Mental Illness and the Death Penalty in the United States

· Bipolar Disorder
· Borderline Personality Disorder
· Post-Traumatic Stress Disorder
· Schizoaffective Disorder
· Schizophrenia
· Depression
· Recurrent Thoughts of Death or Suicide

Over 60 people diagnosed as mentally ill or with mental retardation have been executed in the United States since 1983.   While precise statistics are not available, it is estimated that 5 to 10 percent of people on death row have a serious mental illness.  

After evaluating dozens of death row inmates, Dr. Dorothy Otnow Lewis, a professor of psychiatry at New York University, found that almost without fail they all had damaged brains due to illness or trauma, and most were also victims of vicious beatings and sexual abuse as children.  She found psychotic symptoms, especially paranoia, to be common on death row.

Similarly grim figures were reported by the Bureau of Justice Statistics: 

· In 1998, an estimated 283,000 mentally ill offenders were incarcerated in prison or jail. 
· Over 30 percent of male mentally ill inmates and 78 percent of female mentally ill inmates reported physical or sexual abuse. 
· Mentally ill state prison inmates were also more than twice as likely as other inmates to report living on the street or in a shelter in the 12 months prior to arrest (20 compared to 9 percent).

What's more, according to many mental health experts these statistics may underestimate the problem of the incarceration of the mentally ill due to under-reporting by people who might not want to disclose the information or are unaware of their illness.

The 1986 Supreme Court decision, Ford v Wainwright,  ruled that the execution of the insane violates the Eighth Amendment's ban on cruel and unusual punishment.  Ford only prohibits the execution of a person who does not understand the reason for, or the reality of, his or her punishment.  Tragically, many people who are mentally ill do not qualify as being insane, resulting in severely mentally incompetent people being executed regularly.  Thus, Ford has provided only minimal protection and has not prevented the executions of seriously mentally ill prisoners.

Popular misconceptions about mental illness are partially responsible for the railroading of mentally ill persons through the criminal justice system.  From arrest to the determination of competency to stand trial and beyond, a person's mental illness affects every stage of passage through the criminal justice system.

Behavior associated with mental illness is often perceived as bizarre and suspicious, thus drawing police attention, even if the person has not committed a crime.  Untrained to recognize and handle mental illness, arresting officers and other staff inappropriately assume the arrestee understands such things as their Miranda rights.  Mentally ill people are more likely to give a false confession, especially if they are delusional.

Mentally ill people are not as culpable for their crimes

The concept of culpability is an important aspect of who is sentenced to death.  Culpability signifies qualities such as consciousness, reason, and responsibility.  It is precisely these qualities that are disabled and distorted by mental illness and therefore a gap exists between a mentally ill offender's behavior and his culpability.

In death penalty cases, the issue of mental illness can be raised as a mitigating factor.  Mitigating factors are particular circumstances that are legally recognized to decrease a defendant's culpability and result in a non-death penalty sentence.  Since untreated brain disorders can cause individuals to act in inappropriate or criminal ways, certain aspects of mental illness, such as a defendant's diminished capacity to appreciate the criminality of his conduct, and to conform his conduct to the requirements of the law, are codified as mitigating factors in capital cases.   In a majority of cases, dangerous or violent behavior exhibited by persons with brain disorders is the result of neglect, and inappropriate, or insufficient treatment, of their illness. Therefore, mentally ill offenders are by definition not the worst of the worst offenders.

At the trial stage, research has shown that jurors often misunderstand the relationship between mental illness and mitigating factors, and that they are prone to mistakenly treat mental illness as an aggravating factor and sentence the person to death. For example, one study found a positive correlation between the jurors' consideration of the (mitigating) factor "extreme mental or emotional disturbance" and the imposition of death sentences.  Another study revealed jurors wrongly interpreted instructions on "future dangerousness" to mean the death penalty was mandatory for mentally ill defendants.

Misinformed perceptions of mental illness by jurors affect their decisions.  When police officers, prosecutors, judges, and jurors act upon these misinformed perceptions and misunderstand the relevance of mental illness to a defendant's culpability, the mentally ill person is likely to be wrongfully convicted or sentenced to death.       

International human rights standards

International law prohibits the execution of the mentally ill, and almost every country in the world has outlawed such executions. 

· The United Nations Safeguards Guaranteeing Protection of the Rights of those Facing the Death Penalty, adopted in 1984, states "?nor shall the death sentence be carried out?on persons who have become insane." 
· In 1997, the U.N. Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions called upon those governments that use the death penalty "with respect to minors and the mentally ill?to bring their domestic legislation into conformity with international legal standards." 
· And in 2000, the U.N. Commission on Human Rights urged states that maintain the death penalty "not to impose it on a person suffering from any form of mental disorder; not to execute any such person."

Mentally ill people have been and continue to be executed in the United States in clear violation of these international standards.

Domestic laws to protect the mentally ill and their failures

While U.S. constitutional law is in line with some of the international standards outlined above, the number of mentally ill people sentenced to death and executed attests to the failures of the law to protect them.  The American Bar Association has reported that "fundamental due process is systematically lacking" in the capital punishment structure, and that these systematic failures "tragically and irreparably" harm defendants in many capital cases.

In addition to the flawed application of the laws that handle mental illness and the death penalty, and the inadequate procedures states follow to diagnose and treat mentally ill inmates, there are also problems with the laws themselves and the way they do not account for the intricacies of mental illness with their narrow definitions of insanity. 

Medicating to execute

Narrow definitions of insanity leave room for manipulation by the state with an interest in executing prisoners. Ford's minimal definition of insanity allows states to endorse the practice of forcibly medicating an inmate to the lowest point of competency legally required prior to his execution.  The Supreme Court recognizes the very serious side effects of psychotropic drugs but maintains that a prisoner can be forcibly medicated if it's in his best medical interest, or if it is necessary for the state to control the inmate. 

