The Supreme Court's Emerging Death Penalty Jurisprudence: Severe Mental Illness as the Next Frontier

76 Pages Posted: 30 Oct 2008 Last revised: 4 Sep 2009

See all articles by Bruce J. Winick

Bruce J. Winick

University of Miami School of Law

Date Written: October 29, 2008


The Supreme Court's 2002 decision in Atkins v. Virginia and 2005 decision in Roper v. Simmons marked a significant new direction in Eighth Amendment jurisprudence. This Article explores the Court's emerging conception of proportionality under the Eighth Amendment, which also is reflected in its 2008 decision in Kennedy v. Louisiana. The Article analyzes the application of this emerging approach in the context of severe mental illness. It argues that the Court can extend Atkins and Roper to severe mental illness even in the absence of a legislative trend away from using the death penalty in this context. The strong parallels between severe mental illness at the time of the offense and mental retardation and juvenile status make such an extension of the Eighth Amendment appropriate.

Severe mental illness would not justify a categorical exemption from the death penalty; rather, a determination would need to be made on a case-by-case basis. The major mental disorders, like schizophrenia, major depression, and bipolar disorder, could qualify in appropriate cases, but not antisocial personality disorder, pedophilia, and voluntary intoxication. The Article discusses the functional standard that should be used in this context, and proposes that the determination be made by the trial judge on a pretrial motion rather than by the capital jury at the penalty phase. Future implications of the Court's emerging approach also are examined.

Suggested Citation

Winick, Bruce J., The Supreme Court's Emerging Death Penalty Jurisprudence: Severe Mental Illness as the Next Frontier (October 29, 2008). University of Miami Legal Studies Research Paper No. 2008-31, Boston College Law Review, Vol. 1, No. 3, 2009, Available at SSRN: or

Bruce J. Winick (Contact Author)

University of Miami School of Law ( email )

P.O. Box 248087
Coral Gables, FL 33146
United States
304-284-3031 (Phone)
304-284-3210 (Fax)


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