'Sky Will Not Fall,' Proponents of Death Penalty Restrictions for Mentally Ill Argue to Committee
Bills in this Story
133-HB136 DEATH PENALTY-MENTALLY ILL (Hillyer, B)
Mentioned in this Story
Rep. James Butler, Jr. (R-Columbus)
Rep. David Leland (D-Columbus)

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.

Story originally published in The Hannah Report on May 2, 2019.  Copyright 2019 Hannah News Service, Inc.