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.2
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,3
as well as by the frequent campaigns to improve their treatment
¶2 Ford, properly construed,
or because their competence is maintained through an unconstitutional
imposition of medication.11
II. The Equal
¶6 legally relevant
differences between these two groups, or between them and children. Thus,
a state that does not treat all three groups similarly in terms of
eligibility for execution is acting unconstitutionally.
¶8 City of Cleburne, Texas v.
Cleburne Living Center,27
a unanimous Court suggested that something more than a rational basis is
necessary to sustain legislation that disadvantages a mentally disabled
group. Cleburne held unconstitutional the application of an
ordinance that barred from certain residential areas group homes for the
“feeble-minded” (i.e., people with mental retardation), but permitted
institutions such as boarding houses, fraternities and sororities,
apartment hotels and nursing homes in the same areas.28
Because the law’s application was based on “irrational prejudice,”
in particular beliefs about the dangers posed by people with mental
the Court found it violated the Equal Protection Clause.30
Although Cleburne refused to declare that people with mental
retardation are a suspect or quasi-suspect class for equal protection
it did grant relief relief to the plaintiffs, something that virtually
never occurs in cases applying the rational basis test.32
Accordingly, several commentators have argued that Cleburne
required something akin to “rational basis with bite” in cases
involving mental disability.33
Heller did not directly undermine that precedent, despite its
outcome, because the Court noted at the outset of that opinion that the
argument for a higher level of review was not “properly presented” in
The appropriate standard of review in cases involving alleged
discrimination against those with mental disability is thus still
¶10Cleburne suggests is
required, however. The first argument’s assumption that mental
retardation is easier to diagnose than severe mental illness is highly
Although Heller nonetheless adopted that assumption, it did so only
as a justification for Kentucky’s provision permitting commitment of
those with retardation on a lower standard of proof than that required for
commitment of those with mental illness.43
Thus, even if we accept the proposition that mental illness is not as
easily determined as mental retardation, that assumption at most explains
a state’s decision to establish differing levels of proof for the two
categories of disability. It does not explain why people who clearly do
have mental illness are more deserving of the death penalty than people
with mental retardation. The correct response to the
difficulty-of-diagnosis observation is not to permit execution of people
with mental illness, but to place a higher burden on the party alleging
that condition (as the state law involved in Heller did).44
The slightly different concern that mental illness is more easily feigned
can be addressed the same way, although the evidence suggests that serious
mental illness is very difficult to fake in any event.45
Court inveighed. People with mental illness are not viewed with as much
empathy because they are perceived as even more different from us than
people with mental retardation, and certainly more different from us than
children. But, as Cleburne made clear, that difference, even if it
truly exists, cannot form the basis for discriminatory treatment unless it
threatens legitimate government interests.57
III. The Due Process Argument
There the Supreme Court stated that “the Eighth and Fourteenth
Amendments require that the sentencer, in all but the rarest kind of
capital case, not be precluded from considering, as a mitigating factor,
s of a defendant’s character or record and any of the
circumstances of the offense that the defendant proffers as a basis for a
sentence less than death.”61
which lists, inter alia: (1) whether the defendant was suffering
from “extreme mental or emotional disturbance” at the time of the
offense (2) whether “the capacity of the defendant to appreciate the
criminality [wrongfulness] of his conduct or to conform his conduct to the
requirements of law was impaired as a result of mental disease or defect
or intoxication”; and (3) whether “the murder was committed under
circumstances which the defendant believed to provide a moral
justification or extenuation of his conduct.”63
The first factor mimics the Code’s provocation formulation for reducing
murder to manslaughter, minus the reasonableness requirement.64
The second factor uses the Code’s insanity defense language, but with
the deletion of both the mental disease or defect predicate and the
requirement that the incapacity be “significant.”65
The third factor invites a completely subjective analysis of the
offender’s motivations. In short, the mitigating impact afforded to
mental dysfunction under death penalty statutes is wide open, not even
requiring a showing of mental illness as defined in this essay.
