GUILTY BUT MENTALLY ILL AND
THE DEATH PENALTY: PUNISHMENT FULL OF SOUND AND FURY, SIGNIFYING
October, 1993 43 Duke L.J. 87
||Van W. Ellis
... It would seem, therefore, that he deserved harsh punishment for
his actions. ... In particular, this Part focuses on the effect of
volitional impairment on culpability by examining two death
penalty cases--Thompson v. Oklahoma, which involved a youth, and
Penry v. Lynaugh, which involved a mentally retard- ed person. ... The
question for the guilty but mentally ill defendant is whether a lack of
culpability should pro- hibit imposition of the death penalty
in light of society's recogni- tion that the individual was unable to
conform to the law's re- quirements. ... Insofar as the verdict of guilty
but mentally ill recognizes a diminished capacity to control one's
conduct, it is sufficiently akin to other recognized forms of volitional
impairments that the Eighth Amendment should bar imposition of the death
penalty in such cases. ... Accordingly, official recognition of
volitional impairment must bar capital punishment for guilty but mentally
ill defendants "to protect the dignity of society itself from the
barbarity of exacting mindless ven- geance." ...
On September 26, 1988, James Wilson entered Oakwood Elementary School
brandishing a .22-caliber revolver. Within min- utes, he killed two young
children, wounded numerous others, and traumatized many for life. At
trial, he was sentenced to death. Mr. Wilson was not insane at the time of
his killing spree. It would seem, therefore, that he deserved harsh
punishment for his actions. What if, however, Mr. Wilson explained that he
simply could not help himself? What if we believed him? In fact, Mr.
Wilson did offer this explanation, and the South Carolina courts did
believe him. The South Carolina Supreme Court observed that Mr. Wilson
"acted under an irresistible impulse at the time of his crime."
n1 Nevertheless, it affirmed his sentence of death. "James Wilson
could not control his own worst impulses. Sometimes our judicial system
has the same problem." n2
The Eighth Amendment to the U.S. Constitution and its state counterparts
stand as a bulwark against the imposition of cruel and unusual punishment.
n3 They prescribe parameters on punish- [*88] ment by
mandating that the penalty imposed be adapted to the severity of the
crime. n4 Given that the death penalty is unique among
punishments, n5 the U.S. Supreme Court has determined that the imposition
of such a severe and irrevocable penalty must be subjected to stringent
In recent years, many states, including South Carolina, have created
potential Eighth Amendment difficulties by adding "guilty but
mentally ill" to the list of possible verdicts in criminal cases. In
State v. Wilson, n7 the Supreme Court of South Carolina bull- dozed
through the landscape of the Eighth Amendment by up- holding a capital
sentence for an individual found to be guilty of murder but mentally ill.
n8 Under South Carolina law, to be con- victed as guilty but mentally ill,
the defendant must be found to have acted under an impulse that was
irresistible. n9 By imposing [*89] capital punishment on such
an individual, the courts of South Carolina have ignored the basic
principle permeating Eighth Amendment analysis of capital punishment:
there should be a direct correlation between the personal culpability of
an individual and the punishment he receives. n10
This Note begins with an examination of two Eighth Amend- ment constraints
imposed on the application of capital punishment: proportionality and
penological justification. Part I argues that these constraints require
that the death penalty's application be limited to those
instances in which the defendant has sufficient culpability. In order to
demonstrate the way in which culpability analysis functions, Part II
surveys some of its applications within the capital punishment context. In
particular, this Part focuses on the effect of volitional impairment on
culpability by examining two death penalty
cases--Thompson v. Oklahoma, n11 which involved a youth, and Penry v.
Lynaugh, n12 which involved a mentally retard- ed person. Part III details
areas in which courts have applied the involuntariness doctrine as a bar
to conviction. This Part also relates the involuntariness doctrine to the
concept of volitional impairment in order to establish its position
vis-a-vis the verdict of guilty but mentally ill. A step-by-step analysis
of the label guilty but mentally ill is offered in Part IV. This Part
argues that, if "guilty but mentally ill" connotes an
irresistible impulse, a func- tional equivalent of an involuntary act is
recognized. Accordingly, the recognition of an inability to control one's
actions should result in a proscription against application of the death
penalty. This Part also examines those instances in which the
label of guilty but mentally ill implies lesser impairments that are,
nonethe- less, substantial. The Note concludes by arguing that the de jure
recognition of volitional impairment embodied in the guilty but mentally
ill verdict is incompatible with the Eighth Amendment's culpability
requirement. As such, individuals who are convicted as guilty but mentally
ill should not be eligible for the death penalty.
[*90] I. Eighth Amendment Constraints on Capital Punishment
A. Proportionality and Penological Justification
At its core, the Eighth Amendment prohibits punishment that is
disproportionate to the severity of the crime n14 and punishment that is
without penological justification. n15 In determining whether a punishment
is disproportionate to the severity of the crime, Eighth Amendment
analysis demands more than a superficial examination of the magnitude of
the harm the crime caused. The Eighth Amendment requires an assessment of
the defendant's uniqueness with regard "to his personal
responsibility and moral guilt." n16 This requirement mandates that a
defendant be culpable at a level sufficient to justify capital punishment.
When the pres- ence of a particular factor reveals that a defendant has
not reached this level, the sentence of death is disproportionate and,
In addition to requiring that punishment not be grossly dis- proportionate
to the culpability of the defendant, the Eighth Amendment also prohibits
punishment that is without penological justification. The U.S. Supreme
Court has recognized that the death penalty is
penologically justified when it serves one of two goals: deterrence or
retribution. n17 Unless the execution of a de- fendant will advance one of
these goals, the execution " is nothing [*91] more than
the purposeless and needless imposition of pain and suffering,' and hence
an unconstitutional punishment." n18
As to deterrence, in Skipper v. South Carolina, n19 Justice Powell, joined
by Chief Justice Burger and Justice Rehnquist, stated that "the death
penalty has little deterrent force against defendants who have
reduced capacity for considered choice." n20 Indeed, the Supreme
Court of Indiana stated the obvious when it said that the death
penalty would not deter those defendants lack- ing the ability to
conform their conduct to the law. n21 Whereas the guilty but mentally ill
defendants in Indiana presumably can be deterred since, under Indiana's
statutory definition of "mentally ill," they do not necessarily
lack the ability to conform their ac- tions to the requirements of the
law, n22 such a "defendant under South Carolina law has in essence
been found to have acted under an irresistible impulse." n23 Despite
the South Carolina Su- preme Court's explicit recognition that one goal of
the penal sys- tem is "to deter those who can be deterred from acting
unreason- ably," n24 the court conspicuously omitted any reference to
the de- terrence value of Mr. Wilson's death sentence. Instead, the court
based its justification of the sentence on the retribution ratio- nale.
