Executing the Mentally Ill
Recent U.S. Supreme Court rulings barring executions of juvenile offenders and people with mental retardation have given death penalty opponents hope that the mentally ill may someday also be spared. But the issue raises difficult questions for lawmakers and courts.
By Dan Malone
Little about Kelsey Patterson's disturbing life made sense. He was repeatedly arrested for a series of increasingly violent assaults and shootings, repeatedly diagnosed as mentally ill, repeatedly admitted to mental institutions and repeatedly released-only to be arrested yet again for another act of senseless violence.
He was arrested for the final time on a warm September afternoon in east Texas in 1992. Police found Patterson walking naked down the street near his home, mumbling and gesturing to people along the way. No clear motive for his crime-a double murder-was ever established. A jury subsequently sentenced him to death.
During his 12 years on Texas' death row, Patterson, who was first diagnosed as a paranoid schizophrenic in 1981, frequently complained about a remote control device implanted in his body, refused to cooperate with his lawyers and insisted until his death that he had received a permanent stay of execution. As he lay strapped to a gurney in the death house, he responded "state what" when asked if he had a final statement, then launched into an incoherent, profane ramble, his last words as confusing as the jumble of his 50 years of life.
Today, a little more than a year after his execution, advocates for the mentally ill contend that the execution of Patterson and other mentally ill prisoners make even less sense than the gnarled paths of their lives.
Two recent U.S. Supreme Court rulings barring executions of juvenile offenders and people with mental retardation have given death penalty opponents hope that others with diminished capacity for judgment will also be spared the fate of a punishment they may not even comprehend. In both decisions the Court sought to bring current state practice in line with "evolving standards of decency." Some experts believe the recent rulings have bolstered the legal basis for protecting the mentally ill.
"It all has to do with their ability to form what we consider to be adult conceptions of morality and responsibility," says Bill Harris, a Texas attorney who represented Larry Keith Robison, a schizophrenic who was executed in 2001 for killing five people during a psychotic episode nearly 20 years earlier. "If you say it's cruel and unusual to execute the mentally retarded because they can't perform on an adult level, and then you say the same thing about people who are mentally normal but because of their age you can't execute them, it makes sense to extend that to mental illness."
"If it impairs their ability to make those kind of moral judgments, they should also be, logically, exempt."
On March 1 the Supreme Court categorically banned the death penalty for juvenile offenders under age 18 in Roper v. Simmons. By the time the Court heard the case of Christopher Simmons, a Missouri inmate who had been sentenced to death for a murder he committed when he was 17 year old, 30 states had already banned the practice and most others had turned their backs on it. The decision did, however, overturn the sentences of 72 death row inmates in 12 states who were convicted of committing crimes as teenagers. (The death penalty for federal crimes was forbidden for offenders under the age of 18.)
Juveniles, the court said, are vulnerable and lack the maturity and fully developed character of adults. "Their own vulnerability and comparative lack of control over their immediate surroundings mean that juveniles have a greater claim than adults to be forgiven?" That majority opinion also cited an emergent national consensus, and significantly, an international one that left the United States "alone in a world that has turned its face against the juvenile death penalty."
The Simmons challenge followed another milestone Supreme Court decision, Atkins v. Virginia, which banned the execution of those with mental retardation. The 2002 ruling dealt with the case of Daryl Renard Atkins, who was sentenced to die in Virginia for the 1996 murder of Eric Nesbitt, a 21-year-old U.S. airman. Testimony about Atkins' mental abilities conflicted wildly. Defense witnesses told jurors Atkins was "mildly mentally retarded" and functioned at the level of a 9- to 12-year-old. A prosecution expert countered that Atkins suffered from a antisocial personality disorder and was of "average intelligence, at least." The Court banned the execution of those with mental retardation, citing a "dramatic shift" in how state law dealt with offenders with mental retardation- close to 20 states had already revised their laws to end executions of mentally retarded offenders. And officials in the remaining states had executed only a handful of persons with mental retardation since the late 1980s. However, while the Supreme Court sided with Atkins' lawyers in ruling that executing those with mental retardation is unconstitutionally cruel, the Court did not decide whether Atkins has a mental disability. That determination was left to the commonwealth of Virginia, and, at press time, Atkins was on trial to establish his IQ.
Execution of severely mentally retarded people, wrote Justice John Paul Stevens in Atkins v. Virginia, "has become truly unusual, and it is fair to say that a national consensus has developed against it."
Neither ruling specifically addressed mental illness. But Victor Streib, an Ohio Northern University law professor who was quoted 11 times by the Supreme Court in the case barring juvenile executions, also believes that mentally ill prisoners should not be subjected to the death penalty.
"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," he said.
"If certain mentally ill defendants think and act like juveniles or the mentally retarded, then they should be excluded from death row."
In practice, applying the Simmons ruling on juveniles is straightforward. "With juveniles, you are either 18 or you're not," says Gary Hart, the Texas attorney who represented Kelsey Patterson in his final appeals.
Mental retardation is thornier territory. "There is a misrepresentation that since Atkins had been handed down there is no longer any danger of people with mental retardation being executed," says Ronald Tabak, a New York attorney who serves on a task force, created by the American Bar Association (ABA) Section of Individual Rights and Responsibilities, that is examining capital punishment for mentally ill defendants. "In fact, it's a great danger. I'd say it's a certainty." Lawyers for some capital defendants never discover that their clients have mental retardation, while others may know the condition exists but lack the resources to prove it. Some states even lack a clear definition of mental retardation or a process for raising it during the various stages of a trial.
Extending protection to the mentally ill could prove to be even more complicated. "With mental retardation, there is at least some agreement about what constitutes mental retardation. With mental illness, you've got such a wide spectrum, everything from depression to bi-polar to post-traumatic stress syndrome, to paranoid schizophrenia. It's a much more difficult thing to know where and how to draw the line," says Hart.
