September 21, 2006

posted by Dan Filler

What's a "conflict counsel" (see line 5)? That's a term I haven't heard before...or is it supposed to be "convict"?

Dan, thanks for this. I have to say, though, I don't quite get your question for abortion opponents. Now, to be clear, I oppose the death penalty, whether or not the offender is disabled. But, I do not see at all why someone who believes (a) a disability does not justify the abortion of an unborn child should for that reason -- i.e., because he or she does not believe that the child's disability justifies abortion -- need to (b) oppose the execution of the adult that child becomes, even if the child's disability contributes, in some way, to the criminal-act for which the adult was convicted. Such a person could simply think that the unborn child is innocent, and the capital-offender is guilty, right? (Maybe I'm "fighting the hypo", in that I am assuming that the capital-offense was not, in a strong sense that would remove the offender's moral responsibility for it, *caused* by his disability?)

'...too many defense lawyers aren't up to the task.'---So, is this, in the end, a question of class? What are some possible alternatives?: More pro bono work from prestiguous law firms and lawyers? As Steven B. Bright wrote over a decade ago, 'Aribitrary results, which are all too common in death penalty cases, frequently stem from inadequacy of counsel. The process of sorting out who is most deserving of society's ultimate punishment does not work when the most fundamental component of the adversary system, competent representation by counsel, is missing. Essential guarantees of the Bill of Rights may be disregarded because counsel failed to assert them, and juries may be deprived of critical facts needed to make reliable determinations of guilt or punishment. The result is a process that lacks fairness and integrity.' From his 1994 Yale Law Journal (103, No. 7) article, reprinted in Hugo Adam Bedau, ed., The Death Penalty in America: Current Controversies (New York: Oxford University Press, 1997): 275-309.

Bright's article of course does not even address the question of lack of representation and inadequate representation in postconviction review.

One can construct any number of more than plausible arguments (moral and legal) in opposition to capital punishment, but we know some reasons will carry more weight than others in various public fora. One would think the above are among the more persuasive variety.

I second Rick's sentiment, as he articulates what I intuitively felt but could not quite put to words without my first cup of tea this morning (a wee bit earlier here on the west coast).

What bothers me about the focus now on mentally ill death row inmates is that excluding mentally ill offenders from the death penalty would selectively benefit some offenders (and thereby relatively disadvantage other offenders) based not on some coherent moral theory but on the particular clusters of symptoms the American Psychiatric Association has chosen to call "disorders." So the offender who is an alcoholic and can be diagnosed with alcohol dependence might be excluded from the death penalty while the offender who was physically abused as a child but did not develop any pattern of abnormal behavior that happens to overlap with a pattern of behavior that represents a psychiatric diagnosis remains subject to the death penalty. This approach seems seriously lacking in moral coherence. Either we trust defense attorneys to present, and juries to decide, these arguments (alcoholism, child abuse as mitigating factors) or we don't.

Rick, I guess I'm focused on cases where mental disability was a contributing factor to the crime. We can never know whether the mental illness is a but-for cause of anything, but the frequent presence of mental disabilities among those on death row certainly raises the possibility that there are causal links in some, or perhaps many, cases. So a person may be guilty of the act in a legal sense - he did it and has no defenses - yet an identical person (who lacked the disability) in an identical setting would not have committed the crime. It seems to me that if execution is appropriate in these circumstances, then one should be able to make the case that pre-emptive execution through abortion might also be appropriate if you had strong data showing that the disability would be a highly likely cause of future violence. I do understand that the pre-emptive act would involve abortion of a fetus that might or might not ultimately commit a murder, but if the only difference is of odds - that is, if we concede that if the disability does manifest itself in a violent killing one is then entitled to execute - it seems to me the justification for not allowing that preventive abortion is then simply utilitarian. Thoughts?

Dan,

In the first place, insanity and competency are legal terms and have nothing to do with mental illness per se. (Think of the twinkie defense.) there is a large body of decisions and study on this aspect of the law already in place and room for more. The fact that a prisoner has a mental illness as defined by the medical world does not mean that the crime was caused by the presence of mental illness. The corellary is that persons with mental illness have a greater potential to cause crime which is not true.

Also, the term "mental illness" is a broad rubric, under the DSM-IV because it incorporates alcohol and drug abuse, personality disorders, and "brain damage" (all of which are highly prevalent in prison populations - 55% is probably underestimating the problem) in addition to the mood and psychotic disorders. This is not just a problem on death row.

If the mental illness is a mitigating factor in the crime such that it meets the various state criteria for NGRI or diminished capacity, then it is up to the defense to invoke it. In addition if the prisoner is not capable of understanding the death penalty, most states have a provision that they cannot be executed (usually this means very low IQ, etc., but the courts decide, not mental health workers.) The mere presence of a nental illness does not meet these criteria though it may meet the test for one of the arms of the test. The problem lies in convincing a jury that this defense is correct and that is a tough proposition in the case of a murderer. (Think Son of Sam or Manson or Jeffery Daumer.)The rate of acceptance for NGRI in all cases is in single digits and I supect that murderers have even a smaller chance.

