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The Death Penalty, Mental Illness, and Society

Russian author Fyodor Dostoyevsky said: “You can judge a society by how well it treats its prisoners.” Indian statesman Mahatma Ghandi said: “A nation’s greatness is measured by how it treats its weakest members.” English statesman Winston Churchill said: “You measure the degree of civilisation of a society by how it treats its weakest members.”[i]

While it is perhaps difficult to disagree with these statements on a purely philosophical level, the practical world does not operate on philosophy alone because, while philosophies state broad and idealistic principles, the real world must deal with the down-and-dirty, nitty-gritty of life. In the context of capital punishment, the first question is whether to embrace the construct at all. Many societies have abolished the practice.[ii] After declaring the capital punishment laws of all the states with such laws unconstitutional as written in 1972, the U.S. Supreme Court left the door open for any state wishing to do so to reinstitute capital punishment by constructing a statute that would meet the federal constitutional principles set forth by the Supreme Court in the case under review.[iii] As a result, 32 states have returned to capital punishment over the years since 1972.[iv]

For the states that embrace the idea of capital punishment today, there is a second question. Are there persons convicted of capital crimes who nonetheless should not be put to death for some reason having nothing to do with the actual crime the person committed, such as mental illness?[v] At base, the answer to both of these questions has to do with how each citizen sees the world in moral terms.[vi] Clearly, the majority of U.S. citizens favor the death penalty.[vii] It is axiomatic that those who oppose capital punishment altogether also oppose capital punishment for anyone who is mentally ill.

The third and most important question in this discussion is how to define mental illness in the context of capital punishment. The legal question concerns how to treat mental illness such that it does not conflict with the 8th Amendment to the U.S. Constitution, which bans “cruel and unusual punishment.”

In March, 2017, the U.S. Supreme Court, in the case of Moore v. Texas,[viii] set aside a death sentence, for a man who, at age 20, murdered a store clerk in a botched 1980 robbery, based on the court’s view that since the convict had been deemed mentally ill at age 13 the death penalty was unavailable. In 1973, Moore had been found to be mentally ill because he could not tell time, name the days of the week, name the months, name the seasons of the year, or comprehend the standards of measure.

In deciding this issue, the Texas Court of Criminal Appeals had indicated that because Moore had demonstrated “adaptive strength” by living on the street as a teenager and committing an armed robbery, he did not qualify as having the type of severe mental impairment that would make his execution cruel and unusual under the 8th Amendment. The five-justice Supreme Court majority ruled that the Texas court had relied on an outdated understanding of mental disability and ordered the court to reconsider its decision. The three-justice dissent agreed that the lower court may have used outdated standards but said Moore’s IQ scores ranging from 59 to 78 showed that his intellectual functioning was not “sub-average” to the degree that he should be exempted from the death penalty.[ix]

So what are the proper standards to be used? In 2002, the Supreme Court barred the execution of persons who had been determined to be “mentally retarded”[x] as violative of the 8th Amendment, but it left the states some freedom to define the parameters of mental retardation in this context.[xi] In 2014, however, the Supreme Court, after having overturned a number of such cases decided by the states after 2002, told the states that the IQ test they were using to determine retardation was outmoded and that they must use data adjusted for standard statistical errors and that state standards must follow the medical community’s diagnostic framework.[xii] The high court ruled in the recent Texas case that it had used neither of the proper assessment methods. Essentially, the case was remanded to allow Texas to use the proper standards in reconsidering the case.[xiii]

It should be noted that regardless of the methods used for determining mental illness in the capital punishment context, there always will be hordes of organizations opposed to capital punishment in general and, therefore, opposed to any mentally impaired person being executed.[xiv] All this said, it may be that the issue of mental illness in relation to capital punishment is becoming less important because, even as voters continue to approve of the idea of capital punishment (with all the issues, such as this one, that come with it), capital punishment cases are on the decline. In 2016, only 30 persons convicted in capital cases were sentenced to death and just 20 actually were executed, the lowest numbers in decades. Capital sentences and executions have been declining steadily since the 1990s. So while the majority of Americans still favor capital punishment, juries are becoming less inclined to mete out that punishment.[xv] Still, the mental illness/capital punishment issue persists as society continues its search for “correctness” in a difficult world.

[iii] Furman v. Georgia, 408 U.S. 238 (1972).

[v] Whether, based on the same underlying ideas of mental illness, the person in question should have been prosecuted at all (rather than being confined to a mental institution for treatment) is a separate question and not covered in this article.

[vi] Historically, “morality” and “ethics” were not synonymous terms; today, in common usage, most Americans view the terms synonymously. In philosophy, morality was each individual’s sense of right and wrong, while ethics was the process one would use to decide a path in life when faced with a decision concerning separate moral beliefs that had come into conflict with one another, i.e., a moral dilemma (for example, for those who believe morally in both principles, should belief in the greatest good for the greatest number trump the idea of not doing harm to third persons in a given situation or should it be the other way around). Serious ethics philosophers still draw the distinction.

[viii] 581 U.S. ___ (2017).

[ix] David Savage, “Supreme Court Reverses Death Sentence for Texas Inmate Who Could Not Tell Time or Name the Days of the Week,” Los Angeles Times, March 28, 2017,

[x] That was the term used then. The medical community (and thus the courts) now prefers the term “mental illness.”

[xi] Atkins v. Virginia, 536 U.S. 304 (2002).

[xii] Hall v. Florida, 572 U. S. ___, 134 S.Ct. 1986, 188 L.Ed.2d 1007 (2014). See Nina Totenberg, “Supreme Court Rejects Texas Standard for Mental Disability in Capital Cases,” NPR, March 28, 2017,

[xiii] Supra Note viii.

[xiv] This is but one example of the dozens of such organizations in the U.S.

[xv] Rebecca Hersher, “Death Sentences and Executions are Down, But Voters Still Support Death Penalty Laws,” NPR, Dec. 21, 2016,