Executing the Mentally Ill: Who is Really Insane?

In the intervening years, according to Kelly's lawyers and medical records and reports obtained by Psychiatric Times, his mental health has deteriorated. Nevertheless, in a landmark federal ruling that was among the first to uphold important time limitations in the 1996 Antiterrorism and Effective Death Penalty Act, the 9th U.S. Circuit Court of Appeals refused to extend the one-year statute of limitations for filing a federal habeas corpus petition based on Kelly's alleged mental incompetence (Calderon v. United States District Court, etc., Horace Edwards Kelly, Real Party in Interest, 127 Fed. Rptr.3d 782 [9th Cir. 1997]).

What is now left for Kelly hinges on the outcome of the last-minute competency hearing before a jury. What happens there will depend in large part on the examination and cross-examination of the prison psychiatrists who examined Kelly and found him insane, along with the testimony of one defense psychiatrist of Kelly's choosing.

According to a 20-day pre-execution report obtained by Psychiatric Times and drafted by Ronald Ponath, M.D., the chief psychiatrist at San Quentin State Prison, Kelly failed to understand that he was about to be executed or why. "[I]nmate Horace Kelly does not satisfy the competency to be executed standard currently utilized by the State of California." The report continues, "That is, it appears that a mental illness of deficit currently prevents inmate Kelly from being aware of his impending execution and the reason for it." Ponath has yet to respond to an interview request.

Dorothy Otnow Lewis, M.D., professor of psychiatry at New York University School of Medicine and clinical professor of psychiatry at Yale University's Child Study Center, has conducted research into violence and consulted extensively in cases involving deathrow inmates (PT August 1997). Her new book Guilty by Reason of Insanity (Fawcett Columbine, 1998), chronicles a quarter century of work studying the differences between those who murder and those who don't.

Lewis also knows Kelly because she conducted an evaluation of him in 1991 in conjunction with one of his appeals. Although she declined to disclose what could be confidential information concerning his condition, the comment she was willing to make was that when she evaluated Kelly years ago, "He was among the most psychotic death row inmates that [my team and I] ever evaluated." Not even aware until recently that Kelly's execution date was scheduled, she was at loss to explain how his case could have proceeded this far.

Lewis is concerned that legislators act impulsively when faced with violent crimes, passing laws that "fly in the face of common sense." By creating tests and standards that are totally cognitive, they exclude a range of other factors that could affect behavior. "But sometimes, adopting purely moralistic and unmeasurable definitions of insanity and forcing psychiatrists to make use of them, the legal profession forces us to reach some pretty peculiar conclusions," Lewis wrote in her book.

"What our work has shown is that there are constellations of three factors that come together and seem to be associated with extraordinary violence," Lewis said. "They are the combination of a history of extraordinary, early ongoing abuse, some kind of brain dysfunction and psychotic symptoms, particularly paranoia. The more serious the neurologic and psychotic symptomotalogy, if the individual has been abused, the more violent the individual seems to be."

Conceding that "forensic psychiatrists have bought into these purely cognitive and legalistic definitions of insanity," Lewis added that "they probably shouldn't be used by psychiatry." Rather, she said that psychiatry should instead teach "lawyers and the judicial system about the effects of psychiatric, neurologic and experiential factors" and convey the message that both "individual choice and control are on a continuum defined by those factors."

(In Part II, set for publication in the June issue of Psychiatric Times, we'll report on Horace Kelly's fate. In the aftermath of his years-long entanglement in the legal system, we'll examine whether either justice or psychiatry is being served in the struggle to protect and vindicate society while defending individual rights-Ed.)