In recent years concerns have grown nationally about the way the criminal justice system identifies and punishes persons with severe mental disability. Groups such as the National Alliance on Mental Illness, the American Psychiatric Association, the American Psychological Association, and the American Bar Association have all adopted proposals to prohibit the execution of persons who are significantly impaired by a severe mental disability.

Here in North Carolina, the Charlotte School of Law convened a symposium in 2006 called Mental Illness and the Death Penalty: Seeking a 'Reasoned Moral Response' to an Unavoidable Condition. At that event, psychiatrists, judges and attorneys from North Carolina and around the country, gathered to discuss the implications of a criminal justice system that permits the death penalty for people with severe mental disability. Funded in part by the Z. Smith Reynolds Foundation, a report summarizing the event was published. To see the report, go to http://www.charlottelaw.org/downloads/community/MI_DPreport.pdf.

Defendants with severe mental disability can experience substantial difficulties throughout the criminal process - understanding and relating their actions to law enforcement or their attorneys, cooperating with and assisting their attorneys, comprehending the legal process, and understanding punishment. When the death penalty is on the table, the consequences of those difficulties can be lethal.

The United States Supreme Court has long held that the death penalty is meant to be reserved for the worst crimes and the most culpable offenders. In North Carolina, less than one percent of people who commit homicides are sentenced to death. Like offenders with mental retardation, those with severe mental disability rank in the bottom two to five percent of the population in understanding their actions or in being able to control their behavior at the time of the commission of the crime. For that reason, offenders with severe mental disability simply cannot be in the top percentage of most culpable murderers.

A person with a severe mental disability can plead not guilty by reason of insanity. But the standard to prove insanity is extremely high and jurors rarely find someone not guilty by reason of insanity, so defense attorneys seldom raise that defense. Additionally, if someone is found not guilty by reason of insanity, they are not sent to prison, but to a mental institution.

People with severe mental disability comprise a small portion of society, and the prevalence of violence associated with them is minimal. However, when they become involved in the criminal justice system, persons with severe mental disability face significant challenges and obstacles they would not otherwise face but for their disability. For example, they may not be able to provide their attorneys information that could help their case. It is not uncommon for these individuals to fire their attorneys and seek to represent themselves. The medications they are on may produce side effects that can appear frightening to jurors. In other instances, rather than seeing mental illness as mitigating evidence (evidence that should persuade jurors that the death penalty is not warranted) jurors often times inaccurately view mental illness as something that indicates a propensity toward violence and therefore view it as something supportive of the death penalty. Additionally, like the general population, jurors have stereotypes about mental illness and may well consider a severely mentally ill defendant to be less capable of rehabilitation and less remorseful than defendants who are not mentally ill. As a result, offenders with severe mental disability can end up on death row despite their reduced culpability.

Without adequate legal safeguards to protect defendants with severe mental disability there is an added risk of executing an innocent person. A person with severe mental illness is inherently less able to assist his attorneys or defend himself during the course of a criminal trial or on appeal, even when he may not have even committed the crime.

For all of these reasons, local groups in North Carolina have recommended changes in how persons with severe mental disability proceed through the criminal justice system. The recommendation does not excuse them from punishment (indeed, they would still face life in prison without parole), but instead requires additional procedural safeguards to ensure the criminal process is just and fair for persons with limitations and vulnerabilities caused by severe mental illness.

The law currently protects other offenders with cognitive and behavioral limitations - those with mental retardation and juveniles - recognizing that because of their limitations those individuals are not only less culpable than other individuals, but that long-held judicially accepted rationales for the death penalty, deterrence and retribution, similarly do not come into play.