Death Penalty and Mental Illness: Eighth Amendment Analysis

Mental Illness and Overrepresentation on Death Row

It is impossible to say, with any real degree of accuracy, what percentage of people on death row is mentally ill. There are several reasons for this impossibility. First, mental illness is difficult to define and is subject to broad changes over time and across contexts. Therefore, a person who was not considered mentally ill at the time of a conviction might be classified as mentally ill under modern standards, and vice versa. Next, mental illness is difficult to diagnose. The very crimes that land people on death row are acts that most people consider "crazy"; however, that does not mean that the people who perpetrated them are actually mentally ill. Furthermore, mental illness carries different meanings for health professionals and the legal community, so a person might be considered mentally ill in one context but not in the other.

While complete accuracy may be impossible, it is logical to assume that the mentally ill are overrepresented on death rows. First, it has been clearly established that the mentally ill are overrepresented in the criminal justice system as a whole. Second, severe mental illness does contribute to a breakdown in impulse control, leading to the type of violent acts that result in the death penalty. Third, the significant gap between medical and legal definitions of mental illness all but ensures that the majority of mentally ill defendants will not be able to successfully assert any type of insanity plea. Finally, those suffering from mental illnesses are less likely than non-mentally ill defendants to be capable of meaningfully engaging in their own defenses, making conviction more likely.

Knowing that there are mentally ill defendants on death row, the next logical question is whether that is an appropriate place for them. There are many cogent arguments, both for and against, addressing the advisability of executing mentally ill criminals. However, most of those arguments, while persuasive and informative, are secondary to the central constitutional question: whether the execution of the mentally ill violates the Eighth Amendment's prohibition against cruel and unusual punishment. If it does, then there should be no executions of the mentally ill. If it does not, then each state should retain the right to determine whether the execution of mentally ill capital criminals is consistent with its social and law enforcement goals. Some believe that the issue can never be truly resolved, due to the individual nature of mental illness, and that the only solution is to determine that a defendant's mental illness alone is not sufficient to bar execution, but is sufficient to require a meaningful judicial determination of competency.

The Eighth Amendment and Evolving Standards of Decency

While the Eighth Amendment may have been drafted at a particular time and place, it is important to realize that, when considering whether a particular punishment is cruel or unusual, courts do not look at the standards in effect at the time of drafting. Instead, they apply an evolving standard of morality. This principle was clearly established as early as 1958 in Trop v. Dulles, 356 U.S. 86 (1958). That Court stated that the "basic concept underlying the Eighth Amendment is nothing less than the dignity of man. While the State has the power to punish, the Amendment stands to assure that this power be exercised within the limits of civilized standards…The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society." Trop v. Dulles, 356 U.S. 86, 100–101 (1958).

Therefore, to determine whether the execution of the mentally ill violates the Eighth Amendment, it is necessary to look at how society's view of mental illness has evolved over time.

Society's Ambivalence Toward Mental Illness and Capital Punishment

Unfortunately, examining societal evolution does little to clarify public opinion on the propriety of executing the mentally ill. As explained by Christopher Slobogin:

"Our society has long been ambivalent about mental illness. On the one hand, for many laypeople mental illness is something to be feared. The medieval theory that mental disability is the product of possession by evil spirits finds its modern expression in the accepted wisdom that 'crazy' people are very different from the rest of us and are generally to be avoided. At the same time, we have long pitied those who are afflicted by mental problems, as evidenced by the centuries-old existence of a special defense excusing such people from criminal responsibility, as well as by the frequent campaigns to improve their treatment facilities." (Slobogin, 2000).

Clearly, society considers mentally ill people to be deserving of pity, treatment, and protection from abuse. However, society also seems to harbor genuine fears about the mentally ill, and has possibly legitimate concerns that mentally ill capital criminals pose a greater danger than their sane counterparts:

"Nowhere is this ambivalence more dramatically exposed than in death penalty cases. Mental illness is expressly recognized as a mitigating factor in most death penalty statutes and the Supreme Court has held, in Ford v. Wainwright, that it is cruel and unusual punishment under the Eighth Amendment to execute a person whose mental state renders understanding of capital punishment impossible. Yet a significant proportion of death row inmates are mentally ill… And the research evidence suggests that mental illness is often, in fact if not in law, an aggravating factor as far as capital sentencing bodies are concerned." (Slobogin, 2000).

One of the complicating factors is that the mentally ill are not the only group considered legally incompetent in different arenas. Both minors and the intellectually disabled carry some presumption of legal incompetence, a presumption that has been reflected in jurisprudence restricting their execution. However, there has been no wholesale prohibition on the execution of the mentally ill. On the contrary, the law has officially sanctioned the disparate treatment of different groups of incompetent people. Moreover, all decisions to date that have limited the execution of the mentally ill have focused on specific types of mental illness at specific times, and on whether it is constitutional to execute a person under a particular factual scenario.