positively with a death sentence, albeit at a level on the verge of
A similar study found even stronger evidence of such a correlation,
concluding that “[a] defendant’s odds of receiving a death sentence
increased significantly when the defendant had a history of childhood
abuse, drug abuse and/or addiction, and mental and/or emotional
Zant v. Stephens84
the Supreme Court stated that it would be constitutionally impermissible
to give aggravating effect to factors such as “race, religion or
political affiliation or . . . conduct that actually should militate in
favor of a lesser penalty, such as perhaps the defendant’s mental
Although this statement was dictum and somewhat tentatively phrased, it
reflects the well-accepted principle that mental illness diminishes
should be considered as a way of providing due process of law to mentally
ill capital defendants. The defendant would be required to raise a
reasonable doubt that, but for evidence of mental illness, a particular
aggravating circumstance would not have been found. It would then be up to
the prosecution either to show beyond a reasonable doubt that mental
illness is unrelated to that factor or to convince the court that the
aggravator may justifiably be the consequence of mental illness. Although
this proposal does not completely remove the defense attorney’s dilemma
described above, it will give the attorney some idea of when evidence of
mental illness can be used to best advantage, especially after appellate
courts clarify which, if any, aggravating circumstances may be based on
IV. The Eighth
Ford, the Supreme Court noted at least six reasons, all of them
derived from common law stretching back to medieval times, as to why a
person must be competent prior to execution: (1) an incompetent person
might be unable to provide counsel with last minute information leading to
vacation of the sentence: (2) madness is punishment enough in itself; (3)
an incompetent person cannot make peace with God; (4) execution of an
incompetent person has no deterrent effect on the population; (5) such
execution “is a miserable spectacle . . . of extream inhumanity and
cruelty” (quoting Coke95);
and (6) the retribution or vengeance meant to be realized by execution
cannot be exacted from an incompetent person.96
The Court avoided settling on any one of these as the principal or only
basis for its decision, simply stating that “[w]hether its aim be 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, the restriction finds enforcement in the Eighth
Amendment [which bans cruel and unusual punishment].”97
and will only be hinted at here. For instance, as Justice Powell noted in
his concurrence, the view that competency is required to assist the
attorney “has slight merit today,” because defendants are entitled to
effective assistance of counsel at trial and appeal, as well as to
multiple post-conviction reviews of the sentence.100
Even if a lifetime of madness could be seen as sufficient punishment for
first degree murder, the advent of psychotropic drugs means that most
mentally ill people will not suffer indeterminately. Ensuring competency
to allow making peace with God assumes both a religious offender (much
less likely today than in medieval times) and that it is one’s mental
state at the time of execution, rather than the tenor of one’s life,
that is important in Heaven. Assuming executions have any deterrent
attempting to distinguish in deterrence terms executions of people with
mental illness from other types of executions is problematic; indeed, if
the state were to execute even those who are psychotic deterrence might be
enhanced, because the populace would be assured of the state’s resolve
to kill and because potential criminals who bank on their ability to
malinger illness will be faced with the most powerful dissuasion. And
while execution of a person who is unaware that the event is taking place
is undoubtedly cruel, it is at least as cruel to execute someone who knows
he is about to be killed. The feeling of discomfort that one might
experience observing execution of an insensate person is best explained as
stemming from an unwillingness to exact punishment on someone who does not
understand why it is happening–a retributive rationale. Commentators who
have closely analyzed the various possible reasons for the competency
requirement agree that society’s interest in ensuring the offender
suffers in proportion to his crime is the most solid traditional basis for
the competency requirement.102
Perry. Playing off Harper’s mandate that forcible
medication be “medically appropriate”,111
the Louisiana court concluded that medication given “to facilitate . . .
execution does not constitute medical treatment but is antithetical to the
basic principles of the healing arts.”112
Given the clear ethical stipulation in medicine that doctors should do no
and the relevant professional organizations’ interpretation of that
stipulation to mean that doctors may not “participate” or “assist”
involvement of mental health professionals in the forcible administration
of drugs is impermissible; as Professor Bonnie has pointed out, the
clinician who restores a prisoner’s competency “would be serving a
role that is ethically indistinguishable from the physician who
administers the lethal injection of barbiturates.”115
The fact that the party who is the focus of this argument is someone other
the offender does not prevent state coercion of treatment from being a
cruel and unusual method of exacting vengeance; again, that standard is
not defined solely in terms of the offender’s interests but rather takes
into account overarching societal mores.116
Stephen C. O’Connell Professor of Law, University of Florida Fredric G.
Levin College of Law. I would like to thank Jonathan Cohen, James Ellis,
and Michael Radelet for their comments on this essay.
Compare MICHAEL PERLIN,
38-39 (1994)(depicting medieval views) with Amerigo Farina et al., Role
of Stigma and Set in Interpersonal Interaction, 71 J. ABNORMAL PSYCHOLOGY 421
(1966)(mentally ill persons described as less desirable friends and
neighbors than criminals).
See generally GARY MELTON
Et Al., PSYCHOLOGICAL EVALUATIONS
COURTS: A HANDBOOK
HEALTH PROFESSIONALS AND
LAWYERS 190-93 (2d ed. 1997).
These range from the crusades of Dorothea Dix in the late nineteenth
century (see ALBERT DEUTSCH,
AMERICA: A HISTORY
131 (2d ed. 1949)), to system-wide litigation championing treatment rights
for people with mental illness (see Wyatt v. Stickney, 344 F.Supp. 373
See infra text accompanying notes
477 U.S. 399 (1986).
This essay will, in essence, define “mental illness” as psychosis.
See infra Part
I. A survey of 15 adult death row inmates found that 40% (six) were
chronically psychotic (evidencing, e.g., loose, illogical thought
processes, delusions and hallucinations). Dorothy O. Lewis et al., Psychiatric,
Neurological, and Psychoeducational Characteristics of 15 Death Row
Inmates in the United States, 143 AM.