n25 Accordingly, the courts have recognized that if there is a penological
justification for the execution of guilty but mentally ill defendants who
act under an irresistible impulse, it must reside in the retribution
Although recognizing retribution as an alternative justification for the death
penalty, the U.S. Supreme Court disfavors retribu- tion as the
sole basis for its imposition. n26 Accordingly, this justi- [*92]
fication for the death penalty has been limited by the
principle that retribution may only be exacted from those who are suffi-
ciently culpable. n27 As with disproportion analysis, culpability is
determined through an examination of "the relevant facets of the
character and record of the individual offender.' " n28
A death sentence will not survive Eighth Amendment scrutiny if it is
either disproportionate to the severity of the crime or lack- ing in
penological justification. Insofar as the defendant's culpabili- ty is the
determinative issue for both the disproportion standard and the goal of
retribution, culpability is ultimately dispositive for purposes of this
B. New Federalism Ensures the Lasting Vitality of the Culpability Analysis
In recent years, some U.S. Supreme Court Justices have ques- tioned
whether there is, in fact, a culpability requirement inherent in the
Eighth Amendment. In Thompson v. Oklahoma, n30 Justice Scalia, in dissent,
opined that the Eighth Amendment authorizes an analysis only as to whether
the punishment in question was "forbidden under the original
understanding of cruel and unusual' " or forbidden as contrary to the
" evolving standards of decency' of our national society." n31
Just one year after making this statement, Justice Scalia, writing for the
Court in Stanford v. Kentucky, n32 again advocated an emasculation of
culpability analy- [*93] sis. n33 He called for an inquiry
that focused merely on whether there was a historic or modern consensus
forbidding the imposi- tion of the death penalty on a
particular class of defendants. n34 Although such dicta may call into
question the future of the Eighth Amendment's culpability analysis, n35 it
certainly does not determine the applicability of such analysis at the
In many instances, Americans must learn to live with the Supreme Court's
decisions, however wrong they believe those decisions to be because the
Supreme Court often has the last word on legal matters. When determining
whether application of the death penalty constitutes
cruel and unusual punishment, how- ever, it is not necessary to accept
interpretations that are contrary to reason. As sovereign entities, states
have the power to enact their own prohibitions against what they consider
to be inhumane punishments. To mix metaphors, if the U.S. Supreme Court
drops the ball on the issue of capital punishment, state courts must step
up to the plate and make the hard decisions. n36
Indeed, the Supreme Court of Delaware accepted this chal- lenge when it
determined that Article I, Section 11 of its constitu- tion, n37
independent of the Eighth Amendment to the U.S. Consti- tution,
"demands that a death sentence be proportionate to a defendant's
culpability and that it accomplish some legitimate penological end."
n38 The Delaware Supreme Court accepted the [*94] invitation
offered by Justice Brennan in an influential article, wherein he observed
that "the decisions of the Court are not, and should not be,
dispositive of questions regarding rights guaranteed by counterpart
provisions of state law." n39 In fact, the U.S. Su- preme Court
explicitly recognized the force of Justice Brennan's statement when it
noted that " i t is elementary that States are free to provide
greater protections in their criminal justice system than the Federal
Constitution requires." n40 It is certainly possible that other
states would follow Delaware's lead if the U.S. Su- preme Court were to
abandon the culpability analysis of the Eighth Amendment. Nearly every
state has a constitutional provi- sion that closely approximates the
Eighth Amendment to the Federal Constitution. n41 Many of these states
could easily require a culpability analysis on independent state
constitutional grounds. It is likely that other state courts would choose
this route because of the severity of the penalty in question, n42 the
deeply ingrained nature of the concepts of proportionality n43 and
penological justifi- cation, and the popularity of new federalism. n44
Given the severity and finality of the death penalty,
judicial integrity would demand that state judges pursue an independent
path if the U.S. Supreme Court were to eviscerate Eighth Amendment
protections by drop- ping the culpability requirement. [*95]
II. Culpability Analysis as Applied to Capital Punishment
Although the U.S. Supreme Court has determined that the death
penalty itself is not unconstitutional per se, it has used the
culpability requirement inherent in the Eighth Amendment to proscribe the
use of capital punishment in certain settings. The culpability requirement
may operate to exclude the death penalty as a punishment
option for entire categories of offenses n45 or classes of people. n46 In
each instance, capital punishment is pro- scribed because the category of
the offense or the class of defen- dants possesses insufficient
With respect to the category of the offense, the Court drew an important
bright line around capital punishment soon after reinstating the death
penalty in Gregg v. Georgia. In Coker v. Georgia, n47 the Court
determined that "a sentence of death is grossly disproportionate and
excessive punishment for the crime of rape and is therefore forbidden by
the Eighth Amendment as cruel and unusual punishment." n48 In drawing
this line, the Court singled out the absence of the taking of human life
as the factor that made rape ineligible for classification as a capital
offense. n49 Thus, the culpability requirement demands that a capital
offense be defined by the result of unjustified human death. n50
Eighth Amendment culpability analysis is not limited, howev- er, to an
examination of the categories of crimes that may be classified as
death-eligible. n51 The culpability standard also requires [*96]
scrutiny of the individual defendant in question. n52 The caselaw suggests
that some individual traits may so diminish culpability that the death
penalty is inappropriate for persons exhibiting these traits. n53
When a trait predominates across an entire class and directly affects
culpability, it is appropriate for the Court to consider draw- ing a
bright line around the class. In Enmund v. Florida, n54 for example, the
Court examined whether an accomplice to murder could be sentenced to death
on the basis of the felony murder doctrine. The Court noted that " t
he focus must be on his the defendant's culpability, not on that of those
who committed the crime and shot the victims." n55 In focusing on the
culpability of the non-triggerman in a felony murder, the Court identified
two issues as bearing on whether such a defendant could be sufficient- ly
culpable to receive the penalty of death: the defendant's actions and the
defendant's mens rea. n56 Based on the confluence of the defendant's
non-triggerman status and his lack of intent to kill, the Court found that
the defendant's culpability was too limited to allow the imposition of the
death penalty. n57 In so doing, the Court held that the
culpability requirement of the Eighth Amend- ment barred a penalty of
death when a defendant both lacked the intent to kill and did not actually
kill. n58 [*97]
Five years after Enmund, however, in Tison v. Arizona, n59 the Court
revisited the issue of capital punishment for the non-trigger- man in a
felony murder case. In Tison, the Court abided by its previous
determination that the defendant's actions and mens rea were the relevant
factors defining the culpability of such defen- dants. Nevertheless, the
majority concluded that the line originally drawn in Enmund had to be
re-drawn. Although the factors affect- ing culpability had been correctly
identified, the Court concluded that they had been incorrectly weighed.
The Tison court found that non-triggermen felony murderers were eligible
for the death penalty when they manifested a
"reckless indifference to human life" and were heavily involved
in the underlying felony offense. n60 The Tison Court found that the
Eighth Amendment did not re- quire as high a level of intent and
involvement as had previously been delineated in Enmund. Accordingly, the
Court re-drew the line to bring it into conformity with the strictures of
the culpabili- ty standard.
This scenario is not the only one in which the Supreme Court has
identified a confluence of factors which together establish the level of
the defendant's culpability. The Court also has explicitly identified
multiple issues in its examination of the culpability of juvenile and
mentally retarded defendants who are sentenced to death. Most important
for the guilty but mentally ill defendants who are condemned to die, one
of the factors recognized in these cases is volitional impairment.
A. Volitional Impairment in Youth
Over the years, the Court has struggled with the issue of whether a
defendant's youthfulness may lead to such a diminished state of
culpability that a sentence of death would violate the Eighth Amendment.
This determination is complicated because age itself is not a defining
trait that speaks directly to culpability. Rather, youthfulness serves as
a proxy for two factors that are commonly found in young people and that
do affect culpability: impaired volition and a diminished ability to plan.
n61 The issue is [*98] further complicated because age serves
as an imperfect proxy in determining culpability. Since some children
mature at faster rates than others, children of the same age may differ
vastly in their capacity "to control their conduct and to think in
long-range terms." n62 Consider, for example, the case of a youth who
matures less quickly than his peers, but whose chronological age surpasses
the age set by a bright-line test. This youth could be executed even
though his culpability was insufficient as measured by his "capacity
to control . . . conduct" and his ability "to think in long-
range terms"--the true indicators of culpability for Eighth Amend-
ment purposes. Nevertheless, Eighth Amendment jurisprudence must accept
the imperfect proxy of age as a constraint on the imposition of the death
In Thompson v. Oklahoma, n64 a plurality of the U.S. Supreme Court chose
to draw a bright line at age sixteen. n65 The plurality relied on the
decreased capacity of adolescents to control their conduct as one of the
two factors that evidenced insufficient cul- pability. n66 Justice
O'Connor joined the plurality's judgment be- cause she believed that the
defendant's sentence of death must be set aside, albeit on grounds other
than insufficient culpability. n67 Her refusal to join the plurality's
opinion on culpability did not rest on a belief that this analysis was not
required. On the con- trary, Justice O'Connor agreed that
"proportionality requires a nexus between the punishment imposed and
the defendant's blameworthiness." n68 Although she was willing to
agree that "ado- [*99] lescents are generally less
blameworthy than adults who commit similar crimes," she noted that
"it does not necessarily follow that all 15-year-olds are incapable
of the moral culpability that would justify the imposition of capital
B. Volitional Impairment Among the Mentally Retarded
The same concerns for imperfect proxies that Justice O'Connor expressed in
Thompson are also evident in Penry v. Lynaugh, n70 in which the Court
addressed the imposition of capital punishment on the mentally retarded.
