Executing The Mentally Ill

JamesThis is happening tomorrow by the way. A mentally ill man is being executed in Ohio. The story is here. The basis of the execution is that Abdul Awkal killed two people. As far as I can tell, he did not plead insanity. However, while in prison, he has been diagnosed with PTSD as well as Schizoaffective disorder. And the condition is recognized by the courts, only, not enough to warrant an appeal. And the biggest difficulty that I find in this case is that the diagnosing psychiatrist says that Abdul Awkal is so detached from reality that he does not know why he is being executed. If this is all true, then the state is executing someone who has no understanding of his crimes.

Hearing this prompted me to think about executing anyone with a severe mental illness. There are three ways of looking at how mental illness might be involved in a homicide, the mental illness was present at the crime and persists during the stay in prison, the mental illness presented in prison, and the mental illness dissipated after medication while in prison.

I won’t debate the technical details of the death penalty, like cost. Instead, I’m interested in the overarching idea of it. The two prominent arguments are justice and deterrence. So I will look at those two.

Justice is sometimes thought to be served by matching a penalty with the crime. At least, this is the common reading of justice and goes by the name of retributive justice. It is the old eye for an eye style of justice, only it focuses on paying back to an individual the harm that s/he inflicted on another. It is an individual to individual style of justice. Under this idea, the government acts as a moderator in settling harms between people. This has some grounding to it. The early forms of justice were between families, where if one family or fiefdom injured another, the victim would retaliate. An arbiter was established by the state to, in a sense, keep things civil and later to prosecute crimes where the victim had no family to respond. It is a system that has some merit to it in that it satisfies some personal injury. If someone robs you, they should pay you back. This has been abstracted in modern law and developed into another form of justice.

Restorative justice views crimes not as personal acts, but as acts against the entire community. We can thank the philosopher John Locke and its later codification into our own constitution for this view. This view, the social contract view, the individual not injures an individual, but breaks a trust/contract with the entire community. We rely upon everyone being well behaved in order to carry on without arming ourselves with guns and gating our doors. When someone breaks this trust, he threatens everyone and the community seeks punishment to repair the injury. This kind of justice sits behind the motivation for community service. The person who committed a crime is not serving the victim, he is serving the entire community.

Both of these arguments can bolster the death penalty. Under retributive justice, it is rather obvious. If you kill a person, you must pay with your life. It is an equivalency relationship. Under restorative justice, it gets a little harder. Life imprisonment can also do the trick since you are removing the individual from society and not allowing them back into the contract. But, the death penalty can also be argued for on this ground. Homicide is an act that violates the most sacred tenets of the social contract, that one must permanently remove that person from society.

And this leads into the second argument, deterrence. Under retributive justice, deterrence isn’t an option. It is a person to person, victim to criminal, relationship. The death penalty isn’t deterring future crimes against that particular family or group of victims. Instead, we commonly understand the argument to be a deterrence for all murders against anyone. The prospect of losing your own life if you commit a crime is great enough to prevent you from violating the social contract. That’s the theory at least. But for now we’ll proceed with taking it as a given. It makes it more interesting that way.

Now down to business with mental illness. I’m going to assume that there is some detachment from reality, through psychosis, a very extreme mania that boarders on psychosis, of a fundamental lack of engagement with social constructs (severe autism). This is because other serious mental illnesses, like OCD, do not furnish delusions that muddy the waters of the social contract. OCD and other serious mental illnesses can be hell, but the mind is still fairly rational and aware of what it is doing, even if it can’t stop it.

The first option is a persistent state before and after the crime and punishment. This means that the individual does not have any idea of why things are happening to them and no realistic conception of what they did or why it was wrong. They committed a crime on unrealistic grounds and continue to exist on those grounds. In this case, retributive justice would still say execute the individual since it is an equivalence relation. And I’ll just state it out right, it will recommend the death penalty in all cases. However, our modern idea of justice involves a sense of fairness and proportionality. We factor in motivations to differentiate between voluntary and involuntary homicide as well as between homicide and manslaughter. We’ve graded the scales of murder by accounting for various factors. So even though I’ve run across the idea of retributive justice in arguing for the death penalty, adopting it would dispense with a lot of our legal realities. And so I won’t be talking about it further.

The other idea of justice, restorative justice, has a much harder time with this. Since it is based on the social contract, one must be aware of that social contract to participate in it. If someone is persistently not in contact with it in terms of how his actions interact with it, it’s hard to say that one can even punish them. The social contract works by people agreeing to it, if you don’t agree to it, it’s hard to say that you can really punish. It shows that this sense of justice is a little off our conceptions, but think of it like someone being in another country. When there, you abide by those laws and are punished accordingly, not by your country’s laws. Our sense of justice might say that those laws are unjust, but at the very least, it does tell us where the law can enter. And the law is the foundation of when the death penalty can apply.