J. PSYCHIATRY 838, 840 (1986). A
survey of 40% of the juvenile population on death row in the U.S. found
that 50% (seven out of 14) suffered from psychosis. Dorothy O. Lewis, et
al., Neuropsychiatric, Psychoeducational, and Family Characteristics of
14 Juveniles Condemned to Death in the United States, 145 AM.
J. PSYCHIATRY 584, 585 (1988).
According to one confidential source in the Florida Department of
Corrections, as of December, 1999, approximately 5% of the 369 inmates on
death row suffer from some sort of psychosis.
See infra text accompanying notes
Psychosis has been defined as “[a] severe mental disorder characterized
by gross impairment in reality testing, typically shown by delusions,
hallucinations, disorganized speech, or disorganized or catatonic
behavior.” AMERICAN PSYCHIATRIC
ASSOCIATION, AMERICAN PSYCHIATRIC GLOSSARY
175 (7th ed. 1994).
See generally, AMERICAN PSYCHIATRIC
AND STATISTICAL MANUAL 151-52
(dementia due to general medical conditions); 285-86 (schizophrenia); 301
(delusional disorder); 332 (manic disorder)(4th ed. 1994)(hereinafter
Id. at 633 (general definition); 637-38 (paranoid); 645 (schizotypal);
649-50 (antisocial); 654 (borderline) & 612 (intermittent explosive).
Id. at 46.
One estimate is that roughly 30% of those who suffer from mental
retardation also suffer from mental illness. FRANK
In MENTAL RETARDATION: PROGRESSIVE IDEOLOGY
AND SERVICES 126-27 (1977).
It should be noted that the American Psychiatric Association’s treatment
of mental retardation as a “disorder” akin to mental illness has been
rejected by at least one body of mental retardation professionals. See AMERICAN
(Herbert Grossman ed. 1983).
See, e.g., infra note
51 and accompanying text
487 U.S. 815 (1988).
Justice O’Connor, one of the five-member majority voting to prohibit
such executions, rested her decision on the ground that offenders younger
than 16 “may not be executed under the authority of a capital punishment
statute that specifies no minimum age at which the commission of a capital
crime can lead to the offender’s execution.” 487
U.S. at 857-58 (O’Connor, J., concurring). Thus, if a state
explicitly permitted execution of 15 year-olds, she might permit it. At
present, there are no such statutes. 487
U.S. at 829.
Denis W. Keyes et al., Mental Retardation and the Death Penalty:
Current Status of Exemption Legislation, 21 MENTAL
& PHYSICAL DISABILITY L. REP. 687
Jamie Marie Billotte, Is It Justified?–The Death Penalty and Mental
Retardation, 8 NOTRE DAME
J. L., ETHICS & PUB.
POL’Y. 333, 333-34 (1994).
509 U.S. 312 (1993).
Id. at 322.
Schweiker v. Wilson, 450
U.S. 221, 235 (1981).
JOHN E. NOWAK
& RONALD D. ROTUNDA, CONSTITUTIONAL LAW
601 (5th ed. 1995).
473 U.S. 432(1985).
Id. at 450.
Although the Court canvassed a number of reasons given by City for its
decision, most boiled down to a fear of people with mental retardation, to
which the Court responded, “mere negative attitudes, or fear,
unsubstantiated by factors which are properly cognizable in a zoning
proceeding, are not permissible bases for treating a home for the mentally
retarded differently from apartment houses, multiple dwellings, and the
like.” Id . at 448.
Id. at 450.
Id. at 446.
LAURENCE TRIBE, AMERICAN CONSTITUTIONAL LAW 1443-46 (2d ed. 1988).
Id.; Gayle Lynn Pettinga, Rational Basis With Bite: Intermediate
Scrutiny By Any Other Name, 62 IND.
L.J. 779, 793-99 (1987); WILLIAM B.
LOCKHART Et Al, CONSTITUTIONAL
1161 62 (8th ed. 1996).
509 U.S. 312, 319.
Cf. William M. Wilson, III, Romer v. Evans: "Terminal
Silliness," or Enlightened Jurisprudence?, 75 N.C. L. REV.
1891, 1931 (1997)(describing how the Court’s decision in Romer v.
Evans, 517 U.S. 620 (1996), striking down a Colorado constitutional
provision that prohibited protective legislation for gays, “may have
loaned more credence to a standard of review that it specifically
disavowed in Heller”); Alfonso Madrid, Comment–Rational
Basis Review Goes Back to the Dentist’s Chair: Can the Toothless Test of
Heller v. Doe Keep Gays in the Military?, 4 TEMP.
POL. & CIV.
RTS. L. REV.
167, 192 (1994)(distinguishing Cleburne from Heller in part
because the facts of Heller “do not demonstrate the blatant
discrimination that was apparent in Cleburne”). Note also that Cleburne
cannot be distinguished from Heller on the ground that the latter
case, like the context at issue here, involved discrimination between two
mentally disabled groups; such a conclusion would be tantamount to saying
race is not a suspect classification when the government discriminates
between two minority races.
