last updated July 15, 2004

In 1997, the U.N. Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions called upon all governments continuing to execute the mentally ill to “bring their domestic legislation into conformity with international legal standards (by prohibiting such executions).” In April, 2000 the U.N. Commission on Human Rights again urged the few nations maintaining capital punishment to refrain from imposing it upon “person(s) suffering from any sort of mental disorder ….” According to Amnesty International, virtually every country in the world currently prohibits imposing the death penalty on mentally ill individuals. [Amnesty International]. Despite this global trend, the United States has yet to answer the U.N.’s calls for such a prohibition.

In 2002, the U.S. Supreme Court made a strong move towards bringing the United States in line with international norms, holding in Atkins v. Virginia that imposing the death penalty upon the mentally retarded is cruel and unusual punishment. While the import of Atkins cannot be overstated, its scope does not cover millions of Americans rendered virtually helpless by severe and disabling mental defects.

There is a distinction between the mentally retarded and the mentally ill, and the protection Atkins affords the former does not extend to the latter. The American Association on Mental Retardation defines mental retardation as “a disability characterized by significant limitations both in intellectual function and in adaptive behavior as expressed in conceptual, social, and practical adaptive skills.” Three factors are generally considered when classifying individuals as mentally retarded: 1) whether the person’s intelligence quotient is below average, with the threshold I.Q. typically set at 70, 2) whether the person has substantially limited daily living skills, and 3) whether the on-set of these disabilities occurred before the age of eighteen. Quite distinct from mental retardation, mental illness is defined by the American Psychiatric Association (APA) as “a psychiatric disorder that results in a disruption in a person’s thinking, feeling, moods, and ability to relate to others.” While some mentally ill individuals may also be mentally retarded, a great number are not. In fact, many suffering from mental illness, including several famous artists and writers, are highly intelligent, highly functioning individuals.

The mentally ill most likely to be executed are those suffering from psychotic disorders, which include severe mental illnesses such as schizophrenia and bipolar disorder (manic-depressive illness). According to the APA, these illnesses cause a mental state in which there is a disorder of the individual’s personality and perception of reality. Psychosis is a symptom of such disorders. Persons suffering psychotic episodes may experience visual or auditory hallucinations, paranoid or delusional beliefs, and disorganized thinking. Common paranoid delusions include beliefs that the individual is being followed or poisoned, that others are conspiring against the individual, and that external forces are controlling the individual’s thoughts and actions. When suffering from such episodes, psychotic individuals are nonetheless frequently able to perform acts requiring substantial intellectual effort. Typically, however, these individuals do not recognize the unusual or bizarre nature of their acts and behavior. [American Psychiatric Association].

Psychotic disorders are complex illnesses, and are generally thought to be caused by several factors—such as genetics, trauma to the brain at an early age, and the effects of social isolation, abuse or stress—acting in unison. Studies show that approximately half of all persons suffering from such disorders never seek treatment, because they are incapable of recognizing they are ill. Those who do seek treatment face numerous obstacles to wellness. First, these illnesses are difficult to diagnose, and symptoms must often be present for at least six months before a formal diagnosis can be made. Second, even with proper diagnosis, only one in five can be said to “recover” from psychotic disorders. Some individuals cannot be helped by available treatments, and others discontinue treatment due to the harsh side effects of many psychotropic medications. Ultimately, the mentally ill often experience an inability to cope in society due to their illness, inadequate treatment, and a lack of social support. Schizophrenics in particular tend to feel isolated and stigmatized, and one in ten commit suicide. An even higher percentage of individuals with bipolar disorder take their own lives. [Psychiatry 24x7.com].

The National Mental Health Association (NMHA) estimates that more than one in ten death row inmates suffer from such severe mental illnesses. The NMHA opposes the use of the death penalty as punishment for all mentally ill individuals, stating that “mental illness can influence an individual’s mental state at the time he or she commits a crime, can affect how ‘voluntary’ and reliable an individual’s statements might be, can compromise a person’s competence to stand trial and to waive her or her (sic) rights, and may have an effect upon a person’s understanding of the criminal justice system.” For these reasons, such individuals are at high risk for wrongful or unjust sentencing and execution. [NMHA]. These risks are exacerbated by the fact that few provisions require judges and juries to even consider severe mental illness in death penalty cases. The lack of such provisions is highly problematic, given that mentally ill defendants are often incapable of proactively ensuring their condition is even introduced, let alone adequately explained, to judges and juries. Mentally ill individuals are hindered in this regard not only by their illness, but also by poverty. Most mentally ill facing the death penalty are poor, and have few resources available to retain expert witnesses or, more importantly, competent counsel. Attorneys who are assigned to represent these individuals are frequently overworked and inexperienced, and as a result, often fail to raise their client’s condition at trial. [National Coalition to Abolish the Death Penalty (NCADP)].