Justice O'Connor, writing for the Court, examined the culpability of
mentally retarded de- fendants as a class to determine whether the Eighth
Amendment bars the use of the death penalty against them.
In identifying the issues that are dispositive of culpability, Justice
O'Connor recognized the same proxy problem that had existed in Thompson.
That is, mental retardation is not itself a trait that
bears directly on culpability; rather, it serves as a proxy for other
factors. Justice O'Connor identified two issues that speak directly to
culpability in the case of the mentally retarded: the ca- pacity to
control one's impulses and the ability to evaluate the consequences of
one's conduct. n72
After examining the class as a whole, Justice O'Connor was unable to
conclude that mental retardation precludes capital pun-
ishment. She explained that "all mentally retarded people of the
defendant 's ability do not --by virtue of their mental
retardation alone, and apart from any individualized
consideration of their personal responsibility--inevitably lack the
cognitive, volitional, and moral capacity to act with the degree of
culpability associated with the death penalty." n73
Although four Justices agreed that the culpability of the mentally
retarded depended, in part, on their [*100] volitional
capacity, n74 they disagreed with Justice O'Connor's de- termination that
some members of the class of mentally retarded defendants may be
sufficiently culpable to be put to death. n75 The implication of the Penry
decision is that the Eighth Amendment bars the imposition of the death
penalty on mentally retarded people who are volitionally impaired
to some greater degree than was the defendant in that case. n76
III. Application of Culpability Analysis Where Volitional Impairment Is
the Sole Factor
Reduced capacity to control one's conduct, in conjunction with other
impairments, led a plurality of the Court to create a bright- line rule
against capital punishment in the age-based cases n77 and appears to
mandate a similar proscription against the death penal- ty for defendants
who are mentally retarded to a degree that is still undetermined. n78 The
key question for the guilty but mentally ill defendant is whether impaired
volitional capacity alone can justify the imposition of a bright-line
rule. Thompson and Penry demonstrate that volitional impairment bears on
culpability and reflect the long-accepted tenet that free will lies at the
very foun- dation of our criminal justice system. Indeed, Justice Jackson
char- acterized the "belief in freedom of the human will and a conse-
quent ability . . . to choose between good and evil" as
"universal and persistent in mature systems of law." n79
On a theoretical level, " i t is felt to be impolitic and unjust to
make a man answerable for harm, unless he might have chosen [*101]
otherwise." n80 In most situations "the practical business of
govern- ment and administration of the law has been obliged to proceed on
more or less rough and ready judgments based on the assump- tion that
mature and rational persons are in control of their own conduct." n81
When society recognizes that a person's free will has been impaired,
however, the law attempts to deal with that person in a humane way. n82
In a number of instances, society has determined that a person's control
over his actions may be so impaired that the individual should not be held
accountable for the results of such actions. n83 Such acts are classified
as involuntary, and the "actor" is neither convicted nor
punished. The question for the guilty but mentally ill defendant is
whether a lack of culpability should pro- hibit imposition of the death
penalty in light of society's recogni- tion that the individual
was unable to conform to the law's re- quirements. It is not debatable
that impaired volition speaks di- rectly to culpability. n84 The question
is whether the label of guilty but mentally ill is a species of volitional
impairment that justifies an Eighth Amendment proscription.
A. The Involuntariness Doctrine: Recognized Instances of Volition- al
In determining how volitional impairment should affect the imposition of
the death penalty, it is illuminating to examine other
areas of the law--to ascertain what the concept of volition in- cludes and
to provide guidance in dealing with the legal effects of diminished
volition. The American system of criminal law, for better or for worse,
proceeds on the assumption that an individual's acts are voluntary and
that individuals should be held responsible for their actions. However,
since human experience indicates that acts are not always voluntary, the
law provides ex- ceptions to the voluntariness assumption. Insofar as the
verdict of [*102] guilty but mentally ill recognizes a
diminished capacity to control one's conduct, it is sufficiently akin to
other recognized forms of volitional impairments that the Eighth Amendment
should bar imposition of the death penalty in such cases.
Perhaps the most commonly recognized and deeply rooted exception to the
assumption of voluntariness occurs when one individual applies physical
force to another so as to directly cause the other to move. Obviously, the
second individual should not be, and is not, held accountable for the
results of his involuntary act. n85 Matthew Hale outlined this archetypal
scenario with the following example: "If there be an actual forcing
of a man, as if A. by force take the arm of B. and the weapon in his hand,
and therewith stabs C. whereof he dies, this is murder in A. but B. is not
guilty." n86 Such an act is universally considered to be involun-
tary because of the blatancy of its involuntariness and, perhaps most
importantly, because nearly everyone has experienced such an involuntary
act--albeit not usually one resulting in a death. In- deed, this situation
is so compellingly involuntary on its face that "such motion never
has been viewed as action of the victim of the force." n87 Instead,
the action is attributed to the individual apply- ing the force.
Although situations involving actual physical force are the most easily
recognized category of involuntary acts, society has long accepted that,
in other settings, people exhibit the same de- creased capacity to control
conduct that underlies the concept of [*103] involuntariness.
Unconsciousness is clearly such a category. n88 The difficulty lies in the
definition of unconsciousness. Caselaw has come to accept that acts
attributable directly to an epileptic fugue--a type of
unconsciousness--are involuntary and thus may not be punished. n89 The
courts have recognized that, as with the application of actual physical
force, " s urely, there must be, in the case of the epileptic, a
period of penumbra when the will is in a state of total or partial
paralysis." n90 Similarly, homicides occurring during an attack of
somnolentia or somnambulism n91 are treated as involuntary acts because of
their close relation to unconscious- ness. n92 These cases reiterate that
the key issue is not conscious- ness per se, but rather a legitimate
impairment of ability to con- trol one's actions.
B. The Concept of Volitional Impairment
Conceptually, volition is a complex issue because it does not exist in the
same concrete way as do other elements of criminal law, such as acts. As a
result, volition is most often defined through exclusion based on certain
proxy situations. Society ac- cepts, for example, that actual physical
force, unconsciousness, and the intermediate state between sleep and
wakefulness approximate volitional impairment closely enough to qualify as
acceptable prox- ies for volitional impairment. These proxies themselves
are not, however, the reason that the instances are classified as
involuntary. Rather, they are merely evidence or symptoms of the
underlying problem--a recognized inability to control one's conduct. n93
When making the factual determination of whether an individ- ual was
unable to control his actions, society must rely on its accumulated
experience to determine whether the asserted condi- tion did in fact
exist. Since we have all stepped on someone else's foot because of a shove
from behind and "have all experienced dreams, and semi-waking
not-fully-conscious states when the alarm continues to ring in the
morning," n94 we readily accept, as a soci- ety, that such acts are
not rightfully attributable to us as individu- als. Instead, society
labels such acts as involuntary because of our lack of control over them.
In contrast, other claims of involuntari- ness seem less plausible to
society. n95 Accordingly, courts hesitate to recognize volitional
impairment in the absence of societal ac- ceptance of the explanation.