Rehabilitation, often listed as the fourth purpose of punishment,
obviously does not apply in this context.
Michael L. Perlin, The Supreme Court, the Mentally Disabled Criminal
Defendant, and Symbolic Values: Random Decisions, Hidden Rationales, or
“Doctrinal Abyss?”, 29 ARIZ.
L. REV. 1, 98 (1987)(the fear of
successful deception by people feigning mental illness has “permeated
the American legal system for over a century.”).
Psychotropic medication has been quite successful at eliminating psychotic
symptomatology within a few weeks, whereas habilitation of people with
mental retardation is a slow process. Compare HAROLD
I. KAPLAN & BENJAMIN J. SADOCK, COMPREHENSIVE
TEXTBOOK OF PSYCIATRY
990 (6th ed. 1989)(response time to medication is four to five
weeks) with AMERICAN PSYCHIATRIC
OF PSYCHIATRY 710-11 (John A.
Talbott, et al. 1988)(discussing need for “long-term” programs for
those with mental retardation).
Research suggests that jurors consider the defendant’s ability to obtain
treatment relevant to the viability of an insanity defense. Norman J.
Finkel & Christopher Slobogin, Insanity, Justification, and
Culpability: Toward a Unifying Schema, 19 L. & HUM.
BEH. 447, 458 (1995).
As two experts on people with mental retardation have stated, “the
cardinal difference [between retardation and mental illness] is that . . .
[m]entally ill people encounter disturbances in their thought processes
and emotions; mentally retarded people have limited abilities to learn.”
James W. Ellis & Ruth A. Luckasson, Mentally Retarded Criminal
Defendants, 53 GEO. WASH.
L. REV. 414, 424 (1985). With
children, it is as much the opportunity as the ability to learn that is
That is certainly the public’s perception. See, e.g., Bernice A.
Pescosolido et al., The Public’s View of the Competence,
Dangerousness, and Need for Legal Coercion of Persons with Mental Health
Problems, 89 AM J. PUB.
HEALTH 1339, 1341 (1999)(reporting
that, while 17% of a random sample of citizens felt that the a “troubled
person” was “very likely” or “somewhat likely” to be violent,
33.3% said the same of the depressed person, and 60% said the same of a
person with schizophrenia). A fifth possible argument is that, because of
the greater likelihood they will confess to crimes they did not commit,
people with mental retardation are more likely to be victims of
miscarriages of justice. Cf. ROBERT PERSKE, UNEQUAL
JUSTICE (1991). That argument,
however, is logically relevant only to whether conviction should be
overturned, not to whether the death penalty ought to be imposed.
See DSM-IV, supra note
13, at 39-40 (“there is a measurement error of approximately 5
points in assessing IQ” and “impairments in adaptive functioning [a
relatively amorphous construct], rather than a low IQ, are usually the
presenting symptoms in individuals with Mental Retardation.”).
509 U.S. 312, 322.
For a related argument, see John J. Gruttadaurio, Consistency in the
Application of the Death Penalty to Juveniles and the Mentally Impaired: A
Suggested Legislative Approach, 58 U. CINN.
L.REV. 211, 236 (1989).
Professor Perlin asserts that “there is virtually no evidence that
feigned insanity has ever been a remotely significant problem of criminal
procedure, even after more `liberal’ substantive insanity tests were
adopted. A survey of the case law reveals no more than a handful of cases
in which a defendant free of mental disorder `bamboozled’ a court or
jury into a spurious insanity acquittal.” PERLIN,
2, at 238. He also notes that research on malingering among offenders
indicates that most inmates feign sanity, not insanity, id.
at 240-42 & n.48, and that advances in detection of malingering can
discern faking in over 90% of the cases when it does occur. Id. at
David Wexler, Inducing Therapeutic Compliance through the Criminal Law,
14 L. & PSYCHOLOGY REV.
43, 50-52 (1990)(discussing hypothetically the scenario in which a person
with mental illness engages in “reckless endangerment” by refusing
medication that will curb dangerous propensities). Note that in the
analogous situation involving lack of mens rea due to substance abuse, the
law has traditionally recognized a defense for first degree murder,
although if a person drinks (or fails to seek medication) with the purpose
of making crime easier, then such culpability might be present. See
generally, Paul Robinson, Causing the Condition of One’s Own
Defense: A Study in the Limits of Theory in Criminal Law Doctrine, 71
VA. L. REV.
1 (1985). See also, Robert Pear, Few Seek to Treat Mental Disorders, a
U.S. Study Says, N.Y TIMES, Dec.
13, 1999 at A1 (study shows that most people with mental disorder never
seek treatment because they “do not realize that effective treatments
exist, . . . they fear discrimination because of the stigma attached to
mental illness [or they] cannot afford treatment because they lack
insurance that would cover it.”).