Finally, deterrence. Here, the death penalty really does not succeed. In terms of preventing more crime from a specific person, the individual can be transferred to a psych ward. And for deterring other people, it doesn’t make sense. Killing someone who is unaware of the social contract will not deter other people who are unaware of the social contract. And it doesn’t apply to mentally normal people either, since they will not be in a disconnected state.

The second possibility, criminally insane at the murder, but medicated and stabilized afterwards, follows a similar path as the above case. Restorative justice just cannot justify killing the individual because at the time of the murder, the other person might have as well been in another country. There is no rational connection with the social contract and therefore justice shifts more towards rehabilitation than punishment. That is, it focuses on getting the individual back into the social contract so that laws can be reapplied. Deterrence also fails as well. Just like the above case, the legal idea of deterrence would only apply to those who are not rational, who will not heed the execution at all. Of course, one could always make the case that people will then fake mental illness. But it’s hard to fake psychosis and manias. It’s not just talking weird, it’s an entire pattern of behavior and reaction. And, of course, you can always make the rules tighter for what qualifies if you’re a hardliner.

The final one is a lot more interesting. This is where someone is sane and rational at the time of the murder, but mental illness presents later on. In this scenario, someone is engaged in the social contract and willfully kills someone. But then that person loses contact with reality. Under restorative justice, this is a really grey area. Because while the state has perfect right to execute someone when their sane, if that person no longer has contact with reality or the social contract, it can be said that the person slips outside the jurisdiction of the state. Think of it like this, if you run away to Canada, you have to be extradited. When out of contact with reality, you’re in Canada (sorry to any Canadian readers for equating your country with severe mental illness). On the other hand, one can say that the presentation is just because enough time lapsed between the trial and the execution and it should proceed anyways. That is, just because you no longer know why you did something, that doesn’t erase the fact that at one point you did.

However, we must tease out whether it is a prejudice against mental illness or something more solid. For instance, imagine that someone is on death row and a horrible kitchen accident lobotomized our murder. In this case, for me at least, I no longer see any restoration that would be gained by executing this person. Here’s the possible reason why, identity. It’s the same body, but not the same mind. For instance, if you have a murderer and a dry cleaner and switch their brains, which body would you execute. I’m sure (hope too) that 100% said that if we must execute someone, it should be the murderer’s brain in the dry cleaner’s body. A similar case might be made for someone who goes criminally insane in prison while awaiting execution. While disconnected from reality, it could be said that a different person/identity is in that body. Same brain, same body, but different identity through chemical imbalances. But, there is a caveat to this argument. If someone develops a severe mental illness and disconnects from reality, and then through medication comes back, then they would be eligible to execute under restorative justice. However, if the individual cycles through psychotic phases and non-psychotic states, all bets are off on that one. There is simply no bright line defining whether the person is the same before the illness and then after. And to me, it seems a little malicious to time the execution for when the person will be sane.

And coming to a close, there’s deterrence. If we again look at our lobotomized prison chef, we see the cracks in deterrence here. The criminal element is gone and in its place is someone who is not a part of the social contract and is disconnected from reality. It’s very hard to see how our chef would deter anyone, rather, I think we would pity the individual. And I think that the permanence of the situation as well as the identity transformation makes us see the chef as a different human than the criminal. In which case, we would be executing an innocent man who in a previous life committed a crime. Again though, if medication succeeds, then it could be thought of as a deterrent. But up until that point, it appears unfair.

That’s about as far as one can take theories of justice. Restorative justice still relies a bit on retributive justice, so both can substantiate the death penalty. But it gets difficult with restorative justice since the death doesn’t really restore anything. A life in prison making license plates does more for society than death. And it’s also an older theory of justice. One that has been supplanted by things like Rawlsian (John Rawls that is) social contract theory. Under that, and it’s a strong force in modern law, the death penalty is very hard to justify since one would have to believe that they should be executed if they killed someone. The details are too long for this, but it essentially requires an extreme masochist to warrant the death penalty. And the waters get murky with Social Benefit theory (previously known as Utilitarianism). Where the death penalty, after number crunching, isn’t nearly as beneficial as making a life sentence work for his entire life. And these theories just make it hard to justify killing anyone, let alone someone who is mentally ill.

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17 thoughts on “Executing The Mentally Ill

  1. A couple of things I would like to add to this thought-provoking post (and in that vein, I will probably think of more things later). First, in the case of someone becoming clinically insane after the fact, well I would argue that it’s pretty likely that they were already losing grips with reality at the time of the crime. Mental illness builds slowly and is insidious (and often difficult to recognize), it doesn’t just pop up in someone out of nowhere.