IV. Application of the Culpability Requirement to the Guilty but Mentally
A. Societal Recognition of Volitional Impairment
In dealing with the issue of whether the label "guilty but mentally
ill" necessarily implies a reduced level of culpability that should
bar imposition of the death penalty, it is important to
analyze the implications of this verdict step-by-step. The first ques-
tion is whether society recognizes that a guilty but mentally ill
defendant is volitionally impaired to some degree. n96 In the cases [*105]
of application of actual physical force, unconsciousness, and semi-
wakefulness, society considers the fit between these proxies and the
underlying rationale of loss of capacity to control actions to be
sufficient to warrant the label of involuntariness. However, when society
determines that the answer to one question--"Was the defendant in a
state of semi-wakefulness at the time of his ac- tions?"--is an
appropriate substitute for the ultimate ques- tion--"Was the
defendant able to control his actions?"--there is a risk that the
correlation of the responses will be less than per- fect. n97 Such is not
the case, however, with the class of guilty but mentally ill defendants
who acted under an irresistible impulse arising out of their mental
illnesses. For these defendants, there is no proxy involved; they are by
definition volitionally impaired. n98 A verdict of guilty but mentally ill
is itself recognition of volitional impairment.
B. Relation of Volitional Impairment to Culpability
Having determined that society recognizes a claim of volition- al
impairment, the next step is to determine how that volitional impairment
relates to the minimum level of culpability required for the imposition of
capital punishment. In a number of death penalty cases,
the U.S. Supreme Court has indicated that volition is a factor that
inheres in the minimum level of culpability that must exist in order to
execute a defendant. Indeed, the capacity of a defendant to make a
considered choice is regarded as "central to the fundamental justice
of execution." n99
The South Carolina Supreme Court has refused to acknowl- edge that the
verdict of guilty but mentally ill has any necessary bearing on a
defendant's culpability. n100 U.S. Supreme Court pre- [*106]
cedent, however, is to the contrary and clearly points to a correla- tion
between volitional impairment and reduced culpability. In Thompson v.
Oklahoma, n101 for example, the U.S. Supreme Court identified the
"less ened capacity of adolescents to control their conduct" as
one of two factors evidencing the reduced culpability of juvenile
defendants. n102 The presence of this reduced culpabili- ty led a
plurality of the Court to draw a bright line in age-based death
Although it is clear that impaired volition has an impact on culpability,
the Court has not definitively articulated how severe the impairment must
be to justify an Eighth Amendment proscrip- tion against execution. Based
on Penry v. Lynaugh, n103 it appears that a class of persons may be
characterized by some volitional impairment that itself does not rise to a
level sufficient to trigger an Eighth Amendment bar. n104 Taken together,
Thompson and Penry indicate that, to support the drawing of a bright line
based on diminished culpability, not only must a volitional impairment
exist, but it must also exceed some threshold level. It was Justice
O'Connor's inability to conclude that this threshold had been reached that
prevented the Court from drawing a bright line in the context of mentally
retarded defendants. n105
C. Effect of the Guilty but Mentally Ill Verdict on Culpability
Since a finding of volitional impairment does not automatical- ly give
rise to a bar against capital punishment, the final step of the
culpability analysis is to ascertain whether the volitional im- pairment
indicates a level of culpability that is insufficient to sup- port a
sentence of death. If it does, then the verdict of guilty but mentally ill
mandates a prohibition against the application of capi- tal punishment. At
this point, it is helpful to distinguish between the various meanings of
the label "guilty but mentally ill" in the different states.
n106 Roughly speaking, there are two categories of [*107]
guilty but mentally ill statutes. In the first, the label connotes an
inability to control one's actions, i.e., the presence of an irresist-
ible impulse. n107 In the second category, the label of "guilty but
mentally ill" can attach when the impulse is less controlling. n108
1. Irresistible Impulses. As to the first class of defen- dants--those who
are found to be unable to control their ac- tions--their volitional
impairment rises to the level of involuntari- ness. Their degree of
volitional impairment is so great that their actions cannot be rightfully
attributed to them. Instead, society has conceded that these defendants
were deprived of the ability to control their conduct because of a mental
disease or defect. The defendant who is found to lack the capacity to
control his actions because of a mental illness, like the epileptic who
cannot control movements because of a seizure, should not be held
personally accountable for acts resulting from his illness. n109 Rather,
these [*108] acts should be attributed to the mental illness
and classified as involuntary. n110
The Supreme Court of Delaware touched on this logic when it noted that the
difference "between an involuntary act and an act caused by mental
illness is, perhaps, a somewhat metaphysical one." n111 A state is
not required to recognize that mental illness causes some actions to be
involuntary. n112 When a state does rec- ognize such a relationship,
however, executing those who acted be- cause of their mental illness
allows imposition of the death penalty to turn on a
metaphysical distinction. Because the death penalty is
severe and irrevocable, its imposition should not be made to turn on such
word games. If society is willing to recognize that an individual did not
have control over his actions, that factual deter- mination must control
the outcome, not the label--"guilty but mentally ill" versus
"involuntary act"--applied to it. Acknowledg- ing a defendant's
inability to control his actions mandates a pro- scription against the death
penalty. n113 [*109]
2. Substantial Impairment. The second class of guilty but mentally ill
defendants consists of those who act under an impair- ment that, although
substantial, does not destroy their ability to conform their conduct to
the requirements of the law. n114 For these defendants, it is less clear
whether the verdict of guilty but mentally ill necessarily imports a level
of volitional impairment that justifies a bright-line proscription of the death
penalty. Propo- nents of the position that such defendants should
be death-eligible point out that these individuals were not robbed of all
their voli- tional capacity. n115 As the argument goes, these defendants'
im- pulses are not unlike those created by poverty, lack of education, or
other societal pressures that may constrain a person in his ability to act
Although it is true that guilty but mentally ill defendants, like those
who are the product of disadvantaged backgrounds, retain at least a
theoretical ability to conform to the strictures of the law, there is one
key distinction. Society has chosen to take statutory notice of impulses
arising out of mental illness. It is also critical to note that society
did not choose to categorize this volitional im- pairment as a mere factor
to be considered in sentencing. Rather, it has recognized the need to
qualify the verdict itself.
The acknowledgment that a person may be guilty but voli- tionally impaired
speaks directly to the assumptions underpinning the American criminal
justice system. Insofar as free will is a predicate assumption of our
legal system, any legal recognition of the invalidity of that assumption
in certain circumstances, when coupled with a death sentence, raises
profound questions. n117 In- [*110] voluntariness derives its
exculpatory force not from some talismanic quality inhering in the label
but rather from the societal recognition of the absence of volition.
Because of the statutory recognition of substantially impaired volitional
capacity, guilty but mentally ill defendants differ merely in degree, not
in kind, from those who successfully raise the defense of involuntariness.
Ac- cordingly, it is curious indeed that courts have clung so religiously
to a black-and-white view of volition.
An understanding of the underlying reasons for the enactment of guilty but
mentally ill statutes provides insight into this para- dox. " A s a
general proposition, these statutes were created in part to narrow the
field of defendants who could successfully claim a lack of culpability via
the insanity defense." n118 These laws were legislative responses to
a popular perception that too often people were "beating the
system" through use of the insani- ty defense. n119 Whether this
perception is accurate is, at some lev- el, immaterial. The punishment of
those who cause harm to soci- ety strengthens the social fabric. Guilty
but mentally ill legislation was, in large part, an effort to shore up
social cohesion in the face of perceived abuses of the legal system. n120
Although society may find it expedient to lower its standards for
conviction purposes to strengthen social cohesion, the question of the
appropriate level of punishment remains. Thus far, courts have avoided
addressing this issue directly. The South Carolina Supreme Court, for
example, examined the irresistible impulse test in the insanity context
and determined that it is a test that "is [*111] very
difficult, if not impossible, to apply with accuracy." n121 If South
Carolina truly does find the irresistible impulse test an "impossible
standard" to apply with accuracy, judicial integrity demands that the
court not masquerade guilty verdicts under the label "guilty but
mentally ill." n122 Notwithstanding the South Car- olina Supreme
Court's assertions to the contrary, n123 there is a qualitative difference
between a verdict of guilty and a verdict of guilty but mentally ill.
