrote an op-ed for The Virginian-Pilot in late January saying, "Their conditions affect many aspects of the legal process, impacting their appearance in court, the jury’s perception of ticks or socially inappropriate interactions, the defendant’s presentation of facts, and even their own admission of guilt. Indeed, studies have shown that defendants with severe mental illness are more likely to give a false confession. ...As a faith leader, I am compelled to advocate for compassionate and fair laws such as this." Glenn Tebbe, executive director of the Indiana Catholic Conference, called the bill "prudent and just."

States Struggle with Determinations of Competency to Be Executed

A recent article in Mother Jones examines lingering questions in the determination of which inmates are exempt from execution because of mental incompetency. In 1986, the U.S. Supreme Court ruled in Ford v. Wainwright that a person could not be executed if he or she was "unaware of the punishment they're about to suffer and why they are to suffer it." The 2007 ruling in Panetti v. Quarterman updated that decision, with Justice Anthony Kennedy writing, "A prisoner's awareness of the State's rationale for an execution is not the same as a rational understanding of it." Scott Panetti (pictured), the inmate involved in the 2007 case, knew that the state of Texas planned to execute him for the murder of his in-laws, but also sincerely believed that he was at the center of a struggle between God and Satan and was being executed to stop him from preaching the Gospel. Even after the case with his name was decided, Panetti remained on death row, and the Texas courts found him competent to be executed based upon the testimony of a single psychiatrist who claimed Panetti was faking his mental illness. Panetti came within hours of execution on December 3, 2014, before the U.S. Court of Appeals for the 5th Circuit issued a stay. In Missouri, Cecil Clayton -- a brain-damaged man with an IQ of 71 -- was executed on March 17, 2015 without a hearing to determine his competency. By contrast, a recent mental competency hearing for Indiana inmate Michael Overstreet included four days of testimony from 13 witnesses and nearly 1,300 pages of medical records. In a 137-page opinion, the state judge concluded, "Delusions or other psychotic symptoms cannot simply be discounted because a petitioner has a cognitive awareness of his circumstances." Indiana's Attorney General said that the decision adhered so well to the Panetti ruling that there was nothing for the state to appeal.

Recent Lethal Injection Developments in Texas, Missouri, and Indiana

As states continue to seek alternative drugs and drug sources for lethal injections, three significant developments occurred last week. Indiana announced recently that they would use Brevital, an anesthetic, as the first drug in its three-drug protocol. On May 27, Par Pharmaceutical, the producer of Brevital, released a statement announcing efforts to prevent the use of their product in executions. The statement said, "The state of Indiana’s proposed use is contrary to our mission. Par is working with its distribution partners to establish distribution controls on Brevital® to preclude wholesalers from accepting orders from departments of correction." On May 29, Missouri Attorney General Chris Koster gave a speech in which he suggested that the state of Missouri begin producing execution drugs. Missouri has had difficulty obtaining lethal injection drugs and faced challenges to its lethal injection secrecy law. Koster said that state production of the drugs would increase transparency, adding, "As a matter of policy, Missouri should not be reliant on merchants whose identities must be shielded from public view or who can exercise unacceptable leverage over this profound state act.” Missouri would be the first state to set up a state-operated lab for producing execution drugs. In Texas, Attorney General Greg Abbott issued an order defending secrecy for lethal injection drug sources. The statement represents a reversal for the Attorney General, who had previously rejected arguments from the Department of Criminal Justice that secrecy was necessary.

Paula Cooper, Youngest Person Sentenced to Death in Indiana, To Be Released From Prison

Paula Cooper, who was 15 years old at the time of her crime, and the youngest person ever sentenced to death in Indiana, will be released from prison on June 17, twenty-seven years after her conviction for the murder of 78-year-old Ruth Pelke. Her case received international attention, sparking a campaign that led to the commutation of her death sentence to 60 years in prison. An appeal to the Indiana Supreme Court received over 2 million signatures from around the world. Pope John Paul II asked that Cooper's sentence be reduced. Bill Pelke, the grandson of Ruth Pelke, forgave and befriended Cooper and wrote a book, Journey of Hope...From Violence to Healing, about his experience with the case.

