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.