Anne Holsinger 0:01 

Hello and welcome to Discussions with DPIC. I’m Anne Holsinger, Managing Director of the Death Penalty Information Center. Our guest today is Dr. Sally Satel, a psychiatrist and senior fellow with the American Enterprise Institute. Dr. Satel recently wrote an op-ed for the National Review, outlining her reasons for supporting a ban on the death penalty for people with severe mental illness. May is Mental Health Awareness Month, and we’ll be discussing the role of mental illness in death penalty cases. Thank you for joining us, Dr. Satel. 

Sally Satel 0:32 

Thank you for having me. 

Anne Holsinger 0:34 

So to start off, your career has focused primarily on mental health policy, but not on the legal system specifically. So what prompted you to write about mental illness and the death penalty? 

Sally Satel 0:44 

I’ve actually written about that a bit before. But you’re right, I didn’t focus on it. And also this year, I’m doing a forensic psychiatry fellowship at St. Elizabeth’s Hospitals, so I guess I’m especially sensitized to it. But I do remember in October, reading an article in The New York Times about a case, a gentleman named Andre Lee Thomas, who was denied, I guess effectively a retrial based on a violation of the Eighth Amendment competent representation. And so that got me very interested in him, you know, read more about his story, which is incredibly dramatic. And he’s just a, you know, a classic instance of a problem that I had thought about before and actually once worked a little bit with Tennessee on this, which is the idea that, or frankly, the question I had, which is why are people with severe mental illnesses, and by that I mean, psychotic illnesses, like schizophrenia, bipolar illness, delusional disorders, how’s it they could be eligible for the death penalty in the first place? And this gentleman, Andre Lee Thomas, actually, his execution date was scheduled for April 5, that was ultimately stayed not commuted, but stayed for a while, and we can we can get back to him. But his, as I said, his his case, to me was such a, just a stunning example of someone who committed a crime, while psychotic he had, in his rationale is something no one could consider a sane mean, in other words, his motivation to kill was based on delusional thinking and command-hallucinations. So how someone could be considered culpable for a crime they commit in that, in that kind of mental state, always seem just, just so unjust to me. So that then I kept writing about him around the time of April 5, and wondered what was going to happen. So that’s how I got interested in him. 

Anne Holsinger 2:50 

Yeah, so to talk a little bit more about that particular case, Andre Thomas is a Texas Death Row prisoner who killed his estranged wife, their four year old son and his wife’s one year old daughter, while experiencing hallucinations that led him to believe that what he was doing was God’s will. Mr. Thomas later gouged out his eyes and ate one of them. What do you think is the appropriate consequence for a defendant like Andre Thomas, whose crime was the result of his severe mental illness? 

