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EDITORIAL: Mental illness, the death penalty and House Bill 81

Akron Beacon Journal - 12/1/2018

Dec. 01--When a statewide task force recommended ways for Ohio to improve its death penalty, it included a proposal to bar from execution those defendants suffering from severe mental illness at the time of the crime. The panel gave strong support, the vote 15-2. Yet, as with too many of the 56 recommendations, this idea has languished, state lawmakers failing to act.

Will that change? The opportunity now is here. On Tuesday, the House Criminal Justice Committee heard testimony concerning House Bill 81, sponsored by state Rep. Bill Seitz, a Cincinnati Republican, and Nickie Antonio, a Lakewood Democrat. The committee chairman, state Rep. Nathan Manning, a North Ridgeville Republican, said he expects the panel to vote next week.

A favorable vote would send the measure to the House floor and, if approved, would open the door to Senate action in the current lame-duck session. The legislation deserves passage.

The proposal builds on the exclusions already established for juveniles and the developmentally disabled. The thinking reserves the death penalty for the worst of the worst. That designation does not include those with impaired judgment, for instance, due to their youth or inability to distinguish fully right and wrong. Out of decency, it follows to include those with severe mental illness.

At the committee hearing, prosecutors reiterated their opposition. They have warned that those currently on death row would flood the courts with motions seeking review of their sentences. Actually, the legislation is narrowly cast, identifying five precise mental illnesses, schizophrenia, schizoaffective disorder, bipolar disorder, major depressive disorder and delusional disorder.

A judge would weigh the evidence and decide whether the defendant suffered from the affliction when committing the crime.

How many death row inmates would meet the threshold? Experts put the number at roughly 10 percent, or hardly overwhelming for the courts. Even then, not all would succeed. The burden of proof rests with the defense to show the defendant was ill.

Prosecutors have argued that the courts have a process for assessing the role of mental illness. They point to the sentencing phase of capital punishment trials, when jurors decide whether to apply the death penalty as the law directs. At that point, a defendant can put forward evidence of mental illness as a mitigating factor. The trouble is that research reveals jurors often see mental illness as an aggravating factor and thus are more likely to see a death sentence as warranted.

They tend to see mental illness as confirming guilt and a reason to fear the defendant. The familiar stigma, or prejudice, or discrimination, comes into play.

In that way, the mitigation phase risks turning justice upside down, the findings of researchers making stronger the case for House Bill 81. This legislation isn't about leniency or somehow cutting bad actors a break. Those excluded from the death penalty still would face a severe punishment, life in prison without the possibility of parole.

Again, defendants would have to prove to the court they suffered from one of the severe mental illnesses set in the law. That wouldn't be easy, but it would offer a needed measure of protection for the rest of us. There is good reason for exempting juveniles and the developmentally disabled. It also applies to those with severe mental illness at the time they commit the crime. They are not among the worst of the worst and thus should not face a death sentence.

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(c)2018 the Akron Beacon Journal (Akron, Ohio)

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