Under Recent State Legislation, Courts in Ohio and Kentucky Rule Four Men Ineligible for Execution Due to Serious Mental Illness

Though the Supreme Court has ruled that the Constitution forbids the death penalty for a person who is “insane” at the time of execution, it has never held that the execution of people with serious mental illness is unconstitutional. Experts have found that two in five people executed between 2000 and 2015 had a mental illness diagnosis such as bipolar disorder, schizophrenia, or PTSD. Since 2017, at least eleven states have attempted to strengthen protections for vulnerable prisoners by introducing bills barring the execution of those with serious mental illness at the time of their crime. Thus far two have been successful—Ohio in 2021 and Kentucky in 2022—while efforts in Virginia and Colorado became moot when those states abolished the death penalty. In recent weeks, judges in Ohio and Kentucky used state legislation to exclude four men from the death penalty due to their mental impairments.

Ohio’s law defines a person with serious mental illness as one who has been diagnosed with at least one of the following conditions: schizophrenia, schizoaffective disorder, bipolar disorder, or delusional disorder. A person is exempt from the death penalty if his condition “significantly impaired [his] capacity to exercise rational judgment” in “conforming…conduct to the requirements of law” or “appreciating the nature, consequences, or wrongfulness” of his crime. On October 30, an Ohio court resentenced Timothy Dunlap to life in prison for the murder of his girlfriend in 1991. Acquaintances reported that he lived in a “fantasy world,” often claiming that he was an undercover FBI or Secret Service agent. Mr. Dunlap experienced hallucinations including helicopters, tanks, and gunfire, and told others he was being targeted by assassins. He had been committed to several inpatient mental health programs before the crime and was diagnosed with schizoaffective disorder during his incarceration. Mr. Dunlap remains on death row in Idaho for a different offense. 

Also in Ohio, Michael Turner of Columbus was resentenced to life in prison on October 25 after 21 years on death row for the murders of his estranged wife and her boyfriend. A court-appointed psychiatrist agreed with the defense psychiatrist that Mr. Turner had been seriously mentally ill at the time of the murders, and the State did not oppose the petition. On September 27, a judge ruled that Alto Miles of Cincinnati could not face the death penalty in his trial for a quadruple murder. Mr. Miles had been diagnosed with schizoaffective disorder and was set to plead guilty on October 27. However, he became agitated during the plea hearing and began yelling at people in the courtroom, at one point declaring, “I’m God.” Mr. Miles was removed and had his plea hearing rescheduled. Although ineligible for the death penalty, the court has deemed Mr. Miles competent to stand trial.

Kentucky’s law mirrors the Ohio definitions but does not apply to those already sentenced to death. On October 27, a Louisville judge ruled that Brice Rhodes was ineligible for the death penalty in his trial for the murders of a man and two teenage boys. Judge Julie Kaelin found “credible, historical, unbiased evidence” demonstrating Mr. Rhodes is “intellectually disabled and suffers from a serious mental illness.” She ruled that “the Court cannot allow such a person to be subjected to the death penalty, regardless of public clamor,” and added that “this is not a close case.”

The Supreme Court held in Ford v. Wainwright (1986) that “the Eighth Amendment prohibits a State from carrying out a sentence of death upon a prisoner who is insane.” While the Court’s rulings in Roper v. Simmons (2005) and Atkins v. Virginia (2002) exempted certain categories of individuals from the death penalty—minors and those with intellectual disabilities—Ford only considers the defendant’s mental health at the time of the execution. At the trial level, a person’s mental illness may factor into the court’s determination of competency, the availability of an insanity plea, a culpability assessment, or mitigation evidence, but outcomes vary. Professor Frank Baumgartner and Betsy Neill found that 43 percent of people executed between 2000 and 2015 had received a mental illness diagnosis, which likely underestimates the actual number. They also found that 63 percent of people who “volunteered” for their execution had a mental illness, and 32 percent had attempted suicide.

Organizations including the American Psychiatric Association, the American Bar Association, and the United Nations have long recommended that the death penalty be barred for defendants with serious mental illness either at the time of crime or approaching execution. The state bills introduced since 2017 have focused on the defendant’s mental health at the time of the crime. This year, legislators introduced serious mental illness exemption bills in Arizona, Arkansas, and Texas, building on previous attempts in those states. Both the Arizona and Arkansas bills died in committee, while the Texas bill passed the House with bipartisan support but was never brought to a vote in the Senate.

The legal system’s inconsistent protections against the execution of people with severe mental illness were illustrated this year in the cases of Scott Panetti and Johnny Johnson. Mr. Panetti had suffered from schizophrenia for many years and stopped taking his antipsychotic medication before he killed his in-laws in 1992. As his execution approached, Mr. Panetti said that the devil was conspiring with the State of Texas to thwart his divine mission of saving souls on death row. Similarly, Mr. Johnson had a decades-long history of schizophrenia and delusions, telling others that Satan was plotting his execution to bring about the end of the world. He said that he was a “vampire,” “able to reanimate his organs” and “enter an animal’s mind…to go on living after his execution.” After decades of litigation, a federal court ruled on September 28 that Mr. Panetti was incompetent to be executed. But the State of Missouri executed Mr. Johnson on August 1. Dissenting from the denial of a stay for Mr. Johnson, Justice Sonia Sotomayor noted that the facts were “strikingly similar” to Mr. Panetti’s case. She wrote that the Court “today paves the way to execute a man with documented mental illness before any court meaningfully investigates his competency to be executed,” and there is “no moral victory” in executing someone with such severe delusions.  

Note: This article was updated on November 3, 2023 to include Timothy Dunlap’s resentencing.