Many people with mental disorders face arrest, trial, and conviction in the criminal courts, despite the purported availability of diversion opportunities and the insanity defense. Diversion is appropriate in limited cases, and as we have learned, the insanity defense is exceedingly rarely successful. 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. As noted earlier in this chapter, Oregon is typical in identifying a significant number of its adults in custody as currently requiring high-level mental health treatment.

Depending on the jurisdiction, a defendant may be allowed to offer evidence of a mental disorder in mitigation of their crime(s). A mitigating factor is something that serves to explain the defendant’s conduct, and, while not excusing the conduct, it may soften 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 convicted of a crime, there is typically no legal requirement that the presence of a mental disorder impact a sentencing decision.

Mental Disorders and the Death Penalty

Even the death penalty may be imposed on a person with a severe mental disorder, 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 the completion of an execution unconstitutional. The precise level of impairment needed to make execution unconstitutional is unclear. In its most recent pronouncement on the issue, the Supreme Court stopped the execution of Vernon Madison (pictured in figure 6.15), whose dementia had rendered him blind, confused, and with no memory of his crimes due to multiple strokes while in prison (Madison v. Alabama, 2019). Madison died in 2020 at Holman prison in Alabama (Equal Justice Initiative, 2020).

Even if granted, an insanity reprieve lasts only as long as the insanity lasts. For cases like Vernon Madison’s, that would be the remainder of his life. But for a person with a treatable mental illness, competence could be restored in order to complete the execution. As in restoration of competence to stand trial, a person may be restored for execution if medication or other treatment can render them able to understand the procedure (Ford v. Wainwright, 1986; Dewan, 2017).

Some mental disorders can serve to prevent a death sentence from being imposed at all. For example, a person with significant intellectual developmental disability (which is not treatable in the sense of being subject to improvement from medication) may not be sentenced to execution, and if that sentence were imposed, it could be challenged. In 2002, the Supreme Court considered the issue and determined that the Eighth 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 (Atkins v. Virginia, 2002). Similar reasoning supported a ban on executing children that was issued a few years later (Roper v. Simmons, 2005).

All states, however, have different standards for what constitutes intellectual disability in the criminal punishment context, and many of those standards do not correspond with modern medical practice for diagnosing intellectual developmental disability (LaPrade & Worrall, 2020). For example, in Idaho, a person with a tested IQ (intellectual quotient, the standard assessment for intelligence) score over 70 can be executed, without regard to other factors, such as functional life skills, that would typically inform a diagnosis of intellectual developmental disability (American Civil Liberties Union, 2003).

Barriers to 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 other developmental disorders are found in much higher numbers than in the population at large. For example, people who experience intellectual developmental disabilities are 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, featured in the Spotlight in this chapter, is just one example of how this injustice 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, 2021; Schatz, 2018).

SPOTLIGHT: Earl Washington

Before Rebecca Lynn Williams succumbed to the more than 30 stab wounds inflicted upon her during a violent rape, she was able to describe her lone assailant as, simply, a Black man. It was June 1982, and Williams’s three children had now been robbed of their mother in a most vicious way.

In 1983, in a county not far from the location of Williams’s murder, a young Black man was arrested for breaking into one of his neighbor’s homes and wounding them during an alcohol-fueled dispute. This young man was Earl Washington, aged 23 (figure 6.16). Washington had an estimated IQ of 69, qualifying him for a diagnosis of intellectual disability. (For more information on intellectual developmental disability, as it is now called, see Chapter 2.) During a two-day interrogation, investigators were able to coerce five confessions out of Washington for five different crimes. One of these crimes was the murder of Rebecca Lynn Williams.

The confession to Williams’ rape and murder was full of red flags that should have given investigators pause. Despite claiming responsibility, Washington wasn’t even able to guess Williams’s race correctly. The investigators continually corrected Washington’s version of events to fit the evidence, prompting him to agree with their corrections and change his story accordingly. A good defense attorney could have poked holes in the prosecution’s case, but Washington’s defense was ineffective at best. Washington, an innocent man, was convicted of capital murder in 1984 and sentenced to death. At that time, and for another almost 20 years, the execution of people with intellectual disability was not prohibited under the Supreme Court’s interpretation of the Constitution.

Fortunately for Washington and others like him, the field of DNA forensic testing has evolved. In 1993, having already spent 9 years on death row, Earl’s post-conviction defense attorneys were granted permission to analyze DNA evidence left at the scene of the murder. The results excluded Washington as a match. Even so, the appeals court refused to hear the case further. Washington came dangerously close to being executed in 1993, and his death sentence was commuted to a life sentence just 9 days before he was scheduled to die.

And so Washington continued to sit behind bars, albeit now no longer on death row, for a heinous murder he didn’t commit. It wasn’t until the year 2000 that even more advanced DNA testing was able to match the crime scene DNA to another man by the name of Kenneth Tinsley. Washington was finally given a full pardon and released from prison.

Licenses and Attributions for Insanity and Criminal Sentencing

Open Content, Original

“Insanity and Criminal Sentencing” by Anne Nichol is licensed under CC BY 4.0.

“SPOTLIGHT: Earl Washington” by Monica McKirdy and revised by Anne Nichol is licensed under CC BY 4.0.

All Rights Reserved Content

Figure 6.15. Photo of Vernon Madison © Equal Justice Initiative is all rights reserved and included with permission.

Figure 6.16. Photo of Earl Washington from https://innocenceproject.org/cases/earl-washington/ is all rights reserved and included with permission.