SHOULD INDIVIDUALS WITH SEVERE MENTAL ILLNESS CONTINUE TO BE ELIGIBLE FOR THE DEATH PENALTY?

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1 SHOULD INDIVIDUALS WITH SEVERE MENTAL ILLNESS CONTINUE TO BE ELIGIBLE FOR THE DEATH PENALTY? BY AURÉLIE TABUTEAU MANGELS the law surrounding mental health in criminal cases is complex and technical, making it difficult to grasp its effects on sentencing in death penalty cases. Because a defendant s mental illness can be taken into account in a few limited ways in capital proceedings, many erroneously believe that individuals with severe mental illness already cannot be sentenced to death or executed. However, the reality is that states can, and do, still impose the death penalty on people with severe mental disorders and disabilities. But we should stop and ask ourselves: should they? Confusion about the current state of the law in this area may stem from the fact that individuals with intellectual disability (previously referred to as mental retardation ) a different condition than mental illness, but one that brings similar impairments became constitutionally protected from the death penalty 15 years ago in Atkins v. Virginia, 536 U.S. 304 (2002). The sometimes subtle diagnostic distinctions can confuse even seasoned lawyers who are not experts in mental health. They have also been used by some as a political tool to delay reform: for example, South Dakota s attorney general recently argued that there was no need for a severe mental illness exemption in his state because the death penalty cannot be imposed on those with intellectual disability. Mental health advocates took to the press to respond and explain, as they have done before, that [m]ental illness is entirely different than an intellectual disorder. (See Mark Walker, AG, Advocates Split on Whether State Allows Execution of Mentally Ill, Argus Leader (Dec. 21, 2016), argusne.ws/2pchsis.) Although the Supreme Court of the United States has explicitly recognized the Eighth Amendment violation in executing juvenile offenders and people with intellectual disability, defendants with severe mental illness continue to be sentenced to death and executed. For example, in March 2016, Texas executed Adam Ward, a man the courts recognized as diagnosed with bipolar disorder and placed on lithium as early as age four. (Ward v. Stephens, 777 F.3d 250, 253 (5th Cir. 2015).) Andre Thomas, a man CRIMINAL JUSTICE n Fall

2 Sources and further information regarding most elements of the article can be found in the ABA Death Penalty Due Process Review Project White Paper on Severe Mental Illness and the Death Penalty ( Additional citations are provided for elements not discussed in the White Paper. with a long history of paranoid schizophrenia, remains on Texas death row. Days after the crime and while unmedicated, Thomas removed his right eye in the throes of delusions with biblical overtones. Years later, he also removed and ate his left eye. (Thomas v. Dir., TDCJ-CID, No. 4:09-cv-644, 2016 WL (E.D. Tex. Sept. 19, 2016).) In 2013, the state of Florida executed John Ferguson, a man with schizophrenia who believed that he was the immortal Prince of God and that he will be resurrected at some point after his execution to sit at the right hand of God. (Ferguson v. Sec y, Fla. Dep t of Corrections, 716 F.3d 1315, 1324 (11th Cir. 2013).) While no one contests the horror of the crimes committed, there is also no question that people with severe mental illnesses are still facing the death penalty in the United States. Despite this continued practice, there is broad public and professional support for the idea that individuals with severe mental illness should not be subject to the death penalty, the ultimate punishment ostensibly reserved for the most blameworthy perpetrators. So how is it that this widely supported policy has not been converted into state law? As of the time of this writing, Connecticut is the only state to have had an explicit severe mental illness exemption. It was in place between 1973 and 2012, when the state abolished the death penalty for future offenses. However, that distinction may not last for much longer. In 2017, legislators in eight states Arkansas, Indiana, North Carolina, Ohio, South Dakota, Tennessee, Texas, and Virginia introduced bills to exempt individuals with severe mental illness from the death penalty, showing a renewed interest in the topic and a trend toward reform. (See Rebecca Beitsch, Should States Ban the Death Penalty for People with Severe Mental Illness?, PBS Newshour (Apr. 17, 2017), Part of the reason for the relative lack of legislative action before this year may lie in the aforementioned misunderstanding that individuals with severe mental illness are already protected from the death penalty. This article will review the legal mechanisms that already exist in capital cases involving defendants with mental illness, and will explain why they are not sufficient to prevent individuals with serious psychiatric disabilities such as schizophrenia from falling through the cracks and ending up on death row. Another reason why this exemption has not yet been turned into statutory