Extended discussion of mental illness and application of the death penalty

Law360 has this lengthy new article, headlined “They Are Mentally Ill; Some States Want Them Off Death Row,” which effectively reviews various aspect of how mental illness intersects with capital punishment’s application.  I recommend the piece in full, and here is an excerpt:

Death rows across the country are filled with people who … are severely mentally ill.  While the U.S. Supreme Court has prohibited the death penalty for certain vulnerable groups — people with intellectual disabilities or who were minors at the time of their crime, for instance — it has not spoken about people who suffer from mental health conditions.

Legal experts say the high court has been reluctant to provide clarity in part because it is difficult to define mental illness in a legal sense.  And more broadly, the death penalty remains a political issue where the court dares not to venture, preferring instead to leave decisions on how to administer it to the states.

With the current Supreme Court unlikely to rule on the intersection of mental illness and capital punishment anytime soon, some states that still use the death penalty have taken steps to codify definitions and thresholds for mental illness that are supposed to ensure that only people with sound mental faculties can be executed.  Ohio and Kentucky pioneered those efforts, and more states could be following in the coming years.

“As with a lot of areas of the death penalty, the change in the foreseeable future is not going to happen from the Supreme Court. It’s going to happen more at the state level,” said John H. Blume, a scholar and director of the Cornell University Law School’s Death Penalty Project.

In January 2021, Ohio was the first state to enact a bill that excluded people who suffered severe mental illness at the time of their crime from facing the death penalty.  The law, which passed with bipartisan support, also offered limited retroactive relief, giving people already sentenced to death one year to petition courts to vacate their sentences.  At least five people have been removed from death row under the law, according to the Office of the Ohio Public Defender.

In April, another bipartisan effort put a similar law — although one with no retroactivity provision — on the books in Kentucky.  And in 2022, California, which is currently under a death penalty moratorium, enacted a law to prevent people who are permanently mentally incompetent from being sentenced to death.  The law is the first of its kind in the nation.