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Lauren Young
Professor OConnor
WRTC 434: Prison Writing
22 March 2015
Mental Illness and Capital Punishment
The death penalty is a heavily debated topic that most people
have an opinion on, whether they have engaged in research or not.
Most see it as an ethical issue that is either right or wrong, and have
little or no gray area to their opinion. A unique aspect of Capital
Punishment to investigate is the idea that there are not only prisoners
who are on death row to be executed, but also those who have been
executed who suffer from some form of mental illness. This adds
another level to justifying the death penalty in trials. Using the death
penalty on anyone is wrong, let alone someone who is mentally ill and
not fully aware of everything around them. Although there was a case
in 1986, Ford vs. Wainwright, that made sentencing mentally ill
offenders to the death penalty illegal, there are still instances where
they are sentenced.
What was interesting about the Ford vs. Wainwright case was
that during the trial, the murderer, Alvin Bernard Ford, did not exhibit
signs of mental illness. These developed after being incarcerated on
Death Row. At this point, it was brought to the courts attention that
Ford was not competent enough to be sent to execution. Reports by

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three psychiatrists showed inconsistencies in Fords mental state,
which was enough to confirm a mental instability. Ford ended up not
being sentenced to death and was sent to Florida State Hospital. Ford
vs. Wainwright ended with the following decision: Justice Powell
concluded that the test for whether a prisoner is insane for Eighth
Amendment purposes is whether the prisoner is aware of his
impending execution and of the reason for it (Ford v. Wainwright).
Brain scanning technology is a method that has been used often
by the courts for research and application to cases; however, now the
courts are utilizing genetic research as a tool to deem competency for
Capital Punishment. This can predict not only a possible predisposition,
but also if the criminal has a history of violence and abuse in their past
directed towards them it could deem a possibility for mental illness.
Attorneys find that, genotyping evidence, combined with
psychological evaluation, family history evidence, and expert
physiological testimony, could provide a potentially powerful mitigation
tool to capital defense attorneys when representing a psychopathic
defendant (Walker 1782).
What is the definition of Psychopathy? It is, a mental disorder
that results in a lifelong persistent condition characterized, in males at
least, by aggression beginning in early childhood, impulsivity,
resistance to punishment, general lack of emotional attachment or
concern for others, dishonesty and selfishness in social interactions

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(Walker 1783). Experts have done research to demonstrate that the
most violent offenders, with a branding of both genetics and history of
emotional detachment, are dangers to society. Given the potential link
between psychopathy and crime, the diagnosis of a potentially
psychopathic defendant is important for the capital defense attorney
(Walker 1783).
The following are prominent professional associations who have
released and implemented statements on their policy for
recommending the prohibition of execution of those with severe mental
illness: The American Bar Association (ABA), the American Psychiatric
Association (APsyA), the American Psychological Association (APA), the
National Alliance on Mental Illness (NAMI), and Mental Health America
(MHA). These organizations recommend a non-categorical, case-bycase determination of whether the severity of a defendants mental
illness at the time of the crime should bar the prosecution from seeking
the death penalty. Although this joint recommendation might prompt
future legislative change, it has not yet succeeded in doing so (Winick
790). The problem is that the courts can still reach their own
independent decision about cases, so there is an unfair, unequal
system.
The effects of mental illness are quite variable, and not all
mental illnesses will responsibility sufficiently to satisfy the Eighth
Amendment standard. The major mental illnesses sometimes will have

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these effects, but the personality disorders, the paraphilias, and
voluntary intoxication should not qualify (Winick 856). Winick
suggests an interesting theory. He believes that the trial judge should
be the sole decision maker in the verdict for capital punishment of a
criminal, rather than a jury appointed. This way the verdict would be
strictly legal and not prone to personal bias. A consistency in capital
punishment decisions would emerge if judges were the decision
makers because of this. They are used to setting aside a bias and using
fact and law to convict.
Atkins hearing, a term devised from the Virginia case of Atkins
v. Virginia, which in 2002 ruled against capital punishment for those
with a mental retardation deemed that it was unconstitutional, refers
to a trial that involves testing the mental capacity of a defendant.
In Atkins, the offender, Daryl Renard Atkins, had been
sentenced to death

for abduction, armed robbery, and capital

murder. On August 16, 1996, Atkins and an accomplice, armed with a

semiautomatic shotgun, kidnapped

and robbed the victim. After

driving the victim to an ATM, where cameras

recorded their

withdrawal of additional cash, they took him to an isolated location

where he was shot and killed (Hess).
Before the trial, Atkins was determined by a forensic psychologist to
have a mild form of mental retardation. The court ended up rejecting