law, some AURÉLIE TABUTEAU MANGELS is the Mental Illness Initiative Fellow for the ABA s Death Penalty Due Process Review Project in Washington, DC, where she works to support legal and legislative efforts to end the death penalty for people with severe mental illness. She can be reached at aurelie.tabuteaumangels@americanbar.org. argue, is that mental illness is not as easy to define and diagnose as intellectual disability. Both of these misconceptions will be addressed in this article. We will also explore the legal and policy arguments for extending the protections given to individuals with intellectual disability and juveniles to those with severe mental illness, and will show how the ABA and state legislators have proposed definitions and processes that would effectively implement such an exemption. This will lead us to ultimately answer the question should we execute people with severe mental illnesses? with an emphatic no. THE STATE OF THE LAW: WHAT EXISTS TODAY AND WHY IT ISN T ENOUGH Competency to stand trial. The competency standard is focused on a defendant s mental abilities at the time of trial, and is used to ensure that all criminal defendants can adequately assist in their own defense. (Dusky v. United States, 362 U.S. 402 (1960).) It does not address the state of mind at the time of the crime, or the question of legal culpability. A defendant found incompetent is moved to a medical facility to receive treatment to be restored, if possible, to competency so that he or she can eventually face charges. As a result, capital defendants with severe mental illness, even if found initially incompetent, can have their competency restored, be tried, and be sentenced to death despite still having a severe mental disorder or disability. Take the example of Scott Panetti, a man on Texas s death row. He was diagnosed with paranoid schizophrenia over 14 years before the offense for which he is now under sentence of death. He was hospitalized a dozen times for psychosis and delusions in the six years leading up to the crime, which also had the hallmarks of a severely disturbed mind. While off his antipsychotic medication, Panetti shaved his head and dressed in camouflage fatigues before going to his in-laws home and committing the offense for which he was convicted and sentenced to death. Despite having paranoid schizophrenia, Panetti was found competent to stand trial, and competent to represent himself. Acting as his own attorney at his trial in 1995, he wore a cowboy costume with a purple bandana and attempted to call over 200 people to the witness stand, including the Pope, John F. Kennedy, Jesus Christ, and his own alter ego. He was found guilty and sentenced to death. (Panetti v. Quarterman, 551 U.S. 930 (2007).) Insanity defense. Insanity is an affirmative defense to a crime, intended to relieve a defendant of legal responsibility. The most widely used standard for the insanity defense is the restrictive M Naghten test: a defendant is deemed insane if he did not know the nature and quality of the act he was doing; or if he did know it, that he did not know he was doing what was wrong. (M Naghten s Case (1843) 8 Eng. Rep. 718, 722.) Other states use slightly varying versions of the broader Model Penal Code s definition of insanity: A person is not responsible for criminal conduct if at the time of such conduct, as a result of mental disease or defect, he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law. (Model Penal Code 4.01 (Am. Law Inst.).) Finally, four capital punishment states do not even have an insanity defense (Idaho, Montana, 10 CRIMINAL JUSTICE n Fall 2017

3 Utah, and Kansas), meaning that criminal defendants in these states cannot be acquitted by reason of insanity, regardless of how mentally ill they might have been. In all states that do have an insanity defense, however, a defendant found insane will be found acquitted of the crime and most likely sent to a psychiatric institution. It is critical to note that the insanity defense is used in a very small number of criminal cases, and is successful in even fewer and that extends to capital cases, as well. Jurors are very reluctant to fully acquit someone charged with a violent crime such as murder, and are not always told that defendants found not guilty by reason of insanity are committed to a psychiatric institution (and not released to the streets). Lawyers are aware of these factors and other challenges in offering this affirmative defense, and as a result, insanity is raised in 1 percent of all criminal cases, and successful in only 25 percent of those. (Michael L. Perlin, The Jurisprudence of the Insanity Defense 108 (1994).) Finally, the insanity defense, especially when defined by the M Naghten test, only applies to a narrow category of individuals with very particular manifestations of mental illness. It is intended for the morally blameless: those who are found insane are completely acquitted of the crime for which they were charged. However, there are some defendants who are not morally blameless, but who suffered from such severe impairments that they do not rise to the highest level of culpability required for the ultimate