Bill to bar death penalty for mentally ill faces uphill battle

_{*Correction appended.} 

In Texas, as in the rest of the nation, juries can still sentence mentally ill offenders to death. In a state with one of the busiest death rows in the country, one lawmaker has filed a bill to change that.

State Rep. Toni Rose, D-Dallas, has filed long-shot House Bill 3080, which would prevent offenders proven to have had a severe mental illness at the time of their crime from being sentenced to death in a capital murder case. 

The highest-profile offender is Scott Panetti, a diagnosed schizophrenic who killed his wife’s parents in 1992 and has lived on Texas’ death row for more than 20 years. Panetti represented himself at his trial, dressing as a cowboy and trying to call witnesses such as the Pope, John F. Kennedy and Jesus Christ.

Panetti has not yet been executed because the U.S. Supreme Court ruled in his precedent-setting case that a death-sentenced inmate must be able to understand that he’s about to executed, and why. But there is no law governing handing down a death sentence in the first place; defendants can either plead not guilty by reason of insanity, or, if convicted, hope the evidence of mental illness in the sentencing trial is enough to persuade juries to hand down a life sentence instead.

“These illnesses are not a choice,” Rose said Tuesday at a news conference announcing the bill. “Severe mental illness can cripple an individual and significantly impair one’s ability to make decisions and control their impulses and understand the consequences of their actions.”

Under Rose's bill, a defense lawyer would be able to ask for a hearing at least 30 days before a capital murder trial to determine if a defendant had a severe mental illness. To qualify as exempt from the death penalty, defendants would have to prove they had a medical diagnosis or documented symptoms of one of the following: schizophrenia, schizoaffective disorder, psychotic disorder, bipolar disorder, obsessive-compulsive disorder or depression. They also would have to prove that they acted as a result of psychotic symptoms that limited their ability to exercise rational judgment or understand the consequences of their actions. If mental illness was confirmed, the maximum penalty a jury could hand down would be life without parole. 

Rose’s bill, along with others seeking to curb use of the death penalty in Texas, faces an uphill battle in the GOP-led Texas Legislature. 

While The Texas Tribune couldn't get many Republicans to weigh in on the measure, last year, conservative Texas Court of Criminal Appeals Judge Elsa Alcala hinted that she wanted the Legislature to look at the issue in her opinion in the case of mentally ill death row inmate Adam Ward.

“As is the case with intellectual disability, the preferred course would be for legislatures rather than courts to set standards defining the level at which a mental illness is so severe that it should result in a defendant being categorically exempt from the death penalty,” Alcala wrote in the March 2016 opinion.

Republican state Rep. James White, chairman of the House Corrections Committee, said this week that he wants to look at the bill but wasn’t sure his GOP colleagues would be interested.

White has filed his own bill to create a state-funded office to help represent death penalty defendants during their appeals. That bill — which could be difficult to pass in a tight budget year — will be considered by the House Criminal Jurisprudence Committee on Monday.

Rep. Todd Hunter, the Republican chairman of the House Calendars Committee and vice chairman of the Criminal Jurisprudence Committee, said Wednesday he hadn't yet heard about Rose's bill and is open to learning about any legislation. He added that in the last couple of years, more people have become educated on the death penalty in general.

Alongside bill supporters from the mental health and religious communities on Tuesday, Rose argued that people with severe mental illness should get the same protections from the death penalty that minors and people with intellectual disabilities get. She also touted the bill’s fiscal impact, arguing it would save taxpayer money by eliminating a sentencing trial if the defendant is ruled severely mentally ill and cut down on appeals of mentally ill death row inmates.

Seven other states have filed or plan to file similar legislation this year, according to the Death Penalty Information Center. No states have passed it.  

“We know of examples of people who ended up on death row despite being profoundly ill,” said Greg Hansch of the National Alliance on Mental Illness. “Some are eventually executed. Others are ping-ponged back and forth in the appeals process for years, even decades, while the taxpayer foots the bill.”

More on mental illness and the death penalty:

• The complex and protracted path Scott Panetti's death row case has traveled illustrates how few safeguards Texas has to protect mentally ill killers from being executed. 
• Adam Kelly Ward, whom appeals courts recognized as mentally ill, was executed in March 2016 for the 2005 shooting death of a code enforcement officer.