Time and again, we are told that the death penalty is for the worst of the worst offenders, so how is it that the severely mentally ill end up in the snare of the capital justice system in the first place? This essay — a transcribed (and slightly edited) version of a keynote speech given at Regent University’s 2018 law review symposium on mental health and the law — endeavors to answer that question. The journey starts with deinstitutionalization of the severely mentally ill in the 1970s, and reinstitutionalization through the criminal justice system thereafter. It then turns to the capital justice process, which not only fails to screen out those with severe mental illness, but is filled with hazards that make this cohort of offenders even more likely to be convicted and sentenced to death. Next it turns to death row, and the conditions of solitary confinement in which the sick get sicker, and languish that way until it is time to die. Finally, the discussion turns to the doctrinal failsafe of competency to be executed, and explains why so many with severe mental illness fall through the cracks. The reality of the death penalty is that it is not for the worst of the worst. It is for the weak among the worst — the most vulnerable offenders in a variety of ways, and executing those with severe mental illness is just a testament to the truth of that claim.
Corinna Barret Lain, Madison and the Mentally Ill: The Death Penalty for the Weak, Not the Worst, 31 Regent U. L. Rev. 209 (2019).