By Addie Rolnick, published March 16th, 2020 in the Las Vegas Sun as a guest column.
This spring, the Nevada Supreme Court will begin considering whether to ban the death penalty for individuals with severe mental illness. The case before them involves a defendant who has been diagnosed by multiple experts as having schizoaffective disorder. He has a history of multiple personalities, delusions and irrational behavior, such as showering in his own urine and building a spaceship out of garbage to meet an imaginary friend in another galaxy. In circumstances like these, a death sentence is inhumane.
The death penalty is supposed to be reserved for the “worst of the worst,” meaning individuals who have not only committed the worst crimes but also are the most culpable. This is why the U.S. Supreme Court has explicitly forbidden the execution of certain groups of people: children under the age of 18 and people with intellectual disabilities. The court has not yet put those same protections in place for people with severe mental illness, even though they are just as impaired.
Research shows that individuals with severe mental illness are much more likely to be wrongfully convicted. They falsely confess at a higher rate than others, which is also true of juveniles and those with intellectual disabilities. They frequently have a much more difficult time assisting in their own defense, due either to the illness itself or because the shame and stigma associated with mental illness makes it difficult to uncover evidence. Finally, there is a misperception that individuals with mental illness are more dangerous than others. When evidence of mental illness is presented to juries as mitigating evidence, it can be misinterpreted as evidence of future dangerousness.
Recently, there has been a growing recognition within the medical and legal communities, legislative bodies, and the public that executing people with severe mental illness is inappropriate. Groups such as the American Bar Association, the American Psychological Association, Mental Health America and the National Alliance on Mental Illness have advocated against executing people with severe mental illness.
Public opinion also is changing. According to a 2014 poll, Americans oppose executing individuals with mental illness by a 2 to 1 margin. In the past few years, bills to exempt people with mental illness from execution have been introduced in at least a dozen states, and they have been passed out of at least one legislative chamber in Ohio, Virginia, South Dakota and Texas.
Some people have argued that there are protections in place, but those protections are wholly insufficient. The U.S. Supreme Court prohibits execution of the “insane,” but “insanity” is a legal term with no clinical or medical parallel. Sanity may be determined at multiple stages of the criminal process, but it is not clear whether the same definition applies at each stage. Nevada uses the narrowest definition of “insanity.” As long as a person is able to understand in the vaguest possible terms what he has done, he is not usually found insane, even if he is severely impaired and the reasoning behind his actions includes hallucinations, delusions or irrational thinking. More importantly, neither the definitions nor the procedures are rooted in current medical or psychological knowledge.
A categorical bar against executing people with severe mental illness is needed because the current protections do not take into account the lessened culpability of those with severe mental illness. This includes those who may be suffering from post-traumatic stress disorder, which is common among war veterans, as well as those with schizophrenia, hallucinations or severe bipolar disorder. As with the prohibitions against executing youths and the intellectually disabled, the Nevada Court should draw a clear line and look to medical and psychological experts to determine where it should be. Severe mental illness is defined by the American Psychological Association as a set of mental disorders that are “relatively persistent (e.g., lasting at least a year)” and “result in comparatively severe impairment in major areas of functioning.” If the court draws this line, people with severe mental illness could still be tried, convicted and imprisoned for their crimes; they just wouldn’t be eligible for execution.
Nevada has been a leader in this area before. Before the U.S. Supreme Court weighed in, our legislature was in the process of adopting a ban on executing people with intellectual disabilities, and the state had not executed a juvenile offender since 1949. By banning the death penalty for those with severe mental illness, the court can keep Nevada ahead of the curve by ensuring that the death penalty is not applied to the most vulnerable people in our society.
Addie Rolnick is a professor of law at the UNLV School of Law, where she teaches and writes about criminal and juvenile law and justice. She joined an amicus brief signed by Nevada law professors urging the court to consider this issue.
