Kentucky and South Dakota Advance Bills to Bar Death Penalty for People with Severe Mental Illness

Bills that would exempt indi­vid­u­als with severe men­tal ill­ness from the death penal­ty have tak­en major steps for­ward in the Kentucky and South Dakota leg­is­la­tures. The Kentucky House of Representatives vot­ed over­whelm­ing­ly (76 – 19) on February 9, 2022, to advance its severe men­tal ill­ness exemp­tion, HB 269, to the state sen­ate. The South Dakota Senate fol­lowed on February 22, vot­ing 21 – 14 to pass SB 159. Both bills have Republican spon­sors and received bipartisan support.

The mea­sures exempt indi­vid­u­als diag­nosed with spe­cif­ic men­tal ill­ness­es from the death penal­ty if their men­tal ill­ness con­tributed to the offense. Defendants who meet the cri­te­ria of the bill, but are found guilty of cap­i­tal mur­der, would be sen­tenced to life impris­on­ment with­out parole. The Kentucky bill excludes peo­ple with schiz­o­phre­nia, schizoaf­fec­tive dis­or­der, bipo­lar dis­or­der, or delu­sion­al dis­or­der. South Dakota’s bill would exclude peo­ple with schiz­o­phre­nia, major depres­sion, bipo­lar dis­or­der, post­trau­mat­ic stress dis­or­der, or schizoaffective disorder.

Ohio is the only state that cur­rent­ly pro­hibits the death penal­ty for peo­ple with severe men­tal ill­ness. It enact­ed that reform in January 2021.

Kentucky has con­sid­ered a sim­i­lar mea­sure in recent years, but it stalled in the state Senate. Rep. Chad McCoy, the bill’s lead spon­sor and Republican House major­i­ty whip, changed the bill this year to lim­it the ill­ness­es that ren­der a defen­dant eli­gi­ble for the exemp­tion, and to require that a defen­dant must have been pro­fes­sion­al­ly diag­nosed with one of the spec­i­fied con­di­tions. He said the changes were nec­es­sary to gar­ner sup­port from key sen­a­tors. ​“Here’s the change they need­ed, and here’s what is does: You now have to have a doc­u­ment­ed his­to­ry and diag­no­sis from a men­tal health pro­fes­sion­al, and we define that express­ly in the bill,” McCoy said while intro­duc­ing the bill to the House Judiciary Committee. McCoy is one of 10 Republicans and 9 Democrats who spon­sored the bill. ​“The gist of the bill is if you have a seri­ous men­tal ill­ness, you are not eli­gi­ble to the death penal­ty. That doesn’t mean you aren’t going to go to jail for life. If just means the death penal­ty is off the table.”

South Dakota has also pre­vi­ous­ly con­sid­ered a severe men­tal ill­ness exemp­tion. In 2020, a more expan­sive ver­sion of the bill failed in com­mit­tee. This year, Senator Timothy Johns, a Republican leg­is­la­tor and retired judge, explained the impor­tance of the bill, say­ing, ​“A per­son whose men­tal ill­ness is so out of con­trol that they are psy­chot­ic and can­not under­stand real­i­ty may have a dif­fer­ent lev­el of cul­pa­bil­i­ty or blame­wor­thi­ness than a per­son who is not.” During a com­mit­tee hear­ing, a rep­re­sen­ta­tive from the attor­ney general’s office raised con­cerns that the bill would cre­ate addi­tion­al hear­ings and expense in death-penal­ty cas­es, as well as pos­si­ble avenues for appeal. Senator Arthur Rusch, a Republican who has pre­vi­ous­ly intro­duced death-penal­ty repeal leg­is­la­tion, replied, ​“You know, if we’re talk­ing about killing peo­ple, I don’t think there’s any harm in mak­ing sure we have the right pro­ce­dur­al hur­dles to do that.”

Similar bills have been con­sid­ered by oth­er state leg­is­la­tures in recent years. In 2021, Ohio banned the death penal­ty for defen­dants who were severe­ly men­tal­ly ill at the time of the offense. This leg­isla­tive ses­sion, Republican law­mak­ers in Florida and Tennessee have intro­duced bills ban­ning the exe­cu­tion of peo­ple with severe men­tal ill­ness, but nei­ther bill has advanced out of com­mit­tee as of February 23. Since 2017, sim­i­lar bills also have been intro­duced in Arizona, Arkansas, Colorado, Florida, Indiana, Missouri, Texas, and Virginia. The bills in Colorado and Virginia became moot when leg­is­la­tures in those states abol­ished the death penalty.