Kentucky Becomes Second State to Bar Imposing Death Penalty on Those Diagnosed as Seriously Mentally Ill

Kentucky has become the sec­ond state in the U.S. to bar impos­ing the death penal­ty on those diag­nosed as seri­ous­ly men­tal­ly ill. On April 8, 2022, Governor Andy Beshear (pic­tured) signed HB 269 into law, as Kentucky joined neigh­bor­ing Ohio in exempt­ing severe­ly men­tal­ly ill defen­dants from capital punishment.

The enact­ment of the new law by a Republican-dom­i­nat­ed leg­is­la­ture and a Democratic gov­er­nor reflect­ed broad bipar­ti­san sup­port for lim­it­ing the scope of Kentucky’s death penal­ty statute. The bill, whose 21 co-spon­sors includ­ed both Republicans and Democrats, passed the state House of Representatives on February 9, 2022 by a vote of 76 – 19. It then passed the State Senate by a vote of 25 – 9 on March 25.

HB 269 pro­hibits the death penal­ty for defen­dants with a pri­or diag­no­sis of four seri­ous men­tal health dis­or­ders: schiz­o­phre­nia, schizoaf­fec­tive dis­or­der, bipo­lar dis­or­der, and/​or delu­sion­al dis­or­der. Unlike a sim­i­lar mea­sure passed in Ohio in January 2021, Kentucky’s law would not apply to those already sen­tenced to death. Despite the law’s lim­i­ta­tions, its pas­sage was his­toric, advocates said.

The law allows defen­dants who had active symp­toms and a doc­u­ment­ed diag­no­sis of seri­ous men­tal ill­ness at the time of their offense to seek a pre­tri­al adju­di­ca­tion of their inel­i­gi­bil­i­ty for the death penal­ty. Those seek­ing to bar cap­i­tal pros­e­cu­tion under the law must file a motion in the tri­al court at least 120 days before their sched­uled tri­al date. If the court deter­mines that the defen­dant meets the statute’s require­ments, the case will pro­ceed as a non-cap­i­tal tri­al. The law’s require­ment that a defen­dant have a pre-exist­ing diag­no­sis of his or her dis­or­der is expect­ed to spur legal chal­lenges from indi­vid­u­als who were seri­ous­ly men­tal­ly ill at the time of the offense but because of lack of access to appro­pri­ate men­tal health care had not received an appropriate diagnosis.

The law’s enact­ment responds to deep nation­al con­cern about the use of the death penal­ty for indi­vid­u­als with seri­ous men­tal ill­ness. A November 2014 nation­al poll by Public Policy Polling found that Americans oppose the death penal­ty for peo­ple with men­tal ill­ness by more than a 2 – 1 mar­gin. A November 21, 2021 nation­al poll by the Justice Research Group (JRG) found that Democrats, Republicans, and Independents all opposed the use of the death penal­ty against peo­ple with a diag­nosed men­tal ill­ness by overwhelming margins.

The Public Policy Polling sur­vey found that 58% of respon­dents of respon­dents opposed cap­i­tal pun­ish­ment for peo­ple with men­tal ill­ness, while only 28% sup­port­ed it. Opposition to the exe­cu­tion of peo­ple with men­tal ill­ness was strong across lines of race, gen­der, geo­graph­ic region, polit­i­cal affil­i­a­tion, and edu­ca­tion. Democrats, Republicans, and Independents all opposed the practice.

The JRG poll found that 60% of like­ly vot­ers ​“oppose [their] local pros­e­cu­tor seek­ing a death sen­tence against a per­son with a diag­nosed men­tal ill­ness,” com­pared with 27% who sup­port­ed such pros­e­cu­tions. Independents opposed cap­i­tal­ly pros­e­cut­ing those with men­tal ill­ness by a 42 per­cent­age-point mar­gin, 63% to 21%. The mar­gin was 36 per­cent­age points among Democrats (62% to 26%) and 24 per­cent­age points among Republicans (55% to 31%).

Bipartisan sup­port was cru­cial to pass­ing the law. Conservative leg­is­la­tors cit­ed their pro-life views in sup­port of the bill. ​“You can’t say we’re pro-life and then say ​‘except.’ There’s no excep­tion, all life has to be pre­cious,” Sen. Stephen Meredith (R‑Leitchfield) said. Sen. Julie Raque Adams (R‑Louisville) not­ed that men­tal­ly ill defen­dants would still face con­se­quences for their crimes. ​“It in no way absolves defen­dants of legal respon­si­bil­i­ty for their crimes, they can still be tried, con­vict­ed, and sen­tenced to lengthy prison terms includ­ing life with­out parole,” she said.

Critics of the bill argued that it was unnec­es­sary because juries are already per­mit­ted to weigh evi­dence of men­tal ill­ness in their sen­tenc­ing delib­er­a­tions. However, stud­ies have shown that jurors who sur­vive the death-qual­i­fi­ca­tion jury selec­tion process are sig­nif­i­cant­ly less like­ly to give effect to a defendant’s evi­dence of men­tal ill­ness. Republican Senate Majority Floor Leader Damon Thayer, a death penal­ty pro­po­nent, opposed the mea­sure as a ​“slip­pery slope for get­ting rid of the death penalty.”

Similar bills have been intro­duced in state leg­is­la­tures in at least ten oth­er death penal­ty states since 2017. In addi­tion to Ohio, bills with bipar­ti­san spon­sor­ship have been intro­duced in Arizona, Arkansas, Colorado, Florida, Indiana, Missouri, South Dakota, Tennessee, Texas, and Virginia. The South Dakota bill passed the Senate but failed in the House. The bills in Colorado and Virginia became moot when leg­is­la­tures in those states abol­ished the death penalty.