Mentally Ill Defendants: Systemic Bias in Capital Cases
By Dorean Marguerite Koenig
Mentally ill defendants who cause the deaths of others may receive the death penalty as a direct result of their disabilities and often bizarre, distorted thinking patterns and the perceived dangerousness that this class of offenders poses to the community. "Mental illness" as discussed here includes the mainstream mental or cognitive conditions: schizophrenia, delusional disorders, bipolar disorders, and major depressive disorders.
Manifestations of these disorders are apt to include hallucinations, disordered thinking, or psychotic behaviors, indicating that a person is mentally ill-and thus part of a vulnerable class of offenders. This vulnerability should work to mitigate against execution, although not against punishment. These persons are less culpable for their actions than persons who do not suffer from such disorders. Not all murderers are executed, and capital punishment is not justified if it chooses the vulnerable in society, no matter how despised, for execution.
The mentally ill defendant in a death case will be processed through a series of formalized legal processes, each independent of the other and each with its own formula for decision making. This multiplicity of determinations serves to direct attention away from the inappropriateness of the death penalty for seriously mentally ill defendants.
The first determination is whether the defendant is competent to stand trial. However, we must remember that this reviews the defendant's mental state after he or she has had medical care to assist in preparing for trial. Also, the standard for this competency decision is very low: Does the defendant have a minimal understanding of the charges, and can he or she assist the defending lawyer in the proceedings? A preference for trial is reflected in this low standard, a fact pointed out only to state the obvious: that this part of the proceedings is not geared toward mitigating against execution.
Second, the mentally ill are stigmatized because of public misconceptions about their illnesses. Language describing a mentally ill defendant's condition-such as the term "schizophrenic"-evokes pejorative images that are fueled by modern horror films and other entertainment to which most jurors have been exposed. Lay juries in death cases carry preconceptions that mentally ill persons are dangerous and inherently violent-and that it is therefore acceptable to kill the mentally disabled who commit violent crimes. A second preconception caused by exposure to the media is that many defendants fake mental impairments as a means of escaping the maximum penalty. These attitudes, because of a lack of countervailing general cultural information, influence decision makers in capital cases who unwittingly allow pejorative values and prejudices to form their opinions and guide their decisions. As a result, the individualized decision as to death or life, which is supposed to be based on the facts and the law, is instead tainted by generalized prejudices about mentally ill persons.
Third, jury instructions begin by making the elaborate distinction between mental illness and insanity in the guilt/innocence phase of the trial. There, the jury is given the choice between insanity as a complete defense and conviction of capital murder. Yet insanity is a very specialized defense that, when established, can lead to an acquittal of all charges, and it requires much more than the existence of a serious mental illness. By adding further requirements in addition to mental illness, and making the possible result acquittal, this initial decision by the jury obfuscates the terminal decision between life and death that the jury makes later.
Fourth, a jury, having sat through a trial and struggled in the guilt/innocence phase, often is left with the impression that there is nothing about serious mental illness, by itself, that should be considered at the penalty phase as determining that the defendant should not be executed. The language used in jury instructions at this phase of a capital trial further adds to juror confusion. Terms such as "aggravating factors" and "mitigating factors" remain unexplained and are unfamiliar to many jurors. Studies have shown that many jurors erroneously believe that mental illness is a reason for imposing a death sentence-i.e., that "mitigating" actually means "aggravating." This error can easily occur because it is never explicitly explained to the jury that serious mental illness, if found, should normally be weighed against death.
Further compounding the effect of these prejudices are laws enacted in many states that include "future dangerousness" as a significant criterion upon which the death sentence is to be decided. If a defendant is viewed as one who will be dangerous in the future, this signals the decision maker to return a death verdict. Since mentally ill defendants are stigmatized by the public view that mentally ill persons are always inherently dangerous, and since mental illness often does result in bizarre behaviors, this instruction points toward killing them. If the jurors had any doubts about whether a mentally ill defendant should be put to death, the instruction on future dangerousness makes it clear to them that their duty is to vote for execution. An unstable person-i.e., a mentally ill person-will ordinarily be considered to be apt to be more dangerous in the future than a normal, non-mentally ill person, and thus fair game for execution.
Although only a small percentage of mentally ill persons are dangerous, and most of them can be successfully treated, such biases overwhelm the sentencing hearing because they are not corrected by actors in the criminal trial process. Nowhere is a jury in a death case explicitly told that mental illness is a factor to be considered against a death decision because it is a disability.
Fifth, the trial process is a legal one in which legal terminology is deciphered by forensic experts: medical and psychological experts who are trained to use language other than legal language in decision making in their own fields. These illnesses are defined by the medical establishment. However, through them, the pejorative language of mental illness is introduced into the trial. But we must remember that this language does not coincide with the legal language used in jury instructions and is not determinative of decisions the jurors must make. Sixth, without training or expertise, jurors are expected to make legal determinations and must somehow, without assistance, translate complex, conflicting medical information into the equally bewildering legal formulas given to them in instructions. This results in courts and juries making psycho-legal determinations involving defendants with mental disabilities. Such determinations are inherently unreliable. A decision as to life and death should not hinge on such a slender thread.
