Posts by jlieditors
Volume 42, Issue 1 (2024)
How a New Ohio Law and Other State Reforms Are Changing the Landscape of Mental Health and Criminal Justice
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
A New Minneapolis: Opportunities in the Redistricting of Minneapolis Wards
By Hannah Stephan*
Since the completion of the 2020 U.S. Census, states and cities around the country have begun the process of redistricting. On the tail of a heated municipal election season, redistricting in Minneapolis is especially noteworthy as residents are preparing for a re-do of the City Council election two years from now. Though City Council members are typically elected for four-year terms, the upcoming redistricting process means that the recently elected members will serve for only two years before another race to represent the newly-drawn districts in 2023. The final map, which is due on March 29, 2022, must be “as equal in population as practicable,” and in no event more than five percent different from the mean number of residents per ward. Minneapolis has thirteen wards. Currently, Ward 2 and Ward 3—which include Downtown Minneapolis, much of the University of Minnesota campus, and surrounding areas—are too large, while several South Minneapolis wards are too small.
The ward redistricting process, which follows the Census every ten years, is performed by the City of Minneapolis Redistricting Group, comprised of the Minneapolis Charter Commission and an advisory group appointed by the Commission. The advisory group is made up of eligible Minneapolis voters who have not held elected office, run for elected office, or worked for the City of Minneapolis or any political party in the two years prior to appointment. The Charter Commission appoints these individuals. In terms of process, the Redistricting Group has certain recommended principles and guidelines to follow; but only the requirements in Article II, § 2.2 and § 2.3 of the Minneapolis City Charter are mandatory. In Minnesota generally, redistricting is governed primarily by Minnesota Statutes § 204B.135, which outlines the timing for the process, and Minnesota Statutes § 205.84, which describes boundary and population guidelines.
The redistricting process as a whole provides an interesting look at how Minneapolis and other cities can use redistricting to focus on creating more equitable outcomes for the city as a whole. Though Minneapolis will likely not see many changes in the upcoming redistricting process, especially since one of the Redistricting Group’s mandates is to minimize changes, some of the few changes in Minneapolis could be significant. For example, one proposed map draws newly-elected Ward 4 Council Member LaTrisha Vetaw’s residence out of her ward and Ward 5 Council Jeremiah Ellison out of his. The map’s proposed changes to Wards 2 and 3 also have implications for the high-impact Downtown and University communities. Given these considerations, there are certain changes that Minneapolis could make to more meaningfully incorporate public feedback and prioritize equity in its redistricting process.
A map of current Minneapolis wards from the City of Minneapolis.
Defining Equity in the Redistricting Process
It is critical for redistricting groups to meaningfully consider equity to make sure that historically underrepresented communities do not continue to have their voices erased or diluted. Speaking about the statewide redistricting process, Common Cause Minnesota Executive Director Annastacia Belladonna-Carrera said, “[f]or far too long, Black, Indigenous and Minnesotans of color have had their political power diluted in the redistricting process . . . many do not benefit from equitable electoral power or a fair opportunity to elect candidates with shared interests who are going to take up those issues . . . unique to these communities . . ..”
At the state level, the organizations Common Cause Minnesota, OneMN.org, and Voices for Racial Justice have sued to ensure better representation for communities of color in Minnesota’s redistricting process. According to these organizations, “approximately 85 percent of Minnesota’s population growth between 2010 and 2019 can be attributed to communities of color,” so the state should pay special attention to the representation needs of these communities as it redraws maps. The same perspective should be applied at the city level as Minneapolis officials consider new wards.
Fair Census Counts are Critical to Equitable Redistricting
We are already too late if Minneapolis only starts thinking about equity during the redistricting process. Since the redistricting process is preceded by the U.S. Census, ensuring that Minneapolis has thoroughly and accurately counted its residents is critical to making sure that the districts ultimately appropriately reflect who actually lives in the city.
Though Minnesota made headlines when it unexpectedly kept its eighth House of Representatives seat, and was reported as having the highest Census response rate of any state, there have been historical problems with undercounting certain communities in Minnesota; specifically, “people of color, [I]ndigenous people, undocumented immigrants, and low-income persons.” The areas in Hennepin County with the lowest response rates correspond with areas that have a higher percentage of residents who are part of the above-mentioned groups. This undercounting leads to less of an opportunity for fair representation for these communities, which can impact everything from transportation funding to rent control.
The reasons for this undercounting cannot be attributed to one factor, but fewer in-person door-knocking campaigns due to the COVID-19 pandemic and the chilling effect on immigrant communities due to a proposed citizenship question were thought to be aggravating factors in the 2020 Census specifically. Going forward, Minnesota should not be short-sighted or complacent with our relatively high rates of Census completion. Census officials should prioritize counting underrepresented communities and work with community organizations like UnidosMN and the League of Women Voters to leverage existing programming meant to meaningfully reach these communities.
Minneapolis Should Implement Community-Led Redistricting Strategies
Communities of interest, which are groups of people seen as having similar views and concerns, are meant to be considered by officials when redistricting an area so that power among these groups is not diluted. To best serve its purported equity goals and to create Minneapolis wards that best serve the representation needs of Minneapolis residents, Minneapolis should seek to include more citizen voices in the redistricting process with a specific focus on defining communities of interest. This is an approach emphasized by local advocacy organizations in Minneapolis, and there are several out-of-state examples of strategies that could prove effective.
In California, two community organizations established a set of “equity indicators,” such as housing cost burden and English proficiency, which are meant to enhance conversations around defining and setting communities of interest. Using data to thoughtfully consider key equity indicators is a logical goal for decision makers because there is no firm definition of what qualifies as a community of interest. Similarly, in Michigan, the newly-formed Independent Citizens Redistricting Commission seeks to promote racial equity in redistricting at all levels of government using communities of interest as a main tool by defining and uplifting communities which have been historically left out of redistricting conversations.
City officials and Minneapolis residents have an opportunity to meaningfully incorporate our understanding of communities of interest to help form wards which prioritize electing representatives that better reflect Minneapolis communities. By prioritizing community voices and investing in strategies to provide adequate power to historically underrepresented areas, Minneapolis can fulfill its reputation for strong civic engagement in a more meaningful and equitable way. Interested residents can impact the process by speaking at a meeting, submitting a map, or submitting public comment.
*Hannah Stephan, University of Minnesota Law School Class of 2022, JLI Vol. 40 Lead Online Editor