"One is absolutely sickened, not by the crimes that the wicked have committed, but by the punishments that the good have inflicted." -- Oscar Wilde

Thursday, March 23, 2017

USA: Can Mentally Ill Americans Be Executed? It's Complicated

Several states are considering a ban on capital punishment for people with mental illnesses or brain injuries.

There is a difference between mental illness - which encompasses a wide range of diagnoses, including serious ones like schizophrenia and paranoia - and insanity, a condition that is much more narrowly defined and more difficult to prove.

Insanity can shield you from being put on trial, found guilty or executed. But serious mental illness can't.

Dylann S. Roof, who killed 9 African-American churchgoers in Charleston, S.C., in 2015, has been sentenced to death despite some evidence of mental illness.

Here is a primer on mental illness and the death penalty.

Yes. The Supreme Court has repeatedly declined to shield mentally ill people from the death penalty, saying only that people who are insane cannot be executed.

But "the insane" is narrowly defined as "those who are unaware of the punishment they are about to suffer and why they are to suffer it" - a definition that excludes most people with severe mental illness.

Georgia executed Andrew H. Brannan, a decorated Vietnam War veteran with post-traumatic stress and bipolar disorder, in 2015. Florida executed John E. Ferguson, who believed that he was the "Prince of God" and that his death would save the world, in 2013.

7 states are likely to introduce legislation this year that would bar execution for people with severe mental illness, according to the 8th Amendment Project, an anti-death-penalty group. The bills do not agree on a common definition of severe mental illness, but it would typically include schizophrenia and schizoaffective disorder, bipolar disorder, major depressive disorder, post-traumatic stress disorder and traumatic brain injury.

If enough states exempt people with such illnesses, the Supreme Court may decide that national standards of decency have evolved and follow suit.

Critics of executing people with serious mental illnesses, including the American Bar Association, say these people are more vulnerable to wrongful convictions. Among other things, they may be more likely to make false confessions.

Are other categories of people exempt from execution?

Yes. The Supreme Court has held in recent years that juveniles and people with intellectual disabilities should not be put to death because they are less culpable.

But the limits can seem arbitrary: Someone who is a day under 18 when they commit a crime cannot be executed, but someone who is a day past their 18th birthday can. And because intellectual disability is legally defined as a disorder that manifests before age 18, people with brain damage do not necessarily qualify. Someone who suffered a brain injury as an adult would not be exempt from capital punishment even if their cognitive function is similar to that of an intellectually disabled person.

Insane is different from mentally ill. The legal definition of insanity centers on the inability to comprehend the nature of one's actions, a lack of understanding of right and wrong, or, in some states, a lack of capacity to control one's actions.

The insanity defense is rarely used and even more rarely successful. For example, Andrea Yates was deeply psychotic when she drowned her 5 children in 2001, believing she was saving them from damnation. But that did not mean she did not understand the consequences of her actions or know they were wrong. At her first trial, the jury rejected her insanity defense.

And when it comes to execution, it is the person's mental state at the time of punishment that matters. No one argued that Alvin Bernard Ford was insane when he killed a police officer in 1974. But he later became obsessed with the Ku Klux Klan and came to believe that family members and prominent politicians were the victims of a prolonged hostage crisis. His case, Ford v. Wainwright, reached the Supreme Court, which ruled in 1986 that an insane person could not be executed.

3 years later, though, a federal judge ruled that Mr. Ford was not insane. He died on death row, of natural causes, in 1991.

Sanity can fluctuate. Robert Dunham, the executive director of the Death Penalty Information Center, argued that one of his former clients, Gary M. Heidnik, was incompetent to be executed (that is, insane) because he believed that the death warrant against him was fake. During a hearing, it was explained that the warrant had been signed by the real governor of Pennsylvania, and Mr. Heidnik accepted that it was legitimate.

"While on the stand, he became competent to be executed," Mr. Dunham recalled. "He was executed despite the fact that he was stone-cold nuts."

The Supreme Court and many state laws say that mental illness - along with things like childhood abuse, trauma and the lack of a previous criminal record - can be presented as a mitigating factor for jurors to consider during the punishment phase of capital cases. Mitigating factors weigh against the death penalty; aggravating factors, like torturing a victim, weigh in favor of death.

A jury declined to give a death sentence to James E. Holmes, who killed 12 people at an Aurora, Colo., movie theater in 2012, because of his long-term mental illness. There is, however, a risk that jurors will view severe mental illness as inherently dangerous.

Dylann S. Roof represented himself during the sentencing phase of his trial and refused to allow the jury to hear evidence of mental illness. He wrote in a journal that psychology was "a Jewish invention." Court papers unsealed after the trial indicated that he had "social anxiety disorder, a mixed substance abuse disorder, a schizoid personality disorder, depression by history and a possible autistic spectrum disorder."

The judge in Mr. Roof's case had to determine not whether he was mentally ill, but whether he was competent to stand trial - in other words, to understand the proceedings and assist in his defense - and able to represent himself.

Mr. Dunham argues that if Mr. Roof had the delusional belief that mental illness did not exist, it was a mistake to deem him capable of making rational decisions on whether to present evidence of his condition, "because his views about mental illness were themselves a product of his mental illness."

Source: New York Times, March 22, 2017

⏩ Related content: Severe mental illness and the death penalty, March 21, 2017

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