"I'm not sure I would know how to draw the line," he says.
The prospect of drawing any lines with regard to mental illness raises daunting questions: What sort of mental illnesses might qualify accused killers the same protections given to juveniles and those with mental retardation? How many people would be affected by such a prohibition? What sort of changes would be needed in state law for such a prohibition to be imposed? And what about those prisoners who might have been sane when they committed their crimes but became mentally ill during years or decades they spent on death row?
The ABA task force has come up with several proposals that have won endorsements from professional organizations such as the National Alliance for the Mentally Ill, the American Psychological Association and the American Psychiatric Association.
One proposal would protect from capital punishment those with serious mental illnesses, such as schizophrenia, that significantly impaired their ability to reason at the time of their crime. These prisoners are, according to Tabak, "categorically less culpable than so-called average murderers."
Another set of proposals addresses situations in which mental illness precludes condemned prisoners from assisting in their own defenses, causes them to waive their appeals or prevents those facing imminent execution unable to understand what is about to happen to them, or why.
"We are not trying to excuse the misconduct of these people," Tabak explains. "If we were trying to do that, we wouldn't allow them to be punished at all." But, he says, "the extent of blameworthiness, the extent to which they can be held among what's sometimes called 'the worst of the worst,' is diminished by their mental illness."
Opponents to the proposal contend that mentally ill people are sufficiently protected under existing law.
"Someone who commits a crime because of mental illness-who didn't know right from wrong or didn't know what they were doing-is going to be found not guilty by reason of insanity," says Larry Cunningham, a former prosecutor for the commonwealth of Virginia and law professor at Texas Tech and Texas Wesleyan Universities. "If a mentally ill individual has been found guilty and received the death penalty, they probably presented the insanity defense and lost."
Attorneys for a person convicted of a capital crime can still argue during a trial's punishment phase that a client is more deserving of a life sentence than the death penalty because of their mental illness.
"It's better to let a jury decide as we do right now," Cunningham says.
"Should crazy people be executed?" asks Joshua Marquis, district attorney of Clatsop County, Ore., and the chairman of the capital litigation committee of the National Association of District Attorneys. "The accepted answer to that is no."
But arguing that mentally ill offenders should be treated like juveniles or people with mental retardation is, he says, an "incredibly incremental abolitionist argument.'
"The vast majority of people on death row suffer from a mental disorder of some kind," Marquis said. "If you define it that way, nobody would ever be given the death penalty. It creates a standard that would effectively exempt anyone."
Theoretically, some of the most severely mentally ill inmates are protected by a 1986 Supreme Court ruling, Ford v. Wainwright, that forbids capital punishment of those who are so insane that they cannot comprehend their impending execution or the reasons for it. Citing the Eighth Amendment, the decision blocked Florida from executing Alvin Ford, a man convicted of murder who became insane while on death row. Justice Lewis Powell drew his own line, reasoning that the Constitution protected only those who are so insane that they are "unaware of the punishment they are about to suffer and why they are to suffer it. Justice Powell concluded that Florida could execute Ford if he became sane again, presenting a cruel irony: death row inmates who become insane must remain insane to avoid execution. Moreover, the Ford decision left the determination of sanity up to each state and herein lies the heart of the problem.
At the time of the ruling, about a dozen of more than 1,700 death row inmates had insanity assertions made on their behalf, according to the New York Times. Today, it is difficult to say with any certainty how many on death row are mentally ill. The American Civil Liberties Union estimates that up to 10 percent of the more than 3,400 inmates on the nation's death rows have a serious mental illness. Other research conducted in the mid 1990s indicates the problem could be much larger. The Dallas Morning News reported in 1997 that one-third of 602 death row inmates nationwide who responded to the newspaper's questionnaire had been treated for psychiatric problems ranging from suicide and depression to anti-social behavior and sexual problems.
Whatever the actual numbers might be, mental health experts believe that many mentally ill prisoners would never have made it to death row in the first place if they had been able to find treatment when they were free.
Texas executed on March 26, 2003, James Blake Colburn, a 43-year-old mentally ill man who heard voices and worried about demons defiling his corpse, despite his failed, repeated attempts to get help before he murdered Peggy Murphy. "We begged for help," his sister, Tina Duroy told Amnesty International a year before his execution. "He himself wanted help, and they ... just pushed him out on the street."
The state of Texas, which ranks number one in number of people executed, ranked 46th among the states for amount of money spent per person on the treatment of the mentally ill, including in jails and prisons, according to the National Association of State Mental Health Program Directors.
Amnesty International is beginning to collect data from death row states about mental health spending and the number of mentally ill condemned prisoners. AI researchers are also investigating cases in which families of mentally ill death row inmates tried long ago to get help but were denied because they didn't have the funds or the right insurance.
Sue Gunawardena-Vaughn, director of Amnesty International USA's Program to Abolish the Death Penalty, says states need to "put more money into mental health care so those crimes don't happen in the first place."
The failure to adequately fund mental health services throughout the states imperils more than just the mentally ill, said Hazel Moran of the National Mental Health Association. Every mentally ill person behind bars leaves victims — living or dead — in the free world.
Lot of people are winding up in the criminal justice system because mental health services are not available," she said. "Because the mental health system does not have the resources, a person doesn't have the opportunity to get better and, as a result, they wind up following a path that leads to a bad outcome.
"We think that's a systemic failure."
Gunawardena-Vaughn echoes that belief.
"A society that denies mental health care to those who need it the most and then subsequently executes them is cruel and inhumane at its very core. All of us need to be asking, 'Is this the kind of society that we envision for ourselves?' My answer is that we can and must do better."