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Criminal Justice Issues


Moratorium. People with serious mental illnesses are at a substantial disadvantage in defending themselves when they face criminal charges, and those difficulties are compounded when the charges are so serious that the death penalty is sought. Stigma and fear are significant factors in jury verdicts in such cases, and the criminal justice system too often fails to do justice. As a result, people with mental illness are at heighted risk for losing their lives to unfair and capricious application of the death penalty.

Individuals with serious mental illness are threatened and coerced into false confessions, have difficulty understanding their rights, and have less access, because of their mental illness, to safeguards designed to protect fundamental rights, including the right to effective assistance of legal counsel. The criminal justice system’s failure to guarantee due process for people with mental illnesses makes discriminatory application of the death penalty more likely. Overall, the administration of the death penalty is increasingly fraught with enormous expense, too-frequent errors and unequal application.

Therefore, Mental Health America (MHA) calls for a moratorium on the use of the death penalty until the criminal justice system can ensure a more just process for determining guilt, considering a defendant’s mental status, and ensuring basic due process in capital cases.[1] This position statement supports the American Bar Association’s (ABA’s) call for a moratorium on the imposition of the death penalty because, in its judgment, “fundamental due process is systematically lacking” in capital cases.... It has become crystal clear that the process is deeply flawed.[2] MHA urges consideration of the following additional issues:

  • Insanity Defense. Consistent with the insanity defense, which is most often invoked in death penalty cases, defendants should not be executed or sentenced to death if, at the time of the offense, they had a severe mental disorder or disability that significantly impaired their capacity (a) to appreciate the nature, consequences or wrongfulness of their conduct, (b) to exercise rational judgment in relation to conduct, or (c) to conform their conduct to the requirements of the law.[3] Defendants should not be executed or sentenced to death if, at the time of the offense, they had significant limitations in both their intellectual functioning and adaptive behavior, as expressed in conceptual, social, and practical adaptive skills, resulting from mental retardation, dementia, or traumatic brain injury.
  • No death penalty for people with serious mental illness. Regardless of whether the defendant is able to show the causation required by the insanity defense, no one should be threatened or put to death while experiencing serious mental illness. It is irrational to use the death penalty when there is no evidence that it enhances deterrence, and rehabilitation is possible.
  • No death penalty for people with intellectual disabilities. In Atkins v. Virginia, the U.S. Supreme Court prohibited the use of the death penalty for persons who had intellectual disabilities at the time of the offense.[4] The Court recognized that sentencing individuals with intellectual disabilities to death fails to serve any of the three main rationales for punishment: (1) rehabilitation (which is inapplicable to the death penalty), (2) deterrence (such individuals have a “diminished ability to process information, to learn from experience, to engage in logical reasoning, or to control impulses,” and thus are “likely unable to make the calculated judgments that are the premise for the deterrence rationale”), and (3) retribution (“[t]he diminished capacity of the intellectually disabled lessens moral culpability and hence the retributive value of the punishment”).[5]
  • Mental health conditions should be taken into account during all phases of a death penalty case. This includes the execution itself. The U.S. Supreme Court is on record that no legitimate government purpose is served by the execution of someone who is not competent at the time of the execution.[6] The same logic applies to a person who is impaired at the time of the crime or the trial or the sentencing. Therefore, Mental Health America (MHA) calls upon federal and state governments not to threaten or use the death penalty for any accused who suffered from mental illness at the time of the crime, trial, sentencing, or execution.
  • Competency assessments and hearings should be required. The federal and state governments should require and provide funding for appointed counsel and a full competency hearing for all individuals who appear to have questionable competency. Failure to consider mental status early in the process paves the way for execution. The assessment of competency to stand trial as well as competency to be executed should be conducted by a multi-disciplinary team of qualified professionals, including professionals with expertise in the defendant’s particular mental illness.
  • No involuntary treatment for execution. MHA is opposed to the practice of having a psychiatrist or other mental health professional treat a person against their will in order to restore competency solely to permit the state to execute that person, and MHA opposes the practice of medicating defendants involuntarily in order to make them competent either to stand trial or to be executed.
  • Racial disparities compel a moratorium. Research studies have demonstrated that a persistent pattern of racial disparities exists in the implementation of the death penalty. African-American defendants are significantly more likely to receive the death sentence than white defendants.[7] African-Americans are also less likely to receive mental health treatment.[8] MHA believes that these discrepancies are linked, at least in part, to the pervasive and enduring effects of racism in American society and thus serve as an independent reason to oppose the death penalty.