penalty. For example, a defendant who knew that murder was wrong, but felt compelled to do it because of a delusional thought that God was forcing him or her to do so, would not meet the M Naghten standard, but is nevertheless severely mentally ill. These defendants are not protected from the death penalty under existing laws. Mitigating factors. Capital jurors can also consider mitigating factors related to mental illness at the sentencing phase of a death penalty trial, but this has proven to be an unreliable method to ensure that defendants severe mental illness will be evaluated properly when deciding whether they should live or die. Significant jury research has shown that generally jurors and the American public hold widespread and erroneous prejudices about mental illness and dangerousness, and may make life or death decisions based on them. Studies have found extensive evidence of stigmatizing beliefs regarding mental illness, and even found that [p] erceptions of individuals with mental illness as dangerous have increased over time.... [T]he odds of describing a person with mental illness as violent in 1996 were 2.3 times the odds of describing a person with mental illness as violent in (Angela M. Parcesepe & Leopoldo J. Cabassa, Public Stigma of Mental Illness in the United States: A Systematic Literature Review, 40 Admin. & Pol y Mental Health & Mental Health Servs. Res. 384, 390 (2013).) Because of these overt or subconscious biases, the death penalty may be imposed because of someone s mental illness, which is both troubling and unconstitutional. In addition, the presentation of compelling mitigation evidence depends primarily on access to experienced and effective defense counsel. Research has also shown that quality of representation varies widely geographically, and even case by case. As a result, a defendant s severe mental illness may not be properly investigated and little or no evidence of it may be presented to the judge or jury. In some cases, a defendant s mental illness is only investigated and presented to a judge by appellate attorneys, leading to some defendants spending years on death row before having their sentence overturned because of ineffective assistance of counsel or other grounds. Competency to be executed. When looking at a defendant s competency to be executed, courts will only look at his or her mental state near the pending execution date, which typically occurs many years after the crime. This evaluation is focused on whether defendants understand the reasons for their execution, and not on whether they were suffering from a severe mental disorder at the time of the crime. Someone who suffered from a severe mental illness at the time of the offense, but who understands the reason for his or her execution (either because of the cyclical nature of mental illness, or because he or she has since received mental health treatment), could still be put to death. In addition, even defendants with extreme cases of mental illness can be deemed competent to be executed by the courts. For example, in 2004, Texas executed Kelsey Patterson, who had been diagnosed with paranoid schizophrenia 23 years earlier and who believed until the end that he had a permanent stay of execution. Governor Rick Perry refused to grant clemency to Patterson, despite an extremely rare recommendation from the Board of Pardons and Paroles based on his history of mental illness the vote was 5 1 and was only the second such recommendation in the board s history. (Amnesty Int l, United States of America: The Execution of Mentally Ill Offenders 74 (2006).) As detailed above, existing legal standards are narrow, and none of them prohibit the imposition of the death penalty on someone who, while not meeting the standard for the insanity defense, suffered from a severe mental illness at the time of the crime. As a result, individuals like Scott Panetti, Andre Thomas, or Kelsey Patterson are sentenced to death or executed. However, there are many constitutional and public policy arguments in favor of providing those who had a severe mental illness at the time of the offense with a categorical exclusion from the death penalty. LEGAL ARGUMENTS IN FAVOR OF A SEVERE MENTAL ILLNESS EXEMPTION Evolution of categorical limits. The idea of limiting the use of the death penalty to certain categories of crimes, or of criminals, is part of a long history, and a severe mental illness exemption would be a logical extension of the Supreme Court s evolving interpretation of the Eighth Amendment ban on cruel and unusual punishment. Indeed, the use of the death penalty has evolved through the years to adapt to the evolving standards of decency that mark the progress of a maturing society. (Trop v. Dulles, 356 U.S. 86, 101 (1958).) Death penalty laws have greatly changed since the American colonial times, when in 1612, Virginia Governor Sir Thomas Dale enacted the Divine, Moral and Martial Laws, which provided the death penalty for even minor offenses such as stealing grapes, killing chickens, and trading with Indians. CRIMINAL JUSTICE n Fall