Sally Satel 3:19 

Well, he did enter a not guilty by reason of insanity plea, but there were, I mean, there are several layers of problem with this case, some have to do with his specific case, and the quality of his representation. And then there’s the larger, you know, the larger issue of whether, again, anyone who was severely mentally ill, during the commission of their crime should be eligible for the death penalty, which is different than being eligible for some punishment, but eligible for the death penalty. And if I could just fill out a little bit of the details about him, they’re almost even more bizarre — if you can imagine that, than you just summarized. Yes, in March 2004. As you say, he was 20 years old at the time, this was in a town called Grayson, Texas, which I gather is very conservative town, north of Dallas. Yeah. And he woke up to the voice of God telling him to commit those murders and he cut out their hearts. He intended to cut out his wife’s heart, but he missed and took out some lung by mistake and his purpose was to quote ‘free them from evil.’ Then he stabbed himself, thinking he intending to die, but he he didn’t and so that same day, all this is happening in the same day, he turned himself in, and he asked the police, you know, will I be forgiven? I thought I was doing the will of God. He didn’t even believe his family was dead. So, so right there, you have just overwhelming evidence that this is someone who’s delusional plus he had been diagnosed with schizophrenia years before. So he was in jail, he actually, the psychiatric technical word for this is enucleation — which means blinding oneself by removing an eyeball — he did that twice. He did it several days after the murders while he was in jail waiting for some kind of disposition when he read a passage in the Bible, and then of course, the trial was postponed for a year until he could be made competent to stand trial. And there was even a question about whether he was competent to stand trial. And then other other problems with that trial. For example, there were people who were chosen to be on the jury, but they had expressed during the voir dire, they had expressed significant reservations about interracial marriage — and Andre was black and his wife, his estranged wife was a beautiful white woman. So right there, there was this this racial tension, but the trial went on and there were even problems with that his previous mental history had not been presented. So again, there are lots of questions that his own lawyer and others have had about whether his representation was was even competent, and whether he was competent even to to be at trial at that time. But fast forward, yes, he did, then lost his insanity plea. In large part I should add, because there was a question of whether he had taken cold medicine and he did abuse, Coricidin, and which is over-the-counter cold medicine, which he would sometimes take in high doses, it wasn’t clear that his blood level was significant at the time to have influenced his mental state. But that was brought up by the prosecution and had a big role in why he did not get not guilty by reason of insanity. So he was on death row and then three years later, right took out his other eye, which is incredible, even while he was on medication. So he’s still there, as I mentioned, was scheduled to be executed on April 5, but his lawyers managed to convince Governor Abbott and the Bureau of Prison to wait for him, 120 days, to make sure that he was in fact competent to be executed, which is another kind of competence, because his lawyer contends that he’s still quite psychotic and to be considered competent for execution, you have to meet two criteria. One is that you know, you’re going to be executed and the second is that you have an appreciation of why you’re going to be executed. And she believes that he will probably fail the second prong, whether the state will take that into consideration and commute him is not known. So kind of that’s where we are right now. He’s still on death row and remains delusional and blind. And what should happen to someone like that? Well, in his case, he should have, I believe, in retrospect, that he should have qualified for the for the not guilty by reason of insanity, in which case, he would not be free, he would go to a forensic facility for quite a while, and probably up to, often up to 20 year. I mean, these are long sentences, excuse me, they’re not sentences, because he’d been found not guilty, but these are long stays in forensic mental institutions — and that’s really where he should be. 

Anne Holsinger 8:26 

So to zoom out a little bit from this one particular case that does illustrate a lot of these important issues. In your op-ed, in the National Review, you explained that no civilized or lawful purpose is served by executing the severely mentally ill. Could you expand on that a little bit and explain what you mean by that? 

Sally Satel 8:45 

Sure. I don’t think it’s civilized and I’m not alone in this at all to blame someone and then punish him or her because they did not know what they were doing. They did not have, he knew what he was doing in terms of murdering someone, he knew he was killing them, that there’s no question about that he didn’t think he was killing dogs or animals or aliens. I mean, he knew he was killing human beings and their relationship to him, but he did not have a rational knowledge of of that wrongdoing. He really didn’t appreciate the significance and consequences of it, because he thought he was actually in a way saving them from evil — so that’s clearly a delusional premise. And in terms of the law, I mean, it doesn’t serve the purposes of retribution, which, you know, I think, I mean, I know this is a matter of debate among, among legal scholars, but I think there’s some merit to the concept of retribution, but it’s invalid in a case like his because he was not rational, he was, he could not he could not, his capacity for moral logic was distorted by the fact that he was commanded by God, and that he believed, again that he was, you know, they were evil and embodied evil. And he was he was freeing them from that. So if you’re not rational, then you’re not really blameworthy or culpable or as blameworthy or as culpable as you might otherwise be. And then, you know, the next step is that there shouldn’t be diminished or no punishment. His case, as would be the case with anyone who committed a murder based on delusional deranged thinking, would not really meet the requirements of the ethic of retribution. 

Anne Holsinger 10:38 

You also argue that the same reasoning in Atkins versus Virginia, which exempts those with intellectual disability from a death sentence, should be extended to those with severe mental illness. In particular, the Supreme Court said that people with intellectual disability cannot be subjected to the death penalty because of their, quote, diminished capacities to understand and process information, to communicate, to abstract from mistakes and learn from experience, to engage in logical reasoning to control impulses and to understand the reactions of others. How could this reasoning apply to people with severe mental illness? 

