The Commercial Appeal

Exclude mentally ill from death penalty

- W.J. MICHAEL CODY SPECIAL TO THE COMMERCIAL APPEAL

Excluding severe mental illness defendants from the death penalty would be a fair and efficient reform

Our society’s understand­ing of mental illness improves every day, with a growing movement nationwide to reduce the number of individual­s with mental illness in our prisons and jails.

In this context, it is surprising that people with severe mental illnesses, like schizophre­nia, can still be subject to the death penalty in Tennessee.

As one clear example, that comes from the state of Texas, the defendant Scott Panetti first showed signs of severe mental illness at 20 years old, soon after his discharge from the military. He was hospitaliz­ed over a dozen times and received government disability benefits because of his chronic schizophre­nia.

In 1992, while off his anti-psychotic medication­s, Mr. Panetti tragically murdered his in-laws. While there is no question about his guilt, his schizophre­nia significan­tly impacted his trial and sentencing.

In court, he acted as his own attorney while dressed in a cowboy costume. He attempted to subpoena over 200 witnesses, including John F. Kennedy, Jesus Christ and the Pope, and his behavior was bizarre and incomprehe­nsible — and he was sentenced to death in Texas.

As a former Tennessee Attorney General, I understand how horrific these crimes are and how seriously we must take capital cases. I firmly believe that Mr. Panetti and other capital defendants should face very serious consequenc­es for their crimes.

But in light of our increased understand­ing of mental illness, I believe that for those with documented mental illness of the most severe form at the time of their crime, the maximum punishment should be life in prison without parole.

Severe mental illness is characteri­zed by psychotic episodes, which affect rational judgment. It can also lead to a greater risk of wrongful

— with several studies showing a link between mental illness and false confession­s — or have very problemati­c trials, as evidenced by Panetti’s case.

I believe that the money saved by not seeking the death penalty in these cases could be used to solve cold cases, train and staff police forces, fund victims’ services, or create mental health programs.

I’m not the only one who thinks this change is overdue. National groups like the American Bar Associatio­n (ABA), American Psychiatri­c Associatio­n, National Alliance on Mental Illness and Mental Health America all support a severe mental illness exclusion. In 2007, an ABA study committee, of which I was a member, conducted a comprehens­ive assessment of Tennessee’s death penalty laws and found that “mental illness can affect every stage of a capital trial” and that “when the judge, prosecutor and jurors are misinforme­d about the nature of mental illness and its relevance to the defendant’s culpabilit­y, tragic consequenc­es often follow for the defendant.”

Some may argue that Tennessee’s law does not need to change, as prosecutor­s and judges already take into account a defendant’s severe mental illness in other ways.

I know the care that Tennessee’s prosecutor­s put into researchin­g their cases and defendants’ background before seeking a death sentence. However, if a defendant hasn’t received treatment or his attorney hasn’t thoroughly researched his background, a prosecutor may be unaware of how significan­t the illness is, allowing some defendants with severe mental illnesses to receive a disproport­ionate sentence.

When the illness is discovered later in the appeals process, it can lead to decades of costly court proceeding­s. An exclusion would be a safeguard against such situations, which, though rare, end up being very expensive and hard on victims’ families.

For these reasons, I support efforts underway to establish a severe mental illness exclusion from the death penalconvi­ctions ty. Such an exclusion will help to ensure that defendants with severe mental illnesses, while punished, are treated fairly and we avoid expensive death penalty trials, devoting those resources to preventing these tragedies from happening in the first place.

W.J. Michael Cody was the Attorney General for the State of Tennessee (1984-1988) and the United States Attorney for Western District of Tennessee (1977-1981). He has also served as a member of the American Bar Associatio­n’s Tennessee Death Penalty Assessment Team (2007) and the Constituti­on’s Project Death Penalty Initiative’s Blue-Ribbon Committee (2000) that worked on bi-partisan studies of capital punishment and proposed consensus recommenda­tions for reform.

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