    Secondly, on the subject of deterrence, well I’m too lazy to search for references right now, but the rates of murder and other violent crimes actually went up after the death penalty was reinstated in the United States. So I cannot see how any rational person can take it seriously as a deterrent to crime.

    • Schizoaffective disorder, especially, is progressive and degenerative, and can take a long time to become manifest. Anything with a schizo component would have been present in this man years ago.

    • As for the time building, that is definitely true. I’m coming at this from a quasi-legal/philosophical point of view where I’m making very bright line definitions along legal terms. So the person had to be reasonably aware of what they were doing at the time of the crime. Moving toward a more philosophical approach by just examining mental illness, it gets even more grey then.

      For deterrence, I’ve definitely come across a lot of statistics that do not look favorably on its effectiveness. But, it’s still used and the idea makes some sense. Other arguments are worse though. The most eugenicist one was “the prison population is overcrowded”. Yep, so we should just off some of them.

      And while on the subject of mental illness and prisons, I came across something frightening. States are now changing not guilty by reason of insanity to guilty but insane. Which sounds innocuous, but one means a clean record and you can check the “not convicted of any crime” box. The other means that you’re now labeled as a criminal and insane. Small wording choice, but horrific impact for something that legally (which is a high standard) was not in your control.

      • Wow. That last thing I was not aware of, and it is absolutely terrifying. It seems like the law is just working overtime to make life even more hellish for the mentally ill. First things were changed so that an insanity defense is extremely difficult to prove (I can’t stress this enough, because so many people think it’s just a get-out-of-jail-free card that lawyers pull). Now they are saying, “Yes, this person is completely out of touch with reality, but they still should be held to the same standard as those who we deem 100% lucid.”

        Which, to me, is making the statement that public understanding of what insanity actually is has been regressing on a very serious level.

  2. It’s so wrong! It all just screams wrong. Doesn’t help that I am completely opposed to the death penalty anyway but this person must have been on a de-generative slide down to this state, and to be at a point where he doesn’t understand why he is being killed is… well actually I’m speechless, so I won’t go on. I simply hate this!

    • I agree with you. I’m against the death penalty in any scenario. And it’s not just the “we might make a mistake” line either. It’s an opposition to killing people to right a wrong among other things. But there you have it, even along 17th-18th century philosophical lines, political philosophy struggles with executing the mentally ill. Furthermore, I did some more research after this, the updated version of social contract theory that includes Kantian ethics makes the death penalty prohibitive in any circumstance. So political philosophy in academic circles has been pretty strongly against it for over 200 years. I guess law moves slower than philosophers.

      • Law is a product of lawmakers, the bulk of whom pass what measures their constituents tell them to, rather than voting with reason or conscience and risking their position. So ultimately, it is not the law that is slow, but human understanding.

        • Yes! More people need to read philosophy!

          Although, historically, we did have a supreme court justice that was part of the american pragmatist movement, Oliver Wendell Holmes Jr. And it was he who notoriously said “retribution is vengeance in disguise.” Something that’s apt for this kind of discussion.

  3. Why on earth something as severe as this is even being considered is absurd. What if they are wrong from the get go? This is much to the definite in the simplest terms. There is no going back.

    And then there is the whole issue of if we start with one sect of the medical community then will others follow because they are IN THE WAY OF THE GOVERMENT?

    This is the same kind of thinking in terms of the Justice Departments of our country that results in time and money being used in the complete diservice to the population it was designed to protect. Including and most specifically for the Mentally ill.

  4. This is a really interesting post!
    In the UK we no longer have the death penalty, so I’ve never really considered that mentally ill people could potentially executed for their crimes!
    I wonder if people who had not experienced mental illness would be opposed? I wonder if it is only when you have been “in another country” or the other state of mind, that you can truely appreciate what it is like to disconnect from reality?
    Thank you for sharing!

    • I think that there are people out there who would oppose it even if they didn’t have a mental illness. However, I’d be willing to bet that if you did have a mental illness you would be much much more likely to be against executing the mentally ill. And once you move up to DID, BPD, BD, and Schizophrenia, I’d wager that over 90% that are diagnosed are against it because it’s a little too close to home. Once you’ve “been to another country” you get what might happen if the stars aligned and something bad happened.

      • I’m not sure. I experience mental illness, and I think I still can tell the difference between right and wrong. On the other hand, there are sporadic moments when I can’t control myself. It’s like I know I’m doing something wrong and should stop myself but am unable to. Perhaps this is what is meant by “being in another country.” But it’s a little more complicated than not being aware of the social contract. I am aware of it. But if I’m not fully in control of my faculties at the same time, then I don’t think it’s fair to hold me accountable for something I couldn’t help. And this is also why I’d be against the death penalty for anyone with a mental illness, or even someone who had a moment where they felt out of control.

