Turning Public Opinion Consensus Into State Legislative Action Opposition to the Death Penalty for Individuals with Severe Mental Illness Turning Public Opinion Consensus Into State Legislative Action Explain what is SMI exemption + state legislative action . Aurélie Tabuteau Mangels, Mental Illness Initiative Fellow American Bar Association’s Death Penalty Due Process Review Project

What are we talking about? Serious Mental Illness Refers to disorders that carry certain diagnoses such as schizophrenia, bipolar disorder, and major depression; that are relatively persistent (at least 1 year) and that result in comparatively severe impairment in major areas of functioning. Different from intellectual disability. Exemption from the death penalty Individuals found to have a serious mental illness could not be sentenced to death or executed, But could still be found guilty and sentenced to LWOP. Legislative action Introducing and passing bills in state legislatures (death penalty states)

Today: There is a strong support for a severe mental illness exemption… From the public November 2014: 58% of Americans in favor of a SMI exemption (Public Policy Polling) December 2015: 66% of Americans in favor of a SMI exemption (David Binder Research) From relevant professional organizations 2006: American Bar Association (ABA), American Psychiatric Association (APA), American Psychological Association (APA), National Alliance on Mental Illness (NAMI) 2011: Mental Health America (MHA) Occasionally, from conservative voices in individual cases Scott Panetti Strong support from the public (2 polls) and relevant professional organizaitons (since 2006 – 10 years!) 2 national polls conducted: check 2014 Check 2014 polling (more sophistictaed understand oif MI: growing understanding of the public) Explain I will talk about it later

… but no State legislative action or constitutional ban Connecticut (2009) only state to ever pass a SMI exemption law Death penalty abolished for future offenses in 2012. The Courts haven’t recognized a constitutional bar on the execution of individuals with severe mental illness Some state Supreme Court judges have expressed their opinion that execution of those with severe mental illness violates the 8th Amendment: Justice Rucker, Corcoran v. State (Ind. 2002) Justice Pfeifer, State v. Scott (Ohio 2001) Justice Zazzali, State v. Nelson (N.J. 2002) Justice Stratton, State v. Ketterer (Ohio 2006) . Despite this support, no action. CT only state to ever pass a law, abolished DP. Best we have is some judges’ opinion in dissents or add. Concurrences that execution of those with SMI violates the 8AP

So what happens currently for defendants with severe mental illness claims in capital cases? Their mental illness can be taken into account in capital proceedings, but they also continue to be sentenced to death and executed. Most recently: Adam Ward in Texas, executed on March 22nd 2016 Fifth Circuit opinion: “Petitioner has been afflicted with mental illness his entire life. He was diagnosed with bipolar disorder and placed on lithium as early as age 4”. However, people with SMI continue to be sentenced to death & executed. Most recently” adam ward TX. Headlineas reflect groweing understanding/consensus. “lawyers claims” major issue of focus.

2015 Public Opinion Research Results Research conducted by David Binder Research/8th Amendment Project Will present some simplified results of research conducted by DBR for the 8th Amendment Project

Strong support for the exemption across six states 1st Ask States polled: Idaho, South Dakota, Indiana, Ohio, Tennessee, Virginia Polling conducted of 1200 individuals (200 in 6 death penalty states). Two focus groups held in Indianapolis in Nov. 2015: One group of men, one group of women, Both groups white, independent and Republicans with college education. The research consisted of a polliong of 1200 indiviudals (200 in 6 states) and 2 Focus Groups of white I&R males and females with college education. Polling confirmed strong public support with 66% supporting the exemption 2 FG designed to sortof simulate state legislatures

Many more respondents “very” conservative than “very” liberal Ideology 24% Very 8% Very

Proposal presented to the voters polled The proposal changes the current death penalty law so that persons with: documented evidence of a qualifying severe mental illness, at the time of the crime, cannot be executed, and instead would receive a sentence of life in prison without parole if found guilty.

2/3 of voters initially support the proposal to add an exemption to the death penalty for those with severe mental illness 1st Ask Support — 66% Oppose — 24% 1st Ask; 66% spport

The case by case decision making process is considered the most convincing reason to support the proposal by voters More likely to oppose No difference/unsure More likely to support (Adapted version) This proposal would require a case by case decision making process by a judge or jury who will consider all of the relevant evidence. 62% more likely to support This proposal would add an exemption only for persons who can prove they had a qualifying medical diagnosis or documented symptoms of a SMI. 55% more likely to support Then the pollers went into the details of the proposal, to see whether it made voters more or less likely to support the proposal. Overall, details about the proposal made voters more likely to support it, with the strongest detail being the fact that the proposal includes a case by case determination. Other convicing details included the fact tat a proof fo MI will be required, as well as a list of what kind of MI would qualify. Examples of qualifying severe mental illness under this proposal include schizophrenia, bipolar disorder, and PTSD. 52% more likely to support

Movement After Details: 6% increase in support after voters hear details about the proposal. 2nd Ask: After Details Support — 72% +6 Oppose — 22% - 2 Movement: goes up. Details are convicing. 2nd Ask about the [proposal: +6 - 4

Strongest argument in support of the proposal is that a severe mental illness significantly compromises an individual’s decision making process. Very / SW convincing Unsure/False Not at all/not very convincing (Simplified version) Severe mental illness can significantly impair an individual, such as a veteran suffering PTSD. Judgment, impulse control, and decision-making skills can be significantly compromised. 74% found it convincing The law currently forbids the death penalty for persons with intellectual disabilities and juveniles. People with severe mental illnesses should be treated the same way. 59% found it convincing Pollers also gauged which arguments voters found most convicing., the strongest argument, found convicing by 74% of voters, is the fact that SMI can singificantly impair an individua’s judgment,impulse control decision making skills (growing understanding of MI). Other convicing argument are the fact that people with SMI should be treated like juvenileas/ID, and also that the process to dfiasgnose SMI is lengthi and detailed The process to diagnose SMI is conducted by medical experts and is lengthy and detailed. It is extremely difficult for someone to fake an illness this severe. 62% found it convincing

Focus Group findings 13 of the 16 participants said the Legislature should vote Yes on a SMI exemption, 3 said No. Participants agreed that serious cases of disorders like PTSD, schizophrenia and bipolar disorder should qualify as SMI. Participants also want a rigorous case by case determination. You need the right experts, and you need to ask them if they have seen people who have faked it, and how do you get around that. (Female voter) Caveat: 1 FG with limited participants. Interesting, but remains limited. As a society I think it would be a bad decision to execute someone with a mental illness or limited capabilities. Just from a moral standpoint, they don’t have the ability to make proper decisions, even if the crime they committed was serious enough to be in that situation. (Male voter)

Turning the consensus into action State legislative action inDP states

How we’re turning the consensus into legislative action Dispelling the myths Educating the public Gathering behind the mental health community Creating strong processes to address the public’s concerns

Thank you! Questions? Aurélie Tabuteau Mangels Tlak to me into how our advocacy is ongoing. How we can hep in your ste   Aurélie Tabuteau Mangels Mental Illness Initiative Fellow Death Penalty Due Process Review Project Section of Civil Rights and Social Justice American Bar Association Tel.: (202) 442-3451 @: Aurelie.TabuteauMangels@americanbar.org