By Bailey Martin
Eighteen men were executed in the United States in 2022, and so far, seven more men and women have been executed in 2023. Despite numerous arguments that these individuals suffered from severe mental illnesses, last-minute appeals and clemency requests were unsuccessful. Furthermore, upcoming scheduled executions continue this pattern of executing individuals with severe mental illnesses. These cases demonstrate the failure of our criminal legal system to protect vulnerable individuals with severe mental illness.
Although the Supreme Court has banned the executions of those with intellectual disabilities and those under the age of 18, it has not extended such protections to individuals with severe mental illness. In Atkins v. Virginia, the Supreme Court reasoned that people with intellectual disabilities “do not act with the level of moral culpability that characterizes the most serious adult criminal conduct.” Furthermore, their intellectual disability may “jeopardize the reliability and fairness of capital proceedings;” for example, these individuals may be less able to participate in their own defense. Consequently, the Supreme Court held that executing people with intellectual disabilities does not serve the purposes of retribution or deterrence of capital crimes, and banned its use against these individuals. The Court applied similar reasoning when banning the death penalty for individuals whose crimes were committed while they were under the age of 18, stating that juveniles have insufficient culpability to be eligible for the death penalty.
The Supreme Court has not extended this reasoning to those with severe mental illnesses, though. Current laws and procedures surrounding mental illness in death penalty cases fail to adequately protect individuals charged and sentenced to death. Presently, mental health can be raised in four ways during a capital case: (1) competency to stand trial, (2) a plea of not guilty by reason of insanity, (3) mitigation evidence against a death sentence, and (4) competency for execution. Despite the Supreme Court’s failure to protect individuals with serious mental illnesses, some states have passed legislation to address this issue on their own.
Competency to Stand Trial and for Execution
While competency to stand trial can be traced back to English case law, the current legal standard was established in Dusky v. United States. In competency proceedings, a court must determine “whether [the defendant] has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding—and whether he has a rational as well as factual understanding of the proceedings against him.” Every state in the United States has adopted some variation of this test, despite its vagueness.
Yet this standard fails to protect those with severe mental illnesses. First, this standard is extremely high. While someone with a severe mental illness may be able to understand the proceedings against them, this standard does not address the culpability issues the Supreme Court was concerned with in Atkins and Roper. Second, even if a defendant is found incompetent, they are often provided treatment to restore them to competency and subsequently tried. Therefore, competency proceedings do not protect mentally ill defendants from capital proceedings; they may only delay them.
The Supreme Court also held in Ford v. Wainwright that the Eighth Amendment forbids states from executing individuals “who [have] no comprehension of why he has been singled out and stripped of his fundamental right to life.” To be incompetent for execution, a court must determine whether the individual “has a rational understanding of the government’s reason for executing” them. Yet once again, the burden of proof is on the defendant to prove their insanity, and this standard is also very high. Just as with the competency for trial standard, many individuals with severe mental illness may not meet the requirements for incompetency. Furthermore, competency for execution looks at the mental state of a person years after the crime as they near an execution date – it fails to consider an individual’s mental health at the time of the alleged crime.
Plea of Not Guilty by Reason of Insanity (NGRI)
The insanity defense has its roots in England, and the first American case to adopt a plea of not guilty by reason of insanity test was Parsons v. State. While each state’s statutes vary, the American Law Institute’s Model Penal Code “M’Naghten test” states that “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 the law.”
Yet this process, too, does not protect defendants with mental illnesses from the death penalty. These pleas are rarely successful, even if substantial evidence exists that capitally charged individuals suffer from serious mental illnesses. In fact, some studies demonstrate that defendants who raise an unsuccessful insanity defense are more likely to receive the death penalty than those who do not. Furthermore, even if the plea is successful, the individual may still face a life of confinement in psychiatric facilities.