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this evidence that included an IQ of 59 and other factors. He was
sentenced to death. Justice Stevens made a comment on this saying
that executing mentally ill criminals is pointless because the point is to
teach a moral lesson and use it as an example to deter others. If
someone is mentally ill they will not learn a moral lesson because they
know no difference, and they will not necessarily be deterred because
of their skewed mental compass.
There is one problem with the ruling though that has come about
from this trial; each state or court has an individual right to make their
own measures of mental illness. The IQ measures of each criminal to
determine mental stability differs between courts and even sometimes
there is no IQ limit set. Most states use diagnostic criteria that follow
the definition of MR contained in manuals published by either the
American Psychiatric Association (Diagnostic and Statistical Manual;
DSM) or the so-called redbook of the American Association on Mental
Retardation (Greenspan 89). Because trials can last for months,
regulating the constant mental stability of the criminal can fall behind
due to the lack of resources or effort. This can result in unjust decisions
by the court.
There are three criteria used in determining mental illness that
are detailed in the manual of the state, DSM, and the American
Association on Mental Retardation (AAMR). These are: intellectual

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functioning, reached by an IQ score; adaptive functioning, reached by
discussion about appropriate functioning in a community; and
developmental onset, reached by personal history of medical issues
and scientific methods of brain-scanning.
Another factor comes into play with determining mental illness in a
trial.
Most statutes specify that the decision be made in a hearing
before the guilt

phase, in order to prevent the cost and time

associated with a capital trial in

case the defendant is mentally

retarded. Alternately, the decision can be

made at the close of

the guilt phase but before sentencing (as in New Jersey),

or during

the sentencing phase, either before giving a sentencing verdict (as

in Virginia) or as a finding of a mitigating factor in the
sentencing verdict

decision process (as in South Carolina, Franklin

v. Maynard, 2003)

(Reardon, ONeil, Levett 539).

Ronald Taback, author of the article, Mental Disability and

Capital Punishment, believes public education is an essential element
for change. He claims that the public needs to know the difference
between mental retardation and severe mental illness. Moreover, the
public is far more apt to believe that a seriously mentally ill person, as
compared with a person with mental retardation, is likely to pose a
future danger to society. The public thus may be considerably more

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prone to favor the death penalty for a seriously mentally ill offender
(Taback).
What about the future of the death penalty in regards to mental
illness? Knowledge of the brain through technology is growing, so
science should factor into many cases to comprehend behavior and
links to the brain. With expanding knowledge of this, other conditions
and mental cases with defendants may lead to life imprisonment
without parole rather than death. Another way to reach a point of no
more capital punishment is through a collective feeling from the
community that capital punishment is not the answer. Our faith in the
accuracy of criminal adjudications has been shaken by DNA
exonerations that increasingly have occurred, including for offenders
on death row. New Jersey and New Mexico have recently repealed their
death penalty statutes, and juries are imposing death less frequently
(Winick 857). The number of executions in America has gone down
significantly. According to the Death Penalty Information Center, in
2011 there were 43 executions that took place. Compare that to the 39
that took place in 2013 and the 35 that took place in 2014 and one can
see a positive trend. With this hopeful report, the overall lower number
of executions will ideally lead to less mentally ill defendants sentenced
to the death penalty. These defendants have the eighth amendment on
their side, they just must wait for the courts and states to agree to all

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equally protect them.
Works Cited
Walker, Brett. When the facts and the law are against you, argue the
genes?: A

Pragmatic analysis of genotyping mitigation defenses for

psychopathic

defendants in Death Penalty cases. Washington

University Law Review 90.6

(2013): 1779-1817. Web. 26 March 2015.

Winick, Bruce J. The Supreme Courts Evolving Death Penalty

Jurisprudence: Severe

Mental Illness As the Next Frontier. Boston

College Law Review 50.3 (2009):

785-858. Web. 26 March 2015.

Hess, Joseph. The Death Penalty for Mentally Ill Offenders: Atkins,
Roper, and Mitigation Factors Militate Against Categorical Exemption.
University of

Detroit Mercy Law Review 90.1 (2012): 93-119. Web.

26 March 2015.
Greenspan, S. Assessment and Diagnosis of Mental Retardation in
Death Penalty

Cases: Introduction and Overview of he Special

Atkins Issue. Applied

Neuropsychology 16.2 (2009): 89-90.

Web. 26 March 2015.

Reardon, Margaret C., Kevin M. ONeil, and Lora M. Levett. Deciding
Mental

Retardation and Mental Illness in Capital Cases: The Effects

of Procedure,

Evidence, and Attitudes. Psychology, Crime & Law

13.6 (2007): 537-557. Web. 26 March 2015.

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Ford v. Wainwright. 477 US 399. Supreme Court of the US. 1986.
Supreme Court

Collection. Legal Information Inst., Cornell U Law

School, n.d. Web. 26 March

2015.

Tabak, Ronald J. Mental Disability and Capital Punishment. Human

Rights 34.2

(2007): 1-5. Web. 26 March 2015.

http://www.deathpenaltyinfo.org/number-executions-state-and-region1976
^ This is a chart with numbers about death penalty deaths since 1976.
Its from the Death Penalty Information Center, a non-profit based in
DC. I looked for a while and wasnt sure how to cite this.