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Severe mental illness reduces culpability

Richmond Times-Dispatch - 12/5/2016

Earlier this year, Russell Brown was found insane by both prosecution and defense experts testifying at his trial for the tragic murder of a Virginia state trooper. Yet the jury disregarded the experts and rejected his insanity defense. This meant that someone who had just been found insane - meaning he did not know the nature of his acts, or that they were wrong - could now be sentenced to death.

While the jury eventually declined to impose the death penalty, there was no statutory protection available against the highest punishment for a man who, by the admission of all experts, did not have the highest culpability.

Such severely mentally ill people should not be eligible for execution. And yet prosecutors continue to charge people who have substantial mental health problems. Fortunately, legislation has been introduced to the Virginia General Assembly to address this problem and a coalition is supporting it. The law should be enacted.

In the months before the killing, Brown had been talking in fantastical and paranoid ways, making little sense, and losing his grip on reality. He had been talking to himself, acting erratically, and obsessing over the Mayan calendar, the book of Revelation, and conspiracy theories. He left with his girlfriend to live in the woods in an abandoned cabin, "eating bark off a tree and drinking water out of a stream." Brown had stopped sleeping.

After Brown shot the trooper he took his clothes off and fled into the woods. He had no sane motive to do this. He later said God told him to shoot the trooper. Such a person is much less blameworthy, obviously, than a rational and deliberate killer.

Arguably, he should have been found insane and confined to a mental institution, perhaps for a long, long time - but one reason jurors are reluctant to find defendants insane is that jurors are not told that such confinement occurs if a person is found not guilty by reason of insanity (NGRI). As a result, successful insanity defenses are extremely rare.

According to the Virginia Department of Behavioral Health and Developmental Services, there is an average of 35 NGRI acquittals per year - in all criminal cases, not just death penalty ones. Nationally, the NGRI defense is raised in only 1 percent of all criminal cases and, when raised, successful only 25 percent of the time.

In any case, a defendant with the kind of severe impairments suffered by Russell Brown certainly should not even be eligible for the death penalty. The proposed legislation would remedy this issue. It would provide a failsafe for defendants who fell short of being found not guilty by reason of insanity, but who nonetheless suffer from serious mental illnesses such as schizophrenia or bipolar disorder. The bill provides that, if found guilty, the defendant would receive a sentence of life in prison without parole.

Individuals with severe delusions or with bipolar disorder, for example, are simply not the worst of the worst murderers for whom the death penalty is intended. The Supreme Court - and Virginia law - already forbid the death penalty for persons with intellectual disability and juveniles, because their impairments diminish their culpability.

Despite their similar impairments, individuals with severe mental illness can still be executed. People with severe mental illnesses should be treated the same way as people with intellectual disability. No doubt the courts will someday conclude as much.

If lawmakers believe that we should retain the death penalty in Virginia, we must be confident that we are not sentencing to death severely mentally ill people who cannot be fully blamed for their actions.

Brandon Garrett is the Justice Thurgood Marshall Distinguished Professor of Law at the University of Virginia School of Law. He is working on a new book, "The Triumph of Mercy: How the Demise of the Death Penalty Can Revive Criminal Justice," which explores the lessons from the decline in American death sentencing. He may be contacted at bgarrett@virginia.edu, or on Twitter: @brandonlgarrett.