March 10, 2017

Death penalty ban for serious mental illness fails to advance

By Brigid Curtis Ayer

A bill to ban the death penalty in Indiana for those with serious mental illness stalled in the Senate Judiciary Committee, and failed to advance before the third reading Senate deadline. The Indiana Catholic Conference (ICC) supported the death penalty ban.

Senate Bill 155, authored by Sen. James Merritt, R-Indianapolis, would have removed capital punishment as a penalty for those suffering from one or more of six various types of serious mental illness.

Those diagnosed with schizophrenia, bipolar disorder, major depressive disorder, delusional disorder, post-traumatic stress disorder or traumatic brain injuries would have qualified for the exemption. The bill defines “serious mental illness,” commonly referred to as SMI, by using the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders criteria.

Merritt said, “Unlike an insanity defense, under an SMI, the defendant is still found guilty versus not guilty by reason of insanity, and is still punished. An insanity defense means the defendant was totally unaware that their conduct was wrong. They are not guilty, and not responsible.”

Merritt explained under his bill a defendant would be found guilty and held responsible, but the punishment of the death penalty would not be an option.

Glenn Tebbe, executive director of the ICC, who serves as the public policy spokesperson for the bishops in Indiana, said the Church opposes the use of the death penalty in nearly all cases, noting that its use is permitted when it is the only means to protect the common good.

He added Catholic teaching also asserts that an individual must be mature and consciously choose an action for one to be morally responsible. Indiana no longer executes the mentally disabled or minors because they may not be fully responsible for their actions, Tebbe noted.

“Those who are mentally ill have an impediment that limits their culpability regarding their actions also,” said Tebbe. “As with the previous modifications in Indiana’s application of the death penalty, this change to exempt those with serious mental illness from execution is prudent and just. While Senate Bill 155 does not eliminate the use of the death penalty, it does restrict its use and corrects an injustice in its application.”

During a Feb. 15 meeting of the Senate Judiciary Committee, lawmakers on the panel raised concerns about how the bill would be carried out in practice.

Sen. Mike Young, R-Indianapolis, said he was not convinced of the process by which the court would determine if a person had mental illness and it was the cause of the crime. Sen. Joseph Zakas, R-Granger, agreed that there was no linkage in the bill between mental illness and the crime. Sen. Aaron Freeman, R-Indianapolis, said he didn’t want to put anyone to death that has a serious mental illness, but he believed that the language in the proposed legislation was too broad and could be misused in practice for some criminals to get a reduced sentence.

Members of the mental health community and a representative from the American Bar Association testified in support of the bill. The Indiana Prosecuting Attorneys Council (IPAC) and the Indiana Attorney General’s office opposed the bill.

Steve Schutte, who works in the State Public Defenders’ office, said he has spent 25 years representing men on death row. “I have experience with the kind of people with serious mental illness who would have benefited from this kind of legislation.”

Schutte clarified to Senator Young that the bill does link the conduct of the defendant to active serious mental illness at the time of the crime. Schutte added the bill covers a gap in Indiana law for those with serious mental illness who would not be protected from getting the death penalty based on other provisions in Indiana law.

Tebbe said the concerns raised by panel members as well as those by IPAC and the Attorney General’s office could not be rectified before the committee hearing deadline in the Senate, and the measure died in committee. He said even though the topic theoretically could return before the end of the session if the bill’s language was amended into another bill that is proceeding, chances of that happening this year are “slim.”

The ICC executive director said a more likely scenario is the bill will be brought back during the 2018 legislative session after interested parties have ample time to study and address the concerns raised.

“I am hopeful going forward that a resolution can be found so that Indiana can pass a death penalty ban for those suffering from serious mental illness,” Tebbe said. “The Indiana Catholic Conference will continue to work toward this goal.”

Currently, at least six other states are actively seeking legislation to exempt those with serious mental illness, including Virginia, Idaho, Tennessee, West Virginia, Ohio and South Dakota. Connecticut exempted those with serious mental illness from the death penalty in 2006, but subsequently banned the death penalty completely.

Mental Health America, a national support and advocacy group for mental health, in one analysis estimates that between 5-20 percent of people on death row have a serious mental illness.

(Brigid Curtis Ayer is a correspondent for The Criterion.)

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