Jason Lee

The use of the death penalty in the Americas dates to the 15th century when European settlers brought with them the practice of capital punishment. Because nowhere in the US Constitution is capital punishment explicitly addressed, the death penalty was imbued with intrinsic constitutionality by the Founding Fathers. The Fifth Amendment, Eighth Amendment, and Fourteenth Amendment (due process clause) of the Bill of Rights have attempted to provide guidelines on how capital punishment should be handled. The Fifth Amendment states that “no person shall be held to answer for a capital [crime], unless on a presentment or indictment of a Grand Jury,” while the Eighth Amendment states that “nor cruel and unusual punishments [be] inflicted.”

Although the death penalty was viewed as an acceptable form of punishment at the time the US Constitution was created, it did not take long for various states to begin to limit or even ban such practices. The first state to do so was Michigan in 1846. Today, 31 states still permit capital punishment. Although this number may represent a majority of the states, it may not represent the true national mood regarding capital punishment because many of these states have not had an execution in more than 10 years.

Over the years, the US Supreme Court has ruled on many cases that have addressed the topic of evolving standards of decency in regards to the Eighth Amendment. The 1910 Supreme Court case 

 helped define the notion of evolving standards as a basis to view historically accepted punishments as no longer acceptable in modern society. In the 

 case, a man was sentenced to multiple years of “hard and painful labor [in chains]” for the crime of falsifying documents.

Mental Illness and Capital Punishment: Potential Complications

Although the use of “irons” was common in the 1700s, the Court found that its use was not appropriate for a sentence in the 1900s. The term “evolving standards of decency” was coined by Chief Justice Earl Warren in 

 (1958) when he noted that, when determining what punishment the Eighth Amendment prohibits, “evolving standards of decency . . . mark the progress of a maturing society.”

 (1972) resulted in a brief national moratorium on the death penalty because of a 5 to 4 ruling that “[the death penalty] could not be imposed under sentencing procedures that created a substantial risk that it would be inflicted in an arbitrary and capricious manner.”

In an unusual scenario, each justice wrote his own opinion, with Justices Brennan and Marshall citing evolving standards of decency to explain why they believed the death penalty was unconstitutional.

 (2005) determined that because of evolving standards of decency, certain definable groups such as individuals with intellectual disability and minors could not be sentenced to death.

 In both instances, the Court, within a relatively short period, revisited the issue of an evolving standard after already having ruled on the issue, ie, execution of people with intellectual deficiencies previously addressed in 

, written by Justice Stevens, noted that the “consistency of the direction of change,” but “not so much the number of these States [prohibiting the execution of individuals with intellectual disabilities],” was important in determining an evolving standard.

 are particularly interesting because the opinions were based on legal as well as scientific and medical principles. The legal principles that were discussed included whether the death penalty had a deterrent effect for these populations and whether these populations were at a fundamental disadvantage in defending themselves in the court system against the ultimate irreversible punishment. In 

, Justice Stevens wrote, “. . . frequently [individuals with intellectual disability] know the difference between right and wrong and are competent to stand trial . . . [but] because of their impairments . . . by definition they have diminished capacities to understand and process information, to communicate, to abstract from mistakes and learn from experience, to engage in logical reasoning, to control impulses, and to understand the reactions of others.”

The Court also found that deficiency in communication skills placed individuals with intellectual disability at risk for being perceived as lacking remorse by a jury. This idea speaks to the potential ability of these defendants to effectively raise mitigation factors. In 

, Justice Kennedy cited the rationale used in 

 as well as scientific research (eg, physiological changes that occur in an aging brain) that found that a “lack of maturity and an underdeveloped sense of responsibility are found in youth more often than in adults,” resulting in “impetuous and ill-considered actions and decisions.”

 It was also noted that juveniles are more vulnerable to negative influences such as peer pressure and have less control over their own environment.

The concerns raised by Justices Stevens and Kennedy in these cases may also readily apply to multiple psychiatric diagnoses. For example, according to DSM-5, the diagnostic criteria for schizophrenia and autism include “diminished emotional expression or avolition” and “deficits in social-emotional reciprocity,” respectively. Thus, it is possible that a person with schizophrenia or autism is at risk of coming across as having little remorse, similar to an individual with intellectual disability. Like individuals with intellectual disability and adolescents, those with neurocognitive impairments due to moderate to severe head trauma may also display increased impulsivity and difficulty with processing information.

Historically, these concerns have been raised as potential mitigation factors for individuals with mental illness; however, if the rationale from 

 is applied to mental illness, then the “fundamental fairness” (legal term synonymous with due process) of applying the death penalty to those with “mental illness” may be called into question.

Although opponents of the death penalty are currently pursuing multiple legal strategies (eg, court challenges on the arbitrary application of the death penalty as argued in 

 [2014]), one area of recent focus is the push to legislatively eliminate on the state level the use of the death penalty for those with mental illness.