Sally Satel 11:14

People with severe mental illness, I’d say the most relevant element of that list would be capacity to understand or at least understand the consequences of what they are doing. And to I guess, that’s related to processing information, and sometimes to control impulses. So there’s certainly overlap in that way. That’s why I think, and I’m certainly not alone in believing this, that in the sense, the court is already using precedent and in a very loose way, but kind of set a precedent for having considered the issue of cognitive function and its relationship to guilt. They did it also, I think, in a less, less compelling example, but this is often invoked as well, in 2005, and the Simmons case. Simmons was a young man who was under 18, I think he was 17, but that he committed a really awful murder in Missouri. He kidnapped a woman and then effectively made her jump off a bridge after he bound her hands, of course, she died, and that was horrific. But his case was instrumental in establishing another Supreme Court standard, where it is considered cruel and unusual violation of the Eighth Amendment to execute adolescents, basically, because the argument is that their cognitive capacity is not sufficiently well formed. I find that weak, but certainly the Atkins case, they called it mental retardation, of course, they, we don’t call it that now, but intellectual deficits, certainly more, to me more relevant, more analogous. And in the courts, I think the way it often works is that there’s a kind of an IQ cut off of seventy and people again, debate that whether whether it cut off makes more sense, or whether the person’s capacity, measuring the person’s capacities makes more sense. But in any case, the point is, people who qualify as quote unquote, mentally retarded, slash cognitively disabled, are immune from the death penalty, not immune from punishment necessarily, but immune from, from the death penalty. You know, one might wonder, well, that’s what we have NGRI for, it’s for people who are so psychotic that they are effectively don’t know what they’re doing and why, why, you know, why, why should there be another accommodation for a person like Anthony? Like Andre Lee Thomas. And again, it’s obvious in his case was because he didn’t meet that criteria. But separately, there are questions about how the quality of his trial, but more generally, as you say, the bar for being eligible for not guilty by reason of insanity is really quite high. In generally, if it’s not in a standard, it’s that one did not know what they were doing. They didn’t know that what they were doing was wrong. In truth, a lot of people, no matter how psychotic they are, know that they’re, they know they’re doing something wrong. The classic example of that is Andrea Yates, who was the mother in Houston, this was a 2001 and she drowned her five kids systematically, one after the other. They were all under, I think the oldest one was seven, because she had postpartum psychosis and it manifested, it also had religious delusions and she thought that they were possessed by the devil and she was saving them. But after she drowned them, she called the police and to suggest she knew that something bad had happened and the fact that kind of behavior is often used by the prosecution to, to say, well, look, they knew what they were doing was wrong. But that is at the most literal level. And we’re talking about another level of appreciation. So not guilty by reason of insanity is a very tricky defense. I mean that, you know, which it should be, I could easily imagine people really trying to take advantage of such a thing. But you know, again, when we have people who are so, so deeply sick, it’s frankly stunning when they sometimes don’t qualify, but that happens. So I think we need another middle ground for those who don’t, who fail the not guilty by reason of insanity defense, but you know, whose reasoning is still too impaired to be held fully responsible? 

Anne Holsinger 15:47 

For the sake of our listeners, could you explain a little bit more about what the criteria are for not guilty by reason of insanity, and why it’s so difficult to successfully assert that as a defense. 

