Lyn Entzeroth


This article examines these issues in the context of an important and emerging constitutional challenge to the death penalty: whether the death penalty can be imposed on capital defendants who suffer from severe mental illness at the time of the commission of their crimes. The American Bar Association, the American Psychiatric Association, the American Psychological Association, and the National Alliance for the Mentally Ill all endorse a death penalty exemption for the severely mentally ill. Recent law review articles suggest that such an exemption may even be compelled by the Supreme Court’s decisions in Roper v. Simmons and Atkins v. Virginia. However, the jurisprudence of death and the process by which the Court makes these determinations is complicated, contradictory, and does not lend itself to easy analysis or solutions. A realistic assessment of how the Supreme Court may consider the question of the Eighth Amendment’s protection for severely mentally ill offenders forces an unmasking of the true workings of the modern death penalty.

At the outset, this article briefly sets out the problem of mental illness among capital offenders and the death row population and reviews the characteristics of severe mental illnesses, such as schizophrenia, that plague some individuals who are sentenced to die. In order to contextualize the severely mentally ill offender’s place within the United States’ modern death penalty structure, the article traces the constitutional development of our current capital punishment systems. This discussion considers how the Court crafts and justifies death penalty exemptions, examines how state legislative action plays a pivotal role in the development of these exemptions, and contemplates how an exemption for the severely mentally ill fits within this line of death penalty jurisprudence. Because of the importance of state actions in the evolution of death penalty exemptions, the article presents current state legislative and judicial action with respect to a death penalty exemption for the severely mentally ill. The article then confronts the constitutional challenges in the development of an Eighth Amendment exemption for the severely mentally ill offender and considers ways that might prove effective in creating an exemption, as well as the limitations of this process and the dilemmas it creates.