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.


Bonnie, Richard J., Severe Mental Illness and the Death Penalty: A Menu of Legislative Options (February 20, 2023). Journal of Civil Rights and Social Justice, forth­com­ing 2023, Virginia Public Law and Legal Theory Research Paper #2023 – 17, Available at SSRN: https://​ssrn​.com/​a​b​s​t​r​a​c​t​=​4365139