Failure to import this difference from the judgment stage to the
sentencing stage is irreconcilable with the Eighth Amendment's demand that
punishment be a moral and reasoned response to the culpability of the
individual. Permitting the execution of those whom society acknowledges to
have been volitionally impaired does not enhance an individual's
responsibili- ty for his behavior. Rather, it diminishes the value of
punish- ment. n124
Although society may find it beneficial to convict a defendant for a crime
while simultaneously recognizing diminished volition, the Eighth Amendment
should bar society from imposing a sen- tence of death on such an
individual. The death penalty is the ultimate expression
of society's rage and the most exacting penalty that may be inflicted
under the American system of justice. As such, its imposition has been
tempered by the Eighth Amendment through the culpability requirement. At
its base, capital punish- ment presupposes "the existence of a fully
rational, choosing agent." n125 Admitting that a mentally ill
defendant was even somewhat volitionally impaired while simultaneously
insisting that such a defendant is deserving of the harshest retribution
that soci- ety can exact makes a mockery of the spirit of the prohibition
against cruel and unusual punishment. n126 Accordingly, official [*112]
recognition of volitional impairment must bar capital punishment for
guilty but mentally ill defendants "to protect the dignity of society
itself from the barbarity of exacting mindless ven- geance." n127
n1 State v. Wilson, 413 S.E.2d 19, 23 (S.C.), cert. denied, 113 S. Ct. 137
n2 It's Wrong to Kill the Mentally Ill, Atlanta J. & Const., May 14,
1989, at D-6.
n3 The Eighth Amendment to the U.S. Constitution provides: "Excessive
bail shall not be required, nor excessive fines imposed, nor cruel and
unusual punishments in- flicted." U.S. Const. amend. VIII. The Eighth
Amendment itself prohibits the infliction of cruel and unusual punishment
for federal crimes; the Due Process Clause of the Four- teenth Amendment
similarly prohibits the states from extracting such punishment for state
crimes. See Robinson v. California, 370 U.S. 660, 667 (1962). See
generally Arthur E. Sutherland, Jr., Due Process and Cruel Punishment, 64
Harv. L. Rev. 271 (1950) (discussing incorporation of Eighth Amendment
protections through the Fourteenth Amendment).
n4 See, e.g., Weems v. United States, 217 U.S. 349, 367, 382 (1910)
(holding that the Eighth Amendment prohibits a sentence of cadena
temporal, i.e., imprisonment that in- cludes hard labor in chains and
permanent civil disabilities, for the falsification of public documents).
n5 Throughout most of American history, it has been assumed for
constitutional purposes that the death penalty is a valid
form of criminal punishment. This view was explicitly recognized in Trop
v. Dulles, 356 U.S. 86 (1958), when the U.S. Supreme Court explained that
"the death penalty has been employed throughout our
history, and in a day when it is still widely accepted, it cannot be said
to violate the constitutional concept of cruelty." Id. at 99. In
1972, however, a majority of the Supreme Court negated this assumption of
constitutionality in Furman v. Georgia. 408 U.S. 238 (1972). Five
Justices, each writing separately, held that the death penalty,
as applied, was unconstitutional in light of the capricious application of
capital punishment under a system that gave juries broad discretion in
imposing punishments. See id. at 309-10 (Stewart, J., concurring).
Although some believed that Furman foreshadowed the abolition of the death
pen- alty, Note, Cruel and Unusual Punishment, 86 Harv. L. Rev. 76, 84-85
(1972), in 1976 the Court made clear that it was the manner in which
capital punishment had been im- posed, and not the penalty itself, that
led to the decision in Furman. Gregg v. Georgia, 428 U.S. 153 (1976)
(holding that the death penalty is not per se an
unconstitutional punishment); see also Jurek v. Texas, 428 U.S. 262
(1976); Proffitt v. Florida, 428 U.S. 242 (1976) (companion cases holding
n6 Lockett v. Ohio, 438 U.S. 586, 605 (1978) (plurality opinion)
("Given that the imposition of death by public authority is so
profoundly different from all other penalties, we cannot avoid the
conclusion that an individualized decision is essential in capital cas- es.");
see Coker v. Georgia, 433 U.S. 584, 592 (1977) (plurality opinion)
(outlining Eighth Amendment restraints against excessive punishment).
n7 413 S.E.2d 19 (S.C.), cert. denied, 113 S. Ct. 137 (1992).
n8 Id. at 29.
n9 The law provided: "A defendant is guilty but mentally ill if, at
the time of the commission of the act constituting the offense, . . .
because of mental disease or defect he lacked sufficient capacity to
conform his conduct to the requirements of the law." Act of May 16,
1984, No. 396, section 2(A), 1984 S.C. Acts 1785, 1786 (current version at
S.C. Code Ann. section 17-24-20 (Law. Co-op. Supp. 1992)).
n10 Penry v. Lynaugh, 492 U.S. 302, 319 (1989).
n11 487 U.S. 815 (1988).
n12 492 U.S. 302 (1989).
n13 This Note focuses on the Eighth Amendment requirements of
proportionality and penological justification for capital punishment and
does not inquire into historically based forms of analysis or those
centering on evolving standards of decency.
n14 Gregg v. Georgia, 428 U.S. 153, 173 (1976).
n15 Id. at 183.
n16 Enmund v. Florida, 458 U.S. 782, 801 (1982) (stating that a
defendant's "punish- ment must be tailored to his personal
responsibility and moral guilt"); Eddings v. Okla- homa, 455 U.S.
104, 110 (1982) (noting "the law's effort to develop a system of
capital punishment at once consistent and principled but also humane and
sensible to the uniqueness of the individual").
n17 Gregg, 428 U.S. at 183. In Gregg, the Court also noted that
incapacitation is a rationale that has been advanced as a penological
justification. Id. at 183 n.28. Although incapacitation is a valid reason
for imposing punishment and would undoubtedly "be served by execution
, . . . in view of the availability of imprisonment as an alternative
means of preventing the defendant from violating the law in the future,
the death sen- tence would clearly be an excessive response."
Spaziano v. Florida, 468 U.S. 447, 478 (1984) (Stevens, J., concurring in
part and dissenting in part). Accordingly, incapacitation has not been
incorporated into the culpability analysis.
n18 Enmund, 458 U.S. at 798 (quoting Coker v. Georgia, 433 U.S. 584, 592
n19 476 U.S. 1 (1986).
n20 Id. at 13 (Powell, J., concurring) (citing Eddings, 455 U.S. at 115
n21 See Harris v. State, 499 N.E.2d 723, 727 (Ind. 1986), cert. denied,
482 U.S. 909 (1987).
n22 See Ind. Code Ann. section 35-36-1-1 (Burns 1985) (" Mentally
ill' means having a psychiatric disorder which substantially disturbs a
person's thinking, feeling, or behavior and impairs the person's ability
to function . . . .") (emphasis added).
n23 State v. Wilson, 413 S.E.2d 19, 23 (S.C.), cert. denied, 113 S. Ct.
137 (1992). In contrast to the Indiana statute, the South Carolina statute
provides that the guilty but mentally ill defendant is one who lacks the
capacity to conform his conduct to the re- quirements of the law. See S.C.
Code Ann. section 17-24-20 (Law Co-op. Supp. 1992). For a discussion of
the differences in state statutory definitions of guilty but mentally ill,
see infra notes 107-08 and accompanying text.
n24 Wilson, 413 S.E.2d at 24 (emphasis added).
n25 Id. at 25.
n26 Gregg v. Georgia, 428 U.S. 153, 183 (1976) ("Retribution is no
longer the domi- nant objective of the criminal law . . . .")
(quoting Williams v. New York, 337 U.S. 241, 248 (1949)).
n27 Tison v. Arizona, 481 U.S. 137, 149 (1987) ("The heart of the
retribution ratio- nale is that a criminal sentence must be directly
related to the personal culpability of the criminal offender."). As
Thomas Hobbes noted:
Revenge , (that is, retribution of Evil for Evil,) . . . without respect
to the Example, and profit to come, is a triumph, or glorying in the hurt
of another, tending to no end; (for the End is alwayes somewhat to Come;)
and glorying to no end, is vainglory, and contrary to reason; and to hurt
without reason, tendeth to the introduction of Warre; which is against the
Law of Nature; and is commonly stiled by the name of Cruelty.
