Aurélie Tabuteau Mangels Mental Illness Initiative Fellow Death Penalty Due Process Review Project American Bar Association December 6 th , 2016 – Washington D.C.
Introduction 2003 : ABA Task Force on Mental Disability and the Death Penalty is created 2006 : ABA Resolution 122-A is passed (APA, ApA, NAMI pass similar resolutions) 2011 : Mental Health America passes Position Statement 54 2015 : Mental Illness Initiative is launched within the ABA’s Death Penalty Due Process Review Project
Overview of the effort Bills already introduced or currently under consideration (total: 7 states): Ohio SB 162 (2015) Passed by the Ohio Senate Criminal Justice Committee (only one no vote) on November 30, 2016. Virginia HB 794 (2016) South Carolina H 3535 (2015/2016) Kentucky HB 145 (2012) Tennessee SB 1692 (2011) North Carolina HB 137 (2009) Indiana SB 22 (2009) No state currently has SMI exemption, except CT since 1973.
Overview of the effort (cont’d) 9 to 10 states involved in the effort and slated to introduce bills in 2017 Virginia, Ohio, Idaho, Indiana, North Carolina, Tennessee, South Dakota, Texas, (Georgia, South Carolina) More states?
Creation of coalitions focused on SMI work OHIO • http://oamie.org/ • http://tasmie.wpengine.com/ TENNESSEE • Twitter: @TasmieOrg Facebook: • https://www.facebook.com/TasmieOrg/?f ref=ts INDIANA http://www.hasmie.org/ • • Twitter: @HasmieIN Facebook: • https://www.facebook.com/HasmieIndian a/?fref=ts
Creation of coalitions focused on SMI work (cont’d) IDAHO Facebook: • https://www.facebook.com/ IASMIE/?fref=ts VIRGINIA • https://vasmie.org/
Highlights of 2016 work Public / Strategic events on severe mental illness and the death penalty organized in Idaho, Virginia, Indiana, Tennessee (upcoming: South Dakota) Ohio: 6 hearings in front of Ohio Senate Criminal Justice Committee. 13 witnesses testified at the legislative hearing in favor of SB 162 (see testimony on http://oamie.org). Bill passed by the Committee on 11/30. Idaho: Idaho Medical Association (IMA) passed resolution in July 2016 opposing use of death penalty for people with SMI
Highlights of 2016 work Media coverage
What does the proposed exemption look like? SMI definition Choice of broad language vs diagnosis Political compromise Individual with a SMI means an individual who, at the time of the offense, had active psychotic symptoms (VA only) that substantially impaired the individual's capacity to: (1) appreciate the nature, consequences, or ABA Language: wrongfulness of the individual's conduct; (2) exercise rational judgment in relation to the individual's VA HB794, 2016 conduct; or (3) conform the individual's conduct to the requirements of the law ( also: KY HB145, NC HB 137, SC H3535 (+TBI/dementia), TN SB 1692 (addition of “psychiatric diagnosis ”) (a) The person has been diagnosed with one or more of the following: (i) Schizophrenia; (ii) Schizoaffective disorder; (iii) Bipolar disorder; (iv) Major depressive disorder; (v) Delusional disorder. List of diagnosis (b) At the time of the alleged aggravated murder, the condition(s) with which the & ABA language: person has been diagnosed, while not meeting the standard to be found NGRI or IST, nevertheless Ohio SB162, 2015 significantly impaired the person's capacity to do one or more of the following: (i) Exercise rational judgment in relation to the person's conduct; etc. “ SMI’ means one or more of following disorders as classified in the DSM: i.Schizophrenia spectrum & other List of diagnosis psychotic disorders; ii.Bipolar disorder; iii. Major depressive disorder; iv.Delusional disorder; v.PTSD; & ABA “active symptoms ” means symptoms of the disorders above, as specified in the DSM. These include language+”active delusions (fixed, clearly false beliefs), hallucinations (clearly erroneous perceptions of reality), extremely symptoms” disorganized thinking, mania, or very significant disruptions of consciousness, memory, and perception of languages Indiana, the environment. 2015 (not yet “ individual with a SMI ” means an individual who, at the time of the charged murder(s), had active introduced) – symptoms of a SMI that significantly impaired the person’s capacity to do one or more of the following: (a) Idaho 2017 appreciate the nature, consequences, or wrongfulness of the person's conduct, etc.
What does the proposed exemption look like? Burden of proof Placed on the defendant, preponderance of the evidence (VA, IN, NC if in front of jury, TN) If D submits prima facie evidence that person was diagnosed with one of the conditions, prosecution has the burden of proving, by preponderance of the evidence, that the condition was erroneous or did not significantly impair the person’s capacity (OH) Placed on the defendant, clear and convincing evidence (NC at pre-trial hearing, SC) Time of claim presentation Pre-trial hearing plus possibility of jury presentation (OH, NC, DC) Pre-trial hearing (IN, KY,TN) During sentencing (VA) Some bills define appointment of experts and experts’ qualification Substance abuse & repeated criminal conduct exclusion
Strong support for the exemption across six states 1 st Ask States polled: Idaho, South Dakota, Polling conducted of 1200 Indiana, Ohio, Tennessee, Virginia 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
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 SMI 1 st Ask 60% Support — 66% Oppose — 24% 33 33 30% 14 10 10 0% Strongly Support Somewhat Support Somewhat Oppose Strongly Oppose Unsure
The case by case decision making process is considered the most convincing reason to support the proposal by voters More likely to oppose (Adapted version) No difference/unsure More likely to support This proposal would require a case by 62% more likely to 12 case decision making process by a support 26 judge or jury who will consider all of 62 the relevant evidence. This proposal would add an exemption 15 only for persons who can prove they 55% more likely to 55 had a qualifying medical diagnosis or support 30 documented symptoms of a SMI. Examples of qualifying severe mental 16 52% more likely to illness under this proposal include 52 support schizophrenia, bipolar disorder, and 32 PTSD.
Movement After Details: 6% increase in support after voters hear details about the proposal. 2 nd Ask: After Details Support — 72% +6 60% Oppose — 22% - 2 41 30% 31 - 4 15 6 7 0% Strongly Support Somewhat Support Somewhat Oppose Strongly Oppose Unsure
In 2017 Up to 8 SMI exemption bills will be introduced in state legislatures Follow state coalitions’ work and our Project’s Twitter feed (@ABADueProcess) for updates Let us know if you can support us or a state coalition! Your help is crucial! Be an op-ed author/signatory Be a legislative witness Share the word about the effort with your contacts Support us on social media
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
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