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January 18, 2007

On mental condition as a mitigating issue

During next week's classes any beyond, we will talk a lot about mental conditions of various sorts impacting the application of the death penalty.  I see our quick discussion of MR this week has already spurred some comments in a prior post, and Kristin Harlow sent me this thoughtful note concerning my comments about the potential for faking mental illness:

I had a comment that doesn't really fit into the comments currently on the board, so you can post this or not, as you see fit. I have an objection to your comments about advising your hypothetical clients on death row act "crazy" in order to avoid being executed.  [BERMAN NOTE: I was half joking with my in-class comment, but I suppose therefore also half serious.]

Although I am not sure exactly what the policy is regarding the death penalty (I guess no one will know until the Supreme Court rules), I do know that psychiatrists can reliably determine whether or not someone is faking a severe mental illness. See Michael L. Perlin, “The Borderline Which Separated You from Me”: The Insanity Defense, The Authoritarian Spirit, The Fear of Faking, and The Culture of Punishment, 82 Iowa L. Rev. 1375 (1997).

In addition to the literature, I interned at a state psych hospital for a school year, and after only nine months of experience, I could recognize cases of malingering.  Although I would not rely on my limited expertise, my point is that even with limited expertise, it is possible to know when someone is “faking.”  I imagine professionals with years of experience could feel very comfortable determining who on death row suffered from psychosis.

The reason for this comment is mostly because the myth that defendants can “get away with murder” by faking mental illness is creating a society where severely mentally ill people are in prisons rather than in hospitals, where they could be effectively treated, because of the fear that truly guilty people will not be punished. It will be interesting to see how the Supreme Court responds to the issue in the context of the death penalty.

January 18, 2007 in Aggravators and mitigators | Permalink


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The innocence project is at it again, this time receiving first story coverage in the national section of today's NYT:


Posted by: Scott A | Jan 19, 2007 12:11:57 AM

Great post, Kristin.

When it comes to mental illness as a mitigating factor (or complete excuse), something that always comes immediately to mind for me - and something that others have had some interest in debating - is that some crimes, by their very nature, simply seem to indicate insanity. I often think of Andrea Yates (Texas woman who drowned her five children one by one in their bathtub) when this proposition pops into my head. Doesn't the act of drowning her own children by hand, one by one, itself indicate a complete lack of appreciation for the true nature of her conduct?

Am I missing something here? Is it inappropriate to believe that some crimes by their very nature indicate serious mental illness? If I am wrong, I would love to be convinced otherwise (feel free to use Andrea Yates as a basis) - because as it stands, I cannot envision a scenario in which I could believe someone who drowns their children one by one without any financial or other motive is anything but severely mentally ill.

Posted by: Brett T. | Jan 20, 2007 10:21:24 AM

It is interesting that you mention Andrea Yates, because from what I recall, she was severely mentally ill and believed God was telling her to kill her children. If all of that is true, she would fall into the protected category. However, people kill for many reasons. Drug-related killing, other felony murder (like robberies gone awry), and organized crime come to mind.

It is a convincing point that everyone who kills is on some level mentally ill. I personally agree. But there is a difference between numbing yourself to your crime (often a situation caused by childhood or other trauma), and really believing things that are not true (usually caused by an organic disease such as schizophrenia). It is the second group that I think (a) should probably not be in prison in the first place, and (b) really really should not be executed.

Posted by: Kristin | Jan 20, 2007 11:33:36 AM

When you say that the mentally ill "really really should not be executed", what is the basis for this position? Is it because they are less culpable, less deserving of punishment, less likely to further a campaign of deterrence, or some other reason?

I'm intrigued by the obvious analogies that readily come to mind both here, and when Berman described the mentally ill folks who claim that they "don't want to be treated different".

It makes me think of "Of Mice and Men".

From a consequentialist standpoint, the consequences of their crimes are equivalent to non-mentally ill folks.

I do suppose that, depending on the level of mental illness, there may be less deterrent effect in their specific population, and of course, Kant may have argued that they should not be used as a means to an end to deter others.

They are certainly culpable, in terms of the consequences of the crime, although perhaps less culpable in the sense of less able to control their behavior. But this is a slippery slope - one might reasonably argue that poverty, from whence we currently get most of our death penalty candidates, is characterized by a group of people who in general are less in control of their environment and behavior.....the same could be said of the less educated, etc. So, to excuse the "organically mentally ill" appears to make a false distinction between the organic and the behavioral - one might reasonably argue that all lack of self control has an organic basis, as it originates from the organism. So just because you can quickly and easily characterize the gross behavioral disturbances of the schizophrenic person, does not mean that the abnormal or maladaptive behavior of other groups is not just as organic and therefore just as worthy of mercy.....and what of the alcoholic? The drug addict? These disease states are now considered, on some level adn to varying extents, organic disease states.