Thomas Hobbes, Leviathan 210 (C.B. Macpherson ed., Penguin Books 1968)
n28 Tison, 481 U.S. at 149 (quoting Woodson v. North Carolina, 428 U.S.
280, 304 (1976)).
n29 This observation is true even if the penological justification for the
imposition of capital punishment in a particular instance is deterrence,
since the sentence still must satisfy the proportionality requirement,
which is linked to culpability.
n30 487 U.S. 815 (1988).
n31 Id. at 873 (Scalia, J., dissenting).
n32 492 U.S. 361 (1989).
n33 Id. at 378-80 (Scalia, J.) (plurality opinion). Justice Scalia was
joined in this portion of his opinion by three other Justices.
n34 Id. at 380.
n35 But see Coker v. Georgia, 433 U.S. 584, 591-92 (1977) (stating that
the Court has "firmly embraced" the disproportion and
penological justification modes of analysis as part of its determination
that the death penalty is not per se unconstitutional).
n36 The necessity to do so was well noted by John Chipman Gray:
T he difference between the judges and Sir Isaac Newton is that a mistake
by Sir Isaac in calculating the orbit of the earth would not send it
spinning round the sun with an increased velocity; his answer to the
problem would be simply wrong; while if the judges, in investigating the
reasons on which the Law should be based, come to a wrong result, and give
forth a rule which is discor- dant with the eternal verities, it is none
the less Law. The planet can safely neglect Sir Isaac Newton, but the
inhabitants thereof have got to obey the assumed pernicious and immoral
rules which the courts are laying down . . . .
John Chipman Gray, The Nature and Sources of the Law 101 (Roland Gray ed.,
2d ed. 1921).
n37 The Delaware Constitution of 1897 provides: "Excessive bail shall
not be re- quired, nor excessive fines imposed, nor cruel punishments
inflicted; and in the con- struction of jails a proper regard shall be had
to the health of prisoners." Del. Const. of 1897, art. I, section 11.
n38 Sanders v. State, 585 A.2d 117, 147 (Del. 1990).
n39 William J. Brennan, Jr., State Constitutions and the Protection of
Individual Rights, 90 Harv. L. Rev. 489, 502 (1977).
n40 California v. Ramos, 463 U.S. 992, 1013-14 (1983); see Cruzan v.
Director, Mo. Dep't of Health, 497 U.S. 261, 277 (1990) ("State
courts have available to them for decision a number of sources-- including
state constitutions . . . --which are not avail- able to us.").
n41 See Sol Rubin, The Law of Criminal Correction 423 (2d ed. 1973)
(noting that nineteen states prohibit cruel or unusual punishment;
twenty-two prohibit cruel and unusual punishment; and six prohibit only
n42 See, e.g., Rummel v. Estelle, 445 U.S. 263, 272 (1980) (stating that
"a sentence of death differs in kind from any sentence of
imprisonment, no matter how long").
n43 The tenet that punishment must be proportionate to an individual's
culpability is a bedrock of natural law theories. Saint Thomas Aquinas
wrote that punishment "de- pends on the ability of the agent, because
discipline should be adapted to each one according to his ability, taking
also into account the ability of nature (for the same bur- dens should not
be laid on children as on adults) . . . ." St. Thomas Aquinas, The
Summa Theologica, in 2 Basic Writings of Saint Thomas Aquinas 225, 786
(Anton C. Pegis ed., 1945).
n44 See generally Robert B. Utter, State Constitutional Law, the United
States Supreme Court, and Democratic Accountability: Is There a Crocodile
in the Bathtub?, 64 Wash. L. Rev. 19, 27 (1989) ("At last count more
than 450 published state court opinions inter- pret state constitutions as
going beyond federal constitutional guarantees.").
n45 See, e.g., Coker v. Georgia, 433 U.S. 584 (1977) (holding that it is
unconstitu- tional to impose the death penalty against a
defendant who rapes but does not kill).
n46 Cf. Robinson v. California, 370 U.S. 660, 667 (1962) (holding that a
state statute criminalizing the status of addiction to drugs violated the
Eighth Amendment). The Rob- inson Court's holding that status itself may
not be criminalized necessarily encompasses a prohibition on capital
punishment for drug addiction.
n47 433 U.S. 584 (1977).
n48 Id. at 592.
n49 Id. at 598 ("Rape is without doubt deserving of serious
punishment; but in terms of moral depravity and of the injury to the
person and to the public, it does not com- pare with murder, which does
involve the unjustified taking of human life.").
n50 But see The Supreme Court, 1976 Term, 91 Harv. L. Rev. 70, 128 (1977)
(" S ince treason, a crime against masses of people, may cause more
aggregate harm than a single murder, the greater public injury may justify
the imposition of the death penal- ty."); see also 4 William
Blackstone, Commentaries *24 (" I diots and lunatics are not
chargeable for their own acts, if committed when under these incapacities:
no, not even for treason itself.") (citation omitted).
n51 See Woodson v. North Carolina, 428 U.S. 280, 298 (1976) (" I
ndividual culpabili- ty is not always measured by the category of the
crime committed.") (quoting Furman v. Georgia, 408 U.S. 238, 402
n52 See, e.g., McCleskey v. Kemp, 481 U.S. 279, 311 (1987) (stating that
capital sen- tencing must focus on "the unique characteristics of a
particular criminal defendant"); Kirkpatrick v. Blackburn, 777 F.2d
272, 286 (5th Cir. 1985) ("Before a state may impose the uniquely
severe and irrevocable sentence of death, it must focus on the personal
intent and culpability of the defendant himself . . . .' ") (quoting
Reddix v. Thigpen, 728 F.2d 705, 708 (5th Cir. 1984)), cert. denied, 476
U.S. 1178 (1986); People v. Jimerson, 535 N.E.2d 889, 907 (Ill. 1989)
("Imposition of the death penalty requires, as a
constitutional matter, an individualized consideration of both the
offender's character and the circum- stances of his offense."), cert.
denied, 497 U.S. 1031 (1990).
n53 See Penry v. Lynaugh, 492 U.S. 302 (1989); Thompson v. Oklahoma, 487
U.S. 815 (1988); Tison v. Arizona, 481 U.S. 137 (1987); Enmund v. Florida,
458 U.S. 782 (1982).
n54 458 U.S. 782 (1982).
n55 Id. at 798.
n56 Id. at 800. The Court found that the degree of the defendant's
culpability in this instance was defined most sharply by his
"intentions, expectations, and actions." Id.
n57 Id. at 801.
n58 Id. at 798-801.
n59 481 U.S. 137 (1987).
n60 Id. at 137-38.
n61 Eddings v. Oklahoma, 455 U.S. 104, 115 n.11 (1982) ("Crimes
committed by youths may be just as harmful to victims as those committed
by older persons, but they deserve less punishment because adolescents may
have less capacity to control their con- duct and to think in long-range
terms than adults.") (quoting Twentieth Century Fund Task Force on
Sentencing Policy Toward Young Offenders, Confront- ing Youth Crime 7
n63 Thompson v. Oklahoma, 487 U.S. 815, 872 (1988) ("Doubtless at
some age a line does exist--as it has always existed in the common
law--below which a juvenile can never be considered fully responsible for
murder.") (Scalia, J., dissenting) (citation omit- ted).
n64 487 U.S. 815 (1988).
n65 " W e . . . conclud e that the Eighth and Fourteenth Amendments
prohibit the execution of a person who was under 16 years of age at the
time of his or her offense." Id. at 838 (plurality opinion). Justice
O'Connor concurred in the judgment and concluded that people "who
were below the age of 16 at the time of their offense may not be executed
under the authority of a capital punishment statute that specifies no
minimum age." Id. at 857-58 (O'Connor, J., concurring in the
judgment) (emphasis added).
n66 Id. at 834-35 (plurality opinion).
n67 Id. at 853 (O'Connor, J., concurring in the judgment).
n68 Id. (quoting Enmund v. Florida, 458 U.S. 782, 825 (1982) (O'Connor,
J., dissent- ing)).
n70 492 U.S. 302 (1989).
n71 Id. at 319. " P unishment should be directly related to the
personal culpability of the criminal defendant." Id. "Thus, the
sentence imposed at the penalty stage should reflect a reasoned moral
response to the defendant's background, character, and crime." Id.
