Letter to a Capital Punishment Nation

Mental Illness and the Death Penalty

The U.S. is one of only 36 nations worldwide (18%) that still carries out the death penalty. And we are currently in 5th place for the number of executions each year. We are only outdone by a handful of theocratic and/or totalitarian countries, such as Saudi Arabia, Iran and North Korea. Over half of the nations of the world (53%) have completely abolished the death penalty for all crimes, including virtually the entirety of Europe and South America. Another 26% of countries, while maintaining the death penalty in theory, either have a moratorium on executions or have not used capital punishment in at least ten (10) years. Indeed, even a majority of U.S states have abolished the death penalty, either explicitly or in practice. And perhaps more surprisingly, most death sentences carried out in recent years in the U.S. have been in a tiny handful of jurisdictions, mostly concentrated in the deep south.

The death penalty is, thankfully, falling out of favor around the world, and, finally, here in the U.S. Even in execution-happy Texas, we are seeing a drastic decline in death sentences being handed down. In 1999, Texas juries sentenced 48 people to death. In 2013 that number dropped to 9 death sentences. And in 2015, Texans only sentenced 2 people to die. It is also interesting to note that only 10 counties nationwide imposed 6 or more death sentences between 2010 and 2015, and only 2% of counties were responsible for 56% of the nation’s population on death row.

It was recently reported that only 25 people were executed in America in 2018, continuing the downward trend we have seen with the executions in the U.S. Yet, even with the obvious change in public acceptance of capital punishment, and despite a growing body of knowledge about the failures, fallacies and inequities of the death penalty, our government and court system seem absolutely unwilling to put this outdated system to rest once and for all. While we have been on the right track for a number of years, it should still be unacceptable in today’s world for any number of executions to be carried out, especially in an advanced, modern, and civilized nation.

I have numerous objections to capital punishment: it is expensive; it is ineffective as a deterrent; there is an unacceptable margin of error; and it is cruel, which should disqualify it under the 8th Amendment’s prohibition against “cruel and unusual punishment.” However, most important to me, is that the death penalty is antiquated, barbaric, and nothing more than state-sponsored murder. It is the killing of an unarmed person, when that person poses no immediate threat to any other person. It is murder. And perhaps worst of all, in a shocking percentage of cases, the condemned is suffering from mental illness at the time of the crime and/or at trial and/or at the time they are executed. All my ideological reasons for opposing the death penalty aside, the practice of executing mentally ill people should repel even the most pro-death proponent.

In March of 2015, the State of Missouri executed a man named Cecil Clay for the 1996 murder of a police officer. Cecil Clay was verifiably mentally deficient, having lost 20% of his brain’s prefrontal cortex — the part of he brain that controls decision making — in a sawmill accident. He was diagnosed, long before his fatal encounter with police, as having “chronic brain syndrome”, which caused his IQ to diminish to approximately 71. Three different doctors declared Cecil Clayton incompetent to be executed, but that didn’t stop Missouri from killing him with a secret cocktail of deadly poison. I remember one of the things that I found so shocking was that Cecil Clayton, who was profoundly religious, believed that Jesus was going to spare him. Even as he was being walked down the “longest mile” to the execution chamber, he still insisted that Jesus was going to intervene to save his life. Needless to say, Christ did no such thing.

The following year, in April 12, 2016, the State of Georgie executed a man named Kenneth Fults. The condemned Fults had committed a fairly brutal murder of his neighbor. Incidentally (or not), his neighbor was a white girl — and he was neither. He was a black man, and in 1996 he committed a number of burglaries. During the course of his last burglary he shot his neighbor in the back of the head 5 times. He confessed to the murder, and he pled guilty at trial. After accepting responsibility, the jury sentenced him to death. 20 years later, his sentence was carried out via lethal injection of pentobarbital.

Kenneth Fults told police that he killed his neighbor while he was in a “dream-like state.” He stated that he didn’t mean to kill her — it was just an accident. Normally when someone shoots somebody else in the back of the head 5 times, I have a hard time believing it was an accident. However, in the case of Kenneth Fults, I have a bit more credulity. You see, Kenneth Fults is — or was — intellectually disabled. He had a functional IQ of only 74, which is, in most classification tables, considered “well below average” or “borderline impaired or delayed,” and put him in the lowest 1% of the population. In addition to his obvious mental deficiencies, Kenneth was also abused, neglected and bullied as a child. In other words, he had a substantial amount of mental and emotional baggage long before he committed the crimes which condemned him to death.

These people were executed, even though there are Supreme Court precedents that specifically prohibit carrying out the death penalty on mentally disabled people. In Atkins v. Virginia the Supreme Court of the United States ruled 6–3 that executing people with intellectual disabilities violates the Eighth Amendment’s ban on cruel and unusual punishments. That decision was handed down in 2002. So shouldn’t it have applied to prohibit Georgia and Missouri from executing those mentally impaired prisoners? Of course it should have, except that the Supreme Court’s decision in Atkins failed to offer any definition, or even guidance, on what constitutes intellectual disability. The Atkins decision actually explicitly left that determination to the individual states.