 The anti-death penalty nonprofit organization, Death Penalty Information Center, notes that for the 2017 legislative cycle, the states of Idaho, Indiana, Ohio, South Dakota, Tennessee, and Virginia are considering or are expected to consider legislation that could exclude individuals who had severe mental illness at the time of their offense from receiving the death penalty. Texas is also considering a bill to exclude those with severe mental illness from capital punishment (

These states vary in how they identify mental illness. Some restrict the definition to specific diagnoses listed in DSM-5, and others call for the diagnosis of mental illness to be made on an individual, case-by-case basis. Qualifying diagnoses generally include schizophrenia, schizoaffective disorder, bipolar disorder, and MDD. These states vary in whether they permit their proposed legislation to apply retroactively to previously convicted individuals.

While these legislative proposals vary in many regards, there is a consensus that the defendant must have experienced symptoms of a severe mental illness at the time of the offense, and that a previous diagnosis of a mental illness alone does not exempt someone from the death penalty. Interestingly, only Indiana’s proposal specifically lists PTSD and traumatic brain injury as psychiatric illnesses that may be considered for a diagnosis of “serious/severe mental illness.”

In addition to proposed state legislation related to the death penalty, several national organizations such as the American Psychiatric Association, the American Psychological Association, and the American Bar Association (ABA) have taken positions regarding the circumstances in which the death penalty should be applied in individuals with mental illness. In 2014, the American Psychiatric Association reaffirmed its 2000 position, which called for a moratorium on capital punishment in the US until “jurisdictions seeking to reform the death penalty implement policies and procedures to assure that capital punishment, if used at all, is administered fairly and impartially in accord with the basic requirements of due process.”

Similarly, in 2001 the American Psychological Association called for a moratorium on capital punishment until jurisdictions “implement[ed] policies and procedures that can be shown through psychological and other social science research to ameliorate . . . procedural problems, such as assessing competency.”

In 2006, the ABA adopted the Mental Illness Resolution, which stated that “defendants should not be executed or sentenced to death if, at the time of the offense, they had a severe mental disorder or disability that significantly impaired their capacity (a) to appreciate the nature, consequences or wrongfulness of their conduct, (b) to exercise rational judgment in relation to conduct, or (c) to conform their conduct to the requirements of the law.”

 In the ABA’s most recent White Paper on this topic, the association again reiterated that “individuals with severe mental disorders or disabilities-present either at the time a capital crime is committed or as they are facing execution-should not be subject to capital punishment.”

If an evolving standard ban is applied to mental illness, this change may significantly curtail the further use of the death penalty. Depending on the wording of various states’ legislation, as well as the specifics of potential court cases, a mental illness moratorium could be either very focused (eg, applying only to those who are mentally ill at the time of a crime) or very broad to include any one who suffers from a mental illness at any part of the death penalty procedure.

If it applies to any stage of a death penalty case, it would be hard to imagine how a death row inmate or some other third party would not raise the claim of mental illness whether or not the individual was mentally ill. Furthermore, how the government and courts choose to define “serious mental illness” will determine under which circumstances a death penalty exemption can be applied. Will mental illness can be defined by a broad legal approach such as was seen in 

 (1962), which defined mental illness as “mental disease or defect [that] includes any abnormal condition of the mind which substantially affects mental or emotional processes and substantially impairs behavior controls,” or will a mental illness be defined by a more concrete approach such as some or all conditions found in DSM-5?

 (2014) case, the Supreme Court seemed willing, to an extent, to defer to the diagnostic principles described in DSM-5. The Court stated in the case that “it is the Court’s duty to interpret the Constitution, but it need not do so in isolation. The legal determination of intellectual disability is distinct from a medical diagnosis, but it is informed by the medical community’s diagnostic framework.”

It will be interesting to see how many states prohibit the death penalty from being applied to people with mental illness. It should be noted that just because a bill is proposed, it does not necessarily mean that it will pass. In addition, it may take several years before a bill gains traction in a legislative body. It may then take several more years for court challenges to reach the Supreme Court. However, given the Court’s reasoning in the case of 

, even if only a few states pass such a limitation within the next 10 to 20 years, it may be enough of a change for an evolving standard of decency to be established regarding the death penalty and those with mental illness.

For further discussion of this topic, please see Dr. Knoll’s commentary, 

Mr. Lee is a medical student at the University of Central Florida College of Medicine, Orlando, FL. Dr. Hall is Assistant Professor of Medicine, University of Central Florida College of Medicine; Affiliated Associate Professor, University of South Florida, Tampa, FL; and Adjunct Faculty Member, Barry University Law School, Orlando, FL.

The authors report no conflicts of interest concerning the subject matter of this article.

 American Psychiatric Association. Position Statement on Moratorium on Capital Punishment in the United States; 2000.

 American Psychological Association. The Death Penalty in the United States. 2001. 

http://www.apa.org/about/policy/death-penalty.aspx

 American Bar Association. Mental Illness Resolution. 2006. 

http://www.americanbar.org/groups/committees/death_penalty_representation/resources/dp-policy/mental-illness-2006.html

 American Bar Association. Severe Mental Illness and the Death Penalty. Death Penalty Due Process Review Project. 2016. 

http://www.americanbar.org/groups/crsj/projects/death_penalty_due_process_review_project.html

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Although a majority of states still permit capital punishment, this may not represent the true national mood: many of these states have not had an execution in more than 10 years. 

Author | Jason Lee

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The Death Penalty and Mental Illness: An Evolving Standard?