Nebraska’s death penalty room

Anglo-American history shows that, even before our nation’s founding, there was a special category of defendants who were to be exempt from execution: those with mental illness. Sadly, these individuals are still being put to death.

The U.S. Supreme Court declared in 1986 that “no State in the Union permits the execution of the insane,” but people with mental illness continue to be executed. In 2017, Virginia executed William Morva despite his diagnosis of delusional disorder and his long-standing psychotic delusions and bizarre behavior. Adam Ward was executed in 2016, despite a federal court recognizing that he was “afflicted with mental illness his entire life” and had been “diagnosed with bipolar disorder and placed on lithium as early as age four.”

The principle that people with severe mental illnesses should not be executed goes back to our British common-law roots. The English common law, and thus early American law, made clear that executing such persons would be—as Sir William Blackstone put it—“savage and inhuman.” As early as the 17th century, Sir Edward Coke declared that the execution of a “mad man” would be “a miserable spectacle, both against Law, and of extreme inhumanity and cruelty, and can be no example to others.”

In 1716, legal thinker William Hawkins presciently understood what has now been proved: that defendants with severe mental illness are less able to assist in their own defense, more likely to give false confessions and, therefore, to be wrongfully convicted. It was seen as “inconsistent with Religion” and “against Christian Charity” to execute someone not of capacity. One 18th century commentator warned against executing the “absolutely mad,” while yet another observed: “nothing is more certain in Law, than that a Person who falls mad … shall not be executed.”

This well-settled English common-law principle was brought to the colonies. When the Eighth Amendment was ratified in 1791, the execution of “lunatics,” a term thankfully no longer in use, was prohibited, as recent scholarship has confirmed. “At the time the Bill of Rights was adopted, the common law treated execution of the mentally ill as cruel and unusual,” a group of eminent legal historians observed in an amicus brief filed years ago. If executing people with severe mental impairments was unconstitutional in the Founders’ time, when barbaric practices, such as the pillory and ear cropping, were still in use, it should plainly be unconstitutional today.

There is a growing awareness that defendants with mental illness should not be subjected to the death penalty. That is why many Republican-controlled legislatures are now seriously considering bipartisan bills to create a severe mental illness exclusion from it. In March 2018, the Kentucky Senate Judiciary Committee passed such a bill, and a similar proposal was earlier approved by the South Dakota House of Representatives. The Republican sponsor of the Ohio legislation, Rep. Bill Seitz, noted that “most people believe that executing an individual found to be suffering from a serious mental illness at the time of the crime is neither fair nor just.” Indeed, recent polls show that Americans oppose capital punishment for individuals with severe mental illness by a 2-1 margin.

Under these proposals, those with mental illnesses so severe as to prevent them from understanding reality or the consequences of their actions would not be executed. These are not conditions they choose to have, but are medically diagnosed, and judges would be required to make detailed findings. Most importantly, this exemption would not mean that these individuals would be absolved of responsibility for their crimes or set free. Life-without-parole sentences exist in every state. This alternative would keep the public safe.

This exemption would operate in a similar manner to the current exemptions for juveniles and people with intellectual disabilities. Speaking about individuals with intellectual disabilities, the U.S. Supreme Court noted in Atkins v. Virginia: “[b]ecause of their disabilities in areas of reasoning, judgment, and control of their impulses, however, they do not act with the level of moral culpability that characterizes the most serious adult criminal conduct.” While intellectual disability is a different condition than severe mental illness, it is accompanied by similar impairments of judgment and impulse control, making the death penalty particularly inappropriate. The protection afforded to those with intellectual disability should be extended to those with severe mental illness.

Executing individuals who cannot distinguish reality from hallucinations and delusions is an embarrassment to our country and its founding principles. The law has long been clear: people with severe mental illnesses should not face execution. It is time to enshrine this long-standing principle in our modern laws.

John Bessler is a law professor at the University of Baltimore School of Law and adjunct professor at Georgetown Law. He is the author of “The Death Penalty as Torture: From the Dark Ages to Abolition” (2017) and “The Celebrated Marquis: An Italian Noble and the Making of the Modern World” (2018). “The Celebrated Marquis,” the winner of the 2018 Next Generation Indie Book Award for biography and a National Indie Excellence Awards finalist, is a new biography of the Italian philosophe Cesare Beccaria, whose book, “On Crimes and Punishments” (1764), called for the death penalty’s abolition and profoundly influenced America’s founders.