MENTAL ILLNESS AND THE DEATH PENALTY
(cite as “1 CALIF.CRIM.L.REV. 3”; pincite using paragraph numbers)

by Christopher Slobogin1

Introduction

¶1 Our society has long been ambivalent about mental illness. On the one hand, for many laypeople mental illness is something to be feared. The medieval theory that mental disability is the product of possession by evil spirits finds its modern expression in the accepted wisdom that “crazy” people are very different from the rest of us and are generally to be avoided.2 At the same time, we have long pitied those who are afflicted by mental problems, as evidenced by the centuries-old existence of a special defense excusing such people from criminal responsibility,3 as well as by the frequent campaigns to improve their treatment facilities.4

¶2 Nowhere is this ambivalence more dramatically exposed than in death penalty cases. Mental illness is expressly recognized as a mitigating factor in most death penalty statutes5 and the Supreme Court has held, in Ford v. Wainwright,6 that it is cruel and unusual punishment under the eighth amendment to execute a person whose mental state renders understanding of capital punishment impossible. Yet a significant proportion of death row inmates are mentally ill (even when mental illness is defined in the narrow sense adopted in this essay),7 and the research evidence suggests that mental illness is often, in fact if not in law, an aggravating factor as far as capital sentencing bodies are concerned.8

¶3 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).9 The second argument assumes that execution of people who are mentally ill is constitutional as a general proposition, but relies on the assertion made above 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.10 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 Ford, properly construed, or because their competence is maintained through an unconstitutional imposition of medication.11

I. Terminology

¶4 Before embarking on these arguments, “mental illness” must be defined. As used in this essay, the term is meant to refer primarily to the psychoses. This is the group of mental disorders that most prominently affect a person’s ability to interpret reality, usually as a result of delusions, hallucinations, and tangential and confused thinking;12 specific disorders that fall in this category are schizophrenia, bipolar disorders (manic-depressive psychosis), the delusional disorders, and some organic mental disorders.13 Mental illness, so defined, should be distinguished from two other broad categories of mental disability: personality disorders and mental retardation. Personality disorders, such as the paranoid, schizotypal, antisocial, borderline, and intermittent explosive disorders, are enduring patterns of perception and behavior that are maladaptive, but do not normally involve the significant cognitive distortions associated with the psychoses.14 Mental retardation is principally associated with substandard intellectual functioning, with the threshold intelligence quotient officially set at 70.15 In contrast, people who are psychotic or suffer from a personality disorder generally do not have significant intellectual deficits, although it is possible to have a “dual diagnosis” which involves both mental retardation and some other condition.16

¶5 These three categories--psychosis, personality disorder, and mental retardation--are useful constructs only to a point. Their boundaries are ill-defined and considerable overlap can exist, especially between the first two categories. Furthermore, for legal purposes, the key concern is not the particular diagnosis but the specific type of impairment evidenced by the individual. A particularly important implication of these two observations is that some people with personality disorders, although not “mentally ill” as defined above, may exhibit impairment that is relevant in some of the legal settings discussed here. A few examples of this more expansive, legally contingent, definition of “mental illness” are provided below.17

II. The Equal Protection Argument

¶6 After the Supreme Court’s decisions in Thompson v. Oklahoma,18 it is probably unconstitutional to execute anyone for a crime committed while under 16.19 In any event, no state affirmatively permits execution of such youth.20 Twelve states and the federal government prohibit execution of people who are mentally retarded, an apparent trend;21 as recently as 1989 only two states did so.22 These prohibitions, based primarily on perceptions of culpability for the crime committed, exists independently of the eighth amendment bar, recognized in Ford, that prohibits execution of a person who is “incompetent” at the appointed time of execution.

¶7 In sharp contrast to the immunity from execution granted to children and people with mental retardation, no state prohibits execution of a person who was mentally ill at the time of the offense. The fourteenth amendment’s injunction requiring equal protection under the law is violated by this difference in treatment because there is no good reason for it; although, as noted in Part I, there are psychological differences between people with mental retardation and people with mental illness, there are no significant, legally relevant differences between these two groups, or between them and children. Thus, a state that does not treat all three groups similarly in terms of eligibility for execution is acting unconstitutionally.