It turns out, that the specific holding in Atkins applied to “mentally retarded” people, although mental retardation was likewise left to the States to interpret. For example, in Virginia, where Atkins was decided, they rely largely on the IQ of the accused to determine mental retardation. In Atkins’ own case, in fact, he had been spared from the death penalty when the evidence suggested his IQ was only 56. However, later it was determined that his intellect had improved through the course of his legal proceedings, and that his IQ rose to above 70, which, under Virginia law, was no longer considered mentally retarded. The reviewing court opined that Atkins’ previously low score was tainted by his use of drugs and alcohol, among other things. Thus, Atkins was once again scheduled to be executed, ignoring the fact that a 70 IQ is still considered borderline at best.

Don’t worry, Atkins was ultimately spared — again. Following the court’s decision to move forward with his execution, another judge raised allegations of prosecutorial misconduct and ultimately commuted his sentence to life in prison. So, as of the time of this writing, presumably Atkins is still alive, and is no longer on death row. But don’t take this as a happy ending to this article. There have been many others who weren’t as lucky as Atkins.

One such unlucky inmate was Warren Hill. Hill was sentenced to life in prison for murder in 1986. However, while he was in prison, he allegedly killed another inmate, and in 1991, for the murder of that inmate, Warren Hill was sentenced to die. There was strong evidence of Warren Hill’s mental disability, including testimony from seven (7) mental health experts — all of the mental health experts that had ever examined him — that Warren Hill was mentally retarded. However, despite numerous stays of his execution by state and Federal courts, Warren Hill was executed in January, 2015. The problem is that in Georgia, which is free to set its own standards for determining intellectual disability, a defendant is required to prove mental retardation beyond a reasonable doubt. Unfortunately for people like Mr. Hill, mental health diagnoses are subject to a degree of uncertainty that is virtually impossible to overcome. The U.S. Delegation to the European Union, President Jimmy Carter and Rosalyn Carter, the American Bar Association, the Georgia NAACP, the ACLU and the Council of Europe all called for Warren Hill’s execution to be stayed. None of it did any good.

In addition to the pronouncements in Atkins prohibiting the execution of intellectually disabled or mentally retarded individuals, the Supreme Court in Ford v. Wainwright, 477, U.S. 399, (1986) stated that defendants who were insane cannot be executed. Insanity is obviously different than intellectually disabled. An insane person may be found competent to proceed to trial, yet may assert a defense of “not guilty by reason of insanity” or “NGRI” for the seasoned trial lawyer. The first “insanity test” arose in 1843 with the case of M’Naughten, who was acquitted on grounds of insanity. In that case it was stated that in order for a defendant to be found not guilty by reason of insanity, he must show he suffers from a mental disease or defect that caused him to either:

1. not know the nature and quality of the act he committed, or
2. 2) not know that the act was wrong.

The first prong of the test looks at cognitive capacity, ie did the mental disease/defect keep the defendant from knowing what he was doing, and the second prong at moral capacity, ie did the mental disease/defect keep the defendant from understanding the act was wrong.

This test has been adopted by most American States, but has been criticized recently for its failure to reflect modern psychiatric knowledge. Moreover, there is no constitutionally minimum standard for the insanity defense and the U.S. Supreme Court has specifically upheld limited definitions, such as the one in Louisiana which exempts the offender’s cognitive capacity as grounds for an insanity plea, as constitutional. Clark v. Arizona, 548 U.S. 735 (2006). Despite the public perception, an insanity defense is rarely used, only appearing in less than 1% of all criminal cases. Even then, an insanity defense is only successful 26% of the time in that small fraction of cases. An ACLU report shows that juries “frequently reject insanity defenses in capital cases despite strong evidence that the defendants are suffering from serious mental illnesses at the time of the crime.” And not surprisingly, many defendants with rather obvious signs of mental illness are punished nonetheless.

Lastly, the Court in Panetti v. Quarterman, 551 U.S. 930 (2007), reconfirmed that defendants could not be executed while they were found to be mentally incompetent, and during the duration of any such incompetence. Competence is yet a different standard, and can occur for any number of reasons. Sometimes mental illness prevents the offender from being competent, and other times a brain injury or trauma can render them incompetent. But competence is not necessarily permanent. In fact, when competency is raised, it is the job of forensic psychologists and psychiatrists to determine whether the defendant is competent, and whether, if incompetent, the defendant is capable of being restored to competence. Restoration services can include counseling and/or medication, and may be as simple as managing an offender’s mental illness symptoms. If a person is found to be mentally retarded, or permanently insane, they may be found “irrestorably incompetent.” If this finding takes place while the case is pending, the case may be stayed indefinitely, and the offender is often referred to a custodial psychiatric facility for treatment and assessment.

Competence is likewise not well-defined, and courts have a limited toolkit for probing this question. The Supreme Court stated in Dusky v. United States, 362 U.S. 402, 402 (1960) that a defendant is competent if:

“he has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding-and [if] he has a rational as well as factual understanding of the proceedings against him.”