Sally Satel 15:59 

Basically, that the perpetrator didn’t know, didn’t know what they were doing. They they thought you know, if, for example, someone was strangling their wife, it was hard to imagine that people could be so confused, but that they were instead strangling, you’d say an animal or some inanimate object, but they truly did not know what they were doing — they didn’t even know it was a deathly or a fatal or dangerous act. And the second is that they did not know that it was wrong, and that’s where things can get a little difficult because even the most psychotic individual will know that even if you were to give them a test, is it wrong to murder? They would very likely say yes, it is wrong to murder. So um, that very, that very, very narrow kind of assessment of knowledge of wrongdoing. You know, if you read it very, very narrowly, it could be hard for someone who committed a crime while psychotic to still qualify, because it’s, it’s likely they knew it was wrong in the most legalistic sense. And that’s why I mentioned Andrea Yates, who called the police after she strangled all her children. I mean, that was certainly could be interpreted as evidence that she knew it was against the law. But in in, in her logical scheme, her delusional scheme, it wasn’t wrong, because she was saving them — it was an act of salvation — so how could that be wrong? But it is legally wrong and she had that appreciation and, and in some minds of some people, in fact, initially in the jury’s mind, because she was at first committed, I mean, convicted. And second, and then few years later, it was overturned, but that contributed to her initial, the jury’s initial decision that she was guilty of murder. 

Anne Holsinger 17:56 

In capital cases, specifically, there’s a separate sentencing phase where mitigating and aggravating factors are presented. And you’ve stated in your writing that oftentimes mental illness is misinterpreted by juries as an aggravating factor. In what ways could mental illness lead to a harsher sentence in capital cases? 

Sally Satel 18:17 

Well, two ways one, is actually the judge as well, because they have discretion to use mental illness as a mitigating factor, but they cannot necessarily be relied on to exercise that discretion. And as far as the jury, which what you just brought up, yeah, there are many misconceptions under which they labor, and I’m not sure how much they’re at, how well they’re educated. So for example, people think and, you know, I mean, I don’t blame them, it sounds reasonable, that if they do decide, or you know, vote for not guilty by reason of insanity, that a person like, again, Andre Lee Thomas, but you can imagine all kinds of, you know, unfortunately horrible things people have done under the sway of psychosis, that they’re going to be out — that they’re just going to walk out the courtroom. And that’s terrifying, because jurors are frequently influenced in their decision making by predictions of violence. So that’s scary. Plus, there’s already a bias. I think it’s a very intuitive bias that people who are mentally ill are dangerous, just by virtue of being mentally ill, and I should say that that is not a fantasy. People with psychotic illnesses who are unmedicated do have a four to seven times higher rate of committing violence, so that is true. However, if they’re medicated, then they are no more violent than the rest of the population. Other things that that can confuse the jury is that by the time they do see the defendant, he or she has probably been medicated, you know, obviously he or she had to be found competent to stand trial. So that often means that the medications that they’ve been taking are working and so they actually can appear quite rational. And so the idea is, wait a minute, this doesn’t fit, you know, this person before us kind of doesn’t fit the image of this, you know, wildly psychotic individual who committed murder. So, so that’s, that’s disorienting, that also the medications, that they have side effects. So you can also have a situation where the person is often over medicated and so they look very, very flat, their eyes can be all over the courtroom not really paying attention, they really look out of it, and to the jury that can look like they’re not taking this seriously, you know, they’re so apathetic, that they’re not even remorseful — so that doesn’t look good. Finally, I think juries don’t make a distinction between something we alluded to earlier, which is factual versus rational knowledge. So in other words, it can be confusing to hear that this particular defendant knew that something was that he did something wrong. Andrea Yates and Andre Thomas both went to the police and Andre Lee Thomas turned himself in, Andrea Yates called the police. And then he came over. So again, that looks like well, how crazy can he be, if he knew it was wrong, and that, again, is a big point of confusion. Because again, while a person had this factual knowledge, it is wrong to kill, they didn’t have the rational appreciation, which is, it is basically not wrong to kill people who are possessed by the devil who are evil, this kind of thing. And so that those are reasons why it can be so hard from the through the eyes of the jury to meet the standards for not guilty by reason of insanity. 

Anne Holsinger 22:01 

So how do you think we can change people’s perceptions and misperceptions about mental illness in the legal system? 