In death penalty cases, evidence of mental illness can be used as mitigation evidence to convince a jury that a death penalty is not appropriate. While this evidence can be powerful, evidence of mental illness can also backfire on defendants and actually make juries more likely to choose the death penalty. Even courts may consider evidence of mental illness to be an aggravating factor. Evidence of mental illness, in some cases, can be viewed by juries as an indicator of an individual’s future dangerousness. Individuals who provide evidence of mental illness to show diminished culpability may face a double-edged sword, where juries and the court see this as evidence that they will commit future crimes if not given the death penalty. Therefore, even though defense counsel may have wide latitude to present evidence of a capitally charged individual’s serious mental illness, the mitigation process may not protect them from the death penalty. Additionally, individuals with mental illnesses may not be equipped to adequately assist in their own defense.
Because of this gap left by the Supreme Court, and to address the lack of protections for capitally charged individuals with serious mental illness, states are creating their own legislation and procedures. In 2017, seven states had proposed legislation to prohibit the death penalty for those who have serious mental illnesses at the time of their crime.
Two states – Ohio and Kentucky – have passed such legislation. These laws also have their flaws, though. For example, Ohio’s law only gives individuals currently sentenced to death one year to appeal based on this new legislation. Also, if successful under this bill, individuals in Ohio are only eligible for life in prison with no possibility of parole. These bills also only ban the death penalty for limited diagnoses, including schizophrenia, schizoaffective disorder, bipolar disorder, and delusional disorder. And unlike Ohio’s law, Kentucky’s bill does not apply to those already sentenced to death.
While several other states are considering similar legislation, the Supreme Court must step in to ban the death penalty for those with serious mental illness. Neither retribution nor deterrence support its continued use, and the use of the death penalty against these individuals violates the Eighth Amendment’s ban on cruel and unusual punishment. By extending its reasoning in Atkins and Roper, the Supreme Court can provide additional protections for individuals suffering with mental illness and facing the death penalty.
**Bailey Martin is an Online Editor for the Vol. 41 of the Minnesota Journal of Law & Inequality.
 Khaleda Rahman, Every Death Row Prisoner Executed in the U.S. in 2022, Newsweek (Dec. 26, 2022), https://www.newsweek.com/every-death-row-prisoner-executed-2022-1769611.
 See, e.g., Oklahoma Denies Clemency to Death-Row Prisoner Richard Fairchild Who Suffers from Brain Damage, Hallucinations, and Delusions, Death Penalty Information Center (Oct. 17, 2022), https://deathpenaltyinfo.org/news/oklahoma-denies-clemency-to-death-row-prisoner-richard-fairchild-who-suffers-from-brain-damage-hallucinations-and-delusions; Texas Executes Mentally Ill Man After Denying Him Access to Mental Health Testing, Death Penalty Information Center (Nov. 9, 2022), https://deathpenaltyinfo.org/news/texas-prepares-to-execute-mentally-ill-man-while-denying-him-access-to-mental-health-testing; Oklahoma Executes Benjamin Cole for the Murder of His 9-Month-Old Daughter, KAKE.com (Jan. 28, 2023), https://www.kake.com/story/48251301/oklahoma-executes-benjamin-cole-for-the-murder-of-his-9monthold-daughter (describing how Benjamin Cole suffered from schizophrenia and brain damage); Derrick L. McRae, Florida Should Not Execute a Person with Mental Illness, Tampa Bay Times (Feb. 22, 2023), https://www.tampabay.com/opinion/2023/02/22/florida-should-not-execute-person-with-mental-illness-column/ (describing Donald Dillbeck’s lifelong struggle with mental health, substance use, and trauma, which continued into his decades of incarceration).
 Upcoming Executions Raise Concerns About Mental Illness and the Death Penalty, Death Penalty Information Center (Feb. 20, 2023), https://deathpenaltyinfo.org/news/upcoming-executions-raise-concerns-about-mental-illness-and-the-death-penalty (describing the cases of Donald Dillbeck in Florida, who was recently executed, and Andre Thomas in Texas, who is scheduled to be executed in April 2023).
 536 U.S. 304, 306 (2002).
 Id. at 306-307.
 Id. at 319.
 Roper v. Simmons, 543 U.S. 551, 572-573 (2005).