Such problems frequently lead to tragic results, as demonstrated in the case of Alex E. Williams. At trial, Williams’ attorney presented no mitigating evidence related to his client’s mental condition, even though Williams experienced hallucinations, heard voices, and endured repeated episodes of sexual abuse as a child. Upon learning this information, five of the twelve jurors who sentenced Williams to death wrote to the Georgia State Board of Pardons and Paroles, stating that had they known these facts they would have voted for life in prison rather than death. Alex Williams was nonetheless executed on 24 August 2004. [NMHA]. In North Carolina, a jury sentenced Joseph Bates to death under similar circumstances. Long before he committed the crime in question, Bates had experienced serious and repeated traumatic head injuries. These injuries significantly altered his personality, caused him to suffer paranoid and delusional beliefs, and led him to attempt suicide. The defense did not inform the jury of Bates’ mental health issues, and the jury voted to impose the death penalty. Four jurors subsequently stated they would have handed down a different verdict had they known of Bates’ mental problems. [NCADP]. Joseph Bates was executed on 26 September 2003. [N.C. Dep’t of Corrs.].

In many respects, the law’s lack of protection for mentally ill defendants reflects a general social disregard both for the suffering mental illness brings its victims, and for the need to proactively provide these individuals with treatment. In fact, many communities express little interest in the health of the mentally ill until they become a danger to others, as illustrated in the case of Larry Robinson. According to the Christian Science Monitor, Robinson began hearing voices as a teenager. When he joined the army as a young adult he showed increasing signs of paranoid schizophrenia, but rather than treating Robinson, the military chose to discharge him. Robinson subsequently begged his parents to help him, and they attempted on numerous occasions to get their son the medical aid and attention he needed. However, since Robinson was not covered by his parents’ insurance, care facilities repeatedly turned him away. The facilities stated they would not commit him for more than thirty days unless he did something violent, which he eventually did. Believing voices in his head, clocks in his room, and the Old Testament commanded him to do so, Robinson brutally murdered several victims. He was sentenced to death. Devastated by Robinson’s illness, the health care system’s failure to help him, and the pending loss of their son, Robinson’s parents campaigned to save his life. Pointing out the fundamental flaw in a system that recognizes mental illness only after irreparable harm is done, Robinson’s mother stated, “It should never have come to this. If we had been able to get [our son] the treatment that we begged for, and he begged for, then these people wouldn’t have died.” Mrs. Robinson further noted that many states, in particular Texas, “[don’t] want to put out the money to do preventative treatment. [They] would rather spend the money on executions.” Despite his parents’ efforts, Larry Robinson was executed on 21 January 2000. [Christian Science Monitor].

The U.S. Supreme Court has not specifically addressed the issue of executing the mentally ill for nearly twenty years. In 1986, the Court made a gesture at protecting the mentally ill from the death penalty in Ford v. Wainwright, where it held executing the “insane” to be unconstitutional. However, the scope of this holding was quite limited. The Court adopted a very narrow definition of insanity, which includes only those individuals who do not understand the reason for or reality of their punishment. The American Psychiatric Association (APA) notes that mental illness is distinct from this legal concept of insanity, which leaves many seriously mentally ill individuals vulnerable to capital punishment.

In some states, even individuals found legally insane under Ford may ultimately face the death penalty. Though many states are reluctant to fund treatment for the mentally ill who seek help before turning violent, some are now not only willing to treat the legally insane after they have committed capital murder, but will in fact forcibly treat them if necessary. The states’ interest in treating these individuals is not motivated by a sudden desire to help those afflicted with devastating and dangerous illnesses. Rather, the states’ controversial agenda is to render those offenders who meet the Court’s narrow definition of insanity legally competent to be executed. Reflecting some states’ views on this practice, the Assistant Attorney General of Alabama stated, “Under Alabama law, you can’t execute someone who is insane. You have to send him to an asylum, cure him up real good, then execute him.” [National Catholic Partnership on Disability, (citing from Amnesty International, 1998)].