¶8 Defense of this assertion requires, first and foremost, dealing with the Supreme Court’s decision in Heller v. Doe,23 which suggested that the state does not need a good reason for discriminating between people with mental illness and people with mental retardation. In Heller, a five-member majority of the Court held that the standard of proof and the procedures for commitment of people with mental retardation may differ from those associated with commitment of people with mental illness, so long as the state has a “rational basis” for the variations.24 As the Court has made clear in other decisions, a rational basis exists when the state can advance a “reasonable identifiable governmental objective” for the alleged discrimination,25 which generally means that any plausible reason will suffice.26

¶9 However, in the earlier decision of City of Cleburne, Texas v. Cleburne Living Center,27 a unanimous Court suggested that something more than a rational basis is necessary to sustain legislation that disadvantages a mentally disabled group. Cleburne held unconstitutional the application of an ordinance that barred from certain residential areas group homes for the “feeble-minded” (i.e., people with mental retardation), but permitted institutions such as boarding houses, fraternities and sororities, apartment hotels and nursing homes in the same areas.28 Because the law’s application was based on “irrational prejudice,” in particular beliefs about the dangers posed by people with mental retardation,29 the Court found it violated the Equal Protection Clause.30 Although Cleburne refused to declare that people with mental retardation are a suspect or quasi-suspect class for equal protection purposes,31 it did grant relief relief to the plaintiffs, something that virtually never occurs in cases applying the rational basis test.32 Accordingly, several commentators have argued that Cleburne required something akin to “rational basis with bite” in cases involving mental disability.33 Heller did not directly undermine that precedent, despite its outcome, because the Court noted at the outset of that opinion that the argument for a higher level of review was not “properly presented” in that case.34 The appropriate standard of review in cases involving alleged discrimination against those with mental disability is thus still unresolved.35

¶10 Of course, even if rationality review with bite is the proper standard for evaluating the death penalty as it applies to the three groups in question here, good reasons for any differential treatment among them would defeat an equal protection challenge. Taking into consideration the retributive, deterrent and incapacitative purposes of the death penalty,36 four candidates for such “good reasons” might be advanced. First, the state might claim that youth under 16 and those with mental retardation are easier to identify than those with mental illness. Age is usually verifiable as a matter of routine, and IQ scores are reliably obtained through scientifically normed intelligence tests; by comparison, the existence of mental illness may be relatively more difficult to determine. If so, the state could argue, the death penalty must be maintained for the latter group, both to facilitate rational implementation of the death penalty scheme and to deter fabrication.37 Second, whereas age and mental retardation are “irreversible” conditions, mental illness is more likely to be successfully “treated.”38 That should not allow the argument that execution of a mentally ill person can proceed once the mental symptoms are ameliorated (because a like argument would allow execution both of children once they reach the age of 16 and some people with borderline mental retardation whose condition can be improved through habilitation). But it does suggest that people with mental illness, more so than youth or people with retardation, could have and should have done something about their condition prior to the crime.39 A closely related third argument is that people with mental illness, at least those who are adults, have had more of a chance to learn the mores of society than children or people with mental retardation.40 In other words, even if they were mentally ill at the time of the offense through no “fault” of their own, at the time of their crime they were not as mentally compromised as youth or people with mental retardation. Finally, it might be argued that people with mental illness are more dangerous than the other two groups.41

¶11 None of these arguments withstand the type of close analysis that Cleburne suggests is required, however. The first argument’s assumption that mental retardation is easier to diagnose than severe mental illness is highly debatable.42 Although Heller nonetheless adopted that assumption, it did so only as a justification for Kentucky’s provision permitting commitment of those with retardation on a lower standard of proof than that required for commitment of those with mental illness.43 Thus, even if we accept the proposition that mental illness is not as easily determined as mental retardation, that assumption at most explains a state’s decision to establish differing levels of proof for the two categories of disability. It does not explain why people who clearly do have mental illness are more deserving of the death penalty than people with mental retardation. The correct response to the difficulty-of-diagnosis observation is not to permit execution of people with mental illness, but to place a higher burden on the party alleging that condition (as the state law involved in Heller did).44 The slightly different concern that mental illness is more easily feigned can be addressed the same way, although the evidence suggests that serious mental illness is very difficult to fake in any event.45

