Download Opposition to the Death Penalty for Individuals with Severe Mental

Turning Public Opinion Consensus Into
State Legislative Action
Aurélie Tabuteau Mangels, Mental Illness Initiative Fellow
American Bar Association’s Death Penalty Due Process Review Project
What are we talking about?

 Serious Mental Illness
 Refers to disorders that carry certain diagnoses such as schizophrenia,
bipolar disorder, and major depression; that are relatively persistent (at
least 1 year) and that result in comparatively severe impairment in major
areas of functioning.
 Different from intellectual disability.
 Exemption from the death penalty
 Individuals found to have a serious mental illness could not be sentenced
to death or executed,
 But could still be found guilty and sentenced to LWOP.
 Legislative action
 Introducing and passing bills in state legislatures (death penalty states)
Today: There is a strong support for a
severe mental illness exemption…
 From the public

 November 2014: 58% of Americans in favor of a SMI exemption (Public
Policy Polling)
 December 2015: 66% of Americans in favor of a SMI exemption (David
Binder Research)
 From relevant professional organizations
 2006: American Bar Association (ABA), American Psychiatric Association
(APA), American Psychological Association (APA), National Alliance on
Mental Illness (NAMI)
 2011: Mental Health America (MHA)
 Occasionally, from conservative voices in individual cases
 Scott Panetti
… but no State legislative
action or constitutional ban

 Connecticut (2009) only state to ever pass a SMI exemption
law
 Death penalty abolished for future offenses in 2012.
 The Courts haven’t recognized a constitutional bar on the
execution of individuals with severe mental illness
 Some state Supreme Court judges have expressed their opinion
that execution of those with severe mental illness violates the 8th
Amendment:
 Justice Rucker, Corcoran v. State (Ind. 2002)
 Justice Pfeifer, State v. Scott (Ohio 2001)
 Justice Zazzali, State v. Nelson (N.J. 2002)
 Justice Stratton, State v. Ketterer (Ohio 2006) .
So what happens currently for defendants
with severe mental illness claims in
capital cases?

 Their mental illness can be
taken into account in capital
proceedings,
 but they also continue to be
sentenced to death and
executed.
 Most recently: Adam Ward in
Texas, executed on March 22nd
2016
 Fifth Circuit opinion: “Petitioner
has been afflicted with mental
illness his entire life. He was
diagnosed with bipolar disorder
and placed on lithium as early as
age 4”.
2015 Public Opinion
Research Results

Research conducted by David Binder Research/8th Amendment
Project
Strong support for the exemption
across six states

 Polling conducted of 1200
individuals (200 in 6 death
penalty states).
 Two focus groups held in
Indianapolis in Nov. 2015:
 One group of men, one
group of women,
 Both groups white,
independent and
Republicans with
college education.
States polled: Idaho, South Dakota, Indiana,
Ohio, Tennessee, Virginia
1st Ask
Many more respondents “very”
conservative than “very” liberal

Ideology
46
30
24%
Very
18
8%
Very
Liberal
6
Moderate
Conservative Other/Unsure
Proposal presented to the
voters polled

The proposal changes the current death
penalty law so that persons with:
 documented evidence of a qualifying severe
mental illness,
 at the time of the crime,
 cannot be executed,
 and instead would receive a sentence of life in
prison without parole if found guilty.
2/3 of voters initially support the proposal to
add an exemption to the death penalty for
those with severe mental illness

1st Ask
60%
Support — 66%
30%
33
33
Oppose — 24%
14
10
10
0%
Strongly Support
Somewhat Support Somewhat Oppose
Strongly Oppose
Unsure
The case by case decision making process is
considered the most convincing reason to
support the proposal by voters
(Adapted version)
This proposal would require a case by
case decision making process by a
judge or jury who will consider all of
the relevant evidence.
This proposal would add an exemption
only for persons who can prove they
had a qualifying medical diagnosis or
documented symptoms of a SMI.
Examples of qualifying severe mental
illness under this proposal include
schizophrenia, bipolar disorder, and
PTSD.

More likely to oppose
No difference/unsure
More likely to support
62% more likely to
support
12
26
62
15
30
55
55% more likely to
support
52
52% more likely to
support
16
32
Movement After Details: 6% increase in
support after voters hear details about the
proposal.

Support — 72%
60%
2nd Ask: After
Details
+6
Oppose — 22%
41
30%
-2
31
-4
15
6
7
0%
Strongly Support
Somewhat Support
Somewhat Oppose
Strongly Oppose
Unsure
Strongest argument in support of the proposal is that
a severe mental illness significantly compromises an
individual’s decision making process.
(Simplified version)

Severe mental illness can significantly impair an
individual, such as a veteran suffering PTSD.
Judgment, impulse control, and decision-making skills
can be significantly compromised.
Not at all/not very convincing
Unsure/False
Very / SW convincing
74% found it
convincing
22
4
74
The law currently forbids the death penalty for persons
with intellectual disabilities and juveniles. People with
severe mental illnesses should be treated the same
way.
34
The process to diagnose SMI is conducted by medical
experts and is lengthy and detailed. It is extremely
difficult for someone to fake an illness this severe.
30
7
8
59
59% found it
convincing
62
62% found it
convincing
Focus Group findings

 13 of the 16 participants
said the Legislature should
vote Yes on a SMI
exemption, 3 said No.
 Participants agreed that
serious cases of disorders
like PTSD, schizophrenia
and bipolar disorder should
qualify as SMI.
 Participants also want a
rigorous case by case
determination.
You need the right experts,
and you need to ask them if
they have seen people who
have faked it, and how do
you get around that.
(Female voter)
As a society I think it would be a bad
decision to execute someone with a
mental illness or limited capabilities. Just
from a moral standpoint, they don’t have
the ability to make proper decisions, even
if the crime they committed was serious
enough to be in that situation.
(Male voter)
Turning the consensus
into action

How we’re turning the consensus
into legislative action

Dispelling the myths
Educating the public
Gathering behind the mental health
community
Creating strong processes to address the
public’s concerns
Questions?
Aurélie Tabuteau Mangels
Mental Illness Initiative Fellow
Death Penalty Due Process Review Project
Section of Civil Rights and Social Justice
American Bar Association
Tel.: (202) 442-3451 @: [email protected]