Although precise statistics are not available, it is estimated that at least 20 percent of people on death row have a serious mental illness.[9]

Mental health conditions can influence an individual’s mental state at the time he or she commits a crime, can affect how “voluntary” and reliable an individual’s statements might be, can compromise a person’s competence to stand trial and to waive his or her rights, and is bound to have a significant effect upon a person’s understanding of the criminal justice system.

The process of determining guilt and imposing sentence is necessarily more complex for individuals with mental health conditions. A high standard of care is essential when providing legal representation as well as psychological and psychiatric evaluation for individuals with mental health conditions involved in death penalty cases. Some states require a prediction of future dangerousness in order to impose a death sentence.[10] However, research has shown predictions of future dangerousness to be unscientific and frequently inaccurate.[11] Therefore, such predictions are highly suspect as a basis on which to impose the death penalty.

  1. false perceptions of the link between dangerousness and mental illness and inadequate understanding of the role of mental illness in crimes may lead to harsher sentencing. In fact, research shows that people with mental illness pose only an insignificantly greater risk of violence than the average person.[12] Unfortunately, however, the misperceived link between mental illness and violence drives both legal policy and criminal justice system practice with respect to people with mental health conditions. MHA believes that having a mental illness is a mitigating circumstance that should be taken into consideration during sentencing. Unfortunately, research shows that evidence of mental illness is often not provided during sentencing,[13] and jurors often misperceive mental illness as aggravating evidence rather than mitigating evidence,[14] which together increase the possibility of inappropriate application of the death penalty to people with mental illnesses.

In 1986, the Supreme Court ruled in Ford v. Wainwright, 477 U.S. 399 (1986) that: “The reasons at common law for not condoning the execution of the insane -- that such an execution has questionable retributive value, presents no example to others, and thus has no deterrence value, and simply offends humanity -- have no less logical, moral, and practical force at present. Whether the aim is to protect the condemned from fear and pain without comfort of understanding, or to protect the dignity of society itself from the barbarity of exacting mindless vengeance, the restriction finds enforcement in the Eighth Amendment.”[15]

Conversely, the courts allow people with mental illness to be executed if they understand the punishment that awaits them and why they are being put to death. This has prompted some states to provide psychiatric treatment to offenders with mental illness on death row in order to “restore their competency.”[16] Consistent with the code of ethics of the American Medical Association,[17] MHA is opposed to the practice of having a psychiatrist or other mental health professional treat a person in order to restore competency solely to permit the state to execute that person. Similarly, MHA is opposed to the practice of medicating defendants involuntarily in order to make them competent to stand trial. Great care must be taken to assure informed consent for treatment / no treatment options.

MHA believes that our current system of fact-finding in capital cases fails to identify who among those facing a possible death penalty actually has a mitigating mental health condition. This failure is the result of several factors that work in concert: defense counsel and counsel’s staff often do not have sufficient time, experience with mental illness, and resources to recognize that a mental health condition might have played a role in the charged offence and may compromise the defense. MHA believes that whenever a possible death sentence is invoked, states should make available to defense counsel, at the time that counsel first is in contact with the accused, the resources to enable counsel to retain a qualified expert to evaluate the mental state of the accused at the time of the offense, at the time of pre-trial preparation, and, if necessary, at the time of trial.

MHA applauds the U.S. Supreme Court’s March 1, 2005 ruling in Roper v. Simmons that declared the juvenile death penalty unconstitutional.[18] Young people under age 18 should not be held to the same standard of culpability and accountability for their actions as adults. Impulsiveness, poor judgment, and lack of self-control are characteristics of childhood and are the reasons we limit many of the rights of minors. The age, maturity, mental status, and any history of abuse or trauma of a youthful offender should always be considered in deciding his or her punishment. MHA considers the execution of people for crimes they committed as children to be unjust and inhumane, serving no principled purpose, and demeaning to our system of justice, and thus endorses the Court's holding that the juvenile death penalty constitutes "cruel and unusual punishment."