Ellis & Luckasson, supra note
40, at 430 & 439 (“Many mentally retarded individuals expend
considerable energy attempting to avoid this stigma,” even though
“proper teaching can equip most retarded persons to tailor their actions
to social expectations”).
HOWARD N. SNYDER
& M. SICKMUND, JUVENILE
OFFENDERS AND VICTIMS:
1999 NATIONAL REPORT
(1999)(40% of males with a violent career and 34% of females come into
contact with the justice system prior to age 13).
DSM-IV, supra note
13, at 40.
A person with schizophrenia has at least two of the following five
symptoms: delusions (fixed false beliefs); hallucinations; disorganized
speech (e.g., frequent derailment or incoherence); grossly disorganized or
catatonic behavior; “negative symptoms”, i.e., affective flattening (emotionlessness), alogia (a high degree of speechlessness) or avolition
(lack of objectives). DSM-IV, supra note
13, at 285. A person with “mild” mental retardation, although less
developed intellectually, is “educable,” “develops social and
communication skills during the preschool years,” has “minimal
impairment in sensorimotor areas,” acquires academic skills up to
approximately the sixth-grade level by the late teens, and “during [the]
adult years usually achieve[s] social and vocational skills adequate for
minimum self-support, but may need supervision, guidance, and assistance,
especially when under unusual social or economic stress.” Id. at
41. Both groups obviously fall short in terms of capabilities when
compared to normal teenagers (13 and over), and even to many pre-teens.
Id. at 637 (one symptom of paranoid personality disorder is reading
“hidden demeaning or threatening meanings into benign remarks or
events”) & 654 (a symptom of borderline personality disorder can be
“transient, stress-related paranoid ideation or severe dissociative
Cf. Woodson v. North Carolina, 428
U.S. 280, 304 (1976)(“A process that accords no significance to
relevant facets of the character and record of the individual offender or
the circumstances of the particular offense excludes from consideration in
fixing the ultimate punishment of death the possibility of compassionate
or mitigating factors stemming from the diverse frailties of
For a recent summary of research showing the genetic component of mental
illness, see Eric Kandel, A New Intellectual Framework for Psychiatry,
155 AM. J. PSYCHIATRY
457, 460 (1998)(stating, inter alia, that “one component
contributing to the development of major mental illnesses is genetic.”).
See also, DSM-IV, supra note
13, at 629 (“A Personality Disorder is an enduring pattern of inner
experience and behavior that deviates markedly from the expectations of
the individual’s culture, is pervasive and inflexible, has an onset in
adolescence or early adulthood, is stable over time, and leads to distress
See RALPH REISNER
Et Al., LAW AND THE MENTAL
ASPECTS 653-55 (3d ed.
1999)(summarizing studies). The following is a fair statement of the
research findings: “Although there appears to be an increased risk [of
violence] in schizophrenia, particularly in paranoid schizophrenia, it
must be reiterated that only a small minority of patients in this category
are violent, and that the disorder itself is rarely sufficient to account
for violent acts in instances where they occur.” Ronald Blackburn, The
Psychology Of Criminal Conduct: Theory , Research And Practice 274 (1993)
James Bonta et al., The Prediction of Criminal and Violent Recidivism
Among Mentally Disordered Offenders: A Meta-Analysis, 123 PSYCHOL.
BULL. 123 (1998); Marnie Rice &
Grant Harris, The Treatment of Mentally Disordered Offenders, 3 PSYCHOL.,
& L. 126, 132 (1997)(“[W]hen compared with other criminal or
psychiatric patients, there is evidence that those who have a major mental
illness may be less likely to commit another criminal or violent offense
Compare supra notes
50 & 51 with Ellis & Luckasson, supra note
40, at 426 (“The best modern evidence suggests that the incidence of
criminal behavior among people with mental retardation does not greatly
exceed the incidence of criminal behavior among the population as a
whole.”); EMILY F. REED, The PENRY PENALTY:
AND OFFENDERS WITH MENTAL
RETARDATION 17 (1993)(describing
data showing a link between mental retardation and crime) and SNYDER
& RICKMUND, supra note
48, at 62 (nationally, juveniles committed 27% of violent
victimizations). This latter fact supports the point in the text when
juxtaposed with the facts that virtually all serious crimes committed by
juveniles were by children between the ages of 10 and 18, id. at 54
& 13, a group which comprises only 12.8% of the population. STATISTICAL
ABSTRACTS OF THE UNITED
(1998) (table showing that ages 10 through 17 constituted 32.64 million
out of a total 267.637 million).
“It is true . . . that the mentally retarded as a group are indeed
different from others not sharing their misfortune . . . . But this
difference is largely irrelevant unless [they] threaten legitimate
interests of the city . . . .” 473
U.S. 432, 448.
