Mental Illness Initiative Fellow Death Penalty Due Process Review - - PowerPoint PPT Presentation

Aurélie Tabuteau Mangels Mental Illness Initiative Fellow Death Penalty Due Process Review Project American Bar Association

December 6th, 2016 – Washington D.C.



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

Introduction



 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



 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?

Overview of the effort (cont’d)



Creation of coalitions focused on SMI work

TENNESSEE OHIO INDIANA

• http://oamie.org/
• http://tasmie.wpengine.com/
• Twitter: @TasmieOrg
• Facebook:

https://www.facebook.com/TasmieOrg/?f ref=ts

• 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 VIRGINIA

• Facebook:

https://www.facebook.com/ IASMIE/?fref=ts

• https://vasmie.org/



 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

• n http://oamie.org). Bill passed by the Committee
• n 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

Highlights of 2016 work



 Choice of broad language vs diagnosis  Political compromise

What does the proposed exemption look like? SMI definition

ABA Language: VA HB794, 2016 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 wrongfulness of the individual's conduct; (2) exercise rational judgment in relation to the individual's 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”) List of diagnosis & ABA language: Ohio SB162, 2015 (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. (b) At the time of the alleged aggravated murder, the condition(s) with which the person has been diagnosed, while not meeting the standard to be found NGRI or IST, nevertheless 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. List of diagnosis & ABA language+”active symptoms” languages Indiana, 2015 (not yet introduced) – Idaho 2017 “SMI’ means one or more of following disorders as classified in the DSM: i.Schizophrenia spectrum & other psychotic disorders; ii.Bipolar disorder; iii. Major depressive disorder; iv.Delusional disorder; v.PTSD; “active symptoms” means symptoms of the disorders above, as specified in the DSM. These include delusions (fixed, clearly false beliefs), hallucinations (clearly erroneous perceptions of reality), extremely disorganized thinking, mania, or very significant disruptions of consciousness, memory, and perception of the environment. “individual with a SMI” means an individual who, at the time of the charged murder(s), had active symptoms of a SMI that significantly impaired the person’s capacity to do one or more of the following: (a) appreciate the nature, consequences, or wrongfulness of the person's conduct, etc.



 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

What does the proposed exemption look like?



Strong support for the exemption across six states

 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

1st Ask

States polled: Idaho, South Dakota, Indiana, Ohio, Tennessee, Virginia



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.

Proposal presented to the voters polled



33 33 10 14 10

0% 30% 60%

Strongly Support Somewhat Support Somewhat Oppose Strongly Oppose Unsure

2/3 of voters initially support the proposal to add an exemption to the death penalty for those with SMI

Support — 66% Oppose — 24%

1st Ask



The case by case decision making process is considered the most convincing reason to support the proposal by voters

(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 26 12

62% more likely to support This proposal would add an exemption

• nly for persons who can prove they

had a qualifying medical diagnosis or documented symptoms of a SMI.

55 30 15

55% more likely to support Examples of qualifying severe mental illness under this proposal include schizophrenia, bipolar disorder, and PTSD.

52 32 16

52% more likely to support

More likely to oppose No difference/unsure More likely to support



41 31 7 15 6

0% 30% 60%

Strongly Support Somewhat Support Somewhat Oppose Strongly Oppose Unsure

Movement After Details: 6% increase in support after voters hear details about the proposal.

2nd Ask: After Details

Support — 72% Oppose — 22%

+6

• 2
• 4



 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

In 2017

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