The question of how individuals with severe mental disabilities should be sentenced when they are convicted of capital (death penalty) crimes is a vexing one in U.S. society. On one hand, the death penalty is an established part of the criminal justice system in the United States, which exists in part as a reflection of our society’s outrage in response to certain kinds of violent crime. On the other hand, in the words of former U.S. Supreme Court Chief Justice Earl Warren, a society’s “evolving standards of decency that mark the progress of a maturing society” require that we recognize that there must be exceptions to this most extreme form of punishment. This research paper describes the Resolution of the American Bar Association on Mental Disability and the Death Penalty, which was endorsed by the American Psychological Association and other professional organizations, and the Resolution’s approach to the difficult problem of mental disability and capital punishment.
The American Bar Association (ABA) formed an interdisciplinary task force to consider this problem. The Task Force on Mental Disability and the Death Penalty (hereinafter “Task Force”) was established by the ABA’s Section of Individual Rights and Responsibilities and chaired by Ronald Tabak (Task Force, 2006). Many of the 24 members of the Task Force were attorneys, including representation from the National Alliance on Mental Illness, but there were also representatives from the American Psychological Association (the three authors of this research paper) and the American Psychiatric Association. The Task Force worked for 2 years (April 2003 to March 2005) on considering, debating, and crafting the Resolution that is quoted in this research paper. It was approved by the ABA in August 2006, after having previously been endorsed by the American Psychological Association, the American Psychiatric Association, and the National Alliance on Mental Illness.
One of the important initial questions facing the Task Force was whether mental disability should constitute a per se bar to capital punishment—that is, whether individuals with certain kinds of mental disability should not need to demonstrate anything further in order to be excluded from consideration for the death penalty. There were differing views among Task Force members on this question. The vast majority of questions in mental health law require consideration not only of mental disability but also of specific functional legal capacities that vary according to the legal question, and the relationship between the mental disability and the functional capacities. For example, an individual with a severe mental disability would not be adjudicated incompetent to stand trial only on the basis of that disability; the court would also consider the functional legal criteria involving a rational and factual understanding of the individual’s legal situation and the capacity to assist counsel in his or her own defense. The defendant who experiences deficits in these functional legal capacities that are caused by symptoms of a severe mental disability is much more likely to be adjudicated incompetent to stand trial by a court.
So it did not appear sufficient to craft a resolution on the theme that those with mental disability should be excluded from the death penalty on that basis alone. Throughout most of the Resolution, the Task Force used the consideration of mental disability, functional legal criteria, and causal connection in formulating its language.
To complicate matters further, however, there is some important case law, in the form of decisions by the U.S. Supreme Court, indicating that in some instances the defendant’s mental condition or age is sufficient by itself to exclude that individual from capital punishment. In Atkins v. Virginia (2002), the U.S. Supreme Court decided that the Eighth Amendment of the Constitution bars capital punishment for individuals with mental retardation on the basis that it is a cruel and unusual punishment. This decision was followed by another case, Roper v. Simmons (2005), in which the Supreme Court held that execution of those under the age of 18 at the time of the offense was also constitutionally prohibited under the Eighth Amendment.
Faced with the choice of whether to apply “mental disability” to capital punishment as the Supreme Court did in Atkins and Roper, with the disability itself constituting sufficient grounds for an exclusion, or to use the more established approach used in virtually all other questions in mental health law, the Task Force adopted a two-dimensional approach. Consistent with Atkins, the first prong of this Resolution proposes that those with significant limitations in their intellectual functioning and adaptive behavior (criteria associated with mental retardation) be excluded from consideration for capital punishment on that basis alone. However, individuals with “severe mental disorder or disability” would need to demonstrate both the existence of such a disorder/disability and the resulting impairment in functional legal capacities at the time of the offense (the Resolution’s second prong) or following sentencing (the third prong). This two-dimensional approach has the advantage of not only recognizing the Court’s holding that a specific kind of disability (mental retardation) is sufficient in itself to exclude defendants with this disability from capital sentencing but also acknowledging the longstanding demand for considering both nature of disability and relevant functional legal capacities in other areas of mental health law.
Finally, the Task Force sought to fill an important gap in the law regarding competence for execution, which applies when a defendant who receives a death sentence begins to demonstrate symptoms of a severe mental disability after sentencing but before execution. In Ford v. Wainwright (1986), the U.S. Supreme Court held that execution of an incompetent prisoner constitutes cruel and unusual punishment, which is proscribed by the Eighth Amendment. However, the Court did not specify what criteria should be used to determine whether the prisoner is incompetent for execution. The Resolution provides suggested criteria that expand on the language used by Justice Lewis Powell, in his concurring opinion in Ford, to the effect that the prisoner’s understanding of the nature of capital punishment and why it is imposed in this particular case ought to be the relevant test. (Since Justice Powell’s opinion concurred with the majority on many points but was not part of the majority opinion, his language regarding the criteria for competence for execution did not become officially recognized as part of the Ford decision and hence applicable to other cases involving competence for execution. Some states have adopted this language as part of their law in this area, but they are not required to do so as they would have been if the language had been included in the majority’s decision.)
