Today's Houston Chronicle notes that Texas is scheduled to execute a criminal who has a mental illness on Wednesday:

http://www.chron.com/cs/CDA/story.hts/front/1645919

Of course, the article raises the question, "Why don't we add mental illness to the list of things for which a defendant can't be executed?" Is this a legitimate mitigating issue that should automatically exclude a defendant from that punishment? How would it be measured? How is mental retardation different, except that we have some objective standards for measuring retardation? Is it because retardation is not treatable?

Why am I not surprised to see that Mike Tolson is the author of this article in the Chronicle? As best I can tell, this "reporter" has yet to find a death row offender that he thought worthy of the death penalty. Okay, enough ranting about the anti-death penalty bias of the Houston Chronicle.

John, in response to your question, you will recall that during the last legislative session one of the things that we were saying in opposition to prohibiting the execution of the mentally retarded was that such a statute would open Pandora's Box of claims or conditions that arguably are similar to mental retardation. As evidenced by this article, no one should be surprised that "mentally ill" death row inmates would want to jump onto the "Atkins" bandwagon. People with brain damage subsequent to their 18th birthday, who are not subject to a mental retardation diagnosis, will also want to assert "Atkins" claims. So will victims of child abuse, juvenile offenders, and so on.

The fact of the matter is that the Atkins opinion was so poorly reasoned that there may be little distinction between mental illness and mental retardation. They are BOTH inherently subjective concepts. Anyone who believes that the criteria for establishing mental retardation are "objective" is flat wrong. As we proved in Penry, IQ tests are very unreliable and easily manipulated by both the examiner and examinee. Any time a test administrator is given discretion in the scoring of a test, you have potential for bias and manipulation. I do hope that when the Legislature takes this issue up in the spring, reputable members of the mental health profession will stand up and be heard on the unreliability of IQ scores.

The same arguments can, and will, be made in opposition to executing the mentally ill. Reduced culpability, inability to reason and completely understand the consequences of one's actions, etc., etc.. Mental illness may be treatable but so is mild mental retardation.

Personally, I still believe that the better standard is simply whether the person knew the difference between right and wrong, but I'm guess I'm becoming a member of the minority in that regard. The Atkins opinion is a problem. We're only beginning to see the full effect of that opinion. Anytime the Supreme Court basis its opinion upon national polls and what other countries are doing with respect to the death penalty we, as prosecutors, should be concerned. I'm still trying to figure out what "evolving standards of decency" means but it may just be that I'm not highly "evolved." This ought to be an interesting legislative session on the issue of capital punishment.

This case was also covered in the NY Times this morning:
http://www.nytimes.com/2002/11/04/national/04DEAT.html?todaysheadlines

It appears that everyone agrees he's mentally ill -- albeit treatable. While being treated, however, he committed the rape and murder for which he's been sentenced to death. The NYT makes it sound like the real issue is related to his sleeping through trial because he was drugged.