(quoting California v. Brown, 479 U.S. 538, 545 (1987) (O'Connor, J.,
n72 Id. at 322. Justice O'Connor also identified a third factor--a history
of childhood abuse. This factor, however, was personal to the background
of the particular defendant in the case. It is not necessarily a defining
trait of the class of mentally retarded defen- dants.
n73 Id. at 338.
n74 Id. at 322. Justices Brennan, Marshall, Blackmun, and Stevens joined
in this part of Justice O'Connor's opinion.
n75 Id. at 344 (Brennan and Marshall, JJ., concurring in part and
dissenting in part); id. at 350 (Stevens and Blackmun, JJ., concurring in
part and dissenting in part).
n76 Peter K.M. Chan, Note, Eighth Amendment--The Death Penalty
and the Mentally Retarded Criminal: Fairness, Culpability, and Death, 80
J. Crim. L. & Criminology 1211, 1233 (1990) ("Note the wording of
the ruling. The implication is that sentencing to death a criminal who is
mentally retarded to a degree greater than Penry may be pro- hibited by
the eighth amendment."); see also People v. Thompson, 785 P.2d 857,
888 (Cal. 1990) ("The Supreme Court held in Penry that mental
retardation alone did not vitiate the need for individualized
consideration of personal responsibility, and that some mentally retarded
persons do not lack the cognitive, volitional or moral capacity to act
with the degree of culpability associated with the death penalty.")
(emphasis added), cert. denied, 498 U.S. 881 (1990).
n77 See supra note 65.
n78 See supra note 76 and accompanying text.
n79 Morissette v. United States, 342 U.S. 246, 250(1952).
n80 Edwin R. Keedy, Insanity and Criminal Responsibility, 30 Harv. L. Rev.
535, 546 n.38 (1917) (quoting Oliver W. Holmes, Jr., The Common Law 54
n81 Gregg Cartage & Storage Co. v. United States, 316 U.S. 74, 80
n82 State v. Johnson, 399 A.2d 469, 471 (R.I. 1979).
n83 See infra Section III(A).
n84 See supra Sections II(A)-(B); see also Skipper v. South Carolina, 476
U.S. 1, 13 (1986) (Powell, J., concurring) (stating that a defendant's
capacity to make a considered choice in regard to his actions is a factor
that is "central to the fundamental justice of execution").
n85 For example, the Model Penal Code provides in pertinent part:
(1) A person is not guilty of an offense unless his liability is based on
conduct that includes a voluntary act or the omission to perform an act of
which he is physically capable.
(2) The following are not voluntary acts within the meaning of this
. . . .
(d) a bodily movement that otherwise is not a product of the effort or
determination of the actor, either conscious or habitual.
Model Penal Code section 2.01 (1985).
n86 1 Matthew Hale, The History of the Pleas of the Crown 434 (Phila-
delphia, Robert H. Small 1847) (citation omitted); see also Martin v.
State, 17 So. 2d 427, 429 (Ala. Ct. App. 1944) (" A n accusation of
drunkenness in a designated public place cannot be established by proof
that the accused, while in an intoxicated condition, was involuntarily and
forcibly carried to that place by the arresting officer."); State v.
Boleyn, 328 So. 2d 95 (La. 1976) (reversing and remanding on the issue of
voluntariness because the evidence indicated that the defendant was
unconscious at the time of his es- cape from prison and that he was
removed without his consent).
n87 Model Penal Code section 2.01 cmt. at 221 (1985) (footnote omitted).
n88 Id. at 219 (1985).
n89 See Government of the Virgin Islands v. Smith, 278 F.2d 169, 175 (3d
Cir. 1960) (noting that "the operator of an automobile who is
suddenly stricken by an illness which he had no reason to anticipate but
which renders it impossible for him to control the car is not chargeable
with negligence") (footnote omitted).
n90 People v. Freeman, 142 P.2d 435, 439 (Cal. Dist. Ct. App. 1943);
accord People v. Decina, 138 N.E.2d 799 (N.Y. 1956) (stating that a sudden
epileptic attack, or other sudden and disabling attack, renders one
non-culpable as to results that flow from that attack when one has no
prior knowledge or warning of the condition).
n91 Somnolescent and somnambulistic homicides occur when "the accused
produce s the harm during the period of semi-wakefulness immediately
following sleep or during an episode of sleepwalking." Sanford J.
Fox, Physical Disorder, Consciousness, and Criminal Liability, 63 Colum.
L. Rev. 645, 653 (1963).
n92 See Fain v. Commonwealth, 78 Ky. 183, 193 (1879) (stating that the law
only punishes "overt acts done by responsible moral agents" and
indicating that somnolentia destroys such moral agency).
n93 See Model Penal Code section 2.01 cmt. at 215 (1985).
n94 Norval Morris, Somnambulistic Homicide: Ghosts, Spiders, and North
Koreans, 5 Res Judicatae 29, 32 (1951).
n95 "Cheerfully we accept lack of consciousness of action as proof of
. . . involuntar iness . . . but indignantly reject lack of ability to
control an action of which the actor is conscious as a proof of the same
thing. Perhaps it is that we don't believe that there is an irresistible
impulse' . . . ." Id. at 32. Although this observation was made prior
to the advent of guilty but mentally ill statutes, an examination of
guilty but mentally ill cases reveals that this very disbelief in the
existence of an irresistible impulse permeates the opinions. See, e.g.,
State v. Wilson, 413 S.E.2d 19, 23-24 (S.C.) (" T he irresistible
impulse test is very difficult, if not impossible, to apply with accuracy.
It has been suggested that it is impossible to say that an impulse was
irresistible rather than unsuccessfully resisted, or to distinguish
between the uncontrollable impulse and the im- pulse that is not
controlled.") (citation omitted), cert. denied, 113 S. Ct. 137
n96 It is essential that society recognize volitional impairments before
they are insti- tutionalized in the law. Our criminal legal system
proceeds on the assumption that human beings have free choice until this
assumption is rebutted with a societally recognized exception. For a
general discussion of the historical development of distinctions in crimi-
nal culpability, see Paul H. Robinson, A Brief History of Distinctions in
Criminal Culpa- bility, 31 Hastings L.J. 815 (1980). Robinson points out
that "the history of the com- mon law tradition . . . may be
recognized as reflecting a process of continuous develop- ment and . . .
refinement of culpability distinctions." Id. at 821. He notes that
" a later generation may perceive additional fundamental distinctions
in culpability and provide greater application of current ones. No doubt
however the law should not and will not use distinctions beyond those that
the current society considers significant." Id. at 853.
n97 When a semi-wakeful defendant, claiming the exculpatory benefit of the
involun- tariness doctrine, commits an act that he had the capacity to
refrain from performing, that individual may wrongfully escape conviction
due to the use of a proxy.
n98 Mental illness is not a proxy. Rather, it is an attendant circumstance
that must exist along with impaired volition in order for the defendant to
be classified as "guilty but mentally ill." See infra note 107.
n99 Skipper v. South Carolina, 476 U.S. 1, 13 (1986) (Powell, J.,
n100 State v. Wilson, 413 S.E.2d 19, 25 & n.6 (S.C.), cert. denied,
113 S. Ct. 137 (1992).
n101 487 U.S. 815 (1988).
n102 Id. at 834-35 (quoting Eddings v. Oklahoma, 455 U.S. 104, 115 n.11
n103 492 U.S. 302 (1989).
n104 In Penry, Justice O'Connor recognized that the class of mentally
retarded defen- dants was characterized by a lessened ability to control
impulses. Id. at 322-23. The Court, however, did not believe that the
defendant's volitional impairment was so severe as to fall within the
prohibitions of the Eighth Amendment.
n105 Id. at 338.
n106 See generally Bradley D. McGraw et al., The "Guilty but Mentally
Ill" Plea and Verdict: Current State of the Knowledge, 30 Vill. L.
