Disability Pride Month Series: Serious Mental Illness Exemptions and Legislation

This July, in honor of Disability Pride Month, the Death Penalty Information Center is posting a weekly feature highlighting issues related to the death penalty and disability, as well as individuals who have played key roles in changing the laws to protect prisoners with disabilities.

This year, at least 4 of the 9 individuals executed presented strong evidence of serious mental health impairments. In light of longstanding concerns from experts and defense counsel, some state legislatures have acknowledged the special vulnerability and reduced culpability of people with mental illness by exempting them from death penalty eligibility. 

Serious mental illness, or SMI, refers to mental, behavioral, or emotional disorders that significantly impair an individual’s ability to function in daily life.¹ While the DSM-5 generally defines mental disorders as conditions that are “characterized by clinically significant disturbance in an individual’s cognition, emotion regulation, or behavior,” SMI refers to a narrower set of criteria.² According to the American Psychiatric Association, SMI diagnoses include persistent “mental disorders that carry certain diagnoses, such as schizophrenia, bipolar disorder, and major depression” and “result in comparatively severe impairment in major areas of functioning.”³ Legislation to bar the death penalty for people with SMI has longstanding support from numerous leading mental health and legal organizations, including the American Bar Association (ABA), American Psychiatric Association, the American Psychological Association, the National Alliance on Mental Illness (NAMI), and Mental Health America (MHA).

United States Supreme Court precedent provides that the execution of prisoners who are insane is unconstitutional.⁴ However, the distinction between insanity and mental illness is fundamental to understanding why existing laws do not adequately protect this vulnerable group of people. The existing insanity exemption extends only to those who are unable to comprehend their punishment or rationally understand the reasons for it.⁵ Under this legal standard, it is the defendant’s mental condition at “the time of the impending execution, rather than at the time of the offense or at the time of trial” that is critical to the determination and the protection it provides.⁶ Conflicting expert testimony, inadequate due process, and a narrow legal standard create numerous obstacles for defendants, who are rarely successful.  For example, in 2022, Oklahoma executed Benjamin Cole, a “person with serious mental illness whose schizophrenia and brain damage.”  By the time of his death, Mr. Cole had “slipped into a world of delusion and darkness,” his attorney, Tom Hird said, and was “often unable to interact with my colleagues and me in any meaningful way.” Last year, Missouri executed Johnny Johnson, whose long­stand­ing, severe men­tal ill­ness and diag­nosed schiz­o­phre­nia pre­vent­ed him from under­stand­ing the con­nec­tion between his immi­nent exe­cu­tion and the crime he com­mit­ted.  His attorneys unsuccessfully argued that he was incom­pe­tent for execution. 

Experts have argued that defendants with severe mental illness should not even be eligible for the death penalty, in the same way that people with intellectual disability are not eligible for the death penalty, and for the same reasons. Both groups face unique dangers (false confession, wrongful conviction) in the criminal legal system and have conditions that make them less culpable than other defendants.   

So far, two states have passed bills exempting those with severe mental illness from death penalty eligibility: Ohio and Kentucky. In 2021, Ohio passed legislation establishing that if a defendant is found to have suffered from a serious illness at the time of their crime, they can only receive a maximum sentence of life without the possibility of parole.⁷ Under the Ohio statute, serious mental illness applies to a person who has been diagnosed with schizophrenia, schizoaffective disorder, bipolar disorder, or delusional disorder. Further, the person’s condition at the time of the alleged crime must have significantly impaired their “capacity to exercise rational judgment in relation to [their] conduct” or their capacity to appreciate “the nature, consequences, or wrongfulness” of said conduct.⁸  

As a consequence of the new law, some death-sentenced prisoners have been removed from death row following hearings that established they meet the new criteria.⁹ David Braden, who was sentenced to death in 1999, was resentenced to life without parole after a hearing established his diagnosis of paranoid schizophrenia with delusions at the time of his crimes. His friends and family members also testified to the extent of his symptoms in the months leading up to the murders. Donald Ketterer, sentenced to death in 2004, was also resentenced to life without parole following the court’s finding that he suffered from bipolar disorder at the time of his crime, and thus he “lacked the substantial capacity to conform his conduct to the requirements of law.”  

In Kentucky, legislators enacted a statute in 2022 barring use of the death penalty for individuals with a serious intellectual disability or serious mental illness at the time of their crime.¹⁰ Under Kentucky law, a person must prove that, at the time of the charged offense, they experienced active symptoms and a documented history and diagnosis from a mental health professional, of one or more of the aforementioned disorders.¹¹ The disorder must not have manifested primarily by “repeated criminal conduct or [be] attributable solely to the acute effects of the voluntary use of alcohol or other drugs.”¹²  

A few states have taken steps in a similar direction. The Arizona Legislature has proposed a bill that would amend its existing statute to state that individuals who had a serious mental illness at the time of the commission of their offense cannot be sentenced to death.¹³ The Texas Legislature has also repeatedly considered legislation to exclude individuals with severe mental illness from death penalty eligibility in three different sessions, but this attempt again fell short when the bill failed this year in the Senate.¹⁴ Arkansas, Florida, Tennessee, and South Dakota lawmakers also failed to pass legislation that would have excluded seriously mentally ill individuals from eligibility.¹⁵