America Is Stuck With the Death Penalty for (At Least) a Generation

With Justice Anthony Kennedy's retirement, the national fight to abolish capital punishment will have to go local.
When the Supreme Court revived capital punishment in 1976, just four years after de facto abolishing it, the justices effectively took ownership of the American death penalty and all its outcomes. They have spent the decades since then setting its legal and constitutional parameters, supervising its general implementation, sanctioning its use in specific cases, and brushing aside concerns about its many flaws.
That unusual role in the American legal system is about to change. With Justice Anthony Kennedy’s retirement from the court this summer, the Supreme Court will lose a heterodox jurist whose willingness to cross ideological divides made him the deciding factor in many legal battles. In cases involving the Eighth Amendment’s prohibition against cruel and unusual punishment, his judgment often meant the difference between life and death for hundreds of death-row pr…

Study: Mental illness exemption to death penalty would save Tennessee more than $1 million a year

Banning the death penalty for defendants with severe mental illness would save the state of Tennessee an estimated $1.4 to $1.9 million a year, a new ABA study says.

The study was released by the ABA's Death Penalty Due Process Review Project, which advocates for a severe mental illness exemption in any jurisdiction that uses the death penalty. To analyze the cost savings associated with such an exemption, the study focused on Tennessee.

"A severe mental illness exclusion could result in cost savings [because] a subset of individuals who currently could face expensive capital prosecutions and decades of appeals would become ineligible," the report says. "[T]heir trials and appeals would be significantly truncated, while still resulting in guilty verdicts."

The study sampled Shelby County, Tennessee's death row population to determine what percentage of those people had severe mental illness. Severe mental illness was defined as a documented diagnosis of schizophrenia, schizoaffective disorder, bipolar disorder, major depression or delusional disorder. 15 % of Shelby County capital defendants had such a disorder, and the authors applied that proportion to all death sentences handed down in the state since 1977. It estimated that 28 cases may have involved severe mental illness over that time.

Using an Urban Institute study of Maryland death penalty costs, conducted in 2008, the authors then estimated that a death penalty case costs roughly $1.9 million more than a non-capital case. Thus, they calculated that a severe mental illness exemption would have saved the state $54.8 million from 1977-2017, or an average of $1.4 million a year. If the true proportion of capital defendants with severe mental illness is 20 %, they say, the average yearly savings would be $1.89 million.

Tennessee was chosen because it makes detailed data available on all 1st-degree murder cases filed since 1977, the authors say, and because there's currently a campaign in that state to exempt capital punishment for defendants with severe mental illness. Several other states are considering, or have considered, such an exemption, the study notes. These campaigns focus on the cost of implementing the death penalty, as well as law and public policy arguments.

The authors note that the ABA has called for a severe mental illness exemption in 2006's Resolution 122-A. (As a matter of policy, the ABA does not take a stand on the death penalty itself.) That resolution says such an exemption would be a natural extension of Supreme Court cases limiting the death penalty for people with intellectual disabilities.

Source: abajournal.com, June 22, 2018

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