NEW RESOURCE: Law Review Explores Mental Illness and the Death Penalty

A new edition of the Catholic University Law Review includes papers from the university's recent symposium on mental illness and the death penalty. The presentations by experts delivered during the symposium address how policy makers and the courts might resolve the propriety of executing those with mental illness. Articles examine recommendations from the Task Force of the ABA's Section of Individual Rights and Reponsibilities  regarding mental disabilities and the death penalty.  Authors also explore whether the execution of those with mental illness violates the U.S. Constitution's ban on cruel and unusual punishment because these offenders have diminished mental capacity. Among the panel members whose remarks are included in the law review are Task Force members Ronald Tabak (Skadden, Arps), Prof. Christopher Slobogin (Univ. of Fl.), Ronald S. Honberg (National Alliance for the Mentally Ill), and Prof. Richard Bonnie (Univ. of Va.), and DPIC's Executive Director Richard Dieter, who is also an adjunct faculty member of the Law School.

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Johnny Paul Penry's Death Sentence Overturned for Third Time

Ruling that jurors in the most recent retrial of Johnny Paul Penry may not have properly considered his claims of mental impairment, the Texas Court of Criminal Appeals sent Penry's case back for re-sentencing. The Texas court's decision marks the third time that Penry's death sentence has been overturned during the past 16 years. The U.S. Supreme Court overturned his capital conviction in 1989 in Penry v. Lynaugh, a decision upholding the execution of defendants with mental retardation, but striking down the way that Texas courts considered this issue.  Penry was again sentenced to death, but in 2001 the Supreme Court threw out Penry's new death sentence because the jury was still not properly instructed about mental retardation. In 2002, as the Supreme Court was handing down its decision that the mentally retarded are exempted from the death penalty (Atkins v. Virginia), a trial court sentenced Penry to death for a third time.  The recent Texas Court of Criminal Appeals decision overturned this third sentence because the jury may not have understood that it could consider mental impairments beyond mental retardation as mitigating evidence. Penry was convicted of the 1979 rape and murder of Pamela Moseley Carpenter in East Texas. Defense experts have consistently noted that Penry's IQ is below 70, one indicia for those considered to be mentally retarded, and experts state that Penry remains very childlike in his abilities.

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New Resource: Amnesty International Magazine Examines Execution of the Mentally Ill

An article in the Fall 2005 edition of the magazine Amnesty International examines whether mentally ill defendants should be exempted from the death penalty, especially in light of the Supreme Court's rulings exempting juvenile and mentally retarded offenders.  The article quotes Ohio Northern University law professor Victor Streib: "The general public too often assumes that only the seriousness of the crime is relevant to the punishment, but the (Supreme) Court has repeatedly held that both the serious(ness) of the crime and the character and background of the defendant must be considered in the sentencing decision. If certain mentally ill defendants think and act like juveniles or the mentally retarded, then they should be excluded from death row."

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Editorial Praises Clemency for Mentally Ill Indiana Man Facing Execution

A recent editorial in The Washington Post praised Indiana Governor Mitchell Daniels for commuting the death sentence of Arthur Baird, who suffers from severe mental illness.  The editorial noted:  

Indiana Gov. Mitchell E. Daniels Jr. (R) acted wisely and humanely this week in commuting the death sentence of one Arthur Paul Baird II. There is no question that Mr. Baird killed his parents and his pregnant wife back in 1985. There is also little question that he is seriously mentally ill and was so then. His mental illness was clearly a significant factor in the killings and just as clearly led directly to his death sentence. Because of his delusional state, Mr. Baird inexplicably rejected a plea deal the state had offered him that would have spared his life. Jurors in his case have indicated that had life in prison without parole -- not an option in Indiana at the time -- been available, they would have chosen that rather than death. Family members were similarly inclined. Yet the state parole board recommended against clemency on a 3 to 1 vote, and the Indiana Supreme Court, also divided, likewise declined to step in. Mr. Daniels deserves credit for taking responsibility for preventing Mr. Baird's execution.

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Seriously Mentally Ill Man Receives Commutation in Indiana

Arthur Baird, who was to be executed on August 31 for murdering his parents in Indiana, received a commutation to a life sentence from Governor Mitch Daniels.  (, Ch.8, Indianapolis, Aug. 29, 2005). Two members of the Indiana Supreme Court had written that Baird was "only marginally in touch with reality," in a decision in which the majority had allowed the execution to go forward.  A report to the court from Dr. Philip M. Coons, a professor emeritus of psychiatry at the Indiana University School of Medicine, found Baird to be "grossly psychotic and delusional" and mentally unfit to be executed. Indiana's parole board had  recommended against a commutation. 