Sally Satel 22:09 

Well, I think we have to change people’s misconceptions about severe mental illness and I’m making a big distinction between severe mental illness and mental health, or even between anxiety, anxiety and depression, which can be extremely disabling no question, but that is still qualitatively different from, you know, psychosis from estrangement from reality. I think, in general, the public doesn’t really understand because, you know, we have so many problems now with severely mentally ill people, you know, it’s complicated, they’re mixed in with people whose main problems are drugs, and a lot of people with severe mental illness have drug problems as well, you know, who are crowding the streets of San Francisco, LA, Portland, outside of Philadelphia. And there are efforts to apply what I call benign paternalism, which is some form of civil commitment, and probably many people are for it, but but they’re, for it, I think, largely through the lens of law and order, which is not something to be trivialized. It’s hugely important for civic life, but I’m not sure they realize that there is a real benign humane purpose in committing people to treatment who are gravely disabled, which is a different standard. The standard everybody understands is danger to self or other, you’re gonna commit suicide or kill someone else in the short term. But there’s another standard, which is a little looser, some might say, which is a grave disability standard, and that’s when a person is so psychotic, they think their food’s poisoned, they’re afraid to go into a hospital even though they’ve got gangrene or because they’re so psychotic. That’s another level. And I think there’s so much confusion among the public that many of them are not even kind of behind that those kinds of efforts. So it goes way beyond the courtroom. But I would think and I admit here, I don’t know what kinds of education juries get, you know, before a case, but I wish the you know, we someone would go through that whole list that I just went through with you about, look, this person may look a lot healthier, because now they’re on medication, but you’ll have to keep in mind when you listen to the defense attorney, what the state of the person was, and possibly there is corroborating evidence of terms of videos, I don’t know. But you know, when they when they committed the crime at the time of the crime, again, and also learn that there’s a difference between knowing something is wrong and kind of knowing it in a way that has kind of the significance behind the crime itself. The kind of crime you commit, because you’re, you have a twisted sense of what the world is like. So that’s tough. Where did they, where do people get this education? In the terms of a jury? I mean, you’ve got a captive audience. I wish I don’t I don’t know, are there kind of apparatus or an apparatus for for jurors to be educated that way? There should be. 

Anne Holsinger 25:12 

Not really. Jury instructions don’t tend to include that kind of background education. You know, it really is just here are the steps you need to follow within the law to determine the sentence. There’s not education about what forensic science means that might have been presented as evidence or what mental illness can mean within the legal system. It’s just kind of whatever background knowledge jurors happened to come in with. 

Sally Satel 25:39 

Well, that’s unfortunate and I wish there were a way to change that. But, but anyway, and that would be a perfect little population of people, potentially, you know, jurors, at least you’d have, as I say, a captive audience, maybe excuse the pun, but yeah, out in the world. It’s tough. I mean, that’s why I write articles. That’s why a treatment Advocacy Center, which happens to be based in Northern Virginia, is devoted to the commitment laws in the country, and the rational care of people, again, with severe mental illnesses, you know, that’s why they’re trying to spread the facts. When Mayor Adams, you know, launched his new initiative, which is effectively civil commitment. You know, those are opportunities to teach the public, but you don’t get this and you don’t get this in school, so it’s really it is a problem. There should be more education about it, no question, and especially in a courtroom where someone’s life is in your hands. 

Anne Holsinger 26:39 

One additional question I had for you. So in, in recent years, there’s been an increase in state legislation specifically exempting those with severe mental illness from execution. Ohio and Kentucky have enacted those laws and legislation has been introduced in several other states. So moving forward, what legal reforms would you support in this area? 