¶12 The allegations that people with mental illness are more likely to be at fault for their condition at the time of the offense and have greater opportunities than children or people with mental retardation to learn right from wrong more directly address the relative culpability and deterrability issues that should be the focus of equal protection analysis. The problem is that these assertions about enhanced culpability of people with mental illness are just as speculative as the City of Cleburne’s claims that people with mental retardation are more dangerous than other, non-disabled groups. Although it might be said that, in some cases, people with mental illness are on notice that a failure to seek or maintain treatment might result in crime,46 the same is true of those with mental retardation and children; many people in the former group know they have a disorder and deny it rather than seek help,47 while children who commit violent crime have generally been given several opportunities to obtain treatment through previous involvement in the juvenile justice system.48 And while it cannot be denied that mentally ill adults are, as a class, more advanced developmentally than individuals in the other two groups, it is just as certain that people proven to be psychotic at the time of the offense are as volitionally and cognitively impaired at that crucial moment as children and people with mental retardation who commit crimes. If anything, the delusions, command hallucinations, and disoriented thought process of those who are mentally ill represent greater dysfunction than that experienced by most “mildly” retarded individuals (defined as having an IQ of between 55 and 7049) and by virtually any non-mentally ill teenager.50 Even certain types of personality disorders, among them paranoid personality and borderline personality, may be associated with gross impairment that equals or exceeds the level of impairment normally present in these other subgroups.51

¶13 One could respond to these points by noting that sentencing traditionally has looked not just at culpability for a particular offense but at the overall character of the offender.52 In this sense, it might be argued, youth and people with mental retardation, because of their pervasive, “congenital” deficits, are less blameworthy than people with mental illness. Yet the underlying assumption of this argument--that a propensity for mental illness can somehow be avoided--is, once again, false. The evidence is strong that both psychoses and personality disorders are either biological or developmental in origin.53

¶14 The claim that offenders with mental illness are more likely to commit other violent crimes is also easily debunked. Although the most recent research on the topic shows that the base rate for violence among the most severely ill is slightly more elevated than that of the general population,54 mentally ill offenders (the group of interest in the death penalty context) are less likely to commit further crime than non-disordered offenders.55 More importantly for purposes of the equal protection issue being addressed here, the base rate for violence among those with mental illness is no greater than the violence base rate for those with mental retardation and is much lower than the violence base rate for youthful offenders.56

¶15 One suspects that what lays behind the special treatment of those with mental illness in the death penalty context is the same type of “irrational prejudice” against which the Cleburne Court inveighed. People with mental illness are not viewed with as much empathy because they are perceived as even more different from us than people with mental retardation, and certainly more different from us than children. But, as Cleburne made clear, that difference, even if it truly exists, cannot form the basis for discriminatory treatment unless it threatens legitimate government interests.57

III. The Due Process Argument

¶16Due process of law is clearly lacking when the state fails to follow its own statutory provisions.58 If, contrary to the law in every death penalty state, mental illness is treated as an aggravating factor in the death sentence determination, a flagrant due process violation has occurred. For reasons developed below, acceptance of this proposition could be the basis for a prohibition on all death sentences for those who are mentally ill; at the least, it would invalidate many of them.

