MENTAL ILLNESS: Excluding Those with Severe Mental Illness from the Death Penalty — A Menu of Legislative Options

In a forth­com­ing arti­cle in the Journal of Civil Rights and Social Justice regard­ing lim­i­ta­tions on the death penal­ty for those with dimin­ished respon­si­bil­i­ty, Richard Bonnie sum­ma­rizes the rea­sons why an exclu­sion for severe men­tal ill­ness in cap­i­tal cas­es is need­ed and exam­ines key draft­ing issues that can be expect­ed to arise in state legislatures. 

Bonnie was a mem­ber on the American Bar Association’s Task Force on Mental Disability and the Death Penalty, which was estab­lished in 2003 after the U.S. Supreme Court pro­hib­it­ed the exe­cu­tion of those with intel­lec­tu­al dis­abil­i­ties but left the details of imple­ment­ing the nec­es­sary pro­to­cols to the states, in Atkins v. Virginia.

The author dis­cuss­es the par­tic­u­lar short­com­ings of cur­rent legal safe­guards — Trial Incompetence, Legal Insanity, Diminished Responsibility, Incompetence for Execution — that are sup­posed to pro­tect severe­ly men­tal­ly ill defen­dants. He then explores the pos­si­bil­i­ty of extend­ing pre­vi­ous U.S. Supreme Court deci­sions such as Roper v. Simmons (pro­hibit­ing the exe­cu­tion of defen­dants who were minors at the time of their crime) and Atkins v. Virginia, to apply to severe­ly men­tal­ly ill defen­dants, and poten­tial ways to draft statutes to pro­hib­it such defen­dants from being sen­tenced to death or executed.