Mentally ill not eligible for death penalty under proposed bill

By Brigid Curtis Ayer

Life in prison without parole would be the stiffest penalty given to individuals suffering from serious mental illness under a bill being considered by the Indiana General Assembly.

Senate Bill 24 would rule out the death penalty for those convicted of a murder, but who are seriously mentally ill. The measure, authored by longtime death penalty opponent Sen. Anita Bowser

(D-Michigan City), also would establish a procedure for determining whether a defendant charged with murder is mentally ill.

“Senate Bill 24 is very much needed,” Sen. Bowser said. “We’ve done away with executing

10-year-olds, and executing the mentally retarded. However, there is another group which needs to be exempt—that’s those suffering from mental illness.”

The Michigan City lawmaker added, “It’s crass to say, but there is an economic side of this bill because it would curtail some of the prisoners being sent to Death Row, which costs the state a lot of money.

“This bill doesn’t abolish the death penalty,” Sen. Bowser said. “It merely exempts a narrow part of society—those who are severely mentally ill.”

Sen. Bowser said that the Senate Subcommittee on Corrections, Criminal and Civil Matters did not take a vote on the issue because there are some who would like to see the U.S. Supreme Court rule on the matter. They are expected to do so in June.

“I think we should define it ourselves,” she said.

Sen. Bowser said that the only real opposition to the bill came from a prosecuting attorney’s group who expressed concern that “a defendant could fake being seriously mentally ill.”

Testimony from doctors said that possibility was remote, she said.

Sen. Brent Steele (R-Bedford), chairman of the Senate Subcommittee on Corrections, Criminal and Civil Matters, said it was out of respect for Sen. Bowser that he heard the bill.

“Sen. Bowser is a champion of death penalty issues, and has been ahead of the curve in predicting what the U.S. Supreme Court will do on more than one occasion,” he said. “I also gave the bill a hearing so that both sides could ‘get their day in court.’ I haven’t decided whether or not to take a vote on the bill. I lay in bed at night thinking and praying about what to do.

“Exempting the mentally ill from the death penalty is much more of a slippery slope than exempting the mentally retarded or exempting juveniles as Indiana has done,” Sen. Steele said. “It is much easier to determine when someone is mentally retarded. And we know if someone is a juvenile because we can just look at the individual’s birth certificate.

“But with mental illness, there is a lot of grey area compared with the other two groups that we currently exempt,” he said. “I’m not sure if we should get ahead of the U.S. Supreme Court on this issue. Indiana may benefit from getting some guidance on this highly complex issue from the [Supreme] Court.”

Sen. Steele, who is also an attorney, said before he makes a decision to take a vote on the bill, if possible, he plans to review the evidence that is currently before the Supreme Court to see if he can “get more pixels to this picture on mental illness.”

Pam McConey, executive director of the National Association of the Mentally Ill (NAMI) of Indiana, said, “We strongly support Senate Bill 24 because part of our mission is to educate and advocate for the mentally ill. We feel that people with severe mental illness need to be exempt, just as juveniles and the mentally retarded.

“Those who are mentally ill need treatment, not jail,” she said. “Indiana has a very good law providing assisted outpatient treatment, but only three counties in Indiana are funded.”

The pre-trial determination of whether a defendant is mentally ill, which Senate Bill 24 is proposing, would mirror the procedure in cases involving claims of mental retardation. When critical evidence of mental illness and its effects on the defendant’s conduct is brought to the consideration of the prosecutor and trial judge, it is done so before an expensive capital trial is conducted rather than in its final phase as done under current law.

There are two phases of a trial in a capital case, the guilt/innocence phase and the sentencing phase.

Paula Sites, assistant executive director of Capital Litigation Assistance of the Indiana Public Defender Council, explained that not all states operate like Indiana in capital cases.

“For instance, in Indiana even when there is a guilty plea, Indiana still goes through phase one to determine guilt while some states skip the guilt/innocence phase and go right to sentencing,” Sites said.

She said that by making the jury go through a whole trial, the circumstances of the crime oftentimes outweigh the defendant’s mental illness, and the jury gives the death penalty.

Glenn Tebbe, Indiana Catholic Conference executive director, testified in support of Senate Bill 24.

“The Church is not trying to erase guilt or punishment for those convicted of terrible crimes,” he said. “However, the Church recognizes those with severe mental illness are less morally culpable and should not be put to death.”

Senate Bill 24 must pass the Indiana Senate by the end of February in order to move to the House chamber for further consideration.

To view the Indiana Catholic Conference’s position paper on Senate Bill 24, visit the ICC Web page at www.indianacc.org. Click on Public Policy Priorities and scroll down to ICC Position Statements on Issues of Interest.

(Brigid Curtis Ayer is a correspondent for The Criterion.) †