¶17Every state death penalty statute, either explicitly or implicitly, stipulates that mental illness at the time of the offense be considered as a possible mitigating circumstance.59 That position is almost certainly constitutionally mandated after Lockett v. Ohio.60 There the Supreme Court stated that “the Eighth and Fourteenth Amendments require that the sentencer, in all but the rarest kind of capital case, not be precluded from considering, as a mitigating factor, any aspects of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.”61

¶18 Roughly two-thirds of state capital sentencing statutes explicitly incorporate one or more of the mitigating factors found in the Model Penal Code,62 which lists, inter alia: (1) whether the defendant was suffering from “extreme mental or emotional disturbance” at the time of the offense (2) whether “the capacity of the defendant to appreciate the criminality [wrongfulness] of his conduct or to conform his conduct to the requirements of law was impaired as a result of mental disease or defect or intoxication”; and (3) whether “the murder was committed under circumstances which the defendant believed to provide a moral justification or extenuation of his conduct.”63 The first factor mimics the Code’s provocation formulation for reducing murder to manslaughter, minus the reasonableness requirement.64 The second factor uses the Code’s insanity defense language, but with the deletion of both the mental disease or defect predicate and the requirement that the incapacity be “significant.”65 The third factor invites a completely subjective analysis of the offender’s motivations. In short, the mitigating impact afforded to mental dysfunction under death penalty statutes is wide open, not even requiring a showing of mental illness as defined in this essay.

¶19 Yet research on the behavior of capital sentencing bodies strongly suggests that judges and juries often treat evidence of mental illness in precisely the opposite manner. One early study in California, which examined 238 capital cases to determine the factors that influenced decisions about capital punishment, found that unsuccessfully raising an insanity defense (a scenario which describes a significant portion of those defendants who use mental illness as a mitigator at the sentencing phase66) correlates positively with a death sentence.67 A similar study of 128 cases in Georgia also found a powerful correlation between unsuccessful assertion of an insanity defense and a death sentence;68 indeed, a failed insanity defense was one of the most accurate predictors of who would receive the death penalty, ahead of such variables as prior record and commission of another crime at the time of the homicide, and behind only the number of official aggravating factors proven at sentencing.69

¶20 Research focused on factors explicitly involved at sentencing also indicates that mental illness plays an aggravating role at sentencing. Professor Baldus and his colleagues looked at 175 capital cases in Pennsylvania in an effort to determine how various statutory aggravating and mitigating factors influenced the factfinder’s decision.70 Based on their regression analysis, the 11 aggravating and 8 mitigating factors they studied all correlated with the sentence imposed in the predictable direction, with one exception: “extreme mental or emotional disturbance” correlated positively with a death sentence, albeit at a level on the verge of statistical insignificance.71 A similar study found even stronger evidence of such a correlation, concluding that “[a] defendant’s odds of receiving a death sentence increased significantly when the defendant had a history of childhood abuse, drug abuse and/or addiction, and mental and/or emotional disturbance.”72

¶21 A fifth study, using mock jurors, may provide an explanation for these results. In speculating as to why he found that mental illness defenses were “so ineffective” in capital cases, the author of the study noted that the jurors endorsed a number of spurious reasons, many of them alluded to in Part II’s discussion of the equal protection issue: “mental illness is no excuse; he might have fooled the psychiatrist; he should have sought help for his problems.”73 Similarly, a sixth study found that, as compared to mock jurors who expressed scruples about the death penalty and therefore could be removed from a capital sentencing jury,74 mock jurors qualified to serve on capital sentencing juries under the Court’s caselaw are much more hostile to defendants suffering from schizophrenia (but react to defendants with mental retardation in roughly the same fashion as scrupled jurors).75 Again, the subjects’ explanation for this stance, according to the authors of this study, is that mental state arguments by people with mental illness are “a ruse and an impediment to the conviction of criminals.”76

¶22 Professor Garvey’s research based on data gathered as part of the mammoth Capital Jury Sentencing Project provides another explanation for the hostility toward offenders who are mentally ill.77 Based on interviews with 187 jurors who served on 53 capital cases tried in South Carolina between 1988 and 1997, Garvey found that jurors were “more likely to have found the defendant frightening to be near” when the killing was the “work of a madman” or the defendant was “vicious like a mad animal.”78 Regression analysis revealed that, of the eight emotions studied in this research (including sympathy, anger, and disgust), only “fear” of the defendant correlated significantly with the final vote on sentence.79 To the extent mental illness is equated with “madness”, then, Garvey’s findings provide further support for the proposition that mental illness damages, rather than supports, the defendant’s case at sentencing.80

