Death Penalty and Mental Illness Term Paper

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It is impossible to say, with any real degree of accuracy, what percentage of people on death row is mentally ill. There are several reasons for this impossibility. First, mental illness is difficult to define, and is subject to broad changes over time and space. Therefore, a person who was not mentally ill at the time of a conviction might be considered mentally ill under modern standards, and vice-versa. Next, mental illness is difficult to diagnose. The very crimes that land people on death row are things that most people consider "crazy," however that does not mean that the people who perpetrated them are actually mentally ill. Furthermore, mental illness has different meanings for health professionals and the legal community; therefore, a person might be considered mentally ill in one context, but not in the other. While complete accuracy may be impossible, it is logical to assume that the mentally ill are overrepresented on death rows. First, it has been clearly established that the mentally ill are overrepresented in the criminal justice system, as a whole. Second, severe mental illness does contribute to a breakdown in one's impulse control, leading to the type of violent acts that result in the death penalty. Third, the huge difference between the medical and legal definitions of mental illness all but ensure that the majority of mentally ill defendants will not be able to successfully assert any type of insanity plea. Finally, those suffering from mental illnesses are less likely than non-mentally ill defendants to be capable of meaningfully engaging in their own defenses, making conviction more likely. Knowing that there are mentally ill defendants on death row, the next logical question one encounters is whether that is an appropriate place for them. There are many cogent arguments, both for and against, addressing the advisability of executing mentally ill criminals. However, most of those arguments, while persuasive and informative, are unimportant; the only real consideration is whether the execution of the mentally ill violates the Eighth Amendment's prohibition against cruel and unusual punishment. If it does, then there should be no executions of the mentally ill. If it does not, then each state should retain the right to determine whether execution of mentally ill capital criminals is consistent with its social and law enforcement goals. Some believe that the issue can never be truly resolved, due to the individual nature of mental illness, and that the only solution is to determine that the fact that a defendant suffers from a mental illness is not sufficient to bar his execution, but is sufficient to require a meaningful judicial determination of competency.

While the Eighth Amendment may have been drafted in a particular time and place, it is important to realize that, when considering whether a particular punishment is cruel or unusual, one does not look at the standards in effect at the time it was drafted, but, instead, at an evolving standard of morality. This principle was clearly established as early as 1958 in Trop v. Dulles, 356 U.S. 86 (1958). That Court stated that the "basic concept underlying the Eighth Amendment is nothing less than the dignity of man. While the State has the power to punish, the Amendment stands to assure that this power be exercised within the limits of civilized standards...The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society." Trop v. Dulles, 356 U.S. 86, 100-101 (1958).

Therefore, to determine whether the execution of the mentally ill violates the Eighth Amendment, it is necessary to look at how society's view of mental illness has evolved. Unfortunately, looking at that does little to highlight society's view of the propriety of executing the mentally ill. As explained by Christopher Slobogin:

Our society has long been ambivalent about mental illness. On the one hand, for many laypeople mental illness is something to be feared. The medieval theory that mental disability is the product of possession by evil spirits finds its modern expression in the accepted wisdom that "crazy" people are very different from the rest of us and are generally to be avoided. At the same time, we have long pitied those who are afflicted by mental problems, as evidenced by the centuries-old existence of a special defense excusing such people from criminal responsibility, as well as by the frequent campaigns to improve their treatment facilities. (Slobogin, 2000).

Therefore, it is almost impossible to say what society's view of the mentally ill really is. Clearly, society considers the mentally ill people to be pitied, who deserve treatment and to be free from abuses. However, society also seems to strongly feel that the mentally ill are to be feared, and has, possibly legitimate concerns, that mentally ill capital criminals pose a greater danger to society than their sane counterparts:

Nowhere is this ambivalence more dramatically exposed than in death penalty cases. Mental illness is expressly recognized as a mitigating factor in most death penalty statutes and the Supreme Court has held, in Ford v. Wainwright, that it is cruel and unusual punishment under the eighth amendment to execute a person whose mental state renders understanding of capital punishment impossible. Yet a significant proportion of death row inmates are mentally ill... And the research evidence suggests that mental illness is often, in fact if not in law, an aggravating factor as far as capital sentencing bodies are concerned. (Slobogin, 2000).

One of the complicating factors is that the mentally ill are not the only group to be considered legally incompetent in different arenas. Both minors and the mentally retarded have some presumption of legal incompetence. This presumption has been reflected in jurisprudence that has restricted the execution of minors and the execution of the mentally retarded. However, there has been no wholesale prohibition on the execution of the mentally ill. On the contrary, there has been an official sanction of the disparate treatment of different groups of incompetent people. Moreover, all of the decisions to date that have limited the execution of the mentally ill have focused on specific types of mental illness at specific times, and whether it is constitutional to execute a person under a specific factual scenario.

In Ford v. Wainwright, 477 U.S. 399 (1986), the Supreme Court determined that it is unconstitutional to execute a person who is incompetent due to mental illness. Specifically, the Court held that "the Eighth Amendment prohibits the State from inflicting the penalty of death upon a prisoner who is insane." (477 U.S. 399, 410). However, the Court was unable to determine whether that Eight Amendment prohibition was based in a desire "to protect the condemned from fear and pain without comfort of understanding, or to protect the dignity of society itself from the barbarity of exacting mindless vengeance." (477 U.S. 399, 410).

This was not a landmark decision; on the contrary, the common law prohibited the execution of the insane, which gave rise to today's insanity defense. However, eligibility for an insanity defense differs substantially from the level of mental illness required to avoid execution. The most notable difference is that the insanity defense requires that the actor was insane at the time of the commission of the crimes, and either unable to appreciate the difference between right and wrong or unable to control his compulsion to commit the crime. However, for a mental illness to bar an execution, the actor need not have been actively mentally ill at the time that the crime was committed; merely, mentally ill at the time of the sentencing or proposed execution.

However, there is a significant question about what type or degree of insanity is sufficient to render a person incompetent for Eighth Amendment purposes. Clearly, Ford v. Wainwright establishes that it is unconstitutional to execute, "one whose mental illness prevents him from comprehending the reasons for the penalty or its implications." (477 U.S. 399, 417). However, that appears to be a minimal threshold for competency. One of the first things that decision did was to help establish the type of mental illness that might prevent a person from being competent to be executed. Only certain mental disorders are routinely capable of rendering a person unable to comprehend the nature or purpose of capital punishment. These disorders are referred to as psychoses, and include schizophrenia, bipolar disorders (manic-depressive psychosis), the delusional disorders, and some organic mental disorders. (Slobogin, 2000). While it is possible for defendants with personality or affective disorders to experience the same degree of impairment, it is highly unlikely. Therefore, this issue revolves largely around people who do have a psychotic disorder.

There is an ancillary question that arises when one considers the issue of whether someone who is mentally ill can be executed. Many of the psychoses are treatable by medication, which can render a person competent enough to meet the Ford v. Wainwright standard, and, therefore, be eligible for execution. In Washington v. Harper, 494 U.S. 210 (1990), the Court… [END OF PREVIEW] . . . READ MORE

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APA Style

Death Penalty and Mental Illness.  (2008, April 7).  Retrieved December 2, 2021, from

MLA Format

"Death Penalty and Mental Illness."  7 April 2008.  Web.  2 December 2021. <>.

Chicago Style

"Death Penalty and Mental Illness."  April 7, 2008.  Accessed December 2, 2021.