Regarding their deserving punishment - it seems you should only excuse them if, as a retributivist, you feel it is important that a person understand why he is being punished (this always seems to me like a morbid twist on an already morbid viewpoint - that is, retributivists want not only to inflict suffering, but they want psychological knowledge of and psychic pain to be the icings on the cake of their revenge). So, unless you are a strict retributivist, it seems that not knowing what the hell is going to happen to you (if ignorance is bliss....) lessens the severity of your punishment.....therefore, executing a person who doesn't know what's going on (retarded or schizophrenic) is less severe punishment than executing a cognizant person.

Perhaps we should excuse them for mercy's sake alone. Well and good, but that doesn't explain why we shouldn't excuse all capital offenders for mercy's sake alone.

It seems to me like retardation and mental illness are mitigating factors - factors like remorse and other mitigating factors that the jury must have had knowledge of and considered when the sentence was established. So, to say that a person whom a jury sentenced to death in spite of mental illness should not be executed seems to me a usurpation of juridical responsibility.

I am also concerned that when we treat people differently, we are in essence saying that they are "less human" in a sense. And I see that as another very slippery [and steep] slope.....

It's also intriguing that when a dog misbehaves, we remind ourselves that "the dog doesn't understand what it's doing" - but also that when a pit bull kills a human, we almost always kill the pit bull.....so there seems to be something that has to do either with the severity of the "crime" or the necessity to assure ourselves that the pit bull will not kill again, or for frank revenge and victim restitution through revenge, or perhaps a more sinister reason, if this analogy is continued - because we want to rid vicious genes from the canine gene pool.....

Posted by: Scott A | Jan 21, 2007 9:17:37 PM

If the value in having the death penalty available as a punishment is to communicate to citizens that there are some actions that are so socially reprehensible that we will exact the ultimate retribution, I prefer the formula developed in some states in insanity murder cases. If I remember correctly, some states will allow the verdict in such cases to read: "Guilty, but insane" (a clear excuse defense). Perhaps such jurisdictions could take their verdict a step further, into the punishment phase. Something on the order of "Death, but for insanity." This allows us to send the message - which again, is arguably the primary value in having the death penalty in the first place - but without punishing morally blameless persons (assuming you subscribe to the belief that if the legal insanity standard is met - I believe this is true of both insanity standards - the defendant is not morally responsible for his/her actions).

Posted by: Brett T. | Jan 22, 2007 12:28:45 PM

Scott, interesting points. But it seems that the road you are going down would lead to the death penalty for all killing. So do you want the death penalty available to drunk driving? Involuntary manslaughter? Accidents? All of them result in death.
The difference between people with psychosis and people in unfortunate circumstances, such as drug addiction, is that people who are addicted to drugs can still make decisions based on reality. Even if we think their situation calls for mercy, they have still chosen their course of action.
In the case of a person in the midst of a psychotic episode, even more than a person with developmental disabilities, the person is not making a rational choice. There is no retributive basis for punishment. Further, there is no deterrent effect because if someone is not capable of rational decision-making, they will not be considering the possibility of execution. Without retribution or deterrence, I don't see the purpose of the punishment.

Also, pit bulls are not people. I don't think that society would fund a prison or psychiatric facility to treat pit bulls, the way they do for people. It seems to be an incapacitation argument, which would be satisfied by life in a psychiatric facility.

Posted by: Kristin | Jan 23, 2007 8:42:14 AM

K -

Your first point appears to harken to the issue of intent. There is ample precedent for less harsh punishments when there was not intent. This can be debated in its own right, but I'll pass for now.

Regarding the second point, it appears that you are saying that with mental illness there is total absence of behavioral control, but with other conditions, such as poverty, lack of education, or drug addiction, there is some control. While this can also be debated ad nauseum, I think we can agree on at least a few points:

1.) Even a floridly schizophrenic person is often capable of a good deal of rational motivated conscious thought. For example, he will know how to, and put into place plans to, seek food, shelter, water, sex, cigarettes, etc. So I do not agree that mental illness gives you carte blanch to do as you please, nor do I believe that you are not to some extent in control of your behavior if you are mentally ill.

2.) Non-mentally ill folks often display markedly irrational behavior and lack of self-control often with severe consequences. Take Marvin Johnson who is on Ohio death row. This man, to his peril and against council, represented himself for his murder trial in SE Ohio a few years ago. The judge commented that his understanding of the trial process was such that he thought that you just stood up and told your story, and he had not even the least bit of familiarity with an organized system of rules. But he insisted on representing himself. So either ignorance, stupidity, or irrationality or some combination led to an aweful error on his part. BUT EVEN MORE SHOCKING, is that, having been convicted, he begged the judge for the death penalty, and was rude, defiant, and cruel to the victims during the penalty phase. So it is no surprise that a rural [white] SE Ohio court sentenced him to death. It is difficult for any rational person observing this to not feel the pain of this highly irrational behavior, considering its consequences for Marvin. But he's not mentally ill. Does that make his irrationality and lack of behavioral contorl less severe for society? On the contrary, I would argue that this kind of irrationality is a far more grave threat to society and the individual.

