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New Mexico Law Review

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This article, written for a symposium on Atkins v. Virginia - the Supreme Court decision that prohibited execution of people with mental retardation - argues that people with severe mental illness must now also be protected from imposition of the death penalty. In labeling execution of people with mental retardation cruel and unusual, the Atkins majority stressed that mentally retarded people who kill are less blameworthy and less deterrable than the average murderer, an assertion that can also be made about people with severe mental illness. As it had in previous eighth amendment cases, however, the Court also relied heavily on an emerging legislative consensus against the execution of the former group. Such a consensus does not exist with respect to people with mental illness (in fact, only one state, Connecticut, bars their execution). But the same legislative inaction that undermines the eighth amendment argument bolsters an equal protection argument, because it shows an irrational prejudice against the latter group. A careful reading of Court's cases suggests that "rational basis with bite" is the right standard for assessing the validity of laws that discriminate on the basis of disability, at least when those laws deprive people of life or liberty. In any event, there may not be any rational basis for distinguishing between the people with retardation and people with mental illness in the death penalty context. A review of the psychiatric literature shows that severe mental illness, in the form of psychosis, reduces blameworthiness and deterrability at least as much as mental retardation. People with mental illness at the time of the offense, while often found sane and sentenced to death (possibly because mental illness is irrationally viewed as an aggravating circumstance by sentencing bodies), are no more responsible for their condition or able to appreciate society's mores than are people with retardation (or children under 17, another group the Court is likely to exempt from the death penalty). Nor are people with mental illness as likely to recidivate as these two groups. Concerns about malingering and misdiagnosis of mental illness, which are exaggerated where severe disorder is involved, should be dealt with through imposing more stringent standards of proof. Otherwise, we are allowing execution of people who do not deserve the death penalty simply because it is too "hard" to identify them.

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