¶23 Related to this last observation are two other sets of empirical results. Probably the most robust finding in research on why juries impose the death penalty is that perceived dangerousness plays a very significant role in the decision, even in those jurisdictions in which dangerousness is not recognized as a statutory aggravating factor.81 In research about attitudes toward people with mental illness, a similarly robust finding is that laypeople (erroneously) view such people as abnormally dangerous.82 Combining these two lines of research, it is hard to escape the conclusion that mental illness often plays an aggravating role in jury and judge decisions about whom to sentence to death.83

¶24 One might respond to this conclusion by noting that no death penalty statute explicitly prohibits use of mental illness as an aggravator. But permitting such use may well be unconstitutional. In Zant v. Stephens84 the Supreme Court stated that it would be constitutionally impermissible to give aggravating effect to factors such as “race, religion or political affiliation or . . . conduct that actually should militate in favor of a lesser penalty, such as perhaps the defendant’s mental illness”.85 Although this statement was dictum and somewhat tentatively phrased, it reflects the well-accepted principle that mental illness diminishes culpability.86

¶25 Indeed, other courts have gone one step further, holding that even a legitimate aggravating circumstance may not form the basis for a death sentence if it was “caused” by mental illness. In Huckaby v. State,87 for instance, the Florida Supreme Court reversed a death sentence because the most significant aggravating circumstance–the heinousness of the offender’s crime–was “the direct consequence of his mental illness.”88 Two years later, in Miller v. State,89 the same court reversed a death sentence imposed by a judge who justified his decision on the ground that the defendant was dangerous as a result of his mental illness. The court noted that dangerousness was not recognized as an aggravating factor in Florida’s death penalty statute and went on to state that “[t]he trial judge’s use of the defendant’s mental illness, and his resulting propensity to commit violent acts, as an aggravating factor favoring the imposition of the death penalty appears contrary to the legislative intent as set forth in the statute.”90

¶26 Carried to its logical end, these cases would make imposition of the death penalty on a mentally ill person extremely difficult, since many aggravating circumstances can often be traced to the person’s mental condition. That outcome would also bring a helpful practical advantage. No longer would defense attorneys be put to the Hobson’s choice of whether to present evidence of mental illness and risk proving the prosecution’s case in aggravation or instead refrain from presenting such evidence when it may be the only “mitigating” evidence available (thereby risking a later ineffective assistance of counsel claim as well).91

¶27 Although these arguments are substantial, two counter-arguments suggest that due process does not require a complete ban on death sentences for those with mental illness. First, one might make a distinction between situations where the mitigating and aggravating circumstances both go to culpability (as in Huckaby), and where the aggravating circumstance goes to something else (as in Miller). While a (mitigating) finding of extreme mental or emotional stress is hard to square with a finding that the killing was heinous (which Webster’s defines as “hatefully or shockingly evil”92), a conclusion that a person’s mental illness makes him less blameworthy but more dangerous is not necessarily incoherent.93 Second, the potential for improper use of mental illness is presumably not realized in every case. After all, many mentally ill capital defendants are not sentenced to death, which suggests that evidence of a defendant’s mental illness is not always the cause of those death sentences that are imposed.

¶28 As a way of dealing with these various concerns, the following proposal, which builds on one made by Ellen Berkman,94 should be considered as a way of providing due process of law to mentally ill capital defendants. The defendant would be required to raise a reasonable doubt that, but for evidence of mental illness, a particular aggravating circumstance would not have been found. It would then be up to the prosecution either to show beyond a reasonable doubt that mental illness is unrelated to that factor or to convince the court that the aggravator may justifiably be the consequence of mental illness. Although this proposal does not completely remove the defense attorney’s dilemma described above, it will give the attorney some idea of when evidence of mental illness can be used to best advantage, especially after appellate courts clarify which, if any, aggravating circumstances may be based on mental illness.

