Legislative committee hears arguments for not executing persons with severe mental disabilities

Though it might be hard to tell from reading or listening to the news in North Carolina of late, one of the great advancements of modern society is our growing understanding of mental disabilities and mental illness.

Consider for a moment the treatment that supposedly civilized American states once meted out (intentionally) to persons adjudged "insane" or "feeble minded." Many such persons were given, in effect, life sentences to dreary, dungeon-like facilities (with names like "lunatic asylum") for no other reason than that society had no better idea of what to do with them. Those accused of actual crimes were often dealt with harshly. Indeed, if one goes back far enough in American history, one encounters frequent executions of people deemed to have been "possessed."

In short, despite all of the disastrous failings of our current systems in providing services to the mentally disabled and mentally ill, it's clear that we have made progress in some fundamental ways. We may not do that good a job of helping such persons, but at least we know enough to recognize mental illness and disabilities and to understand that such conditions do not make a person more culpable for their actions or more deserving of punishment for illegal acts.

Impact on persons accused of crime

One of the byproducts of our growing appreciation of the complexities and subtleties of mental illness and disabilities is a parallel growth in the sophistication of our societal response to crimes committed by persons with such challenges. For decades, about the only "out" for a mentally ill or disabled person accused of a crime in North Carolina has been the old plea of "not guilty by reason of insanity." Under this defense, a person was (and still is) actually acquitted of the crime because he or she is found to have literally not understood or appreciated the offense of which they are accused.

Save for this rather drastic result, however, there has been little in the way of a middle ground. Those with a severe mental illness or disability, but not so troubled as to be "insane" are, for the most part, simply lumped in with all other criminals.

In recent years, as society's general understanding of mental illness and mental disabilities has grown, there has been a rising tide of discomfort with the crudeness of this approach – especially when it comes to application of the death penalty. While polls show that a majority of Americans continue to support the idea of capital punishment (at least in the abstract) it's also clear that we oppose the idea of executing the mentally retarded and people who committed their crimes as children. In general, there has been a growing appreciation for (and acceptance of) the fact that these people are not among the group that our system has targeted for the death penalty (i.e. "the worst of the worst").  A 2007 N.C. Policy Watch poll found that only 30% of North Carolina voters supported execution of persons with severe mental illness or disabilities.

This growth in the sophistication of societal attitudes has ultimately been reflected in some important policy changes. As the result of action by various state legislatures and, ultimately, the U.S. Supreme Court, it is today unlawful to execute the mentally retarded or those who committed their crimes as children.

Severe mental disability and the death penalty

In keeping with these important developments, mental health and disability rights advocates have recently begun a new effort to extend these policies to their next logical step – barring the application of the death penalty to persons with severe mental illness and/or disabilities. Under current law, a defendant convicted of murder may attempt to argue to a jury that his or her mental illness/disability ought to be a mitigating factor, but the matter is left to the jury's untrained discretion. As a practical matter, such pleas seldom receive serious consideration.

This week at the General Assembly a special study committee (the Joint Select Committee on Capital Trial, Sentencing, and Post-conviction Procedures for Persons Who Suffer Severe Mental Disabilities) is holding a pair of hearings to receive testimony from experts on this subject. Yesterday, during the first day of testimony, the committee heard from, among others, Professor James Ellis, a mental health and constitutional law expert at the University of New Mexico School of Law. Ellis also argued the Atkins v. Virginia case before the U.S. Supreme Court that resulted in the modern prohibition on executions of the mentally retarded.

According to Professor Ellis, there is little to distinguish persons with severe mental illness and/or disabilities from the mentally retarded when it comes to the death penalty. Both groups are clearly outside the segment of criminals that anyone would consider the "worst of the worst."  As Ellis put it, "We're talking about individuals whose distortion of thinking is so severe that it's difficult for us to imagine."

Ellis' comments were largely echoed by Superior Court Judge (and former Orange County District Attorney) Carl Fox and forensic psychiatrist George Corvin. According to Fox, it ought to be a given that North Carolina should not execute severely mentally ill people. Not only would such a policy be just, but it would also save the state enormous amounts of time and money by short-circuiting complex and costly court proceedings that surround capital trials.

According to Dr. Corvin, who has conducted mental examinations of accused criminals and testified regarding their status for more than a decade, such a change would be vastly more efficient than the present system of waiting till the sentencing phase and leaving it up to the jury. In Corvin's view, the diagnosis of severe mental illness or disability is a matter that ought to be reserved for a judge (in consultation with trained professionals).

FAQ's

Skeptics and opponents of the idea of sparing persons with severe mental illness or disabilities from the death penalty have, of course, raised good questions – some during yesterday's hearing. Here are some of the issues raised, along with the responses put forth by proponents:

Will the proposal allow murderers to avoid punishment? No. The draft proposal circulated at the meeting would simply cap the punishment at life in prison without possibility of parole – the same as is done for the mentally retarded.

Won't this allow just about every defendant to escape the death penalty? No. The draft bill is limited to persons with a "severe mental disability" at the time of the commission of the crime. This term is, in turn, defined very narrowly and specifically. According to experts like Dr. Corvin, it would only benefit a very small "handful" of murder defendants.   

What's to stop defendants from faking an illness or disability? According to Corvin, it's relatively easy for a trained psychiatrist to spot what he called "malingering" – mostly because it's all but impossible for a person without severe mental illness to sustain the ruse over time. Indeed, it seems much less likely that trained psychiatrists and judges could be fooled than an untrained jury. 

Isn't this just another effort by death penalty opponents to chip away at capital punishment? There's no denying that the idea is viewed sympathetically by death penalty opponents, but the current effort in North Carolina is being driven by mental health advocates. As was made plain by the first speaker at yesterday's hearing, John Tote of the Mental Health Association, such a change is overwhelmingly supported by the mental health community – not just because of the justice it would provide in a small handful of cases, but also because of the broader ramifications of such a change.

According to mental health experts and advocates, one of the keys to comprehensive reform that our systems of service so desperately need is continued growth in the public's understanding of the issues surrounding mental illness and disabilities. In modern society, few real world events receive more attention in the media than those related to crime and punishment. As such, it is essential that we get things right when it comes to properly diagnosing and punishing those with mental illness and disabilities.

Going forward

The Select Committee will meet again tomorrow in anticipation of recommending the introduction of a reform bill in the upcoming "long session" of the General Assembly that convenes January 28.  Judging by the evidence offered yesterday, it's a proposal that deserves serious consideration.