“[With respect to] the nature of the `process’ that is `due’, [i]n
all instances the state must adhere to previously declared rules for
adjudicating the claim or at least not deviate from them in a manner which
is unfair to the individual against whom the action is to be taken.” Nowak & Rotunda, supra
See Ellen Fels Berkman, Mental Illness as an Aggravating Circumstance
in Capital Sentencing, 89 COLUM.
L. REV. 291, 296-98 (1989).
438 U.S. 586 (1978).
Id. at 604 (emphasis in original). See also, Eddings v.
Oklahoma, 455 U.S. 104 (1982)
(holding that trial court’s refusal to consider an offender’s
emotional problems violated the eighth and fourteenth amendments).
Berkman, supra note
59, at 298.
See AMERICAN LAW INSTITUTE, MODEL
Compare id. at § 210.3(1)(b).
Compare id. at § 4.01(1).
Gary Goodpaster, The Trial for Life: Effective Assistance of Counsel in
Death Penalty Cases, 58 N.Y.U. L. REV.
299, 332 (1983)(“much of the defense evidence which would be presented
at the guilt phase, such as evidence of diminished capacity or insanity,
also may be presented at the penalty phase in mitigation.”).
Note, A Study of the California Penalty Jury in First-Degree-Murder
Cases, 21 STAN. L. REV.
Et Al., EQUAL JUSTICE AND THE DEATH PENALTY
644, 645 (1990)(two tables, each looking at 15 factors but using different
statistical models, showing that assertion of a defense of “insanity or
delusional compulsion” correlated with a death sentence at an extremely
high level of statistical significance; p $ .0000).
Id. See also id. at 640-41 (table depicting almost 50
factors, with assertion of an insanity defense showing a correlation
coefficient below only number of aggravating factors; scientific evidence
other than ballistics or medical evidence involved; kidnapping involved;
or killing motivated by desire to avoid arrest).
David Baldus et al., Racial Discrimination and the Death Penalty in the
Post-Furman Era: An Empirical and Legal Overview, with Recent Findings
from Philadelphia, 83 CORNELL L.
REV. 1638, 1688-89 (1998)(Table 6).
Id. at 1689. The factor was significant at the .10 level; social
science convention is to accord statistical significance only to factors
that reach the .05 level. See JOHN MONAHAN
& LAURENS WALKER, SOCIAL SCIENCE
IN LAW 78 (1994).
Julie Goetz & Gordon P. Waldo, Why Jurors in Florida Vote for Life
or Death: The Florida Component of the Capital Jury Project, presented
at the conference on Life Over Death XV, Ft. Lauderdale, Fl., September
27, 1996, at 34.
Lawrence T. White, Juror Decision Making in the Capital Penalty Trial:
An Analysis of Crimes and Defense Strategies, 11 L. & HUM.
BEH. 113, 125 (1987).
Wainright v. Witt, 469
U.S. 412 (1985).
Phoebe C. Ellsworth et al., The Death-Qualified Jury and the Defense of
Insanity, 8 L. & HUM. BEH.
Id. at 90.
Stephen P. Garvey, The Emotional Economy of Capital Sentencing, ___
N.Y.U. L.REV. ___ (forthcoming
Id. at ___ (tbls. 9 & 8).
Id. at ___ (text accompanying notes 25 & 26).
Consistent with the lay distinctions discussed in Part II, Garvey also
found that, while jurors were “more likely to have felt sympathy or pity
for the defendant” both when a defendant was mentally retarded and when
he was “emotionally unstable or disturbed,” they were more likely to
be simultaneously “disgusted or repulsed” only by the latter type of
defendant. Id. at ___ (tbl. 7).
Several researchers with the Capital Jury Sentencing Project, which
involved interviewing people who sat on capital juries, have observed that
dangerousness is the paramount concern of most capital sentencing jurors
regardless of their jurisdiction’s law on the matter. See, e.g.,
Austin Sarat, Violence, Representation, and Responsibility in Capital
Trials: The View from the Jury, 70 IND.
L.J. 1103, 1131-33 (1995); Joseph L. Hoffmann, Where’s the
Buck?–Juror Misperception of Sentencing Responsibility in Death Penalty
Cases, 70 IND. L.J. 1137, 1153
(1995); James Luginbuhl & Julie Howe, Discretion in Capital
Sentencing Instructions: Guided or Misguided?, 70 IND.
L.J. 1161, 1178-79 (1995)(tbls. 5, 6); Marla Sandys, Cross-Overs–Jurors
Who Change Their Minds About the Punishment: A Litmus Test for Sentencing
Guidelines, 70 IND. L.J. 1183,
1199-1200, 1216-17 (1995). See also, William J. Bowers, The
Capital Jury Project: Rationale, Deign, and Preview of Early Findings,
70 IND. L.J. 1043, 1091 (1995)(tbl.
7)(32% of capital-sentencing jurors accept the clearly erroneous premise
that the death penalty must be imposed if the defendant is
See Bruce Link & Ann Stueve, New Evidence on the Violence Risk
Posed by People with Mental Illness, 55 ARCH.
