Justice Evelyn Lundberg Stratton of the Ohio Supreme Court called upon the leg­is­la­ture to exempt defen­dants with seri­ous men­tal ill­ness from the death penal­ty. Judge Stratton con­curred in the affir­mance of the death sen­tence for Donald Ketterer. She not­ed that she was not ques­tion­ing Ketterer’s guilt, nor whether he was com­pe­tent to stand tri­al, nor even his pos­si­ble men­tal retar­da­tion, all of which are cov­ered by oth­er aspects of the law. Rather the judge said she was con­strained by exist­ing law to uphold the death sen­tence, even though she believed the defen­dan­t’s men­tal ill­ness should mer­it an exemp­tion from the death penalty:

Ketterer is a per­son with a seri­ous men­tal ill­ness. His fam­i­ly also has had a long his­to­ry of men­tal ill­ness and sui­cide attempts. Ketterer him­self was hos­pi­tal­ized repeat­ed­ly and attempt­ed sui­cide sev­er­al times. His men­tal ill­ness was fueled by drug and alco­hol abuse. Two psy­chol­o­gists tes­ti­fied that Ketterer had a seri­ous men­tal ill­ness, known as bipo­lar dis­or­der, which makes it dif­fi­cult for him to con­trol impuls­es nor­mal­ly. Not even the state dis­put­ed that he was seri­ous­ly men­tal­ly ill. But the state argued that Ketterer could have con­trolled his behav­ior.
…
Deterrence is of lit­tle val­ue as a ratio­nale for exe­cut­ing offend­ers with severe men­tal ill­ness when they have dimin­ished impulse con­trol and plan­ning abil­i­ties. As for ret­ri­bu­tion, cap­i­tal pun­ish­ment still enjoys wide pub­lic sup­port among Americans, but a Gallup Poll con­duct­ed in October 2003 found that while almost two thirds of Americans sur­veyed sup­port the death penal­ty, 75 per­cent of those sur­veyed in 2002 opposed exe­cut­ing the men­tal­ly ill. Society’s dis­com­fort with exe­cut­ing the severe­ly men­tal­ly ill among us is fur­ther evi­denced by the American Bar Association’s for­ma­tion of a task force in 2003 to con­sid­er men­tal dis­abil­i­ty and the death penal­ty. After study­ing the issue, the task force made rec­om­men­da­tions that were adopt­ed by the ABA House of Delegates in August 2006.
…
I urge our General Assembly to con­sid­er leg­is­la­tion set­ting the cri­te­ria for deter­min­ing when a per­son with a severe men­tal ill­ness should be exclud­ed from the penal­ty of death. Unlike men­tal retar­da­tion, which can be deter­mined by a num­ber on an IQ test and oth­er basic cri­te­ria, men­tal ill­ness­es vary wide­ly in sever­i­ty. The General Assembly would be the prop­er body to exam­ine these vari­a­tions, take pub­lic tes­ti­mo­ny, hear from experts in the field, and fash­ion cri­te­ria for the judi­cial sys­tem to apply.

(State v. Ketterer, 111 Ohio St.3d 70 (2006), Stratton, J., con­cur­ring) (inter­nal cita­tions omit­ted). See Mental Illness (includ­ing access to the ABA’s res­o­lu­tion ref­er­enced above. The American Psychiatric Association and the American Psychological Association have also endorsed the res­o­lu­tion in favor of exempt­ing the seri­ous­ly men­tal­ly ill from the death penal­ty. See also New Voices.

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