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NEW RESOURCE: Research Examines Those Who Volunteer for Execution

A new Michigan Law Review article by Professor John Blume of Cornell Law School examines the relationship between "volunteering" for execution and suicide.  Blume found that nearly 88% of all death row inmates who have "volunteered" for execution have struggled with mental illness and/or substance abuse. He writes that there is an especially strong link between "volunteerism" and mental illness. Of the "volunteer" executions he reviewed, 14 involved schizophrenia and several more reported delusions that may reflect schizophrenia. Depression and bipolar disorder accounted for at least 23 other cases, and post-traumatic stress disorder was present in another 10. At least 30 of those who "volunteered" for execution had previously attempted suicide.  The article also notes that between 1977 and 2003, 85% of the 93 inmates who opted to allow their execution to proceed without exhausting all legal appeals were white males, despite the fact that white males make up only 45% of all death row inmates.

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BOOKS: Clemency
  • A new book by Professor Austin Sarat focuses on clemency's role in the U.S. criminal justice system: "Mercy on Trial: What It Means to Stop an Execution." According to U.S. Senator Edward Kennedy, "This thoughtful book should be read by every citizen who cares about the issue, and by every governor and president entrusted with the power to punish or pardon." In "Mercy on Trial," Sarat reviews the complexities of clemency and examines issues such as rehabilitation. (Princeton University Press, 2005).

See Books on the Death Penalty. See also Clemency.


  • "Justice Denied, Clemency Appeals in Death Penalty Cases" - In "Justice Denied: Clemency Appeals in Death Penalty Cases," (Northeastern University Press, 2002) Professor Cathleen Burnett examines Missouri's administration of the death penalty. While researching all 50 applications for executive clemency submitted to Missouri governors since the state's reinstatement of the death penalty in 1977, Burnett discovered a series of problems directly related to flawed police investigations, instances of prosecutorial misconduct, examples of inadequate defense counsel, and the appellate court's review of capital cases. She also investigated the political ramifications of death penalty cases for trial judges in capital cases and Missouri governors. See the University of Missouri-Kansas City's Press Release.

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Death Row Inmate's Mental Health Crumbles Even As Relief May Be Near

During 25 years on Texas' death row, Cesar Fierro's mental health has deteriorated to the extent that his attorney hardly recognizes him. Since being sentenced to death in 1980, his mother has died, his brother has died, his wife divorced him and his daughter stopped visiting him. Gradually, he refused to even speak with his lawyers.

"He wouldn't come out of his cell for months at a time unless he was forcibly extracted," says David Dow, a constitutional law professor at the University of Houston Law Center and director of its Texas Innocence Network. "He refused to shower and there were feces on his cell wall. It was very disturbing . . . ."

Dow said that when Fierro was sent to death row in 1980, he was a soft-spoken, slightly overweight man in his mid-20s who was highly respectful of his lawyers and the process, which he felt would set him free.

"When I saw him last year, he had long, stringy hair and a strong wind could have blown him over," says Dow. Even when told of some good news from the courts, Fierro raged and rambled incoherently, banging the phone against the glass partition of the visiting room.

Fierro's case is one among about 50 similar cases in which the International Court of Justice recently ruled that the convictions and death sentences of Mexican nationals should be given further review in U.S. courts. President Bush has ordered the courts in Texas and elsewhere to comply with the World Court's ruling, but Texas authorities have said Bush lacks the proper authority. The issue of the effect of the World Court's ruling is currently before the U.S. Supreme Court.

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Time on Death Row

JusticeBlueThe length of time prisoners spend on death row in the United States before their executions has recently emerged as a topic of interest in the debate about the death penalty. The discussion has been spurred by the scheduled execution of Michael Ross, a Connecticut inmate who has been on death row for 17 years, and by the writings of two Supreme Court Justices who have urged the Court to consider this issue.

Death row inmates in the U.S. typically spend over a decade awaiting execution. Some prisoners have been on death row for well over 20 years.

During this time, they are generally isolated from other prisoners, excluded from prison educational and employment programs, and sharply restricted in terms of visitation and exercise, spending as much as 23 hours a day alone in their cells.

This raises the question of whether death row prisoners are receiving two distinct punishments: the death sentence itself, and the years of living in conditions tantamount to solitary confinement – a severe form of punishment that may be used only for very limited periods for general-population prisoners.

Moreover, unlike general-population prisoners, even in solitary confinement, death-row inmates live in a state of constant uncertainty over when they will be executed. For some death row inmates, this isolation and anxiety results in a sharp deterioration in their mental status.

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NEW RESOURCE: Law Review Examines Competency To Waive Appeals in Capital Cases

A recent article in the Wayne Law Review by Prof. Phillys L. Crocker of the Cleveland-Marshall College of Law examines the Supreme Court's struggle with the issue of death row inmates waiving their appeals.  Crocker  uses Rees v. Peyton, a capital case that remained on the Court's docket from 1965-1995, to explore the issue. In that case, Virginia death row inmate Melvin Rees sought to withdraw his petition for a writ of certiorari so that he could be executed. In 1967, the Supreme Court stayed the proceeding after Rees was found incompetent to waive his appeal, but it did not dismiss the case until after he died of natural causes. In her article, Not to Decide is to Decide: The U.S. Supreme Court's Thirty-Year Struggle with One Case About Competency to Waive Death Penalty Appeals, Crocker concludes:

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