As you have learned by now, many people with mental disorders will face arrest, trial and conviction in the criminal courts, despite the purported availability of diversion opportunities and the insanity defense. As a result of these convictions, many people with mental disorders are serving prison sentences throughout the United States, and some face the death penalty.

Depending on the state, some defendants are allowed to offer evidence of mental disorders as mitigation. A mitigating factor is something that serves to explain the defendant’s conduct, and, while not excusing the conduct, it may soften our judgment of the conduct, thereby providing a reason for a judge or jury to impose a reduced sentence. For example, a mental disorder offered in mitigation of a murder might save the convicted person from the death penalty in favor of a life sentence.

However, assuming the person is duly convicted of a crime, there is no legal requirement that mental illness reduce or otherwise impact sentencing decisions. As noted earlier in this chapter, Oregon is typical in identifying nearly 30% of its adults in custody as currently requiring high-level mental health treatment. Treatment of mental disorders in prison is discussed in more detail in Chapter 8 of this text.

Even the death penalty may be imposed on a person with severe mental illness, despite mitigation efforts by the defense. The Supreme Court has made clear that only legal “insanity” in this specific context – defined as the inability to understand the punishment being imposed – renders execution unconstitutional. The precise level of impairment needed to make execution unconstitutional has been elusive; in its most recent pronouncement on the issue, the Supreme Court appeared open to the execution of a man with vascular dementia who had been rendered blind, confused, and with no memory of his crimes due to multiple strokes while in prison. Madison v. Alabama (2019).

Moreover, even if granted, an insanity reprieve lasts only as long as the insanity lasts. As in restoration of competency to stand trial, a person may be restored for execution if medication or other treatment can make them competent to be executed. (Ford v. Wainwright, 477 U.S. 399, 1986; Dewan, 2017).

Some mental disorders that are persistent and severe could serve to permanently close the door to execution, if the impacted person can obtain a supporting evaluation that qualifies them for a permanent reprieve. For example, a person with significant intellectual disability (which is not treatable in the sense of being subject to improvement from medication) may not be executed at all. The Supreme Court found in its 2002 decision, Atkins v. Virginia, that the 8th Amendment to the Constitution banned execution under these circumstances because it constituted cruel and unusual punishment to execute a person who was less culpable due to this impairment. 536 U.S. 304 (2002). Similar reasoning supported a ban on executing children, issued a few years later. Roper v. Simmons (2004).

However, all states have different standards for what constitutes intellectual disability, and many of those standards do not correspond with modern medical practice for diagnosing intellectual disability (LaPrade & Worrall, 2020). In Idaho, for example, a person with a tested I.Q. (intellectual quotient, the standard assessment for intelligence) score over 70 can be executed, without regard to other factors that inform a diagnosis, such as life functioning (American Civil Liberties Union, n.d.).

Barriers in proving that a person cannot be Constitutionally executed are especially concerning when coupled with the reality of the prison population, where people with intellectual and developmental disorders are found in much higher numbers than the population at large. People who experience intellectual disabilities are, for example, far more likely than other people to falsely confess to crimes – and to be wrongfully convicted and sentenced to death. The story of Earl Washington, in the Spotlight in this chapter, is just one example of how this can unfold. It is estimated that up to a quarter of the people who have been exonerated after false confessions are intellectually disabled – an overwhelmingly greater percentage than exists in the general public, where intellectual disability is estimated to impact about 1% of the population (American Psychiatric Association, n.d.; Schatz, 2018).