403 (1998)(“There is a widespread belief among the American public that
people with mental illness pose a significant violence risk [and] the
prevalence of this belief seems to have increased since the 1950s . . . .
To date, nearly every modern study indicates that public fears are way out
of proportion to the empirical reality.”); John Monahan, Mental
Disorder and Violent Behavior: Perceptions and Evidence, 47 AM.
PSYCHOLOGIST 511, 511
(1992)(discussing, inter alia, how public fears about the purported link
between mental illness and dangerousness “drive the formal laws and
policies governing mental disability jurisprudence”); Gregory Leong et
al., Dangerous Mentally Disordered Criminals: Unresolvable Societal
Fear? 36 J. FORENS. SCI.
210, 215 (1991); Pescosolido et al., supra note
41, at 1343 (“After control for the nature of the problem and
evaluation of case severity, respondents reported . . . increased
expectations of violence if they labeled the vignette person as having a
Cf. Lawrence T. White, The Mental Illness Defense in the Capital
Penalty Hearing, 5 BEH. SCI.
& L. 411, 419 (1987)(concluding that research suggests that the reason
mental illness defenses at the capital sentencing phase are ineffective is
because, inter alia, the evidence leads the jurors to believe the
defendant has a high probability of future dangerousness).
462 U.S. 862 (1983).
Id. at 885 (emphasis added).
See James S. Liebman & Michael J. Shepard, Guiding Capital
Sentencing Discretion Beyond the “Boiler Plate”: Mental Disorder as a
Mitigating Factor, 66 GEO. L.J.
757, 791-806 (1978)(describing the prevalent mitigating role that mental
disorder has played in the law of capital punishment).
343 So.2d 29 (Fla. 1977).
Id. at 34.
373 So.2d 882 (Fla. 1979).
Id. at 885.
See Randy Hertz & Robert Weisberg, In Mitigation of the Penalty of
Death: Lockett v. Ohio and the Capital Defendant’s Right to
Consideration of Mitigating Circumstances, 69 CALIF.
L.REV. 317, 333, 340-41 (1981).
Cf. Penry v. Lynaugh, 492
U.S. 302, 323-24 (1989); State v. Gretzler, 135 Ariz. 42, 659 P.2d 1
(1983). Of interest on this score, however, is that Zant cited Miller
in the course of its suggestion that mental illness could not be used as
an aggravating circumstance. 462
U.S. 862, 885. Furthermore, several states do not permit dangerousness
to be considered as an aggravating factor. Christopher Slobogin, Should
Juries and the Death Penalty Mix?A Prediction about the Supreme Court’s
Answer, 70 IND. L.J. 1249, 1264
n. 56 (1995). In those states, the argument can be made that, given the
strong tendency to think of people with mental illness as dangerous, any
death sentence imposed on such people is likely to be illegitimate.
See Berkman, supra note
59, at 305-08.
3 E. COKE, INSTITUTES
6 (6th ed. 1680).
477 U.S. 399, 406-11.
Id. at 410.
Id. at 422.
See, e.g., Geoffrey C. Hazard Jr. & David W. Louisell, Death,
the State, and the Insane: Stay of Execution, 9 UCLA L. REV.
381 (1962); Barbara A. Ward, Competency for Execution: Problems in Law
and Psychiatry, 14 FLA. ST.
U. L. REV. 35, 48-57 (1986).
477 U.S. 399, 420.
For a skeptical assessment of the death penalty’s deterrent value, based
on an analysis of the data up to that time, see NATIONAL
ACADEMY OF SCIENCE,
PANEL ON RESEARCH
ON DETERRENT AND INCAPACITATIVE
AND INCAPACITATION: ESTIMATING THE EFFECTS
OF CRIMINAL SANCTIONS
ON CRIME RATES (Alfred
Blumstein et al. eds., 1978).
See Hazard & Louisell, supra note 99, at 387; Ward, supra
at 56 (This article also puts forward a “nontraditional”, “tacit
clemency” rationale to the effect that the competency requirement is an
indication of our ambivalence toward the death penalty. Id. at 56)
. See also Michael Radelet & George Barnard, Ethics and the
Psychiatric Determination of Competency to be Executed, 14 BULL. AM. ACAD.
PSYCHIATRY & L. 37, 39
(1986)(“the exemption [of the incompetent] can be understood if . . .
the primary goal of capital punishment is retribution.”).
Musselwhite v. State, 60 So.2d 807, 809 (Miss. 1952). Professor Ward
objects that this standard “would automatically exempt sociopaths from
execution as well as inhumanely require the obliteration of psychological
coping mechanisms.” Ward, supra note
99, at 68. While the standard might mandate an incompetency finding
for some people with antisocial personality disorder (the modern version
of sociopathy), it does not require remorse for the crime (a feeling this
type of person often lacks), only an appreciation of the penalty. And, if
one agrees with the argument made below that people may not be forcibly
restored to competency, “coping mechanisms” with respect to the death
penalty will be rendered irrelevant, although “obliterating” them in
someone who is about to be executed is arguably no more inhumane than
executing someone who has no such mechanisms.