However, because of the limited inquiry involved in a competency evaluation, an inmate who is found competent may still be insane or intellectually disabled, and, in fact, such a situation is far more common than most people think, and certainly more common than courts and corrections officers are willing to admit. Thus, many “competent” people are found guilty, sentenced, and far too often executed, with serious mental health issues.

The primary problem with the system as it is, is that while we have these designations — intellectual disability, insanity, and competency — we have no general provision for defendants with mental illness. A person may have schizophrenia, bipolar disorder and manic depressive disorder, yet still be found competent, sane and not intellectually disabled. To be sure, many people with profound mental illnesses are quite intelligent, and would easily satisfy the Dusky criteria for competency, yet they have little or no control over their thoughts and actions. But there is little effort to test this meaningfully in our current system. This failure was confirmed as far back as 2006, when the U.S. Department of Justice’s Bureau of Justice Statistics released a study showing that 64% of local jail inmates, 56% of state prisoners and 45% of federal prisoners had symptoms of serious mental illnesses. Prior to that study, it had been estimated that no more than about 20% of offenders had any mental health issues. And even these numbers aren’t ironclad, as many mental illnesses remain undiagnosed.

The numbers are no more encouraging for death row inmates. The nebulous nature of mental illness has allowed states to continue executing borderline and mentally disturbed people at an alarming rate. In 2015, of the 28 people executed, approximately 75% were mentally impaired or disabled, experienced extreme childhood trauma and abuse, or were of questionable guilt. An examination of the 2015 cases that resulted in execution reveal a disturbing pattern: It’s frequently not just one impairment, such as a low IQ score, that defines these cases, but rather multiple forms of disability and impairment.

And research has suggested that mentally ill defendants are more likely to give false confessions and are generally more vulnerable to coercion and intimidation to give false information. Additionally, they usually have difficulty comprehending their Miranda Rights, and frequently waive their right to counsel. Mentally ill defendants often lack the ability to even form criminal intent. Even when deemed competent to stand trial, and even where an insanity plea fails, mental illness can often prevent a defendant from forming the specific intent to commit the crimes for which they are charged, yet are still often found guilty. And this is even more prejudicial in capital cases, where such a finding may result in the execution of a mentally ill defendant.

Researchers in 2017 concluded that at least 43% of the inmates executed between 2000 and 2015 had received a mental illness diagnosis at some point in their lives. However, the researches cautioned that this number “probably underestimated the prevalence of mental illness — necessarily leaving out those who are undiagnosed, or for whom a diagnosis was not presented at trial or in the sources […] reviewed.” They also noted that trauma, while not a mental illness, is a risk factor for mental illness, and death row inmates are up to 4 times more likely to have suffered childhood trauma than the national average. It is also well-accepted that childhood trauma’s long-term effects include higher likelihood of disrupted neurodevelopment, cognitive impairment, mental illness, and becoming the perpetrator or victim of violence.

Just in 2015, half of the inmates who were executed had an intellectual impairment, brain injury or serious mental illness. In addition to Warren Hill and Cecil Clay, discussed earlier, 12 others were executed with varying levels of mental disability, including Juan Garcia who had an IQ of 75 and was condemned to death at the age of 18.; Robert Charles who had a 67 IQ and was said to be “rather obviously retarded” by a psychiatrist employed by the state; Andrew Brennan who was a Vietnam veteran with post-traumatic stress disorder and bipolar disorder who was categorized as 100% disabled by the V.A.; and Kent Spouse, who was diagnosed schizophrenic and who was “psychotic, paranoid, believed people were persecuting him, and did not understand the wrongfulness of his conduct” according to a court-appointed psychiatrist. Remarkably, none of these mental deficiencies met the threshold of proof, established by the various states.

One thing that should be clear from the data is that 1) a large percentage of criminal defendants are mentally impaired in some form or another; and 2) that our justice system has an insufficiently rigorous process for determining when a defendant is mentally disabled. Thus, many of the prisoners that we send to death row, and that are executed by the states, may have some mental or emotional disability that limits their exercise of free will, or their ability to understand the consequences of their actions, or the nature of the circumstances in which they find themselves. And while these are exactly the types of people that are supposed to be protected by the various standards herein discussed, they are far too often allowed to proceed, even when their handicaps are pointed out.

So, without calling for an outright ban on capital punishment in this country — I do, but just for the sake of argument — I would at least call for the United States to adopt a national standard for determining when a person should be exempt from the death penalty on the basis of mental illness or handicap. And that national standard should be based on scientific consensus and reason, without the subjective legal analyses so often implicit in our current system. In doing so, we may still claim to be a pro-capital punishment nation, while in practice the actual number of executions carried out will drop precipitously. That way we can still be one of the very few developed nations that allow capital punishment, but not one of the countries that executes the most people (occasionally even wrongfully-convicted people). It’s a win-win situation — kind of.