4 (History of the Death Penalty, Death Penalty Info. Ctr., bit.ly/2qq6xix (last visited Aug. 31, 2017).) Over the course of American history, the number of crimes eligible for the death penalty has markedly declined and the Supreme Court of the United States has issued some categorical bars. Marking the beginning of the so-called modern death penalty, the Court ruled in Gregg v. Georgia, 428 U.S. 153 (1976), that the death penalty cannot be imposed automatically: instead, the decision must be specific to the circumstances of the individual crime or the character of the defendant. A year later, in Coker v. Georgia, 433 U.S. 584 (1977), the Court held that capital punishment is unconstitutional for the rape of an adult woman when the victim was not killed. In Kennedy v. Louisiana, 554 U.S. 407 (2008), the Court ruled that the death penalty cannot be imposed for child rape or other nonhomicidal crimes against a person. Today, it can only be sought for murder (or treason in some states and at the federal level). The Supreme Court has also limited the categories of individuals who could be sentenced to death regardless of their crime. In 2002, in Atkins v. Virginia, 536 U.S. 304 (2002), the Court held that the execution of individuals with intellectual disability (then referred to as mental retardation ) violates the Eighth Amendment s ban on cruel and unusual punishment. Intellectual disability, according to the American Association on Intellectual and Developmental Disabilities, is a disability that originates before the age of 18 and is characterized by significant limitations in both intellectual functioning and in adaptive behavior, which covers many everyday social and practical skills. With Atkins, the Court announced that the Constitution requires a per se finding of diminished responsibility the execution of people with intellectual disability is unconstitutional based upon their diagnosis alone. (Bruce J. Winick, The Supreme Court s Evolving Death Penalty Jurisprudence: Severe Mental Illness as the Next Frontier, 50 B.C. L. Rev. 785, (2009).) However, defendants with intellectual disability can still be found guilty of murder and sentenced to life without parole. In explaining its reasoning, the Court first noted that the Eighth Amendment s ban on cruel and unusual punishment must be interpreted through the standards of the time, and reflect contemporary society s view on punishment. Next, it observed that a significant number of states had outlawed the execution of individuals with intellectual disability in the 13 years that had passed since it had previously upheld the execution of these individuals in The Court specifically noted the consistency of the legislative change and the fact that even in the states where the practice was not illegal, executing offenders with intellectual disability was uncommon. Most importantly, the Court also conducted an independent evaluation and concluded: Mentally retarded persons frequently know the difference between right and wrong and are competent to stand trial. Because of their impairments, however, by definition they have diminished capacities to understand and process information, to communicate, to abstract from mistakes and learn from experience, to engage in logical reasoning, to control impulses, and to understand the reactions of others.... Their deficiencies do not warrant an exemption from criminal sanctions, but they do diminish their personal culpability. (Atkins, 536 U.S. at 318.) The Court found that, in light of these deficiencies, there is a serious question as to whether either justification that we have recognized as a basis for the death penalty[ retribution and deterrence of capital crimes ]applies to mentally retarded offenders. (Id. at 319.) Then, in 2005, the Supreme Court recognized another important categorical exemption from the death penalty by ruling in Roper v. Simmons, 543 U.S. 551 (2005), that the execution of children under the age of 18 is unconstitutional. Again, the Court recognized the evolving standards of decency and directly relied on the Atkins reasoning. The Court again found indicia of national consensus in this case 30 states outlawing the execution of juveniles supported a finding of unconstitutionality. It also conducted an independent analysis, discussing the characteristics of juveniles, such as their vulnerability and comparative lack of control over their immediate surroundings, which show that they cannot with reliability be classified among the worst offenders. (Roper, 543 U.S. at ) Extending Atkins to individuals with severe mental illness. Individuals familiar with the symptoms of mental illness will be struck by how the Court s reasoning in Atkins and Roper can be applied virtually word-for-word to defendants with severe mental illness. Indeed, as many scholars agree, the parallels between the severely mentally ill and the individuals protected by Atkins and Roper are remarkable, even though mental illness and intellectual disability are distinct clinical diagnoses. (Lyn Entzeroth, The Challenge and Dilemma of Charting a Course to Constitutionally Protect the Severely Mentally Ill Capital Defendant from the Death Penalty, 44 Akron L. Rev. 529, 559 (2011).) A careful comparison of the language