Bob Egelko, Federal Court Blocks Killer's Execution: New Hearing
Ordered on Right to Appeal, ORANGE
June 10, 1998, at A04 (Marin County Superior Court jury approved Kelly’s
execution on a 9 3 vote, finding that he was aware he was about to be
executed and why).
Victoria Slind-Flor, Is Convict Sane Enough to Execute? THE
20, 1998, at A8 (col. 1). See also, Death Row Inmate Horace
Kelly Gets Go-Ahead for New Hearing, THE
27, 1998 at A24.
498 U.S. 1075(1991).
494 U.S. 210 (1990).
State v. Perry, 610 So.2d 746 (La. 1992).
Id. at 761. The court also based its decision on Louisiana’s
privacy provision, id. at 755-61, and, as discussed below, the
notion that forcible medication in this context violates professional
Virtually every court which has considered the matter allows forcible
medication of criminal defendants to restore their competency to stand
trial. MICHAEL PERLIN,
LAW § 14.09 (1989 & 1997 supp).
Cf. Riggins v. Nevada, 504
U.S. 127 (1992) (holding that the state may not overmedicate a
criminal defendant in its attempts to restore competency to stand trial,
but refusing to address whether appropriately titrated medication may be
forced on an incompetent defendant).
610 So.2d 746, 754.
Id. at 751. The Court also noted: “[T]he forcible medication of a
prisoner merely to improve his mental comprehension as a means of
rendering him competent for execution actually prevents the prisoner from
receiving adequate medical treatment for his mental illness.” Id.
at 752. See also, David L. Katz, Perry v. Louisiana: Medical
Ethics on Death Row Is Judicial Intervention Warranted?, 4
GEO. J. LEGAL
ETHICS 707 (1991).
This maxim comes from the Hippocratic Oath, which has been called “the
most important rule in practice” from the perspective of the
doctor-patient relationship. V. TAHKA,
RELATIONSHIP 38 (1984).
The American Medical Association has stated that a “physician . . .
should not be a participant in a legally authorized execution,” Capital
Punishment, Proc. House Delegates AMA 85, 86 (1980), and the American
Psychiatric Association has similarly stated that “[a] psychiatrist
should not be a participant in a legally authorized execution.” AMERICAN
OF MEDICAL ETHICS:
With Annotations Especially Applicable To Psychiatry at § 1(4)
(1985)(applicable to all members of the APA). The National Medical
Association Section on Psychiatry and Behavioral Sciences (NMA) takes the
position that doctors should treat condemned mentally ill people, but
“under no circumstances directly or indirectly assist in an execution of
a `death row’ inmate.” NMA, Position Statement on the Role of the
Psychiatrists in Evaluating and Treating Death Row Inmates, at 5. See
also, Kirk Heilbrun et al., The Debate on Treating Individuals
Incompetent for Execution, 149 AM.
J. PSYCHIATRY 596, 604
(1992)(carefully canvassing ethical arguments and concluding that “[i]t
appears unethical to administer against the prisoner’s wishes treatment
that is highly relevant to competency, such as antipsychotic medication
for psychotic disorders.”)
This line of reasoning could extend to other types of professional
involvement in capital cases, such as testimony and evaluation. However,
these latter roles merely provide the state with information relevant to
the decision to execute, whereas “the express purpose of competency
treatment is to guarantee that the patient will be killed. Each treatment
strategy to heal the inmate is in fact another strategy to ensure his
death.” Rochelle Graff Salguero, Medical Ethics and Competency to be
Executed, 96 YALE L.J. 167,
178-79 (1986). This reasoning might also bar treatment even of the
consenting offender; here, however, both ethical rules and the doctrine of
informed consent may require the doctor to follow the wishes of the
autonomous patient. See generally, Richard J. Bonnie, Dilemmas
in Administering the Death Penalty: Conscientious Abstention, Professional
Ethics, and the Needs of the Legal System, 14 L.& HUM.
BEH. 67, 81-82 (1990); Heilbrun et
al., supra note
114, at 601.
See Trop v. Dulles, 356
U.S. 86, 100-101 (1958)(“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.”).
Maryland commutes the incompetent person’s death sentence to a life
sentence without parole, Md. Ann. Code art. 27 § 75A(d)(3), although it
is unclear whether a person who can be restored to competency is
considered incompetent under the statute. See Perry, 610 So.2d
770-71. Cf. Michael L. Radelet & George W. Barnard, Treating
Those Found Incompetent for Execution: Ethical Chaos with Only One
Solution, 16 BULL. AM. ACAD. PSYCHIATRY L. 297 (1988) (recounting
professionals’ ethical difficulties in dealing with the treatment issue
and concluding that commutation is the only solution).