86th LegislatureIssuesState HouseTexas House Gives Mentally Ill a Pass on the Death Penalty

Rep. Rose's bill prohibits offenders diagnosed with severe mental illness from being subjected to the death penalty.
May 10, 2019
The Texas House passed legislation earlier this week relating to the applicability of the death penalty for those with serious mental illness. House Bill 1936 passed the House on May 8 in a 77-66 vote.

The bill prohibits someone from being sentenced to death who at the time of the offense committed had a “severe mental illness.”

The bill defines a “severe mental illness” as “schizophrenia, a schizoaffective disorder, or a bipolar disorder and, as a result of that disorder, has active psychotic symptoms that substantially impair the person’s capacity to: appreciate the nature, consequences, or wrongfulness of the person ’s conduct; or exercise rational judgment in relation to the person’s conduct.”

In 2017, seven states introduced similar bills. The broader effort is supported, perhaps most notably, by the American Bar Association (ABA).

A 2006 ABA recommendation stated, “Defendants should not be executed or sentenced to death if, at the time of the offense, they had a severe mental disorder or disability that significantly impaired their capacity (a) to appreciate the nature, consequences or wrongfulness of their conduct, (b) to exercise rational judgment in relation to conduct, or (c) to conform their conduct to the requirements of the law.”

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The statement is supported by a host of organizations such as the American Psychiatric Association, the American Psychological Association, and the National Alliance on Mental Illness. A 2009 American Civil Liberties Union (ACLU) report claimed that “five to ten percent of all death row inmates suffer from a severe mental illness.”

In 2002, the U.S. Supreme Court decision in Atkins v. Virginia forbade executing an offender with mental retardation under the Eighth Amendment’s “cruel and unusual punishment” protections. The criminal case associated with the SCOTUS decision relied heavily on testimony by a psychiatrist to determine whether the defendant was mentally culpable for his actions — meaning, whether or not he knew what he was doing was wrong.

HB 1936 has a related provision that allows “disinterested expert experienced and qualified in the field of diagnosing mental illness” to be appointed to make the culpability determination. Either party or the presiding judge may request the evaluation.

The legislation then states that if the determination is made by the jury that the defendant is guilty and has a severe mental illness, “the judge shall sentence the defendant to imprisonment in the Texas Department of Criminal Justice for life without parole.”

Rep. Toni Rose (D-Dallas), when presenting her bill to the chamber, emphasized two primary reasons why she believes this legislation is needed. She said the first reason is that “mental illness is not a choice,” and therefore the irrationality surrounding the actions of those afflicted by it renders them “less moral[ly] culpab[le]” than those who do not have a severe mental illness.

“The federal constitution prohibits execution of defendants who are mentally incompetent,” Rose continued.

Presumably, Rose meant that to be a reference to the SCOTUS decision. The U.S. Constitution does not speak specifically to this issue despite the Eighth Amendment prohibiting the use of cruel and unusual punishment.

Rose identified the second reason as saving money.

“This bill can save millions of dollars in litigation expenses incurred [while trying to] obtain a death sentence that can be overturned [at the federal level],” Rose articulated.

What Rose is alluding to is the exclusion of execution federally will result in state verdicts being challenged in court — which can cost a lot of money.

Civil litigation itself cost Texas over $36 billion in 2017.

A 2009 analysis by the Death Penalty Information Center found that the monetary costs of seeking and then carrying out the death penalty outweigh that of a life sentence.

Opponents of the bill are not so much opposed to the concept of exempting those with severe mental illness from the death penalty but focused on ensuring the approach is fair to both sides of a given case. Specifically, the provision requiring a defense to submit a severe mental illness notice to prosecutors before the 30-day mark from the trial is viewed by some as too long of a timeframe.

Vincent Giardino, Assistant Criminal District Attorney with the Tarrant County Criminal DA’s Office, said in a statement to the Texan: “We’re not opposed to a jury being able to make the [severe mental illness] determination, but it needs to be framed correctly and the defense must give the state notice soon enough to make good decisions in these cases.”

The other key point offered by skeptics is that the “rational judgment” clause in the bill, which is used to make the determination of an individual’s mental health, is too ambiguous. Opponents believe the approach should be focused more on a case-by-case basis, rather than a one-size-fits-all evaluation.

Rose summed up her support saying, “all this bill says is: don’t kill a [convict] that’s mentally ill, give them life without parole.”

The bill currently resides in the Senate where it will be assigned to a committee.


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Brad Johnson

Brad Johnson is a senior reporter for The Texan and an Ohio native who graduated from the University of Cincinnati in 2017. He is an avid sports fan who most enjoys watching his favorite teams continue their title drought throughout his cognizant lifetime. In his free time, you may find Brad quoting Monty Python productions and trying to calculate the airspeed velocity of an unladen swallow.