IV. The Eighth Amendment Argument

¶29 Ford v. Wainright’s holding that the eighth amendment bars execution of a person who is incompetent left two significant questions unanswered: What is the rationale for the competency requirement, and what is the content of the competency standard? The response to the first question determines the answer to the second. If, as this essay argues, the most plausible basis for the competency requirement is society’s interest in retribution, then the standard defining competency to be executed is not as low a threshold as many have suggested, and a significant number of mentally ill people on death row today do not meet it.

¶30 In the course of its opinion in Ford, the Supreme Court noted at least six reasons, all of them derived from common law stretching back to medieval times, as to why a person must be competent prior to execution: (1) an incompetent person might be unable to provide counsel with last minute information leading to vacation of the sentence: (2) madness is punishment enough in itself; (3) an incompetent person cannot make peace with God; (4) execution of an incompetent person has no deterrent effect on the population; (5) such execution “is a miserable spectacle . . . of extream inhumanity and cruelty” (quoting Coke95); and (6) the retribution or vengeance meant to be realized by execution cannot be exacted from an incompetent person.96 The Court avoided settling on any one of these as the principal or only basis for its decision, simply stating that “[w]hether its aim be to protect the condemned from fear and pain without comfort of understanding, or to protect the dignity of society itself from the barbarity of exacting mindless vengeance, the restriction finds enforcement in the Eighth Amendment [which bans cruel and unusual punishment].”97

¶31 The majority opinion was even less forthcoming on the competency standard. Indeed, it did not proffer any test. However, Justice Powell, in concurrence, stated that he “would hold that the Eighth Amendment forbids the execution only of those who are unaware of the punishment they are about to suffer and why they are to suffer it.”98

¶32 Because only the retributive rationale makes sense in modern times, Justice Powell’s test is the correct one, provided the key word “unaware” in his test is defined to mean a lack of emotional appreciation. The flaws in the other rationales for the competency requirement have been well discussed by others,99 and will only be hinted at here. For instance, as Justice Powell noted in his concurrence, the view that competency is required to assist the attorney “has slight merit today,” because defendants are entitled to effective assistance of counsel at trial and appeal, as well as to multiple post-conviction reviews of the sentence.100 Even if a lifetime of madness could be seen as sufficient punishment for first degree murder, the advent of psychotropic drugs means that most mentally ill people will not suffer indeterminately. Ensuring competency to allow making peace with God assumes both a religious offender (much less likely today than in medieval times) and that it is one’s mental state at the time of execution, rather than the tenor of one’s life, that is important in Heaven. Assuming executions have any deterrent effect,101 attempting to distinguish in deterrence terms executions of people with mental illness from other types of executions is problematic; indeed, if the state were to execute even those who are psychotic deterrence might be enhanced, because the populace would be assured of the state’s resolve to kill and because potential criminals who bank on their ability to malinger illness will be faced with the most powerful dissuasion. And while execution of a person who is unaware that the event is taking place is undoubtedly cruel, it is at least as cruel to execute someone who knows he is about to be killed. The feeling of discomfort that one might experience observing execution of an insensate person is best explained as stemming from an unwillingness to exact punishment on someone who does not understand why it is happening–a retributive rationale. Commentators who have closely analyzed the various possible reasons for the competency requirement agree that society’s interest in ensuring the offender suffers in proportion to his crime is the most solid traditional basis for the competency requirement.102

¶33 As harsh as this rationale sounds, it necessitates a definition of execution incompetency that is relatively broad. Mere understanding of the death penalty and why it is being imposed should be insufficient for a retributivist. Rather, the offender must fathom, if not internalize, the nature of the debt that he owes society. As one court put it, an incompetency finding is mandated if the offender, “[when] taken to the electric chair, . . . would not quail or take account of its significance.”103

¶34 That this standard has teeth is demonstrated by the case of Horace Kelly, recently found competent by a California jury. The jury concluded that Kelly was able to describe both the consequence of the death penalty (death) and why he deserved it (he killed two woman and an 11 year-old boy).104 Thus he met the austere version of Justice Powell’s test. But under a competency standard properly informed by the retributive premise, he should not have been found competent to be executed. The evidence indicated that Kelly, who was both mentally retarded and mentally ill, talked in rambling and incoherent sentences, thought that his mother would eventually take him home after one of her visits, and from time to time believed prison was a college.105 Kelly had a shallow cognitive understanding of his legal situation, but comprehended neither the enormity of his punishment or the societal condemnation associated with it.

