Determining When Severe Mental Illness Should Disqualify a Defendant from Capital Punishment

MENTAL DISORDER AND CRIMINAL LAW: RESPONSIBILITY, PUNISHMENT AND COMPETENCE, Robert Schopp, Richard Wiener, Brian Bornstein & Steve Willborn, eds., 2009

University of Miami Legal Studies Research Paper No. 2009-18

62 Pages Posted: 13 Apr 2009 Last revised: 20 May 2009

See all articles by Bruce J. Winick

Bruce J. Winick

University of Miami School of Law

Date Written: April 2, 2009

Abstract

The American Bar Association and other professional organizations have adopted policy statements calling for an exclusion from capital punishment for those with severe mental illness at the time of the offense. If this policy is adopted, either legislatively or judicially under the Eighth Amendment, a procedural question would arise concerning how this mental illness/capital punishment exclusion issue is determined. Should the issue be determined by pretrial motion made to the trial judge or a special jury convened for this purpose? Should it be determined by the capital jury at the penalty stage that would follow conviction for a capital crime? This Chapter analyzes the various factors that should be considered in resolving the procedural question of how this exclusion from capital punishment should be determined, and argues that Eighth Amendment values and considerations of accuracy, cost, and therapeutic jurisprudence all tilt strongly in the direction of having the issue decided pretrial by the trial judge. The chapter then examines whether having the trial judge make the determination would be inconsistent with Ring v. Arizona (2002), which reflects the Sixth Amendment’s constitutional preference for jury determinations of disputed issues of fact in capital sentencing. Finally, the chapter analyzes whether the prosecution or the defense should have the burden of persuasion on the Eighth Amendment question, and by what standard of proof that burden should be carried.

Suggested Citation

Winick, Bruce J., Determining When Severe Mental Illness Should Disqualify a Defendant from Capital Punishment (April 2, 2009). MENTAL DISORDER AND CRIMINAL LAW: RESPONSIBILITY, PUNISHMENT AND COMPETENCE, Robert Schopp, Richard Wiener, Brian Bornstein & Steve Willborn, eds., 2009, University of Miami Legal Studies Research Paper No. 2009-18, Available at SSRN: https://ssrn.com/abstract=1372320

Bruce J. Winick (Contact Author)

University of Miami School of Law ( email )

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United States
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HOME PAGE: http://www.brucewinick.com

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