ARBITRARINESS: Officials Discuss Indiana's "Other Lottery"--the Death Penalty

Officials in Indiana recently discussed how rarely the death penalty is applied in the state and the issues that raises regarding its purpose. Professor Joel Schuum of the McKinney School of Law in Indiana chaired a study by the American Bar Association that found "only a few of Indiana's murder cases result in a prosecutor seeking a death sentence, fewer still result in the imposition of a death sentence by a jury or judges, and only a handful over the past 3 decades have resulted in the execution of a defendant." Schuum added, "It's Indiana's other lottery, because it's hard to decide. You have all these horrible murder cases. Who is the worst person? If only 1 % of these people are going to get the death penalty, what makes someone especially deserving of that?" Indiana Public Defender Council Executive Director Larry Landis agreed, "The rationalization that the proponents give is that: we need the death penalty for the worst of the worst. But, if you look at all the people who have been charged and the people who get the death penalty, no rational person can say--that's the worst of the worst." The discussion arose because prosecutors in Marion County recently elected not to seek death against 3 defendants charged with murder. There has not been a death penalty trial in Marion County in over a decade. The cost of the death penalty may be one reason. A 2010 fiscal report by the Legislative Services Agency found that the average cost of a death penalty trial was around $450,000. Some cases have cost more than $1 million. In contrast, the same study found that the average trial and cost of appeal of a life-without-parole case was one-tenth as much, $42,658. "As soon as they file that notice that they're seeking death, that defendant is going to get 2 lawyers paid at taxpayer expense at over $100 per hour. They're going to get unlimited experts. If there is a jury, it's going to have to be sequestered. There's going to be all sorts of added costs to that," Prof. Schuum noted.

DPIC RESOURCES: New State Pages Now Available

DPIC is pleased to announce the completion of our State Information Pages for all 50 states and the District of Columbia.  These state profiles provide historical and current information on the death penalty for each state, including famous cases, past legislative actions, and links to key organizations and state officials.  For frequently updated information, such as execution totals, the size of death row, or the number of exonerations, see our State-by-State Database.  Readers are encouraged to send additional information, pictures, and links to organizations in their state.  You can reach the State Information Pages through the "State by State" button at the top of every page on our website or under the "Resources" tab in our main menu.

COSTS: In Indiana, the Death Penalty is Very Expensive with Little or No Return

Seeking the death penalty in Indiana is very expensive, even though most cases in which the death penalty is sought do not end in an execution. According to the Indiana Public Defender Council, only 16% percent of death penalty cases in the state filed between 1990 and 2009 (30 out of 188) ended with a death sentence, and even fewer resulted in an execution. In Vanderburgh County, where taxpayers have spent $800,000 in the last two decades defending capital cases, only one of the last five death penalty trials has resulted in an execution. Parke County had to raise its taxes to pay for the prosecution of a death penalty case, which ultimately ended with a guilty plea and a life-without-parole sentence. Vanderburgh County Councilman Tom Shetler acknowledged the current system can be burdensome, "There is no doubt financially it is a serious hardship on the taxpayers," Shetler said.  According to a fiscal impact report presented by the Indiana Legislative Services agency, the average cost of a death penalty trial and direct appeal was more than $450,000--over 10 times the cost of a life-without-parole trial, which averaged $42,658. The same report also found that 19 of the 26 death penalty cases between 2000 and 2007 ended in plea agreements for sentences of life without parole.

EDITORIALS: Indiana's Death Penalty "Too Costly and Applied Unfairly"

In a recent editorial in the Fort Wayne, Indiana, Journal Gazette, the paper welcomed the proposal by the state's Attorney General to reconsider the death penalty in light of its enormous costs.  At a Criminal Justice Summit held at the University of Notre Dame, Indiana Attorney General Greg Zoeller asked state officials to look at the death penalty from a practical perspective. He cited a recent capital trial in Warrick County that cost $500,000 in defense attorney fees alone. “The costs can’t be borne by smaller counties," the paper quoted Zoeller as saying.   "[S]o if the crime occurs in a large county you might be charged with the death penalty, in a smaller county you’re not. That raises some significant questions about fairness.”  The paper noted that most of the high costs cannot be avoided: "[D]eath penalty cases demand the strictest set of protections and safeguards to make sure the conviction and sentence are correct and appropriate. New DNA evidence exonerating a killer can free a prisoner serving a life sentence; it can’t help someone who has been executed," and concluded, "The death penalty is too costly and applied too unfairly. Life without the possibility of parole is the appropriate penalty – and far less costly to taxpayers."  Read full editorial below.