With juveniles and the mentally retarded off the list of those eligible to be executed, severe mental illness looms as the "next frontier" of death penalty jurisprudence, asserts Bruce J. Winick, therapeutic jurisprudence scholar and a law professor at the University of Miami School of Law:
The Supreme Court's 2002 decision in Atkins v. Virginia and 2005 decision in Roper v. Simmons marked a significant new direction in Eighth Amendment jurisprudence. This Article explores the Court's emerging conception of proportionality under the Eighth Amendment, which also is reflected in its 2008 decision in Kennedy v. Louisiana. The Article analyzes the application of this emerging approach in the context of severe mental illness. It argues that the Court can extend Atkins and Roper to severe mental illness even in the absence of a legislative trend away from using the death penalty in this context. The strong parallels between severe mental illness at the time of the offense and mental retardation and juvenile status make such an extension of the Eighth Amendment appropriate.A pdf of the full paper is available for online download here.
Severe mental illness would not justify a categorical exemption from the death penalty; rather, a determination would need to be made on a case-by-case basis. The major mental disorders, like schizophrenia, major depression, and bipolar disorder, could qualify in appropriate cases, but not antisocial personality disorder, pedophilia, and voluntary intoxication. The Article discusses the functional standard that should be used in this context, and proposes that the determination be made by the trial judge on a pretrial motion rather than by the capital jury at the penalty phase. Future implications of the Court's emerging approach also are examined.