used in Atkins to describe the characteristics of intellectual disability with the symptoms of severe mental illness shows how the Court s reasoning applies with equal force to the latter. Consider some of the following traits, described in Atkins as evidence that lowers the moral culpability of individuals with intellectual disability: Diminished capacity to understand and process information: Symptoms of schizophrenia include confused, disordered, or illogical thinking, problems with attention, and declining educational performance. People with bipolar disorder can have uncontrollable racing thoughts and difficulty concentrating. Posttraumatic stress disorder (PTSD) also affects the capacity to understand and process information, making people hypervigilant and overreact to perceived threats. Diminished capacity to communicate: Many individuals with severe mental illness also have an impaired capacity to communicate. Symptoms of schizophrenia can include a loss of or decrease in the ability to initiate plans, speak, or express emotion. Delusional disorders and extreme paranoia can also interfere with the ability to communicate or trust others 12 CRIMINAL JUSTICE n Fall 2017

5 with important information. Diminished capacity to engage in logical reasoning: Delusions and paranoia can interfere with a person s ability to engage in logical thought. In addition, a person in a depressive episode may be overwhelmed by feelings of hopelessness and worthlessness, hindering logical reasoning. The hypervigilance characteristic of PTSD also leads to an illogical assessment of risks. Diminished capacity to control impulses: Schizophrenia symptoms can include bizarre behavior or abnormal movements, while bipolar disorder, especially when manifested through a manic episode, can lead to increased risky behavior. PTSD can include being startled very easily, feeling tense, or having outbursts of anger, which can in turn lead a person to overreact to perceived threats. These examples illustrate how the functional impairments caused by mental illness create the same kind of diminished capacities that Atkins relied on to find the execution of those with intellectual disability unconstitutional. In Atkins, the Court also wrote: [m]entally retarded defendants in the aggregate face a special risk of wrongful execution because of the possibility that they will unwittingly confess to crimes they did not commit, their lesser ability to give their counsel meaningful assistance, and the facts that they are typically poor witnesses and that their demeanor may create an unwarranted impression of lack of remorse for their crimes. (Atkins, 536 U.S. at ) Defendants with severe mental illness are similarly more vulnerable to giving false confessions, less able to meaningfully assist their counsel, and less likely to be good witnesses. In addition, their behavior may be interpreted to their detriment by a jury. Indeed, if defendants are suffering from active psychotic symptoms of their illness at the time of the trial, they may scare the jury. Conversely, if they are medicated, they risk looking (or falling) asleep, therefore looking unremorseful to jurors for whom remorse is a key element in making life or death decisions. Professional and social consensus. There is also strong evidence of a professional and social consensus against the use of the death penalty for people with severe mental illness, just as there was for people with intellectual disability. Indeed, shortly after the Atkins decision in 2002, the ABA Section of Individual Rights and Responsibilities (now the Civil Rights and Social Justice Section) convened a Task Force on Mental Disability and the Death Penalty, comprised of 24 attorneys and mental health professionals with diverse expertise from across the country. This group deliberated between April 2003 and March 2005 and proposed Resolution 122- A, which was adopted by the ABA House of Delegates in August A key part of the resolution urges each jurisdiction that imposes capital punishment to implement the following policy: Defendants should not be executed or sentenced to death if, at the time of the offense, they had a severe mental disorder or disability that significantly impaired their capacity (a) to appreciate the nature, consequences or wrongfulness of their conduct, (b) to exercise rational judgment in relation to conduct, or (c) to conform their conduct to the requirements of the law. Within a few months of the ABA s adoption of Resolution 122- A, the American Psychiatric Association, American Psychological Association, and National Alliance on Mental Illness also adopted almost identical resolutions. One of the task force members, forensic psychologist and American Psychological Association representative Dr. Joel Dvoskin, noted: To my knowledge, this is the very first time in history that those four organizations have adopted the same position on anything. (Associations Concur on Mental Disability and Death Penalty Policy, 38 Monitor on Psychol., Jan. 2007, at 14.) In 2011, Mental Health America, a leading nonprofit dedicated to addressing the needs of people living with mental illness, adopted a similar