Ford v. Wainwright and Competency to Be Executed

In Ford v. Wainwright, 477 U.S. 399 (1986), the Supreme Court determined that it is unconstitutional to execute a person who is incompetent due to mental illness. Specifically, the Court held that "the Eighth Amendment prohibits the State from inflicting the penalty of death upon a prisoner who is insane." (477 U.S. 399, 410). However, the Court was unable to determine whether that Eighth Amendment prohibition was rooted in a desire "to protect the condemned from fear and pain without comfort of understanding, or to protect the dignity of society itself from the barbarity of exacting mindless vengeance." (477 U.S. 399, 410).

This was not a landmark departure from prior law; the common law had long prohibited the execution of the insane, giving rise to today's insanity defense. However, eligibility for an insanity defense differs substantially from the level of mental illness required to avoid execution. Most notably, the insanity defense requires that the actor was insane at the time of the commission of the crime, and either unable to appreciate the difference between right and wrong or unable to control the compulsion to commit the crime. By contrast, for a mental illness to bar an execution, the actor need not have been actively mentally ill at the time the crime was committed — it is sufficient that he is mentally ill at the time of sentencing or proposed execution.

There is, however, a significant question about what type or degree of insanity renders a person incompetent for Eighth Amendment purposes. Clearly, Ford v. Wainwright establishes that it is unconstitutional to execute "one whose mental illness prevents him from comprehending the reasons for the penalty or its implications." (477 U.S. 399, 417). That appears to be a minimal threshold for competency. One of the first contributions of that decision was to help identify the types of mental illness capable of preventing a person from comprehending the nature or purpose of capital punishment. Only certain mental disorders routinely produce such impairment. These disorders are referred to as psychoses, and include schizophrenia, bipolar disorder (manic-depressive psychosis), delusional disorders, and some organic mental disorders (Slobogin, 2000). While it is possible for defendants with personality or affective disorders to experience the same degree of impairment, it is highly unlikely. Therefore, this issue revolves largely around defendants who have a psychotic disorder.

An ancillary question arises when one considers whether someone who is mentally ill can be executed. Many psychoses are treatable by medication, which can render a person sufficiently competent to meet the Ford v. Wainwright standard and therefore be eligible for execution. In Washington v. Harper, 494 U.S. 210 (1990), the Court determined that the state could forcibly medicate mentally ill inmates and could do so without affording the inmate due process rights — such as a hearing — that would be required before forcibly medicating a non-inmate. Moreover, in Perry v. Louisiana, 498 U.S. 38 (1990), the Court used that precedent to bolster Louisiana's attempts to forcibly medicate a prisoner in order to make him death-eligible. If one accepts that the death penalty is a just penalty for a capital crime, and that the reason mentally ill defendants should not be executed is their lack of competence, then it does not seem unethical to allow forcible medication in order to restore competency. In that scenario, avoiding medication could be likened to any other attempt to evade punishment. Moreover, a physical disorder arising after conviction — but which would have prevented the crime — would not be sufficient reason to spare a person on death row.

Conclusion: Due Process and the Mentally Ill on Death Row

Clearly, there is no easy solution to the moral dilemma that surrounds the execution of the mentally ill. While the legal system has established awareness of the death penalty and its purposes as a minimum competency standard, it is clear that such a minimum does not fully reflect modern views on mental illness. Seriously mentally ill people are being denied a meaningful opportunity to present their own defenses. As a result, even if society fails to conclude that the execution of the mentally ill violates the Eighth Amendment, it seems clear that many mentally ill defendants have not received due process of law, rendering their convictions and sentences constitutionally suspect.

References

Bonnie, R. (2007). Panetti v. Quarterman: mental illness, the death penalty, and human dignity. Ohio State Journal of Criminal Law, 5, 257–283.

Fentiman, L. (1986). Whose right is it anyway? Rethinking competency to stand trial in light of the synthetically sane insanity defense. University of Miami Law Review, 40, 1109–1127.

Ford v. Wainwright, 477 U.S. 399 (1986).

Panetti v. Quarterman, 127 S. Ct. 2842 (2007).

Perry v. Louisiana, 498 U.S. 38 (1990).

Slobogin, C. (2000). Mental illness and the death penalty. The Boalt Journal of Criminal Law, 1, 3.

Trop v. Dulles, 356 U.S. 86 (1958).

Washington v. Harper, 494 U.S. 210 (1990).