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DUPS Amicus: Mental illness and the death penalty in the US

Among the various issues surrounding the death penalty in the US, one of the more controversial topics is on the protections offered to vulnerable people against the death penalty. In particular, the question of whether the death penalty should remain as an option for the punishment of mentally-ill criminals is being explored extensively due to recent case development in the US. This article aims to introduce readers to the status quo of the laws relating to death penalty on mentally-ill criminals and discuss this issue with reference to the rationale behind death penalty sentencing.


At the outset, the idea of protecting mentally-ill criminals from death penalty and punishing them proportionately stems from the Eighth Amendment to the United States Constitution, which essentially prohibits “cruel and unusual punishments”.Therefore, extreme criminal punishments, especially the death penalty, have been subjected to criticisms and intense scrutiny over the years. On top of this, US cases such as Ford v Wainwright and Panetti v Quarterman have further expanded on the topic of imposing death penalty on mentally-ill criminals. In particular, the US Supreme Court in Ford ruled that it is unconstitutional to execute someone who is mentally incompetent in pursuant to the Eighth Amendment prohibition, which led to the introduction of a competency evaluation procedure. Furthermore, the Panetti case expands on Ford’scompetency evaluation by suggesting that ‘rational understanding’ of the reason for their executions must be required from these mentally-ill criminals. In the very recent case of Madison v Alabama, the US Supreme Court clarified further on the aforementioned ruling in Panetti by confirming that the actual mental health condition of a criminal, no matter how severe or insignificant, is irrelevant as long as that criminal has the ‘rational understanding’ required, particularly on ‘what he is accused of’ and ‘how…[the state] plans to punish him’.Therefore, we can see that the US judiciary sector has been refining the requirements for assessing a mentally-ill criminal’s competency in receiving a death penalty over the years, so as toavoid imposing disproportionate and unnecessary punishments on undeserving criminals bearing the Eighth Amendment in mind.


In fact, two of the reasons that the US judiciary has been cautious in imposing the death penalty on mentally-ill criminals could be due to considerations on the retributive purpose of criminal punishments as well as on the access to justice. Firstly, the retribution purpose of death penalty may not be achieved if the mentally-ill criminal could not understand that what he/she did was a crime as well as his/her culpability on that crime. To elaborate, due to his/her mental illness, the criminal may not have knowingly committed a crime which he/she knew that he/she should not do, and therefore he/she may not deserve to suffer from such extreme punishment as the death penalty. One example is the case of Andre Thomas, who had paranoid schizophrenia, and he killed his estranged wife, his four-year-old son and his one-year-old stepdaughter because he believed that his killings were an order from God to expel the demons from the victims. As such, it was likely that Thomas was unable to understand the culpability of his actions when he was carrying out the killings. Hence, it might be too harsh to impose deathpenalty (i.e. the most severe criminal sanction) on mentally-ill criminals such as Thomas whose criminal behaviors may be influenced by his/her mental illness. Secondly, potential criminals may also be unable to fully realise the access to justice due to their mental illnesses, leading to lack of fair trial. In particular, Taslitz suggests that potential criminals who are unable to retain short-term memory may be unable to “‘knowingly, voluntarily, and intelligently’ waive their Mirandarights because they could not remember them”, and such mental deficiency may also influence their ability to assist their attorney and their competency to stand trial. As a result, the obstacles of mentally-ill people on their access to justice may also be another reason that death penalty should not be sanctioned on these people, since they may not be able to benefit from a fair trial.


All in all, the aforementioned cases suggest that the US judiciary is moving towards the direction of refining the competency evaluation procedure in order to protect mentally-ill criminals from being arbitrarily executed, and considerations of the retributive purpose of death penalty and mentally-ill people’s access to justice also reflect the importance of the US judiciary in being cautious on this matter. Ultimately, the various states in the US should continue scrutinising and finetuning the laws relating to death penalty on mentally-ill criminals in order toensure these vulnerable criminals are justly and proportionately punished.



Tsz Long Max Lee

DUPS Amicus

12th March 2019

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