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