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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]