 Gianni Pirelli, A Meta-Analytic Review of Competency to Stand Trial Research, 17 Psych. Pub. Pol. And L. 1, 2 (2011).
 Dusky v. United States, 362 U.S. 402 (1960).
 Pirelli, supra note 9, at 2.
 Lisa Callahan and Debra A. Pinals, Challenges to Reforming the Competence to Stand Trial and Competence Restoration System, 71 Psychiatric Services 691 (2020) (describing restoration treatments in competency cases).
 Ford v. Wainwright, 477 U.S. 399, 409 (1986).
 See Severe Mental Illness and the Death Penalty, American Bar Association: Death Penalty Due Process Review Project 24 (Dec. 2016), available at https://www.prisonpolicy.org/scans/aba/SevereMentalIllnessandtheDeathPenalty_WhitePaper.pdf (citing Panetti v. Quarterman, 551 U.S. 930, 933 (2007)).
 Id. at 24.
 Eugene M. Fahey, Laura Groschadl, & Brianna Weaver, “The Angels that Surrounded My Cradle”: The History, Evolution, and Application of the Insanity Defense, 68 Buffalo L. Rev. 805, 816-817 (2020).
 Id. at 818.
 Mental Illness and the Death Penalty, ACLU (May 5, 2009), https://www.aclu.org/report/report-mental-illness-and-death-penalty.
 Eileen P. Ryan and Sarah B. Berson, Mental Capacity and the Death Penalty, 25 St. Louis U. Pub. L. Rev. 351, 377 (2006).
 Fahey, supra note 13, at 806.
 Episode Fourteen: Legal Process, Podcast Transcript, pg. 2, Death Penalty Information Center, https://files.deathpenaltyinfo.org/legacy/podcast/resources/Episode14LegalProcess.pdf.
 See, e.g., Rabindranath Ramana, Living and Dying with a Double-Edged Sword: Mental Health Evidence in the Tenth Circuit’s Capital Cases, 88 Denv. U. L. Rev. 339 (2011).
 Id. at 369-370.
 Id. at 368, n.213.
 See Severe Mental Illness and the Death Penalty, American Bar Association: Death Penalty Due Process Review Project 22-23 (Dec. 2016), available at https://www.prisonpolicy.org/scans/aba/SevereMentalIllnessandtheDeathPenalty_WhitePaper.pdf.
 Id. at 34. (“Those with mental illness also risk wrongful conviction and execution because their disorder impairs their ability to assist in their own defense, as mentioned earlier. They might be generally unassertive and unwilling
to provide vigorous objection to the prosecution’s claims. Mental illness can make them poor witnesses
in their own case, as they may forget or confuse exculpatory evidence. Their symptoms could also render
communication with counsel very difficult, complicating their attorneys’ already challenging task of securing an
 Rebecca Beitsch, States Consider Barring Death Penalty for Severely Mentally Ill, Pew (Apr. 17, 2017), https://www.pewtrusts.org/en/research-and-analysis/blogs/stateline/2017/04/17/states-consider-barring-death-penalty-for-severely-mentally-ill (listing Arkansas, Indiana, Ohio, South Dakota, Tennessee, Texas, and Virginia).
 Annika Russell, Ohio Passes Law Barring the Death Penalty for Defendants with Serious Mental Illness, ABA (Feb. 24, 2021), https://www.americanbar.org/groups/committees/death_penalty_representation/publications/project_blog/ohio-bars-death-penalty-for-mental-illness/; Kentucky Legislature Passes Bill Prohibiting Death Penalty for People with Serious Mental Illness, Death Penalty Information Center (Mar. 29, 2022), https://deathpenaltyinfo.org/news/kentucky-legislature-passes-bill-prohibiting-execution-of-people-with-serious-mental-illness.
 Russell, supra note 30.
 Russell, supra note 30; Kentucky Legislature, supra note 30.
 Kentucky Legislature, supra note 30.
 American Bar Association, supra note 14, at 25-26.
 Id. at 28.