¶35 For some people with symptoms like those experienced by Kelly, antipsychotic medication can remove delusions and other mental symptoms that cause the incompetency. At issue in Perry v. Louisiana106 was whether the state may forcibly medicate such individuals when necessary to ensure that Ford’s test is met. The Supreme Court granted certiorari in the case, but then remanded it in light of its intervening decision in Washington v. Harper,107 which allows forcible medication when “medically appropriate” for prisoners who are dangerous to self or others, or are gravely disabled. Somewhat surprisingly, given the Harper decision and its own earlier rulings, the Louisiana Supreme Court held on remand that forcible medication to render a person competent to be executed is impermissible.108 The court relied primarily on state constitutional bases for its decision. Its principal holding was that medicating an objecting individual to facilitate execution constituted cruel and unusual punishment under Louisiana’s constitution, because it “imposes significantly more indignity, pain and suffering than ordinarily is necessary for the mere extinguishment of life, . . . because it imposes a severe penalty without furthering any of the valid social goals of punishment, and . . . because it subjects to the death penalty a class of offenders that has been exempt therefrom for centuries and adds novel burdens to the punishment of the insane which will not be suffered by sane capital offenders.”109

¶36 There are several reasons why the U.S. Supreme Court may ultimately reject this reasoning. It could easily find, for instance, that the state’s interests in meting out a justly imposed sentence and deterring malingering outweigh the extra indignity that forcible medication visits on the mentally ill offender.110 Moreover, offenders who refuse medication, on their own or through their attorneys, probably do so primarily to avoid execution (rather than, for instance, out of a desire to avoid the side effects of medication); if so, the individual interest to be balanced against the state’s is entitled to virtually no weight. Finally, and most importantly, if the basis for the competency requirement is society’s interest in retribution, the individual’s interests should count for little or nothing in any event.

¶37 It is the societal underpinning of the incompetency requirement, however, that provides the basis for a much more persuasive reason the Louisiana Supreme Court gave to bolster its decision in Perry. Playing off Harper’s mandate that forcible medication be “medically appropriate”,111 the Louisiana court concluded that medication given “to facilitate . . . execution does not constitute medical treatment but is antithetical to the basic principles of the healing arts.”112 Given the clear ethical stipulation in medicine that doctors should do no harm,113 and the relevant professional organizations’ interpretation of that stipulation to mean that doctors may not “participate” or “assist” in executions,114 involvement of mental health professionals in the forcible administration of drugs is impermissible; as Professor Bonnie has pointed out, the clinician who restores a prisoner’s competency “would be serving a role that is ethically indistinguishable from the physician who administers the lethal injection of barbiturates.”115 The fact that the party who is the focus of this argument is someone other the offender does not prevent state coercion of treatment from being a cruel and unusual method of exacting vengeance; again, that standard is not defined solely in terms of the offender’s interests but rather takes into account overarching societal mores.116

¶38 The doctor-patient relationship is an intimate one. Asking a mental health professional to treat a person for the sole purpose of assuring a death sentence is carried out is akin to asking the offender’s attorney or relative to assist in his execution. When faced with an incompetent capital offender who requires professional treatment to be restored, the state’s only option should be commutation of sentence.117

V. Conclusion

¶39 Most mentally ill people who are convicted on capital charges should not be executed, for one of three reasons. First, such executions would violate equal protection of the laws in any jurisdiction in which execution of children and people with mental retardation is barred. Second, many death sentences imposed on people with mental illness violate due process because their mental illness is treated by the factfinder as an aggravating factor, either directly or to bolster a separate aggravating circumstance. Third, many mentally ill offenders who are sentenced to death will be so impaired at the time of execution that they can not emotionally appreciate the significance of their punishment and thus cannot be executed under the eighth amendment; the latter conclusion is required even if they are restorable through treatment, given the unethical and medically inappropriate role in which such treatment casts mental health professionals.