In recent years, policymakers have begun taking important steps in addressing how our criminal justice system approaches individuals with mental illness who commit crimes. As our understanding of the factors which lead people with mental illness to commit crime grows, “jail diversion” (http://bit.ly/2BeX3UB) and other programs designed to divert people with mental illness into treatment instead of incarceration are being implemented nationwide, as well as in communities across the commonwealth (http://bit.ly/2ATmq1a). However, much more remains to be done to reform Virginia’s approach to the way it treats individuals with severe mental illness in its criminal justice system.
An important proposal that would contribute to this reform has been considered by the General Assembly during its last two sessions: a bill to ban the use of the death penalty for people with severe mental illness. The bill would replace the death penalty with life in prison without the possibility of parole for individuals who had active symptoms of a severe mental illness at the time of their offense. This is a much-needed reform, since, surprisingly, individuals with severe mental illness can still be sentenced to death and executed under Virginia law.
Severe mental illness is a subset of mental illness that includes the most serious disorders, such as schizophrenia or bipolar disorder. To be considered a severe mental illness, the condition must last for extended periods of time and significantly interfere with a person’s major life activities, such as working, interacting with others or caring for oneself. The National Institute of Mental Health estimates that 4.2 percent of U.S. adults live with a severe mental illness (http://bit.ly/2vnQGcN); this equates to more than 300,000 adults with severe mental illness in the commonwealth.
Despite our growing understanding of severe mental illness and its consequences, there are no protections from the death penalty for those individuals whose disorder was pre-sent at the time of the offense. As a result, they continue to be sentenced to death and executed. One such individual was Adam Ward, who was executed by the State of Texas in 2016 despite recognition by Texas state courts that he had lived with severe mental illness “his entire life” and “was diagnosed with bipolar disorder and placed on lithium as early as age four” (http://bit.ly/2odSlDH).
As mental health professionals, we strongly believe that individuals like Adam Ward should not be sentenced to death. We know firsthand that individuals with severe mental illness may, when experiencing a crisis, have difficulty using rational judgment; operate under strong paranoid and delusional thoughts that prevent them from fully understanding what is real and what isn’t; or be unable to fully control their impulses. This is all relevant when deciding whether someone should receive society’s ultimate punishment.
That these defendants continue to be sentenced to death is even more surprising considering that individuals with intellectual disability and juveniles were exempted from the death penalty by the U.S. Supreme Court more than a decade ago. The Court said that intellectual disability and youth are characterized by impairments that diminish a person’s culpability even though they “do not warrant an exemption from criminal sanctions.” Although intellectual disability and severe mental illness are different conditions, they bring very similar impairments, and we must treat equally those who live with either of these conditions.
This reform is all the more necessary because misconceptions about severe mental illness and violence cloud our approach to criminal defendants with these diagnoses. Instead of recognizing their conditions for what they are — impairments — juries, judges, and the general public often exhibit an “irrational prejudice against people with mental illness,” a phenomenon that New York Law School Professor Michael Perlin has labeled “sanism” (http://bit.ly/1FjhDiI ).
These prejudices may include the idea — unsupported by empirical evidence — that people with mental illness are inherently dangerous. This belief is particularly concerning in death penalty cases. Indeed, studies have shown (http://bit.ly/2gRS694) that capital jurors sometimes erroneously — and troublingly — consider evidence of mental illness aggravating instead of mitigating. This means that juries may confuse the legal standard and think mental illness should increase someone’s punishment when it really is only supposed to be considered to decrease punishment. This should trouble all of us, and make clear that the only remedy is a categorical exclusion from the death penalty.
We urge the General Assembly to revisit this issue in its 2018 session. We must provide to individuals with severe mental illness the same protections we afford those with intellectual disability, and we need to recognize that their impairments make them undeserving of the ultimate punishment.”