        • I agree that when it’s out of your control, you’re not culpable. You did something wrong, but it wasn’t exactly your fault. That gets into the finer points of law of intention. We grade murder along multiple lines according to intention, so this would fall under that categorization, perhaps not being called murder in the end. And the cases that I bring up are sort of extreme ones, since moving toward more realistic ones encounters a plethora of ways that people can be detached from reality, each requiring modifications to the argument. So I stuck with an easier one. But social contract theory doesn’t really recognize intention without going into full blown law, which is not necessarily the arbiter of what is just. Instead, one would have to move to a modern social contract theory, like Rawls’, but that pretty much excludes the death penalty in these cases and pretty much in every case unless there was a perfect system of discovery of guilt and perfect conviction for both guilty and innocent, which is not happening in my lifetime.

  5. I’m not sure I follow your argument about people not being deterred because of the social contract. Yes, I would agree that is true, but I don’t think the purpose is to deter people who are unaware of the social contract. Which means that it’s to deter every person who lives in a country, and by living in the country, one has agreed to the social contract. Being unaware of it doesn’t make it less valid, even. If you know nothing about tax law, you can’t plead ignorance as a reason you didn’t pay your taxes. This raises question about how much people should educate themselves about the social contract they’re de facto agreeing to if they’re living in a country. And of course questions of sanity muddy this topic.

    I think I got off track there . . . But I do think if people lose contact with reality, they are the same person they always are. I don’t think becoming insane is a question of replacing one brain with another. It’s more like other aspects of the brain came out later or were suppressed. Not that these semantics make your conclusion less valid, but those were objections that came to mind as I was reading. This is a case of me being argumentative because I’m not fully convinced yet am willing to be convinced if my objections can be addressed. But perhaps they don’t make sense. This is a sort of situation that annoys people I talk to in real life (me being argumentative, that is). I think my objection here is akin to what Ruby said above–the person probably has been slowly losing contact with reality; they didn’t all of a sudden change.

    I did enjoy the post very much, especially because it i thought-provoking.

    • For the first point, it’s a question of who is being deterred. My reasoning is that the general populace, not having mental illness, won’t be deterred because the circumstances never really apply to them. They’re not mentally ill. I guess one could say that it says that crime X won’t be accepted no matter what. But that added factor doesn’t apply to any normal person breaking the law. It’s their necks on the line as a normal person, whether it applies to other people not like them or not, they will be executed. But in the final analysis, the death penalty isn’t an effective deterrent, so philosophy aside and pragmatism in, it doesn’t do anything. I thought of finding statistics on that since they’re out there, but I’m lazy and it’s easier to do philosophy than googling sometimes (and loads more fun).

      And as for being subject to laws that you were unaware of, there is an accessibility rule that depending on the judge, will be taken into account of. For instance, if you stop off for gas in a small town where they happen to have outlawed chewing gum and they arrest you. You can plead you case and possibly get off. The rule was neither accessible nor common, so ignorance can be used as a defense. So if you’re in a state of mind where you truly cannot know/fathom the rules, ignorance is a reason why the law doesn’t apply. That’s different from saying whether the law is just though. Instead, it looks at whether the application of the law is just. Two separate questions. And I didn’t make it clear, but I focus a bit on the latter, where it’s whether it’s a just application of the laws (wrong to murder, which is just) to the mentally ill.

      As for your second point, in my view, it too is a side of a person that is coming out more than another person. People in a psychotic state still resemble their non-psychotic selves. My example is more of what is considered and “intuition pump” where it takes an intuition from a separate but similar case and tries to see how things work out. It’s not a definitive argument for the reasons that you point out, but it gets people seeing another side of things. And it brings out the question of similarity. The lobotomized man is not very similar at all to the man before, so how similar are people in psychotic episodes to the people they normally are? It’s a grey area without a sufficient bright line and so requires a case by case basis. But I think (hope) it brings out enough of a contrast to see that there is a grey area and doubt whether one should execute a person who becomes mentally ill and detached from reality. And when there’s doubt, I think it’s always safe to bet on the side of caution when you’re taking a life.

      I hope that helps out. And I agree, if one just brings up that one is unable to control one’s actions then a similar conclusion stands. All that one needs to look at is whether a driver who suffers a heart attack or seizure and accidentally kills someone is culpable. The big, and I mean big, difficulty that comes up that I’ll save for another time, is whether someone is culpable for a death if they chose to go off their medications that were previously working. Now that is a grey area.

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