By Bailey Martin*

In 2021, two men sentenced to death in 1999 and 2004, David Braden and Donald Ketterer, were removed from Ohio’s death row. These men were not removed due to successful constitutional appeals, nor were they removed due to proof of their factual innocence. Instead, the men were resentenced to life without parole under a new Ohio law that bars capital punishment for people with severe mental illnesses.

The law, which became effective in April 2021, is the first of its kind nationwide. Before this law, Ohio, like many states, allowed mental health to be considered as a mitigating factor when determining the appropriateness of a capital sentence. But the new law absolutely bans the death penalty for individuals who had a “serious mental illness at the time of the alleged commission of the aggravated murder.”

However, only four diagnoses qualify as a serious mental illness under the law: schizophrenia, schizoaffective disorder, bipolar disorder, and delusional disorder. While an individual does not necessarily need to be diagnosed with one of these conditions at the time of the offense, the mental health condition must have “significantly impaired the person’s capacity to exercise rational judgment” in relation to the aggravated murder. If an individual can prove they have a qualifying serious mental illness, their sentence is reduced to life without parole.

While this law is a significant step in protecting those with mental illnesses against capital punishment, it also presents numerous hurdles for defendants. First, a defendant’s mental health condition must fit within four narrow diagnoses, and these diagnoses do not include other numerous and common mental illnesses, including post-traumatic stress disorder, major depression, and anxiety. Second, a defendant must be able to prove that at the time of the murder, this mental condition “significantly impaired” them in their ability to conform their conduct to the law or to appreciate the nature, consequences, or wrongfulness of their conduct. Third, the law only allows for individuals to be resentenced to life without parole, despite the fact that for Ohioans sentenced to death before 1995, life without parole was not a sentencing option.

Finally, the law gives already-convicted Ohioans a limited, one-year window in which to file appeals; those already sentenced to death prior to the law’s enactment must file their appeal before April 2022. Defendants charged with new capital crimes will have a pre-trial mental health evaluation and a hearing to determine their eligibility for the death penalty. This means that individuals will have to litigate their mental health conditions, provide expert testimony, and find evidence to present to the court that dates back to the time of their offenses. In David Braden’s case, his sentence was reduced without opposition from Franklin County prosecutors, who said they had enough information to agree with defense counsel that he qualified under the statute. Donald Ketterer’s sentence was reduced in October 2021, and prosecutors have similarly stated that they will not appeal the decision.

While Ohio is the only active death-penalty state with such a law, it is not the first to consider legislation of its kind. Before repealing its death penalty in 2012, Connecticut had a similar law that made those with severe mental illnesses ineligible for a death sentence. Both Tennessee and Virginia have also considered similar legislation (Virginia has since abolished the death penalty).

While the Supreme Court has not discussed the issue of mental health and culpability, the Court did prohibit the use of the death penalty against individuals with intellectual disabilities in Atkins v. Virginia, 536 U.S. 304 (2002). The Court reasoned that those with intellectual disabilities have reduced culpability and should be ineligible for the death penalty. Similarly, the Court decided in Roper v. Simmons, 543 U.S. 551 (2005), that juveniles also have sufficiently reduced culpability to ban death sentences for minors. Thus, it follows that death sentences for individuals with severe mental illnesses should also be prohibited due to their own reduced criminal culpability.

Despite the Supreme Court’s silence on this issue, other courts across the country are now reconsidering mental health as it relates to individuals’ criminal culpability. In 1997, the first mental health court was established in Broward County, Florida, after efforts from both a public defender and a circuit court judge. The court aims to divert defendants into treatment programs, although only nonviolent misdemeanors are eligible for this process. Similar programs have emerged across the country; by 2010, more than 40 states had mental health courts in operation. While research is limited regarding the success of these courts, some studies have shown that individuals who participate in mental health court programs have greater engagement in treatment programs and have positive effects that last more than a year post-participation.

Minnesota’s own Hennepin County Criminal Mental Health Court has served as a national model since it opened in 2003. The program serves those with mental illnesses, brain injuries, or developmental delays that have significantly impacted their lives. Once referred to the program by an attorney or probation officer, the court links individuals with housing, employment, therapy, and other mental health services. The program, which can last six months or longer, can also serve those accused of violent offenses, although those accused of sexual crimes are not eligible. Successful completion of the program can result in dismissed or lowered charges to help individuals avoid jail time. Judge Kerry Meyer, who ran the mental health court in 2015, stated that approximately 60 percent of participants graduated from the court. Even some individuals who did not graduate, according to Meyer, had measurable successes as a result of their participation, including less hospitalizations, less incarceration, and less severe, subsequent crimes.

While more resources, funding, research, and efforts are needed to protect those with mental health conditions from criminal justice involvement, these laws and programming point to a changing landscape nationwide. These changes are needed, considering that individuals with serious mental illnesses are 50 percent more likely to receive a jail sentence after a misdemeanor arrest and more likely to serve longer prison sentences than those without mental illness. Furthermore, having mental health symptoms may make individuals more at risk for false confessions and prevent them from fully participating in their own defense. An outright prohibition from the Supreme Court would more substantially protect these individuals from death sentences, but more public health and criminal justice reforms are needed in order to protect all persons with mental health symptoms from these disparate impacts.

*Bailey Martin, University of Minnesota Law School Class of 2023, JLI Vol. 40 Staff Member