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April 01, 2007

Mental Disability and Capital Punishment:A More Rational Approach to a Disturbing Subject

by Ronald J. Tabak

In 2002, in Atkins v. Virginia, 536 U.S. 304 (2002), 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, comprised of twenty-four lawyers and mental health practitioners and academics, to consider whether some of the same concerns under­lying Atkins might apply to people with other types of impaired mental conditions.

After two years of deliberations, the task force, which I chaired, reported on its work and made recommendations. These formed the basis of an IRR-sponsored resolution on the application of capital punishment to severely mentally ill offenders that was adopted unanimously by the ABA’s policymaking body, the House of Delegates, in August 2006. See the recommendations and report at 30 Mental & Physical Disability L. Rep. 668 (Sept.–Oct. 2006).

The ABA believes that these recommendations, which previously had been adopted by both the American Psychological Association and the American Psychiatric Association, should be adopted by all capital jurisdictions. 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

While 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 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 intellectual functioning or 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 adulthood. 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, 125 S. Ct. 1183 (2005), 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 relation 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—with schizophrenia being by far the most common disorder seen in capital defendants. In their acute state, these disorders typically are associated with delusions (fixed, clearly false beliefs); hallucinations (clearly erroneous perceptions of reality); extremely disorganized thinking; or very significant disruption of conscious­ness, memory, and perception of the environment.

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 additional requirement is included because symptoms of these disorders are much more variable than those associated with retardation.

This additional requirement can be satisfied in several ways. One involves a showing of a defendant’s serious difficulty appreciating the wrongfulness of his criminal conduct, such as the erroneous perception, due to psychosis, that his victim was threatening him with serious harm, or the delusional belief that God had ordered him to commit the offense. Another way involves establishing that a defendant, because of severe disorder, engaged in the conduct constituting the crime without intending to commit the crime or was unaware that he was committing it, or that the offender thought he must blow up a power station because electric power lines were implanting demonic curses. A third way involves a showing that at the time of the crime, the defendant had a significant incapacity “to exercise rational judgment in relation to the conduct” because of disoriented, incoherent, and delusional thinking that only people with serious mental disability experience. Finally, the additional requirement can be satisfied by a showing of a defendant’s significant incapacity “to conform [his] conduct to the requirements of law,” such as establishing that he had a mood disorder with psychotic features that made him feel impervious to punishment because of delusion-inspired grandiosity.

This provision is critical to establishing greater fairness in capital jurisdictions’ handling of death penalty cases. There are examples of people sentenced to death, and some who have been executed, who suffered such mental impairment that they might have been exempted from execution had this proposal been law. See Ronald J. Tabak, Executing People with Mental Disabilities: How We Can Mitigate an Aggravating Situation, 25 St. Louis U. Pub. L. Rev. 283, 296–301 (2006).

One final note about this second provision: it 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. With regard to voluntary use of alcohol or drugs, the effects of their use on mental and emotional functioning varies so greatly that such use, in and of itself, should not, in the ABA’s view, suffice to exempt an offender from capital punishment. How­ever, the provision would encompass, and exempt from the death penalty, an offender whose substance abuse caused organic brain disorder or who had one or more other serious disorders that, in combination with the acute effects of substance abuse, significantly impaired his appreciation or control of his actions at the time of the offense.

Prisoners Seeking to Forego 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. The “next friend” could 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. The focus on these additional factors is important in a case where the reasons the prisoner articulates for wanting to waive further proceedings may seem “rational,” such as a desire to take responsibility for his actions, a belief that he deserves the death penalty, or a preference for the death penalty over life imprisonment. Often, such apparently rational reasons are intertwined with emotional distress (especially depression) and hopelessness. Indeed, in many cases, choices that may seem rational may be rooted in suicidal motivations. The provision therefore proceeds from the belief that a prisoner ought not to be permitted to waive further proceedings unless he is able to give plausible reasons for doing so that clearly are not grounded in symptoms of mental disorder.

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.

To avoid unfairness to the inmate and prolonged uncertainty, the provision states that a judicial finding that a death row inmate’s competence to assist counsel is not likely to be restored in the foreseeable future would trigger an automatic reduction of the sentence. Under the ABA resolution, the sentence would become the jurisdiction’s most severe nondeath punishment for a capital offense. In virtually all jurisdictions, that punishment is life without parole.

People Unable to Understand Actual Reasons for Their Executions

The final situation arises from the Supreme Court’s holding in Ford v. Wainwright, 477 U.S. 399 (1986), 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. Nor does the decision set forth a definitive rationale for its holding that might have helped resolve these open questions.

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.

The ABA set forth this view in its amicus curiae brief in Panetti v. Quarterman, 127 S. Ct. 2842 (2007). In its June 2007 decision, the Court essentially agreed with the ABA and held that a death row inmate may be incompetent to be executed if he lacks a rational understanding that the purported reason for the execution is the true reason for the execution. The Court did not go into detail about this rational understanding principle.

When a death row inmate is found incompetent for execution, there is a separate issue that was not before the Court in Panetti: 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, regardless of whether the prisoner objects, except in two highly restricted circumstances: an advance directive by the prisoner while competent requesting such treatment or a compelling need to alleviate the prisoner’s extreme suffering. As the Louisiana Supreme Court observed in Perry v. Louisiana, 610 So. 2d 746, 751 (La. 1992), medical treatment to restore execution competence “is antithetical to the basic principles of the healing arts,” fails to “measurably contribute to the social goals of capital punishment,” and “is apt to be administered erroneously, arbitrarily or capriciously.”

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. As noted above, in virtually all jurisdictions this punishment is life without parole. The current judicial practice, recognized in Panetti, is to adjudicate a claim of incompetence for execution only when an execution is genuinely imminent. Assuming that a judicial finding of incompetence—whenever rendered—would bar execution permanently, as the ABA resolution provides, the ABA believes that Ford adjudications should be available only when legal challenges to the validity of the conviction and sentence have been exhausted, and execution has been scheduled.

A Need for Public Education

Now that the provisions contained in the ABA resolution have been approved by the ABA and other leading professional associations, the next task is to educate the public about these recommendations, stressing why they make sense. Such public education is important because, unlike when the ABA and other organizations were advocating automatic exemption from capital punishment for everyone with mental retardation, this resolution does not advocate that every offender with a diagnosis of mental illness, or even “serious” mental illness, have an automatic exemption from the death penalty. Moreover, the public is far more apt to believe that a seriously mentally ill person, as compared with a person with mental retardation, is likely to pose a future danger to society. The public thus may be considerably more prone to favor the death penalty for a seriously mentally ill offender.

Effective public education could generate sufficient support for some or all of the ABA resolution’s provisions to make it politically possible for legislative bodies to adopt them in whole or part. The level of popular approval for these provisions need not necessarily be a majority but it must be sufficiently large to avoid the perception that a political “death sentence” will befall anyone who votes to enact them.

Meanwhile, litigators representing capital defendants and death row inmates have begun to cite provisions of the ABA resolution. And courts, even when denying relief, are increasingly recognizing the problems that the resolution addresses. But at this time, few judges are likely to find most of the resolution’s provisions to be mandated by the U.S. Constitution, at least in the absence of their being enacted into law in many capital jurisdictions.

Ronald J. Tabak

Ronald J. Tabak is a special counsel in the New York office of Skadden Arps, where he specializes in death penalty and civil rights litigation. He is a guest editor of this issue of Human Rights.