Rev. 117, 128-29 (1985) (outlining the standards and definitions of guilty
but mentally ill and insanity in the twelve states that have guilty but
mentally ill statutes).
n107 Such is the case for the guilty but mentally ill defendant who is
convicted in the state of South Carolina. The state statute provides:
"A defendant is guilty but mentally ill if, at the time of the
commission of the act constituting the offense, . . . because of mental
disease or defect he lacked sufficient capacity to conform his conduct to
the re- quirements of the law." S.C. Code Ann. section 17-24-20(A)
(Law. Co-op. Supp. 1992).
n108 For example, in Illinois, a defendant "who, at the time of the
commission of a criminal offense, was not insane but was suffering from a
mental illness . . . may be found guilty but mentally ill." Ill.
Comp. Stat. Ann. ch. 720, section 5/6-2(c) (West 1993). The Illinois
guilty but mentally ill statute defines mental illness as "a
substantial disorder of thought, mood, or behavior which afflicted a
person at the time of the commission of the offense and which impaired
that person's judgment, but not to the extent that he . . . was unable to
conform his conduct to the requirements of law." Id. section
5/6-2(d); see also Ind. Code Ann. section 35-36-1-1 (Burns 1985)
(indicating that guilty but mentally ill individuals are those who have
psychiatric disorders that impair ability to function); N.M. Stat. Ann.
section 31-9-3A (Michie 1984) (indicating that guilty but mentally ill
individu- als are those who have substantial disorders that impair
judgment, but not to the extent that they cannot prevent themselves from
n109 In Thompson, Justice O'Connor stated that "it does not
necessarily follow from youth itself that all 15-year-olds are incapable
of the moral culpability that would justify the imposition of capital
punishment" in light of the fact that characteristics "vary
widely among different individuals of the same age." Thompson v.
Oklahoma, 487 U.S. 815, 853-54 (1988) (O'Connor, J., concurring).
Likewise, in Penry, Justice O'Connor could not "conclude that all
mentally retarded people of Penry's ability . . . inevitably lack the
cognitive, volitional, and moral capacity to act with the degree of
culpability associated with the death penalty."
Penry, 492 U.S. at 338. The factual problems that concerned Justice
O'Connor in Thompson and Penry are not present in the case of guilty but
men- tally ill defendants who act pursuant to an irresistible impulse.
Before a defendant can be found to be guilty but mentally ill in a state
where the verdict indicates an irresistible impulse, there must be a
factual finding that the individual had insufficient capacity to conform
to the requirements of the law. See, e.g., supra note 107.
n110 See Keedy, supra note 80, at 548 ("It is difficult to see, from
an abstract con- sideration of the question, why courts should have
refused to recognize irresistible im- pulse as a defense, when it so
clearly negatives a necessary element of crime, and when they without
hesitation recognized other manifestations of lack of volition.").
Cf. Sentence of Bancroft, 3 Crim. App. (S.) 119, 120 (1981) (U.K.) ("
T here is still in every human being a residual capacity for self-control,
which the exigencies of a given situation may call for. That must be the
justification for passing a sentence of imprisonment, to recog- nize that
there is still left some degree of culpability . . . .").
n111 Sanders v. State, 585 A.2d 117, 130 (Del. 1990) (emphasis added).
n112 State v. Korell, 690 P.2d 992, 998-1000 (Mont. 1984).
n113 Other cases involving the imposition of the death penalty
on guilty but mentally ill defendants have intimated that the defendant
must have the capacity to conform to the law before such a penalty may be
imposed. See, e.g., Sanders, 585 A.2d at 134 (stat- ing that ability to
resist pathological impulses "provides a justification for
punishment"). A proscription against the death penalty
inheres in the well-accepted tenet that one can- not be convicted for
involuntary acts. See Powell v. Texas, 392 U.S. 514, 534 (1968)
(intimating that a state could not convict for murder a defendant who
suffered from an overpowering compulsion to kill); supra Section III(A).
In South Carolina, a judge must make a finding on the record that a
defendant "lacked sufficient capacity to conform his conduct to the
requirements of the law" before that defendant may be found to be
guilty but mentally ill. S.C. Code Ann. section 17-24-20(D) (Law. Co-op.
Supp. 1992). Such a find- ing, however, should bar not only execution but
also conviction itself under the rationale of Powell. See Model Penal Code
section 2.01, cmt. 1 at 215 (1985) ("People whose invol- untary
movements threaten harm to others may present a public health or safety
prob- lem, calling for therapy or even for custodial commitment; they do
not however present a problem of correction.").
n114 See supra note 108.
n115 See, e.g., Sanders, 585 A.2d at 134. ("The fact that a guilty
but mentally ill defendant might, in theory, have resisted his
pathological impulses provides a justification for punishment.").
n116 See, e.g., California v. Brown, 479 U.S. 538, 545 (1987) (O'Connor,
J., concurring) (noting the belief long held by society that an
individual's background may affect his degree of culpability).
n117 In drawing a bright line against the execution of young murderers,
the plurality observed that society's creation of a juvenile court system
reflected on the criminal re- sponsibility of children, even those
convicted in the adult criminal system. The Court noted that the existence
of this institution clearly implied "an absence of the basis for
adult criminal accountability--the exercise of an unfettered free
will." Thompson v. Okla- homa, 487 U.S. 815, 835 n.41 (1988)
(plurality opinion) (quoting Sanford J. Fox, The Juvenile Court: Its
Context, Problems and Opportunities 11-12 (1967)).
n118 State v. Wilson, 413 S.E.2d 19, 22 (S.C.), cert. denied, 113 S. Ct.
n119 See McGraw et al., supra note 106, at 124-25 (stating that the
acquittal on insan- ity grounds of John W. Hinckley, Jr. for the shooting
of President Ronald Reagan prompted the passage of many guilty but
mentally ill statutes).
n120 On the issue of social cohesion, H.L.A. Hart said,
Punishing the offender is required to maintain social cohesion because the
com- mon conscience, violated by the offence, "would necessarily lose
its energy if an emotional reaction of the community in the form of
punishment did not come to compensate its loss, and it would result in a
breakdown of social solidarity."
H.L.A. Hart, Social Solidarity and the Enforcement of Morality, 35 U. Chi.
L. Rev. 1, 7 (1967) (quoting Emile Durkheim, The Division of Labour in
Society 90 (George Simpson trans., 3d ed. 1964)) (alteration in original);
see Gregg v. Georgia, 428 U.S. 153, 183 (1976) (plurality opinion)
(stating that the death penalty "is essential in an
ordered society that asks its citizens to rely on legal processes rather
than self-help to vindicate their wrongs").
n121 Wilson, 413 S.E.2d at 23-24.
n122 See id. at 25 (stating that a defendant who acts pursuant to an
irresistible im- pulse "is guilty, albeit guilty but mentally ill'
n123 Id. at 24-25.
n124 Jean Dabin, a natural law theorist, asks, "Can one conceive of
the public good turning its back on natural law and justice?" He
contends that "while altogether distinct from natural law and
justice, the public good cannot fail to have close ties to them ."
Jean Dabin, General Theory of Law (1944), reprinted in Legal Philosophies
of Lask, Rabruch and Dabin 416 (Kurt Wilk trans., 1950).
n125. Thompson v. Oklahoma, 487 U.S. 815, 825 n.23 (1988) (plurality
opinion) (emphasis added).
n126. Because a sentence of death is qualitatively different from a jail
sentence, "there is a corresponding difference in the need for
reliability in the determination that death is the appropriate punishment
in a specific case." Woodson v. North Carolina, 428 U.S. 280, 305
(1975) (Brennan, J., concurring) (footnote omitted).
n127. Ford v. Wainwright, 477 U.S. 399, 410 (1986).