On January 9, 2021, Ohio Governor Mike DeWine signed House Bill 136 into law, which bans the imposition of the death penalty on defendants who were seriously mentally ill at the time of their offense.
In order to meet the criteria for “serious mental illness” as defined by the statute, a defendant must be diagnosed with either schizophrenia, schizoaffective disorder, bipolar disorder, or delusional disorder. The defendant must also prove that at the time of their offense, their mental illness significantly impaired their “capacity to exercise rational judgment” with respect to “conforming [their] conduct to the requirements of law” or “appreciating the nature, consequences, or wrongfulness” of their conduct.
The language describing significant impairment in the Ohio statute is nearly identical to that in the ABA’s Mental Illness Resolution, adopted in 2006. In the wake of Atkins v. Virginia (2002), in which the U.S. Supreme Court ruled that executing people with intellectual disability constitutes cruel and unusual punishment under the Eighth Amendment, the ABA considered the extent to which other types of mental conditions warrant formal exemptions from the death penalty. Along with the American Psychiatric Association and the American Psychological Association, the ABA adopted a resolution urging jurisdictions that impose capital punishment to implement policies that exempt defendants from the death penalty if, at the time of the offense, they had “a severe mental disorder or disability that significantly impaired their [rational] capacity.”
The Ohio law also states that a defendant who fails to be found not guilty by reason of insanity, or to be found incompetent to stand trial, may nevertheless meet the standards for serious mental illness that could exempt them from execution.
When the matter of a defendant’s serious mental illness is raised before trial, the new law affords that defendant an opportunity for a pretrial evaluation and a pretrial hearing to determine if they are eligible to receive the death penalty. If the defendant proves, by a preponderance of evidence, they meet the aforementioned criteria for serious mental illness, they will face an automatic life-without-parole sentence upon conviction. Current prisoners on death row will also have one year to petition the court to overturn their death sentences on the same grounds that would have provided an exclusion from the death penalty under the statute. The law will take effect on April 12, 2021.
This legislation was modeled after recommendations made by the Ohio Supreme Court’s Death Penalty Task Force in 2014. The task force was made up of 22 judges, prosecutors, defense lawyers, law professors, and policymakers who studied the administration of Ohio’s death penalty for two years before releasing the final report containing their recommendations.
Since the report, a bipartisan group of lawmakers, led by Rep. Bill Seitz (R-Cincinnati) have consistently pushed for legislative reform on this issue. In his testimony before the House Criminal Justice Committee, Rep. Brett Hillyer (R-Uhrichsville) advocated for House Bill 136 and listed the mental health advocacy organizations that have provided their “overwhelming support,” including the National Alliance on Mental Illness of Ohio.
These lawmakers have received significant pushback from Ohio prosecutors. In his testimony on behalf of the Ohio Prosecuting Attorneys Association, Portage County Prosecutor Vic V. Vigluicci said that the statute would make Ohio’s death penalty unenforceable because its definition of serious mental illness “will result in the exclusion of most, if not all, offenders from the death penalty in Ohio.” Mr. Vigluicci also asserted that “Ohio is not executing the severely mentally ill” because the existing laws on insanity and incompetency to stand trial provide sufficient safeguards.
Despite this opposition, the bill overwhelmingly passed the Senate 27-3, and the House 72-14, in December 2020.
In 2016, the American Bar Association’s Death Penalty Due Process Review Project analyzed the existing legal procedures surrounding mental illness and the death penalty and released a 44-page white paper concluding that states should adopt policy with death-penalty exemptions for defendants with serious mental illness. Since 2017, six other states – Idaho, Indiana, North Carolina, South Dakota, Tennessee, and Virginia – have introduced similar legislation, but Ohio is the first to pass it.