This segues into your next point - as irrational as he behaves, do you believe that there is deterrent effect for Marvin? Even if you do, rewind to his crime, where he was all baked with crack cocaine, desperate, etc. So it follows that verifiable mental illness is no prerequisite for irrationality, even if the latter precludes imposition of the DP. That is, if you're going to have an exclusion for irrationality, it need not be predicated on mental illness.

Moreover, executing people on the basis of the intended consequences of their crimes would seem to serve as a deterrent to the rational people in society. In fact, perhaps more so. It sends the message that "it don't matter to us how crazy you're acting when you do it, we'll kill you if we catch you".....

If we're only trying to incapacitate the pit bulls, why don't we just allow the owner the opportunity to cage them or pay for their confinement? I think there are deeper reasons for why we kill them.

I'll now offer some personal points. Having treated many schiphrenic patients, I can tell you that they're no more frustrating than irrational but non-mentally ill patients. They are often fully in control of their basic behavior, but jsut have some crazy delusions and some planning for the future issues (which are also markedly prevalent in the irrational but not mentally ill population). Moreover, the majority of them don't go around killing folks. They just sit around and chain-smoke and hallucinate.

Posted by: Scott A | Jan 23, 2007 11:23:00 AM

I definitely agree that people with severe mental illness can make rational decisions. I guess I was just ignoring that point, and addressing only those cases where delusions caused the violence.

I also agree that most people with schizophrenia are not dangerous at all. Luckily, none of those folks are on death row.

I guess my point most closely resembles mistake of fact. Although in criminal law the mistake of fact rules are based on a "reasonable person" standard that obviously the extreme cases will not meet, I always believed that if someone was not able to avoid delusions, and then killed based on their own mistake of fact, that there should be some measure of clemency. But, based on your posts, there do seem to be some arguments to the contrary. Thanks for the food for thought...

Posted by: Kristin | Jan 23, 2007 3:48:02 PM

Since I'm not a law student or lawyer, I'll have to go investigate what mistake of fact means. But it seems like there may be a difference as to whether you're killing during a fit of insanity versus you're just generally insane either before or after your conviction? I'm pretty sure that one guy on DR was sane before but is crazy now. And there was previously a case in the courts regarding whether a guy could refuse the meds which would make him sane enough to be killed......now that's an interesting case...

Posted by: Scott A | Jan 23, 2007 5:30:58 PM

I completely agree with Kristin's post. I majored in psychology as an undergrad, and focused quite a bit on the neurological composition of "mentally ill" or otherwise dysfunctional brains - both of a somatic or psychosomatic nature. To summarize simply, just as someone can have, for example, paralysis of a limb, so can someone be as completely paralyzed in their perception of reality.

It frustrates me to read about the insanity defense and the opinion that such a defense can be easily faked, in fact that it often IS faked. The media is of course the major vehicle behind such beliefs, since the story line of a faked insanity defense catches almost anyone's eye - but statistics do not support that logic. There have been numerous studies that examine felony cases in which the insanity defense is asserted, and further, those cases in which the insanity defense was ultimately "successful" (of course "successful" quite often means that the defendant ends up spending an even longer time in a mental institution than he or she might in prison - and in prison, the individual does not receive necessary treatment).

In 191, The National Institute of Mental Health completed an 8-state study about the use and success of the insanity defense. In the study, the insanity plea was used in only 1% of cases, and of that 1%, it was successful only 26% of the time. Further, 80% of that 26% resulted from the prosecution's pre-trial agreement that the plea was appropriate. A summary of other studies reported similar findings. For example, a New Jersey study reported that of 52,000 cases in the 1980's (given this was probably before the insanity defense was more widely understood), only two-tenths of a percent asserted an insanity plea, and of those only 15 were successful. It's also important to remember that the majority of cases in which the insanity plea was successful are not even murder cases - they are lesser felonies.

Although I only have limited knowledge of the accuracy of these studies, it seems that since so many have similar results, that there is certainly something to the finding that the insanity plea is rarely used, and even more rarely successful. I think that this coincides with Kristin's post because if it were that easy to "fake" insanity, then I think we would find much different numbers.

Posted by: Stephanie F. | Feb 14, 2007 11:51:13 AM

I have one other thought about the Andrea Yates case. This is merely an opinion, and I do not purport to back this up with anything other than my own reactions to her husband's interviews about the event. Russell (her husband) has an interesting perception of Andrea's horrific actions. I think most people would be stunned to watch him earnestly explain that he has forgiven her for drowning their five children. In fact, he even says that he didn't doubt that she loved her children. Of course this reaction can be interpreted in a variety of ways (from perhaps an entirely religious standpoint or something of that nature), but I think that his ability to forgive her stems from his intimate understanding of her severe mental dysfunction. Based on this horrific crime, I would think that Russell would maybe be the LEAST likely person to forgive based on an insanity plea. However, he also understood, to some degree, that Andrea was not well - and perhaps that basis allowed him to "understand" (for lack of a better word) Andrea's actions.

These are just my own speculations and thoughts. I suppose I just think that such sincere forgiveness of the murder of his own five children might lend support that insanity is in fact very, very real.

Posted by: Stephanie F. | Feb 14, 2007 12:07:21 PM

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