Following APA's lead, three major associations have adopted policies on mental disability and the death penalty that are almost identical to each other. Supporters hope the moves will influence both case law and state legislation.
The policies came about when the Individual Rights and Responsibilities Section of the American Bar Association (ABA) convened representatives from APA, ABA, the American Psychiatric Association, the National Alliance on Mental Illness (NAMI) and others to form the Task Force on Mental Disability and the Death Penalty in April 2003. The 24-member task force met occasionally over the next two years to determine how courts should sentence people with mental illnesses in jurisdictions that impose the death penalty.
The issue wasn't whether APA is for or against the death penalty; it was whether, in jurisdictions where there is a death penalty, it is fair to impose it on somebody who is mentally ill, says Joel Dvoskin, PhD, a forensic psychologist who, along with Kirk Heilbrun, PhD, and Diane Marsh, PhD, represented APA on the task force.
"How do we prevent people with serious psychiatric disabilities from being killed in spite of the fact that they might have been less morally culpable, less able to participate in their trial or less able to participate in their post-trial relief and appeals process?" asks Dvoskin.
The task force drafted a policy to state that the following groups of people should be excluded from capital punishment:
Offenders who have persistent mental disability or mental retardation that began before the offense. These individuals have significant limitations in both their intellectual functioning and behavior and include offenders with traumatic brain injury and dementia.
Defendants who, at the time of the offense, had a severe mental disorder such as schizophrenia.
Offenders who, once convicted and sentenced, become incompetent to be executed because of a mental disorder.
APA's Council of Representatives approved the task force's recommendations as initial policy in February 2005, and the American Psychiatric Association adopted a slightly amended policy in December 2005 incorporating language revised by the task force during spring 2005. APA considered the revised language, which serves to further clarify policy by pulling more language from the commentary and placing it in the actual policy statement. Specifically, the revised policy addresses grounds for precluding execution; procedures for cases in which prisoners forgo, terminate or are unable to assist their counsel in post-conviction proceedings; and procedures for cases in which prisoners are unable to understand their punishment or its purpose.
APA approved the revised language as amended policy in February 2006, thereby achieving APA and American Psychiatric Association consensus. The ABA House of Delegates and NAMI followed suit in 2006, endorsing amended versions of the policy.
"To my knowledge, this is the very first time in history that those four organizations have adopted the same position on anything," notes Dvoskin.
Task force members hope that the policies will influence both case law and state legislation. Indeed, ABA's policy has already been cited in court, says Ronald J. Tabak, JD, who chaired the joint task force. In State v. Ketterer, a case heard in Ohio this past October in which Donald Ketterer, who has a mental illness, pleaded guilty to beating, murdering and robbing Lawrence Sanders, Justice Lundberg Stratton of the Ohio Supreme Court cited and discussed ABA's recommendation in calling for a re-examination of whether society should administer the death penalty to a person with a serious mental illness. ABA's resolution was also cited in the August 2006 California case, Ruiz v. Woodford, in a discussion of whether the petitioner, Alejandro Gilbert Ruiz, who has schizophrenia, was competent for his trial to proceed.
The task force members also hope that the policy will eventually influence state legislation on whether to execute mentally ill offenders.