Mental illness and the death penalty.

Abstract

This essay outlines three reasons why the death penalty, even if generally a valid exercise of state authority, should never or rarely be imposed on those who are mentally ill. The first argument is the most global: execution of those who suffer from mental illness violates equal protection of the laws in those states which prohibit execution of children (i.e., all states), or at least in those jurisdictions which prohibit execution of people who are mentally retarded (numbering about a dozen). The second argument assumes that execution of people who are mentally ill is constitutional as a general proposition but relies on the assertion that capital sentencing juries usually treat mental illness as an aggravating circumstance; on this assumption, the bulk of death sentences imposed on mentally ill people are deprivations of life without due process of law. The third argument assumes that a valid death sentence has been imposed, but shows why most mentally ill people on death row should not be executed either because they are incompetent under the Supreme Court's decision in Ford v. Wainwright, properly construed, or because their competence is maintained through an unconstitutional imposition of medication.