position. Additionally, there is a strong international consensus against the execution of individuals with mental illness. The United Nations Human Rights Council has long called for all states that maintain the death penalty not to impose it on a person suffering from any form of mental disorder; not to execute any such person. (Human Rights Council Res. 2000/65, U.N. Doc. E/CN.4/ RES/2000/65 (Apr. 27, 2000).) The Inter-American Commission on Human Rights, an autonomous human rights body representing the 35 countries of the Organization of American States, also stated in deciding the case of Lackey v. United States that [i]t is a principle of international law that persons with mental disabilities, either at the time of the commission of the crime or during trial, cannot be sentenced to the death penalty. (Cases , & , Inter-Am. Comm n H.R., Report No. 52/13 (2013).) Finally, the American people also strongly favor a severe mental illness exemption from the death penalty. A 2015 national poll found that 66 percent of voters support such an exemption. After voters hear further details about how the proposed exclusion would work, support for it rises to 72 percent. (David Binder Research, Multi-State Voter Survey: Death Penalty and Mental Illness (2015).) While Americans remains divided on the issue of the death penalty as a whole, they agree by a wide margin that our society should not execute those with severe mental disorders or disabilities. LEGISLATIVE REFORM AT THE STATE LEVEL: TOWARD A NATIONAL CONSENSUS While it can easily be argued that the diminished capacity of offenders with intellectual disability similarly applies to those with severe mental illness, and there is a professional and social consensus in support of a severe mental illness exemption, there is currently no national legislative consensus on the issue. In addition to Connecticut, which had an exemption in its statute since 1973, a handful of states considered bills to create a severe mental illness exclusion between 2007 and A severe mental illness exclusion bill passed through the Republican House of Representatives of North Carolina in While these earlier efforts were not successful, a new wave of coordinated reform campaigns have recently taken off and are pushing strongly for an Atkins-like categorical bar from execution for individuals with severe mental illness. The current effort. In the 2016 and 2017 legislative sessions, at least eight state legislators, supported by local coalitions led by mental health organizations, introduced bills aimed at creating a severe mental illness exclusion. Most of the bills, including in Virginia, South Dakota, Tennessee, Indiana, and Ohio, had Republican patrons, making this issue truly bipartisan in an age when bipartisanship is rare. The recent introduction of a bill in Texas has put a particularly valuable spotlight on this issue in a state with a high rate of executions, and with many individuals CRIMINAL JUSTICE n Fall

6 on death row with serious mental disorders. The fact that the Texas House Criminal Jurisprudence Committee voted for the bill on May 1, 2017, is another testament to the renewed interest in this topic, even for conservative states. Many of the bills remain pending in their respective state legislatures or are slated for reintroduction next year. They have been supported by broad coalitions of mental health organizations, medical associations, faith groups, legal groups, etc. In Ohio, a former Ohio Supreme Court Justice, Evelyn Stratton, is helping to lead the exemption effort after calling for it from the bench, in various dissents. Recently, two former governors of Ohio and Indiana, one Republican and one Democrat, have called this reform being considered in both of their states a fair, efficient and bipartisan reform that would put an end to a practice that is not consistent with current knowledge about mental illness and fundamental principles of human decency. (Bob Taft & Joseph E. Kernan, End the Death Penalty for Mentally Ill Criminals, Wash. Post, Mar. 24, 2017, Definition of severe mental illness and procedure in proposed legislation. While all the bills would prohibit the death penalty for people with serious mental illness, they vary in their approaches to achieving that goal. All of the proposals require proof of a severe mental disorder or disability that brought significant impairments to the defendant s capacity at the time of the crime. However, they differ slightly in how or when this evidence would be considered during a defendant s capital trial and how severe mental illness is defined. For example, each state s proposal defines severe mental illness slightly differently although all are rooted in the leading clinical definitions and most use the language from the ABA s 2006 policy. Some use a functional definition that describes the specific impairments brought about by mental illness or the effects of those impairments. Other states have opted to use a list of specific diagnoses, which typically include schizophrenia, bipolar disorder, major depressive disorder, delusional disorder, and schizoaffective disorder. A handful of states have also included PTSD