Five years have passed since a statewide task force recommended improvements in how Ohio conducts the death penalty. Chief Justice Maureen O’Connor initiated the effort, and the members performed the job well, generating 56 proposals for the courts and legislature. Unfortunately, a small fraction has been implemented, with state lawmakers proving especially lax in taking up the recommendations.
Even proposals overwhelmingly supported by the task force have been pushed aside. There is no better example of this practice than the recommendation to prohibit the execution of defendants suffering from a severe mental illness at the time of the crime. The task force gave its approval by a 15-2 vote. Yet the legislature has failed to act.
The hope is that will change in this legislative session. On Wednesday, state Sens. John Eklund, a Chardon Republican, and Sandra Williams, a Cleveland Democrat, presented to the Senate Judiciary Committee sponsor testimony on Senate Bill 54.
As Eklund noted, the ban builds on decisions of the U.S. Supreme Court barring the execution of juveniles and those with intellectual disabilities. The sound thinking is that if the death penalty is reserved for the worst of the worst, that doesn’t include those suffering from severe mental illness, the sickness impairing their capacity to inform their conduct. This is the decent thing to do.
At the hearing, Eklund and Williams encountered a familiar line of opposition, in particular the concern that defendants and their attorneys, plus those currently on death row, would see an opening to game the system. Actually, the burden of proof falls on the defendant to show that he or she suffered from one of five precise illnesses — schizophrenia, schizoaffective disorder, bipolar disorder, major depressive disorder or delusional disorder. A pretrial hearing would be held with evidence presented and a judge deciding.
In 2017, Harvard law school researchers evaluated the 26 men then scheduled for execution in Ohio and found six suffering from a mental illness. Yet just two would meet the afflictions defined in the legislation.
So there wouldn’t be an invitation to abuse of the system. Neither is the legislation a poor substitute for what the justice system currently offers. A death penalty case involves two stages, a trial to weigh whether the defendant is guilty and then a separate proceeding to assess whether death is appropriate according to the law. Critics of the legislation argue that in this second phase, defendants already have an opportunity to present mental illness as a mitigating factor.
The reality is more complicated. Research shows that many jurors are inclined to view mental illness as an aggravating factor, and thus they are more likely to conclude a death sentence is warranted. This is the familiar and regrettable prejudice at work concerning mental illness, jurors fearing the defendant and seeing the worst of the worst.
Put another way, the current process isn’t working when it comes to severe mental illness. The state needs a better approach. That was the conclusion of the task force, its recommendation overdue for legislative action.
This isn’t a matter of somehow showing leniency for defendants. The alternative of life in prison without the option of parole amounts to a plenty severe punishment. This legislation goes to Ohioans defining themselves, ensuring the death penalty is conducted with thought and care, drawing clear distinctions about those the state puts to death. What good is achieved by executing a man or woman suffering from severe mental illness at the time of the crime? The state can take needed responsibility by enacting the prohibition proposed in Senate Bill 54.