States Move to Exempt People With SMI From Death Penalty

APA Past President and forensic psychiatrist Paul Appelbaum, M.D., said the goal of the recent state efforts seems to be chipping away at the use of the death penalty, now that the Supreme Court barred its use on those with intellectual disability or offenders younger than 18 years of age. “Opponents of capital punishment have decided that people with mental disorders are the next logical place to start,” he said.

Appelbaum is the chair of APA’s Committee on Judicial Action and the Elizabeth K. Dollard Professor of Psychiatry, Medicine, and Law and director of the Division of Law, Ethics, and Psychiatry at Columbia University.

But this is a complicated area, he said, because there are overlapping layers of restrictions already in place on the use of capital punishment on people with serious mental disorders. Defendants who were seriously mentally ill at the time of the crime can present evidence about their serious mental disorder in attempting an insanity defense or use it as a mitigating factor with regard to their sentencing or even at an appeal. Finally, an attorney can move to halt a defendant’s execution if a convict is found to be psychotic or incompetent to understand the punishment.

The reality is that there are many ways a defendant with serious mental illness can end up on death row under current law. “The likelihood of a successful insanity defense is very, very low,” said Howard V. Zonana, M.D., a professor of psychiatry at Yale University, a clinical professor (adjunct) of law at Yale Law School, and a consultant to APA’s Judicial Action Committee. “People are very dubious about a defendant getting away with something. That’s why the insanity defense is so difficult. It can be very hard to explain how someone can be delusional yet plan and execute a crime in a very organized fashion. The illness is controlling them. These people aren’t like the rest of us in a very significant way.”

In the first trial for Andrea Yates, a woman who waited until her husband left for work to systematically drown her five children in a bathtub to save them from Satan, a jury convicted her of capital murder. The jury disregarded her history of severe postpartum psychosis and depression, Zonana pointed out. Compounding the issue is that jurors who sit on a capital jury must be willing to say they’d give the death penalty, he added, “so they tend to be much harsher.”

(Yates’ conviction was overturned by an appeals court because an expert witness gave inaccurate testimony about a television show that was believed to influence Yates’ behavior.)

Appelbaum pointed out representation for mentally ill defendants, who are typically indigent, is often less than optimal, and the assessment of a defendant’s mental illness is often done poorly. Making matters worse, people with mental illness are less able to participate in their defense. And public defenders may make strategic decisions to withhold information about a defendant’s serious mental illness because of the stigma surrounding mental disorders.

There have been a number of cases in which the delusions of a seriously mentally ill defendant led him to fire his attorneys, such as Scott Panetti, who had been long diagnosed with paranoid schizophrenia when he murdered his wife’s parents in Fredericksburg, Texas. During trial preparation, Panetti came to believe his attorney was conspiring to convict him and decided to represent himself. Panetti attempted to call the pope, John F. Kennedy, and Jesus Christ as witnesses in his case. Some 20 years later, his death sentence is still being appealed, with APA and other mental health organizations filing amicus briefs on his behalf.

Still, Applebaum takes issue with proposed state laws that are based largely on the presence of a particular diagnosis. “Why does the defendant get a pass from the death penalty simply by having a diagnosis?” he asked. “For any given psychiatric diagnosis, there can be a broad range of functional impairment.” For example, even with schizophrenia, some individuals are quite functional: they may hold a job, be married, and have a driver’s license, he pointed out, whereas others are so highly impaired that they have no social interactions and no prospects of holding gainful employment and are completely disorganized.

“Both have schizophrenia, but their experiences differ greatly,” said Appelbaum. Like intellectual disability, mental illness should be considered a bar on the death penalty only when it reaches a certain level of functional impairment, he said.

Ultimately, Zonana said, “There are a certain number of people who feel that that in certain cases, the death penalty is warranted.” The question now is how to exclude people with serious mental illness from execution, a punishment intended for the “worst of the worst.” ■