and traumatic brain injury in their definition of severe mental illness. The second important element is the question of the procedure for raising and deciding the issue of a defendant s severe mental illness. On this topic, the ABA Criminal Justice Mental Health Standards recommend that eligibility for exemption from the death penalty be determined by the judge at the capital sentencing proceeding after the presentation of evidence but before deliberation on a verdict, unless the defense requests a pretrial hearing on the issue. (Standards for Criminal Justice: Mental Health Standard (Am. Bar Ass n 2016).) However, some legislators have proposed different procedures sometimes because of their considerations of what is most cost-saving or efficient for the courts, and in other cases simply as a product of political compromise. In fact, most of the current bills provide for a pretrial determination by a judge. However, a handful also provide for judicial determinations following the guilt-innocence phase. Others are jury determinations some pretrial and some at sentencing. Finally, in most bills, the burden of proof is placed on the defendant by a preponderance of the evidence. A few have proposed a clear and convincing standard, or provide that if a defendant submits prima facie evidence that a person is diagnosed with one of the illnesses listed in the bill, the burden shifts to the prosecution to prove by a preponderance of the evidence that the diagnosis was erroneous or that it did not significantly impair the person s capacity during the crime. All the bill texts and fiscal impact statements are available on the ABA s Death Penalty Due Process Review Project web page: bit.ly/2p5zat9. Practical implications for lawyers and mental health professionals. It is already standard practice for both the defense and the prosecution to hire mental health experts in all capital cases, to determine whether the defendant suffered from any relevant mental condition at the time of the crime or at other times of his or her life. If these bills become law, they will most likely not change the number or qualifications of the experts already hired in capital cases. However, an exemption will require some of those experts to conduct an additional evaluation to address the question of whether a defendant had a severe mental illness at the time of the crime. Mental health experts in capital cases currently give their opinion as to whether a defendant was insane at the time of the offense or incompetent to stand trial at the time of trial, or whether there were any other mental health issues that might be mitigating. The new bills would require mental health experts to evaluate the defendant and give their opinion as to whether he or she was suffering from severe mental illness at the time of the offense. This would be an additional evaluation in their report, and it would provide an analysis similar to the insanity definition but using a broader standard than what is used to absolve a defendant from all criminal culpability. Indeed, the exemption aims to provide a failsafe for defendants who do not rise to the level of complete acquittal, yet do not deserve the ultimate punishment. These evaluations will vary from state to state with the different definitions of severe mental illness that have been included in the bills, but will aim to help the judge or jury decide whether or not the defendant is eligible for the severe mental illness exemption. For attorneys defending death row inmates, this new exemption would provide a way to bring up the issue of their client s mental illness early in the process, and, if the client has a severe mental illness, either facilitate better and earlier negotiations with prosecutors or allow the court to take the death penalty off the table. As mentioned above, attorneys in capital cases should and most do investigate their client s mental state at the time of the crime in all cases. This exemption would allow them to raise the issue at a dedicated hearing. Lawyers will have to add this new tool into their strategy decisions, and think about how to combine it with existing proceedings such as the insanity defense or mitigating factors. CONCLUSION In conclusion, the death penalty is intended to be the ultimate punishment that should be reserved for the most blameworthy individuals who commit the worst crimes and it does not serve any effective or appropriate purpose when applied to individuals with severe mental illness. The Supreme Court has already recognized that there are categories of individuals who have similar functional impairments to people with serious mental illness that are inherently less culpable, to the point that it is unconstitutional to apply the death penalty in their cases. In light of this constitutional landscape, the growing consensus against this practice evidenced by a renewed legislative reform effort, and the fact that none of the current legal mechanisms afford adequate protection against the death penalty to those diagnosed with serious mental disorders or disabilities, it is time for the laws in U.S. capital jurisdictions to change.n 14 CRIMINAL JUSTICE n Fall 2017