The Resolution (Quoted From the Task Force)
RESOLVED, That the American Bar Association, without taking a position supporting or opposing the death penalty, urges each jurisdiction that imposes capital punishment to implement the following policies and procedures:
- Defendants should not be executed or sentenced to death if, at the time of the offense, they had significant limitations in both their intellectual functioning and adaptive behavior, as expressed in conceptual, social, and practical adaptive skills, resulting from mental retardation, dementia, or a traumatic brain injury.
- 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
- to appreciate the nature, consequences or wrongfulness of their conduct,
- to exercise rational judgment in relation to conduct, or
- to conform their conduct to the requirements of the law.
A disorder manifested primarily by repeated criminal conduct or attributable solely to the acute effects of voluntary use of alcohol or other drugs does not, standing alone, constitute a mental disorder or disability for purposes of this provision.
- Mental Disorder or Disability after Sentencing a. Grounds for Precluding Execution. A sentence of death should not be carried out if the prisoner has a mental disorder or disability that significantly impairs his or her capacity
- to make a rational decision to forgo or terminate post-conviction proceedings available to challenge the validity of the conviction or sentence;
- to understand or communicate pertinent information, or otherwise assist counsel, in relation to specific claims bearing on the validity of the conviction or sentence that cannot be fairly resolved without the prisoner’s participation; or
iii. to understand the nature and purpose of the punishment, or to appreciate the reason for its imposition in the prisoner’s own case.
Procedures to be followed in each of these categories of cases are specified in (b) through (d) below.
- Procedure in Cases Involving Prisoners Seeking to Forgo or Terminate Post-Conviction Proceedings. If a court finds that a prisoner under sentence of death who wishes to forgo or terminate post-conviction proceedings has a mental disorder or disability that significantly impairs his or her capacity to make a rational decision, the court should permit a next friend acting on the prisoner’s behalf to initiate or pursue available remedies to set aside the conviction or death sentence.
- Procedure in Cases Involving Prisoners Unable to Assist Counsel in Post-Conviction Proceedings. If a court finds at any time that a prisoner under sentence of death has a mental disorder or disability that significantly impairs his or her capacity to understand or communicate pertinent information, or otherwise to assist counsel, in connection with post-conviction proceedings, and that the prisoner’s participation is necessary for a fair resolution of specific claims bearing on the validity of the conviction or death sentence, the court should suspend the proceedings. If the court finds that there is no significant likelihood of restoring the prisoner’s capacity to participate in post-conviction proceedings in the foreseeable future, it should reduce the prisoner’s sentence to the sentence imposed in capital cases when execution is not an option.
- Procedure in Cases Involving Prisoners Unable to Understand the Punishment or Its Purpose. If, after challenges to the validity of the conviction and death sentence have been exhausted and execution has been scheduled, a court finds that a prisoner has a mental disorder or disability that significantly impairs his or her capacity to understand the nature and purpose of the punishment, or to appreciate the reason for its imposition in the prisoner’s own case, the sentence of death should be reduced to the sentence imposed in capital cases when execution is not an option.
This Resolution does not take a position on the death penalty generally. Neither the ABA, which organized the Task Force and ultimately approved the Resolution, nor organizations such as the American Psychological Association, the American Psychiatric Association, or the National Alliance on Mental Illness intended their endorsement to reflect a broader position on capital punishment applicable beyond the scope of the Resolution.
In some respects, this Resolution is largely consistent with established law. In Prong 1, for example, the Resolution language is quite consistent with the Supreme Court’s decision in Atkins, although it does expand the possible reasons for significantly limited intellectual functioning and adaptive behavior so that it now includes mental retardation as well as other possible sources of deficit (e.g., dementia, brain injury).
In other respects, however, the Resolution goes well beyond what is presently established under the law. It proposes to exempt from capital punishment those who, at the time of the offense or prior to execution, display both severe mental disability and impaired functional legal capacities. It does so in a traditional fashion, without the per se bar of a specific kind of mental disability or the defendant’s age. However, there is no question that what is proposed in the Resolution’s second and third prongs would change the law in some significant ways if the Resolution’s language were adopted by state legislatures and used by appellate courts.
This Resolution should not be interpreted as an attempt to absolve offenders of responsibility for their actions or exempt them from punishment. But it does recognize that there are degrees of culpability for very serious offenses and that severe mental disability may reduce that culpability somewhat. Even for those who might meet the criteria described in this Resolution, however, the reduction in sanction is from a death sentence to life incarceration—an attempt to balance our society’s interest in punishing the guilty with the importance of punishing them as culpability and fairness dictate.
- Atkins v. Virginia, 536 U.S. 304 (2002).
- Bonnie, R. (2005). Mentally ill prisoners on death row: Unsolved puzzles for courts and legislatures. Catholic University Law Review, 54, 1169-1193.
- Ford v. Wainwright, 477 U.S. 399 (1986).
- Heilbrun, K., Radelet, M., & Dvoskin, J. (1992). The debate on treating individuals incompetent for execution. American Journal of Psychiatry, 149, 596-605.
- Roper v. Simmons, 543 U.S. 551 (2005).
- Task Force on Mental Disability and the Death Penalty. (2006). Recommendation and report on the death penalty and persons with mental disabilities. Mental and Physical Disability Law Reporter, 30, 668-677.
- Trop v. Dulles, 356 U.S. 86 (1958).