Many commentators oppose the practice of forcibly treating prisoners for the purpose of imposing capital punishment, noting that such a practice raises serious constitutional, moral, and ethical questions. Alan A Stone, M.D.—Touroff-Glueck Professor of Law and Psychiatry at Harvard University—made the following comment about the 6 January 2004 execution of Charles Singleton, who would have been incompetent to be executed had he not been forcibly medicated: “His death went unnoticed by the national media, but it will be remembered and discussed in the years ahead by medical ethicists and everyone else interested in the intersections of human rights, psychiatry and law.” [Cited from: Death Penalty Information Center]. From a legal standpoint, Stone notes there are several constitutional arguments against such forcible treatment. For example, under Washington v. Harper, involuntary treatment is constitutionally permissible when inmates are a danger to themselves or others, and treatment is in their medical interest. Since involuntary treatment is not in a death row inmate’s medical interest once an execution date is set, constitutional limits arguably apply. Along with the legal issues raised by this practice, Stone asserts there is also a question of whether psychiatrists have an ethical duty to withhold treatment they know will result in a patient’s death. The latter, according to Stone, goes beyond the issue of medical professionals’ participation in capital punishment, invoking issues related to physician-assisted suicide. [Death Penalty Information Center].

The question of assisted suicide ultimately looms large in many death penalty cases involving the mentally ill. Due to the depression and suicidal tendencies often associated with their condition, mentally ill individuals who are sentenced to death frequently do not appeal, even where success seems likely. Instead, they volunteer to be executed. One such case, described by the NCADP, is that of John Clayton Smith. Smith—a suicidal death row inmate diagnosed with bipolar disorder—volunteered to be executed despite the fact that the prosecutor in his case had previously acted as his defense, and used privileged information against him at trial. Although the state supreme court upheld the death sentence in Smith’s case, the dissent strongly argued that “the prosecutor’s failure to disqualify himself from representing the state against his former client poses a serious question, in a death penalty case, as to the integrity of the system under which (the defendant) was tried.” Despite the strength of his case, Smith gave up on appeals and volunteered to be executed. The NCADP describes Smith’s execution under these circumstances as “little more than the state-assisted suicide of a mentally ill man,” noting that ironically, “if a death row inmate seeks to commit actual suicide, … the state will make every effort to prevent it.” [NCADP].

By recognizing the inherent cruelty in executing the mentally retarded, the Supreme Court has brought the United States a step closer to meeting international human rights standards. However, as the United Nations notes, this step is not enough. Minnesota Advocates for Human Rights joins the international community in urging all states and the federal government to refrain from imposing the death penalty on the mentally ill. States are called upon to recognize the suffering of their mentally ill citizens before these citizens cause harm to others, and to use their resources for treatment rather than executions. As Arthur Caplan, Ph.D., Director of the Center for Bioethics of the U of PA in Philadelphia notes, “all of us should think very long and hard about how it is that the only way (some) of our most vulnerable citizens (can) get anyone’s attention in America (is) to kill (someone).” We should also think long and hard about how we choose to treat these vulnerable citizens once they do get our attention, and what that treatment says about our nation to the rest of the world.

Compiled from: Alan A. Stone, Condemned Prisoner Treated and Executed, Psychiatric Times, Mar. 2004, vol. XXI, issue 3, available at Death Penalty Information Center; American Psychiatric Association, Free-definition.com; Amnesty International, Death Penalty Facts: Mental Illness; Arthur Caplan, Ph.D., Justice for the mentally Ill: Should an Insane Man Remain Untreated to Avoid the Death Penalty?, Bioethics.net (Reprinted from MSNBC); Atkins v. Virginia, 536 U.S. 304 (2002); Death Penalty Information Center, Mental Illness and the Death Penalty; Dusky v. U.S., 362 U.S. 402 (1960); Ford v. Wainwright, 477 U.S. 399 (1986); National Catholic Partnership on Disability, Capital Cases: Egregious Instances of a Horrendous Practice; National Coalition to Abolish the Death Penalty, Action Alert: John Clayton Smith, Missouri; National Coalition to Abolish the Death Penalty, Action Alert: Joseph Bates, North Carolina; National Mental Health Association, Death Penalty and People with Mental Illness; N.C. Dep’t of Corrs.; Michael King, Execution vs. Treating Ills, Christian Science Monitor, Aug. 16, 1999; Psychiatry 24x7.com; Washington v. Harper, 494 U.S. 210 (1990)., North Carolina Department of Corrections, Capital Punishment in Missouri.