Rethinking Categorical Prohibitions on Capital Punishment: How the Current Test Fails Mentally Ill Offenders and What to Do About It

62 Pages Posted: 10 Jul 2013

See all articles by Pam Wilkins

Pam Wilkins

Mercer University - Walter F. George School of Law

Date Written: May 24, 2013

Abstract

If offenders with serious mental illnesses generally are no more culpable than otherwise similarly situated juvenile or mentally retarded offenders, then why have they not also been found (as is true for juveniles and the mentally retarded) to be constitutionally exempt from being sentenced to death? The answer lies in the Supreme Court’s flawed Eighth Amendment test for categorical prohibitions: the Eighth Amendment imposes a desert limitation on the State’s ability to punish with death, but the current categorical prohibitions test does a poor job measuring offender deserts and even societal beliefs about offender deserts.

This article proposes a new Eighth Amendment categorical prohibitions test that focuses principally on barriers to the sentencer’s ability to determine the moral desert of members of a particular offender-class rather than on the actual moral desert of those in that class. Broadly put, the Eighth Amendment test for categorical prohibitions should ask whether the characteristics of a particular condition are such that there is a substantial risk that the sentencer will privilege utilitarian aims over retributive aims. When the characteristics of a condition (juvenile status, etc.) point simultaneously to significantly reduced culpability and to potential future dangerousness, a categorical prohibition is appropriate if there is a substantial risk that the sentencer will give more weight to the future dangerousness issue than to the moral desert issue. Under this test, the Eighth Amendment should be held to prohibit the death penalty for offenders afflicted with a psychotic spectrum disorder at the time of the crime in question.

Keywords: categorical prohibitions on capital punishment, mental illness, death penalty, schizophrenia, Eighth Amendment

Suggested Citation

Wilkins, Pamela, Rethinking Categorical Prohibitions on Capital Punishment: How the Current Test Fails Mentally Ill Offenders and What to Do About It (May 24, 2013). University of Memphis Law Review, Vol. 40, No. 2, 2009, Available at SSRN: https://ssrn.com/abstract=2269919

Pamela Wilkins (Contact Author)

Mercer University - Walter F. George School of Law ( email )

1021 Georgia Ave
Macon, GA 31207-0001
United States

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