News and Developments 2005: Mental Illness

Ruling that jurors in the most recent retrial of Johnny Paul Penry may not have properly considered his claims of mental impairment, the Texas Court of Criminal Appeals sent Penry's case back for re-sentencing. The Texas court's decision marks the third time that Penry's death sentence has been overturned during the past 16 years. The U.S. Supreme Court overturned his capital conviction in 1989 in Penry v. Lynaugh, a decision upholding the execution of defendants with mental retardation, but striking down the way that Texas courts considered this issue.  Penry was again sentenced to death, but in 2001 the Supreme Court threw out Penry's new death sentence because the jury was still not properly instructed about mental retardation. In 2002, as the Supreme Court was handing down its decision that the mentally retarded are exempted from the death penalty (Atkins v. Virginia), a trial court sentenced Penry to death for a third time.  The recent Texas Court of Criminal Appeals decision overturned this third sentence because the jury may not have understood that it could consider mental impairments beyond mental retardation as mitigating evidence. Penry was convicted of the 1979 rape and murder of Pamela Moseley Carpenter in East Texas. Defense experts have consistently noted that Penry's IQ is below 70, one indicia for those considered to be mentally retarded, and experts state that Penry remains very childlike in his abilities.

A recent editorial in The Washington Post praised Indiana Governor Mitchell Daniels for commuting the death sentence of Arthur Baird, who suffers from severe mental illness.  The editorial noted:  

Indiana Gov. Mitchell E. Daniels Jr. (R) acted wisely and humanely this week in commuting the death sentence of one Arthur Paul Baird II. There is no question that Mr. Baird killed his parents and his pregnant wife back in 1985. There is also little question that he is seriously mentally ill and was so then. His mental illness was clearly a significant factor in the killings and just as clearly led directly to his death sentence. Because of his delusional state, Mr. Baird inexplicably rejected a plea deal the state had offered him that would have spared his life. Jurors in his case have indicated that had life in prison without parole -- not an option in Indiana at the time -- been available, they would have chosen that rather than death. Family members were similarly inclined. Yet the state parole board recommended against clemency on a 3 to 1 vote, and the Indiana Supreme Court, also divided, likewise declined to step in. Mr. Daniels deserves credit for taking responsibility for preventing Mr. Baird's execution.

A new Michigan Law Review article by Professor John Blume of Cornell Law School examines the relationship between "volunteering" for execution and suicide.  Blume found that nearly 88% of all death row inmates who have "volunteered" for execution have struggled with mental illness and/or substance abuse. He writes that there is an especially strong link between "volunteerism" and mental illness. Of the "volunteer" executions he reviewed, 14 involved schizophrenia and several more reported delusions that may reflect schizophrenia. Depression and bipolar disorder accounted for at least 23 other cases, and post-traumatic stress disorder was present in another 10. At least 30 of those who "volunteered" for execution had previously attempted suicide.  The article also notes that between 1977 and 2003, 85% of the 93 inmates who opted to allow their execution to proceed without exhausting all legal appeals were white males, despite the fact that white males make up only 45% of all death row inmates.