Sally Satel 27:02 

I think the Ohio bill, I don’t know its formal name, but it was passed in 2021. I think it’s excellent. I’ll just read you what it requires of people, and it was passed with significant bipartisan support, which is very encouraging. So a person would have to meet, a defendant, would have to meet two criteria. One is that by preponderance of the evidence, it truly means like 51 to 49%, that they have to have a severe mental illness, there has to be enough evidence to prove too well, a preponderance of evidence to show that they had either schizophrenia or bipolar illness, or what’s called delusional disorder, or any other kind of psychotic manifestation, but those are the classic ones, at the time of their offense. Usually, psychosis brought on by drugs doesn’t count, although that could be used as a mitigating factor in a different trial. So we’re, again, we’re talking severe mental illness at the time of the offense. That’s one and the second, it’s not or it’s and the second is, they must show that the psychotic illness that they did have significantly impaired their capacity for rational judgment, which they define as conforming to the law, or appreciation, appreciating the nature, consequences, or wrongfulness of their act. And if you meet both of those, then your lawyer can apply for you to be considered ineligible for the death penalty before trial, if it’s already decided that you’re not going to be eligible for the not guilty by reason of insanity, or after your trial where, where your lawyer has tried to apply not guilty by reason of insanity, but it failed. So you get two chances to be considered ineligible or deemed ineligible by the judge. So I think that’s, you know, very fair. And then the additional benefit is that this is a retroactive law, so people who are are already on Ohio’s death row, if their lawyers can show those same two things, the same two points that I mentioned about the preponderance of evidence having that disease when they were committed the crime and showing that it impaired their rational judgment, then they can also be eligible to, well basically get off death row and probably be commuted to life in prison. It’s not that they’re going to go free. Kentucky, the year after passed a similar law, but it’s not retroactive. So it’s certainly good, but it could be better. And there are other states, in fact Texas as we speak a similar law that does is not retroactive, either, I believe, but I believe their house of representatives haved passed that, in fact, they passed it, like in late March and then now it’s sitting in the Senate. And now they seem to be taking a long time. But if the Senate voted, you know, then conceivably Texas, could be the third state in the country to have this this law. And there are other states, Arkansas, Arizona, Florida, Tennessee, which I mentioned about five years ago, someone called me from a congressman’s office was working on such a bill. So I, I worked with her over a summer and then, you know, have people disappear that I never heard from her again, but clearly, it’s still on on the burner. Indiana, Missouri, North Carolina, Iowa, these are all states that are considering it and or it passed one chamber, but then you know how to go back to be resubmitted. So they’re all in various stages of, of considering this and that’s, that’s very helpful. Now, ideally, the Supreme Court would rule that there would have to be some some case that came before it and I mean, that would settle the, that kind of would settle the issue. I mean, another option, which probably no one is going to take off, this change the definition of what insanity is, and make it more like the second prong of the Ohio law, which I can just repeat — that they have impaired capacity for rational judgment, which means either conforming to the law, or appreciating the nature consequence and wrongfulness of their act, that that part’s already in the insanity defense. But this definition by, in Ohio is a little bit, has a little bit more room, but certainly not enough room to be, I think abused. So anyway, so that’s very, that’s encouraging. And hopefully, Andre Lee Thomas will be in August, I guess his case will be reconsidered and two things will happen, he will either be found incompetent to stand trial, which doesn’t guarantee they don’t proceed with an execution. But this case has gotten quite a bit of attention, I think, you know, the governor will know he’s under the spotlight, or just be moved by the tragedy of the whole thing and then the illegality of executing someone who’s doesn’t know why he’s being executed, and he will be commuted. That would be the best outcome for him. Of course, the best outcome would have been that he met his insanity defense originally. 

Anne Holsinger 32:43 

Is there anything else you’d like to share with our listeners? 

Sally Satel 32:45 

No, except that, to the extent that, you know, people who are listening to your podcast and I assume are much more enlightened about these issues than the average person, you know, just call me if you have great ideas about how to get the word out and do that yourself as well in terms of in terms of educating, you know, at least jurors or, you know, of course, the the public at large, because, you know, the better informed, the more, the better policy. 

Anne Holsinger 33:15 

Thank you so much for joining us today and for sharing your expertise. 

Sally Satel 33:19 Oh, thanks so much for having me. 

Anne Holsinger 33:20 

For our listeners. To learn more about the death penalty, you can visit the DPIC website at And to make sure you never miss an episode of our podcast, you can subscribe to Discussions with DPIC on your podcast app of choice.