There are many reasons why there are so many prisoners with mental illnesses: one is that the present committment laws, as defined by SCOTUS not so long ago, make it very hard to treat a person unwillingly unless they are an immdiate danger to others. (This is not a criticism of that finding, there are important civil right issues involved.) In addition, since drug abuse and alcoholism are by definition mental illnesses, the term as used in these reports covers a lot of ground. Jail and prisons are full of persons who have alcohol and other drug addiction (AODA)problems suggesting that more comprehensive treatment programs should be made available.

Your example of an abortion opponent who demands the death penalty is more an issue of inconsistency. Value for life should not be conditional, at least that is the Catholic view, but sometimes that is a hard case to make due to the nature of some of the murders.

Right now, by law, the decision is left up to a judge and twelve citizens, it is not a matter of some administrative change. Each state varies and some states are trying to eliminate the insanity defense all together. It would be easier to eliminate the death penalty than it would be to change that aspect of the system.

My above comments were made before I read the Florida report and reflect my experience as a forensic psychiatrist, mostly in Tennessee (I read that report, too.)

In spite of a potential bias on the subject (EU funding, ABA sponsorship) the report is professional and comprehensive as far as I can tell. Florida has a number of problems when it comes to the recognition of mental illness (and mental retardation) and there are administrative problems in jury instruction, rules, and process when it comes to the insanity and competency defenses during the entire death penalty process. The rest of the report, which covers a variety of issues, also makes a good case for questioning the way the death penalty functions in Florida without coming right out and demanding that it be ablolished.

Still, there are a number of safeguards which, although byzantine and arcane in spots, would be useful in looking at the questions brought up. The report seems to fault Florida for not meeting standards and for a (probably) tradition of not caring about the issues of insanity or competence. And I agree, the way the system functions it is clumsy and vulnerable to using experts that can guide the system in the favor of the prosecution. (Although not as egregiously as Texas which used the same non-psychiatrist physician to review all death row prisoners - sometimes, maybe most of the time, he only examined the record without seeing the prisoner - and he always found no evidence of incompetence.)

Under the rules of the court, an examiner has to see the prisoner with both counsels present and in the case of a death penalty competence examination three psychiatrists, the two lawyers, and the prisoner will all be present at the same time. This makes for a difficult exam and can often prejudice the findings due to interactions among the various parties and the restrictions on individual exam techiques. I suspect that if I had to do it that way, my exam would not be as thorough and that I might spend a lot of time worrying about being impeached by one side or the other as they would characterize my exam as lacking in order to make a defensive or offensive point and the testimony would degrade into an ad hominem attack (the way it does when partisan experts testify, all of my exams were done as a neutral examiner.) I know it can be done, but that is not the way most psychiatrists would want to examine a patient.

Florida also has an interesting second definition of insanity that states that if the prisoner has "Hallucinations or delusions" that caused him/her to commit the murder and if those delusions were true that the killing would be justified (I assume this applies to other crimes, too), then the patient is NGRI. A savvy criminal could fake those delusions, I suppose, and work the system. Most forensic psychiatrists would probably catch that, however.

There are some administrative solutions offered by the report, and I agree with them all. But the basic problem seems to be recognition and explanation of the mental illness as it applies to insanity and competence. In Florida this gets short shrift (apparently) for a wide variety of reasons that will take a lot of reforming of the system, more money, and some changes in the laws. I am not sure that anyone is either capable or willing to do so today.

Dan -- you wrote (above): "It seems to me that if execution is appropriate in these circumstances, then one should be able to make the case that pre-emptive execution through abortion might also be appropriate if you had strong data showing that the disability would be a highly likely cause of future violence." I guess I don't see this (i.e., the "then"). Although I oppose the death penalty full-stop, I understand the claim that it can be justified as retribution. The idea of "pre-emptive execution" is something I cannot get my head around. Am I missing your point, though?

hey all u super smart people!!! if ur mum got killed by a mental ill person um - Rick garnett would u feel the same way. would u not then argue to put them on death row!!!! i dont see how u can say that the death penalty shouldnt aplly to mentall ill people or people in genral.wat would u want 4 them 2 do instead sit in a room and contenplate how they r going to kill thier next victim. well i am not the smartest kid in the world but why should a cold blooded killer be exempt from the death penalty because he/she is "mentally ill" so they call it. every killer has something wrong in thier brain does that not make them mentally ill? anway Dan ur little mind peace was good 4 my school public speaking task really i dont agree with u and think mentall illness is a myth!!! :D leave u wit that prob dont give 2 s#$%t's but hey

so how would you all like to be sitting in the same e cell for a couple years knowing thatyour going to die.knowing exactly how and what time its all ganna happening.how is that humane plzzz explaine