'Sky Will Not Fall,' Proponents of Death Penalty Restrictions for Mentally Ill Argue to Committee
Additional restrictions on the death penalty for inmates
suffering from serious mental illness will not result in an avalanche of new
claims of mental illness on Death Row, proponents of HB136 (Hillyer) argued
before the House Criminal Justice Committee Thursday.
The witnesses argued the list of conditions covered by the
bill was narrow in scope and designed to only capture those illnesses that
impair a person's executive functions, the cognitive control of behavior and
decision-making. The bill, sponsored by Rep. Brett Hillyer (R-Uhrichsville) and
drafted in consultation with former Ohio Supreme Court Justice Evelyn Lundberg
Stratton, only applies to those inmates with a clinical diagnosis of
schizophrenia, schizoaffective disorder, bipolar disorder, major depressive
disorder or delusional disorder.
Proponents also said the protection is necessary, given data
showing that juries dealing with capital cases often consider mental illness to
be an aggravating factor, rather than a mitigating factor.
David Niven, a political science professor and death penalty
researcher from the University of Cincinnati relayed the findings of the
national Capital Jury Project, which interviews jurors who participated on Death
Row cases
"There were jurors who reported that evidence of
serious mental illness made them 'much more likely to vote for death.' Asked
for the single strongest piece of evidence supporting a death sentence, one
juror said, 'The defense attorney’s psychiatric evaluation of the defendant.'
Think about that for a moment -- the single strongest piece of evidence
supporting a death sentence wasn’t the testimony of a police officer, a
forensic expert, a witness, a victim or an accomplice. The most damning moment
of the entire trial was the defense’s doctor offering evidence that the defendant
was mentally ill," Niven said.
Niven further qualified to Rep. Jim Butler (R-Dayton) that
jurors are found to consider mental illness a mitigating factor before being
selected for a capital trial but consider it an aggravating factor after the
trial begins. He said this applies across the board for when a mental illness
defense is used.
Ohio Public Defender Tim Young, in his proponent testimony,
noted that this bill's genesis is one of the recommendations handed down in
2014 by the Joint Task Force to Review the Administration of Ohio’s Death
Penalty.
Young emphasized that out of 1,000 people with mental
illness, only 100 would be considered "severe" under the law, and of
those people, less than 10 would be considered incompetent to stand trial or
not guilty by reason of insanity. He was also quick to clarify that those
individuals would still likely be confined via involuntary commitment, just not
executed.
He challenged critics of the bill who suggested that an
overwhelming number of Death Row inmates would be seeking exemptions under the
provisions of this bill, likening their argument to past arguments when the
state considered opening up DNA testing in criminal cases.
"People were saying, 'This will be the end of the
world, this will end our process, we won't be able to handle the number of
cases. People will lie. This is nothing but gamesmanship of the system.'… [Prosecutors]
were able to convince this Legislature to allow DNA testing only at the consent
of the prosecutor, but they almost never consented. Then the Legislature in a
second round … allowed the prosecutors to offer objections. They objected almost
every single time. At the end of the day, the Legislature offered DNA testing
not quite on-demand, but largely [on-demand]. We ended up with less than 500
requests, but we spent hundreds of thousands of dollars litigating these
matters because 'the sky is going to fall, the world is going to end, and the
criminal justice system will be crushed under the weight of these false
claims,'" Young said.
Dr. Megan Testa, a forensic psychiatrist based in Cleveland,
presented proponent testimony on behalf of the Ohio Psychiatric Physicians
Association. She emphasized the steps that must be taken to obtain a diagnosis
in these situations and the role that the forensic mental health evaluator
plays in that process. Furthermore, she also noted that a diagnosis of one of
the listed conditions is not enough. The individual's illness must have been
present in sufficient severity that it led to diminished capacity at the time
of the crime.
Rep. David Leland (D-Columbus) asked if there was any chance
that these evaluators could "inject their own personal philosophy"
into the diagnosis process, influencing their decision-making. Testa said that
every person has his or her own biases but said that forensic psychiatry is
intentionally very professional and objective, saying that the experts are
there solely to inform the court of the diagnosis.
Testa also addressed concerns from Butler that the list
could be too broad, especially with regard to major depressive disorder.
"Major depressive disorder should not be confused with
the lay definition of depression. Individuals suffering from major depressive
disorder can become catatonic, unable to eat and take care of themselves. The
conditions can require extreme treatments like electro-shock therapy, deep
brain stimulation, vagus nerve stimulation or Ketamine infusion," she
said.
However, when asked by Butler about conditions not included
in the bill, she said she could not really compare a condition like major
depressive disorder to a condition like addiction, saying it was a matter of
"apples and oranges."
Stratton, who has worked on this issue for many years since
leaving the Supreme Court, noted that she declined to rule on this issue as a
justice, feeling as though it was the Legislature's job to implement these
protections. She said she feels as though, over the years, she has made
sufficient concessions to prosecutors on this legislation, especially with
regard to the burden of proof in the bill. She said, "The time for
compromise is over."
"We've given you data, we've given you figures and
we've given you studies all to show how mitigation does not work. I've met with
the prosecutors many times. We've compromised on this bill multiple times at
the prosecutors' request. One change I very much objected to was changing the
burden of proof from a presumption to putting it wholly on the defendant. … At
some point I feel like I have no teeth left. … You can either vote for this
with lots of research and data, or you just say, 'I'm just philosophically
opposed to allowing this,'" she said.
She said that after examining 126 Death Row cases, only
about 15 would qualify to apply for protections under this bill, let alone
receive them. She said there would be no overwhelming amount of cases referred
under this bill.
Margie Koosed, professor emeritus at the University of Akron
Law School, said that public opinion polls show Ohioans overwhelmingly oppose executing
the mentally ill (69 percent) and support the restrictions in the bill (72
percent).
"Do what Ohio is already expecting you to do. We're
giving you everything we possibly can, and we've conceded everything we
can," she said.