Sane Enough to Die: Mental Health and the Death Penalty

April Baer- Ohio's rule against executing the mentally ill can be traced back to a basic premise of criminal justice. Professor Margery Koosed is with the law school at the University of Akron, and has handled several death penalty cases.

Margery Koosed- We're punishing individuals for one of four reasons, traditionally. We're trying to restrain or incapacitate them, we're trying sometimes to rehabilitate them. You're trying to engage in some deterrence of other persons in engaging in behavior like that individual has done, and perhaps deterring this specific individual from engaging in that behavior in the future. And you're trying to engage a retributive notion-society's vengeance, the "just desserts" that this is the appropriate punishment for someone who did this to us as a society.

AB- The theory goes that if the defendant is unable to recognize that he's being punished for murder, the death sentence loses too much of its meaning, and should not be carried out. Jay Scott was diagnosed with schizophrenia in 1994, but state attorneys argue that fact alone doesn't make him incompetent. Chris Fry heads the appellate unit of the Cuyahoga County prosecutor's office.

Chris Fry- That's what's been so troubling to me in this case. There has been no suggestion ever in this case that Scott's mental illness impaired his ability or his understanding of criminal conduct in 1983. Scott knew what he was doing, in fact, made comments to his colleagues that he didn't understand why people were so upset that there two people were murdered, he was a stickup man - this is what he did.

AB- But Scott's lawyers say the real problem in the case, is that no one really knows the extent of Jay Scott's mental illness. David Doughton is a Cleveland defense attorney filed an amicus brief in Scott's last appeal to the Ohio Supreme Court.

David Doughton- We argued that the Ohio statute that sets forth whether a condemned man is insane is unconstitutional.

AB- In the first place, Doughton says, the court should have allowed Scott to be re-evaluated -- he says the state has not set down the rules for testing the mental competency of death row inmates. Moreover, he notes that when the Court turned down Scott's last appeal, one reason given was that Scott's team had failed to prove that he's insane. Would the court also ask an accused man to prove his own innocence? Doughton says, certainly not, and he had hoped the "burden of proof" issue might be a good reason for the US Supreme Court to intervene. Yesterday afternoon, the High Court opted not to step in, but Doughton says there are several upcoming cases in which the justices will deal with related issues.

DD- They recently decided to take up a case that said you can't execute insane people. There's a question of whether they will expand that definition to include the mentally retarded, with a case out of North Carolina.

AB- Doughton says there's a basic problem with saying that the state shall not execute people with mental illness, and then refusing to give them the chance to be evaluated. At least one member of the Ohio Supreme Court agrees with him. In last Friday's decision on the Scott appeal, there was one lone dissenter. It was Justice Paul Pfeifer, one of the authors of the very statute that revived the death penalty in Ohio. In his opinion, Pfeifer wrote, that he does not find Jay Scott to be a sympathetic man.

"But" he writes, "I cannot get past one simple irrefutable fact: he has chronic, undifferentiated schizophrenia, a severe mental illness. At this time, we do not and cannot know what is going on in the mind of a person with mental illness. As a society, we have always treated those with mental illness differently from those without. In the interest of human dignity, we must continue to do so."

Scholars are calling the Jay Scott case a test of Ohio's death penalty statute -- on several levels. It was the first time since capital punishment was reinstated that an inmate fought the law to a final appeal, and lost. It was also the first time the state was challenged in its decision of who is competent to be put to death. April Baer, 90.3 90.3 WCPN.

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