For the same reason, this position statement takes the next step, in positing that regardless of whether the defendant is able to show the causation required by the insanity defense, no one should be threatened or put to death while experiencing a serious mental illness.

Call to Action

MHA urges that affiliates and advocates advocate a moratorium on executions, fight to spare the lives of people with mental illness accused of capital crimes by prohibiting use of the death penalty for all persons with serious mental illness, and seek to maximize due process protections and assistance by legal counsel to avoid discrimination and unfairness in capital cases,





[1] Recommendations of the American Bar Association Section of Individual Rights and Responsibilities, Task Force on Mental Disability and the Death Penalty. ABA Recommendation 122A, 1 (2006), archived at Admitted inability to make fair death determinations led Illinois first to declare a moratorium in 2000 and then to abolish the death penalty in 2011. “Since our experience has shown that there is no way to design a perfect death penalty system, free from the numerous flaws that can lead to wrongful convictions or discriminatory treatment, I have concluded that the proper course of action is to abolish it,” Governor Quinn said in a statement. Schwartz, John, and Fitzsimmons, Emma, “Illinois Governor Signs Capital Punishment Ban” (New York Times 2011), archived at Illinois joined a wave of states that have reconsidered capital punishment in recent years. . In the last decade, seven states have abolished the death penalty: New Jersey (2007), New York (2007), New Mexico (2009), Illinois (2011), Connecticut (2012), Maryland (2013), and Nebraska (2015). See Death Penalty Information Center, “States With and Without the Death Penalty,” archived at See also Ohioans To Stop Executions, “Recommendations from the Ohio Supreme Court Joint Task Force to Review the Administration of Ohio’s Death Penalty (2014), available at (recommending “legislation to consider and exclude from eligibility for the death penalty defendants who suffer from ‘serious mental illness’…at the time of the crime”). In addition, support for this position can be seen in the declining number of death sentences and executions nationwide, both of which reached their lowest point since the 1990s this past year. Death Penalty Information Center, “Facts about the Death Penalty,” at *1, *3 (2016), archived at And even two current Supreme Court Justices, Justices Breyer and Ginsburg, have recently questioned the constitutionality of the death penalty. See Glossip v. Gross, 135 S. Ct. 2726, 2756 (2015) (Breyer, J., dissenting) (concluding that “the death penalty, in and of itself, now likely constitutes a legally prohibited ‘cruel and unusual punishmen[t]’” in violation of the Eighth Amendment).

[2] Death Penalty Information Center, “American Bar Association Renews Call for National Moratorium on Executions” (2007), archived at

[4] Atkins v. Virginia, 536 U.S. 304 (2002), prohibiting the execution of persons who were mentally retarded at the time of the offense. See also generally Hall v. Florida, 134 S. Ct. 1986 (2014).

[5] Id. Hall, 134 S. Ct. at 1992–93.

[6] Ford v. Wainwright, 477 U.S. 399, 401 (1986).

[7] For example, one study found that African-Americans defendants in Philadelphia between 1983 and 1993 were 3.9 times more likely to receive the death penalty than other similarly situated defendants. Dieter, Richard, "The Death Penalty in Black and White: Who Lives, Who Dies, Who Decides," Death Penalty Resource Center (1998), archived at And a recent study found similar results in the state of Washington between 1981 and 2014, concluding that “black defendants are four and one half times more likely than similarly situated non-black defendants to be sentenced to death, after controlling for all other variables.” Beckett, Katherine, and Evans, Heather, “The Role of Race in Washington State Capital Sentencing, 1981–2014,” at 30 (2014), The University of Washington: Law, Societies & Justice, archived at See also Amnesty International, “Death Penalty and Race,” archived at (“Since 1977, the overwhelming majority of death row defendants have been executed for killing white victims, although African-Americans make up about half of all homicide victims.”).