An example of medicating an inmate to make him eligible for execution is Charles Singleton. Singleton was executed by the state of Arkansas on January 6, 2004.  He was a paranoid schizophrenic who suffered from psychotic symptoms such as "constant voices that speak of killing him."   By the late 1980s he had begun to suffer delusions, such as that his cell was possessed by demons and that his thoughts were being stolen as he read the Bible. He described himself variously as the "Holy Ghost" and "God and the Supreme Court." He expressed the belief that execution was simply a matter of stopping his breathing, and that a judge could restart it again-clearly a lack of understanding of the nature of execution.

     In 1997, prison authorities obtained a court order to forcibly medicate him to render him temporarily mentally competent, saying he posed a danger to himself and others, but conveniently rendering him eligible to be put to death.
 
Singleton's attorneys filed a lawsuit arguing the state could not constitutionally restore his client's mental competency through the use of forced medication and then execute him.  In October 2001, a panel of the 8th U.S. Circuit Court of Appeals ruled that Singleton be sentenced to life in prison without the possibility of parole.

The state appealed, and in February 2004, a sharply divided full 8th Circuit Court lifted a stay of execution for Singleton. The court said at the time that because Singleton was "voluntarily taking his medication" and because Arkansas had an interest in having sane inmates, the side effect of sanity should not affect Singleton's sentence.

Other examples of the execution of the mentally ill

Kelsey Patterson

Kelsey Patterson was executed in Texas on May 18, 2004 for a double murder he committed in 1992.  Patterson had a long history of serious mental illness.  He was first diagnosed with paranoid schizophrenia in 1981, and his symptoms of hallucinations, delusions, paranoia, confused thinking, and altered senses, emotions, and behavior had been well documented.

A jury found Patterson competent to stand trial despite his behavior at the competency hearing, and at his 1993 trial, even though he repeatedly interrupted proceedings with confused ramblings about his implanted devices and the elaborate conspiracy against him.  These displays alone provided enough compelling evidence that he was delusional and incapable of understanding what was going on or being able to assist in his defense.  Moreover, expert witnesses and several judges involved in Patterson's trial stated clearly that he undoubtedly suffered from paranoid schizophrenia.  But despite Patterson's severe mental illness, as well as several egregious flaws in the trial, Patterson was still executed. 

James Colburn

James Blake Colburn was executed by the state of Texas on March 26, 2003.  Like Patterson, he was also a paranoid schizophrenic with a documented history of mental illness.  In addition to schizophrenia, Colburn exhibited signs of post-traumatic stress disorder due to being raped as a teenager.  Colburn had made several suicide attempts over the years and had a long history of drug abuse beginning in his adolescent years.  At the time of the homicide, Colburn was "actively psychotic" and in his taped confession he stated that he had been "hearing voices telling him that this murder was a way for him to get back into prison."
Colburn's mental illness was even acknowledged by the trial prosecutor in his opening statement: "You are going to hear evidence that the defendant is a paranoid schizophrenic...You will hear evidence that he's heard voices and you are going to see him on tape.  He's shaking or fidgeting. The State is not going to contest or deny any of that..." Despite this clear admission, the defense attorney did not ask for a competency hearing and the jury handed down a verdict of death.

Pernell Ford

Pernell Ford was executed by the state of Alabama on June 1, 2000 for the murders of two women during a 1983 burglary. Ford was 18 years old at the time of his conviction. From the age of six, Pernell Ford spent extended periods in mental health institutions, and by 13 was being prescribed powerful anti-psychotic and anti-depressant drugs.  During his adolescence he attempted suicide several times, by methods including overdose, hanging and poisoning. He was also reported to have attempted suicide on death row.

Shortly before his trial, Ford dismissed his lawyers. He was found competent to act as his own lawyer despite his youth, his limited formal education, an IQ measured at 80, and his history of mental problems. The only ''defense'' he offered was that God would intervene at the trial and bring the victims back to life. For most of the proceedings, Pernell Ford remained silent and withdrawn. There was no opening statement on his behalf, no objections, and no cross-examination of any witnesses.

At his sentencing, Pernell Ford dressed himself in a white bed sheet, worn toga-style with a belt and shoulder strap made from a white towel. In a long speech, he asked the judge to have the coffins of the victims brought into the courtroom so that God could raise them from the dead in front of the jurors. After sentencing him to death, the judge told Ford that by law he would receive an automatic appeal. Pernell Ford responded that he did not want one.

Ford initially was set for execution in July 1999, but a federal appeals court delayed his death after his former attorney questioned his mental state. At a court hearing, Ford testified he could leave death row through "translation," and had visited heaven and other spots worldwide while in prison. He said he had millions of dollars in a Swiss bank account, which would support his children and his 400,000 wives after he was executed and became a part of the Holy Trinity. The court ruled in November that Ford was competent to fire attorney LaJuana Davis and drop his appeals. Governor Don Siegelman rejected a clemency request filed by Davis, who cited Ford's history of mental problems.

Call for a moratorium

The fundamental lack of due process for the mentally ill effectively results in the punishment of vulnerable persons for their disabilities and for the failures of the courts to understand and protect them.  Mentally ill persons who commit crimes as a result of their brain disorders require treatment, not punishment.  The ACLU calls for an immediate moratorium on the executions of mentally ill prisoners.  Our laws, criminal justice practices, and a sense of compassion should stand for the principle of justice embodied in the Constitution's Eighth Amendment and in the international human rights standards of the United Nations.

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