Mental Disability and Capital Punishment

By Ronald J. Tabak

Public education could generate the support needed to make legislative enactment of the ABA proposals possible.

In Atkins v. Virginia, the U.S. Supreme Court held that the execution of people with mental retardation violates the Eighth Amendment’s ban on cruel and unusual punishment. The following year, the American Bar Association (ABA) Section of Individual Rights and Responsibilities (IRR) established a Task Force on Mental Disability and the Death Penalty to consider whether some of the same concerns underlying Atkins might apply to people with other types of impaired mental conditions. The IRR then sponsored a resolution on the application of capital punishment to severely mentally ill offenders that was adopted unanimously by the ABA House of Delegates in August 2006. This article summarizing the task force’s conclusions draws heavily from the supporting report presented to the ABA House of Delegates.

Clarifying and modestly expanding Atkins. Although the Supreme Court in Atkins prohibited the execution of people with mental retardation, it did not define mental retardation. The first part of the ABA resolution calls for using the definition endorsed by the American Association of Mental Retardation (subsequently renamed the American Association on Intellectual and Developmental Disabilities), which is consistent with the definition in the most recent edition of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders. This approach, unlike some capital jurisdictions’ approaches, captures the universe of people who are, according to Atkins, less culpable and less likely to be deterred than the “average murderer.”

This first provision of the ABA resolution also calls for exempting from the death penalty people who, at the time of the crime, had dementia or traumatic brain injury severe enough to result in “significant limitations in both their intellectual functioning and adaptive behavior.” These disabilities are very similar to mental retardation in their impact on intellectual and behavioral functioning but, unlike mental retardation, may arise in adult-hood. The ABA believes that exemption from the death penalty is warranted in such cases because the only significant characteristic that differentiates these severe disabilities from mental retardation is the age at which the disabilities arise.

Exempting from execution some people with severe mental disabilities. The second provision of the ABA resolution calls for barring the death penalty for persons with severe mental disabilities if their demonstrated impairments of mental and emotional functioning at the time of the offense would render a death sentence disproportionate to their culpability. In Roper v. Simmons and Atkins, the Court said that juveniles and those with mental retardation are not as culpable and deterrable as the average murderer. The ABA believes that the same is true of those whose “severe mental disorder or disability . . . significantly impaired their capacity” at the time of the offense (1) “to appreciate the nature, consequences, or wrongfulness of their conduct”; (2) “to exercise rational judgment in re-lation to the conduct”; or (3) “to conform their conduct to the requirements of law.”

The serious mental disabilities that this provision addresses include schizophrenia and other psychotic disorders, mania, major depressive disorder, and dissociative disorders. This provision requires not only diagnosis of the serious mental disability but also a showing that the disorder significantly impaired cognitive or volitional functioning at the time of the offense.

This second provision explicitly does not encompass, and thus does not exclude from capital punishment, those whose disorder is “manifested primarily by repeated criminal conduct or attributable solely to the acute effects of voluntary use of alcohol or other drugs.” Thus, the exemption would not include those whose only diagnosis is antisocial personality disorder.

Prisoners seeking to forgo or end postconviction proceedings. The resolution’s third provision addresses three distinct situations that can arise with regard to prisoners who already have been sentenced to death. The first occurs when a death row inmate wishes to waive appeals and collateral proceedings aiming to set aside his conviction or sentence. Under the provision, such a waiver should not be permitted if the death row inmate has a mental disorder or disability “that significantly impairs his or her capacity to make a rational decision.” In that circumstance, the provision would permit a “next friend”—such as a family member, close friend, or attorney—to litigate appeals or postconviction or habeas corpus proceedings on the inmate’s behalf and raise whatever potentially meritorious reasons there may be for vacating the conviction or death penalty. Under this provision, assessing the death row inmate’s competence to waive further proceedings would encompass not only the prisoner’s understanding of the consequences of his decision, but also his reasons for wanting to waive all claims and the rationality of his thinking and reasoning.

Prisoners unable to assist postconviction counsel. The second situation arises when an inmate’s competence to participate in state postconviction or federal habeas corpus proceedings becomes impaired. Under the ABA provision, a court should suspend a proceeding upon proof that a death row inmate is incompetent to assist his counsel in the proceeding, if the inmate’s participation is necessary for fair resolution of at least one identifiable claim that has been or might be raised in the proceeding.

This provision was developed because of its drafters’ awareness that, since capital punishment was revived in the 1970s, scores of death row inmates have been exonerated based on claims of factual innocence and many more offenders have been removed from death row and given sentences less than death because of subsequent discovery of mitigating evidence that could have been, but was not, presented at trial. The possibility, however slim, that an incompetent person may not be able to assist counsel in constructing what could be a viable factual or legal claim requires, therefore, that his proceedings—and execution—be stayed.

People unable to understand actual reasons for their executions. The final situation arises from the Supreme Court’s holding in Ford v. Wainwright that execution of an incompetent prisoner constitutes cruel and unusual punishment proscribed by the Eighth Amendment. Unfortunately, the decision does not specify a constitutional definition of incompetence or prescribe the constitutionally required procedures for adjudicating the issue.

The ABA resolution proposes that, in order to be competent for execution, a death row inmate not only must be “aware” of the nature and purpose of punishment but also must “appreciate” its personal application in his own case—that is, why it is being imposed on the offender. The rationale for this proposal is that if, as is generally assumed, the primary purpose of the constitutional requirement that an offender be competent to be executed is to vindicate the retributive aim of punishment, then an offender should have more than a shallow understanding of why he is being executed. In Panetti v. Quarterman, the Court essentially agreed with the ABA, holding that a death row inmate may be incompetent for execution if he lacks rational understanding that the execution’s purported reason is the true reason.

When a death row inmate is found incompetent for execution, there is a separate issue: whether a person found incompetent to be executed should be treated to restore that competence. The ABA resolution addresses this question, which implicates not only the prisoner’s constitutional right to refuse treatment but also the ethical integrity of the mental health professions. Mental health professionals are nearly unanimous in the view that treatment with the purpose or likely effect of enabling the state to carry out an execution of a person who has been found incompetent for execution is unethical. Accordingly, the ABA resolution provides that when a prisoner is found incompetent for execution, his death sentence should automatically be commuted to the jurisdiction’s next most severe punishment for the capital offense.

Effective public education could generate sufficient support for some or all of the ABA proposals to make legislative enactment possible.

For More Information About the Section of Individual Rights and Responsibilities

- This article is an abridged and edited version of one that originally appeared on page 5 of Human Rights, Spring 2007 (34:2).

- For more information or to obtain a copy of the periodical in which the full article appears, please call the ABA Service Center at 800/285-2221.

- Website:

- Periodicals:  Human Rights, quarterly journal; IRR News Report, quarterly newsletter; IRR E-newsletter, bimonthly electronic publication.

- CLE and Other Educational Programs: The Section offers a variety of cutting-edge CLE programs and teleconferences each year; for more information, please visit our website.

- Events: Thurgood Marshall Award Reception and Dinner, held each year during the ABA Annual Meeting; Father Drinan Service Award Reception, held each year during the ABA Midyear Meeting.

Ronald J. Tabak is a special counsel in the New York office of Skadden Arps. He may be reached at .

Copyright 2008

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