[8] See, e.g., Al-Mateen, Cheryl S., Mullen, Sandra J., and Malloy, Jessica K, “Pharmacotherapy,” in Breland-Noble, Alfiee M., Al-Mateen, Cheryl S., and Singh, Nirbhay N., eds, Handbook of Mental Health in African American Youth at 39 (Springer 2016); Alegria, Margarita, et al., “Disparity in Depression Treatment Among Racial and Ethnic Minority Populations in the United States,” Psychiatric Services 59:1264, 1268 (2008).

[9] See Death Penalty Information Center, “Report: 75% of 2015 Executions Raised Serious Concerns About Mental Health or Innocence,” archived at (finding that of the 28 people executed in 2015, 7 suffered from serious mental illness, and another 7 suffered from serious intellectual impairment or brain injury); Smith, Robert J., Cull, Sophie, and Robinson, Zoe, “The Failure of Mitigation?” 65 Hastings L.J. 1221, 1245 (2014) (“Over half (fifty-four) of the last one hundred executed offenders had been diagnosed with or displayed symptoms of a severe mental illness.”); Grissom, Brandi, “Trouble in Mind” (Texas Monthly 2013), archived at (“On Texas’s death row, more than 20 percent of the 290 inmates are considered mentally ill.”).

[10] Lavin, Erinrose Walsh, “Psychiatric Prediction of Future Dangerousness” (2014), Law School Student Scholarship, Paper 634 at 3–4, archived at; Texas Defender Service, Deadly Speculation: Misleading Texas Capital Juries with False Predictions of Future Dangerousness at xii (2004), archived at

[11] Texas Defender Service, Deadly Speculation: Misleading Texas Capital Juries with False Predictions of Future Dangerousness (2004). at xiii–xv (concluding that experts were inaccurate in 95% of reviewed cases when predicting future dangerousness); Hamilton, Melissa, “Public Safety, Individual Liberty, and Suspect Science: Future Dangerousness Assessments and Sex Offender Laws,” 83 Temple Law Review 697, 699 (2011) (discussing serious concerns about the reliability of assessments of future dangerousness in the sex-offender context).

[12] Steadman, H., Mulvey, E., Monahan, J., Robbins, P., Appelbaum, P., Grisso, T., Roth, L., Silver, E. “Violence by People Discharged From Acute Psychiatric Inpatient Facilities and by Others in the Same Neighborhoods.” Archives of General Psychiatry 55:5, 393-401 (May 1998).

A 2009 study published in the Archives of General Psychiatry found that mental illness alone is not an adequate basis for a prediction of dangerousness. As stated in the abstract, “bivariate analyses showed that the incidence of violence was higher for people with severe mental illness, but only significantly so for those with co-occurring substance abuse and/or dependence. Multivariate analyses revealed that severe mental illness alone did not predict future violence.

The most recent studies have confirmed the insignificance of mental illness compared to other factors associated with violence, like substance use, prior trauma, and life crises. See, e.g., Swanson, J.W., McGinty, E.E., Fazel, S. and Mays, V.M., “,Mental Illness and Reduction of Gun Violence and Suicide: Bringing Epidemiologic Research to Policy, Annals of Epidemiology (in press) (2014).

“Policies must be pursued, which do not further stigmatize individuals with serious mental illness or discourage them from seeking mental health treatment. Evidence is clear that the large majority of people with mental disorders do not engage in violence against others, and that most violent behavior is due to factors other than mental illness. However, psychiatric disorders, such as depression, are strongly implicated in suicide, which accounts for more than half of gun fatalities.”

[13] Piel, J., “Mental Disability Law, Evidence, and Testimony: A Comprehensive Reference Manual for Lawyers, Judges, and Mental Disability Professionals,” Journal of the American Academy of Psychiatry and the Law Online, 38(4):619-620 (2010).

[14] Charlotte School of Law, Mental Illness and the Death Penalty in North Carolina: A Diagnostic Approach (2007)

[15] 477 U.S. at 400.

[16] See, e.g., World Coalition Against the Death Penalty, “Death Penalty and Mental Health: Detailed Factsheet” at 10–11 (2014), archived at

[17] American Medical Association. D-140.979 “Moratorium on the Imposition of the Death Penalty:” “Our American Medical Association will actively disseminate its opinion regarding physician non-participation in legally authorized executions”. (Res. 5, A-03).

  1. 543 U.S. 551 (2005).