Op-Ed: Prohibit the Death Penalty for Offenders with Mental Illness

Here's an op-ed that appeared in the The News-Sentinel (Fort Wayne, Indiana), from Kathleen Bayes. Bayes is the executive director of the National Alliance on Mental Illness-Fort Wayne.

Indiana should pass bill to prevent death penalty for severely mentally
ill

Thank You, Fort Wayne News-Sentinel editorial staff for your continued strong objection to reinstating the death sentence for Joseph Corcoran. Your editorial on Jan. 5 inspired me to continue the fight.

Please, please, Gov. Daniels, choose to commute the death sentence of Corcoran to life in prison without parole. End this pathetic injustice and enormous waste of money.

Order the Indiana attorney general's office to forgo any further appeals. Surely, they have more useful, productive ways to spend their time and money.

In the official study of the death penalty in Indiana, commissioned by Gov. O'Bannon and published in 2002, the costs to the county and state for an average death-penalty trial through all appeals totaled $568,836. That total did not include the cost of the defense in federal court and in clemency proceedings, all of which are paid by the federal courts and are substantial. The death penalty and its enormous cost should be reserved for the worst of the worst, if it continues to exist in Indiana at all.

Words cannot express Fort Wayne National Alliance on Mental Illness members' disappointment that the U.S. Court of Appeals has permitted Indiana to choose to reinstate the death penalty for Corcoran once again.

Corcoran is extremely mentally ill. This truth is no longer in question.

Corcoran is absolutely consumed with the brain illness, paranoid schizophrenia. Absolutely no one denies this truth after his 10 years in prison. Three experts say his mental illness is so severe that he is incompetent to make rational decisions. The state did not contradict this expert testimony. Corcoran's pattern of behavior over the last 10 years verifies this truth. One of the three appeals court judges, Judge Ann Claire Williams, agreed that Corcoran was mentally incompetent to waive
his right to having the trial court review his case.

This man is so ill with schizophrenia that all he wants to do is die. His profound schizophrenia prevented him from cooperating with his defense when he was first tried and convicted. His current defense attorney told me that no one wanted to take his case because he is so uncooperative in
his delusions. He just wants people to help him die, signing waiver after waiver of his appeals rights.

Putting Corcoran to death serves no moral purpose. Killing him will not deter future criminal activity driven by mental illness.

There is no logic, no rationale, no plan, nothing gained when a severely mentally ill person is overcome by the voices in his head and commits a capital crime. It is not an act of conscious will or choice. There is no way to deter total irrationality by punishment. Deterrence comes only from
treatment. Members of NAMI who live with mental illness will often tell us about irrational, regrettable behavior that resulted from their brain malfunction, not their conscious will. They will tell us how sorry they are when they return to sanity by effective treatment. They will tell us how hard they work to fix the damage the illness caused. Indiana chose not to execute children and the severely retarded. Indiana should also exempt the profoundly mentally ill.

No one is clamoring for Corcoran's execution except the attorney general's office. The grieving family has steadfastly remained silent. Let the torment of the resurrection of Corcoran's impending death pass from them. Release them from reliving this grief every two years.

The Indiana Legislature must change the law by passing Senate Bill 22. It will prohibit the death penalty in cases where a defendant is found to be afflicted with severe and persistent mental illness, carefully defined to avoid abuse. Senate Bill 22 will save the state of Indiana a lot of money. The proposed law has been passed out of the Bowser Commission, established by the Senate for thorough examination and review. It is strongly supported by the American Psychiatric Association, American Psychological Association, Mental Health American, NAMI National, the American Bar Association, many other organizations and most law enforcement personnel.

The state of Indiana should save its money and spend it on treatment, instead of punishment. Treatment is the true source of safety for all of us.

--------------------------------------------------
Kathleen A. Bayes is executive director of the National Alliance on Mental
Illness Fort Wayne.

Legislation Re Mental Illness & the Death Penalty Introduced in North Carolina

The News & Observer reports that lawmakers in North Carolina will consider legislation aimed at prohibiting the death penalty for offenders with severe mental illness ("Bill would ban execution of mentally ill killers," January 13, 2009).

Here's the full article:

A coalition of advocates for the mentally ill and a state Superior Court judge spoke in favor today of legislation that would exclude the severely mentally ill from the death penalty.

Draft legislation introduced at a joint legislative committee today would allow a judge to determine that a defendant suffered from severe mental illness at the time of the killing. The defendant would
still face a murder trial, but the worst punishment would be life without parole.

Advocates of the legislation say it would only apply to those with severe mental illnesses such as schizophrenia or bipolar disorder, or those with severe brain injuries. People whose criminal acts were the result of drug or alcohol abuse would not be eligible.

"We're talking about individuals whose distortion of thinking is so severe that it's difficult for us to imagine," said James Ellis, a University of New Mexico law professor who successfully argued to the U.S. Supreme Court several years ago that the mentally retarded should not be executed.

Superior Court Judge Carl Fox said the proposed law could save the state money by avoiding capital murder trials for the severely mentally ill. Capital trials are much more expensive because they require an additional defense attorney and defense experts, and typically take longer to try.

Today, North Carolina juries decide during the sentencing phase of a capital trial whether mental illness is a mitigating factor.

Connecticut is the only state to prohibit executing the mentally ill. Nearly 20 other states incorporate similar language in their statutes that set up the standards for being found not guilty by reason of insanity. Advocates say North Carolina's insanity standard is much stricter.

The joint committee will hear more information regarding the proposal at another meeting at 2 p.m. Thursday.

Peg Dorer, director of the N.C. Conference of District Attorneys, said the group has not taken a position on the legislation, but she said the proposal is a bad idea.

She said it gives defendants too many opportunities to argue severe mental illness. If they do not get a favorable pretrial ruling, they still have the opportunity to persuade jurors during the sentencing phase and could continue to argue it on appeal.

"It's just dragging the whole system down," she said.
***

More on Paul Devoe

Here's an update on Paul Devoe, from the Austin American-Statesman ("Judge orders Devoe mental records sealed," January 14, 2009):

An Austin judge Tuesday sealed the psychiatric records of murder suspect Paul Devoe, a day after details from the records were aired on television.

On Tuesday, an American-Statesman reporter tried to get copies of psychiatric reports by two physicians who declared Devoe mentally incompetent to stand trial. Although copies of the reports were in Devoe's case file at the Travis County district clerk's office, the reports were sealed later that evening by presiding Judge Brenda Kennedy. The contents of such case files are public records.

Devoe is accused of shooting to death a man at a Marble Falls bar, four people in a Jonestown house and a woman in Pennsylvania in August 2007 before being arrested in New York. Two doctors, one hired by the prosecution and another by the defense, in December declared Devoe unable to assist in his defense.

The psychiatric reports detailed Devoe's history of mental illness and drug use. They were previously obtained and aired by Fox 7 News Austin on Monday night.

Phone messages to Kennedy's office were not returned Tuesday night.

Joel White, a lawyer on the board of the Freedom of Information Foundation of Texas, said there was "no point" in Kennedy's sealing records after they were disclosed.

"You can't disclose records and try to take them back," said White, who is not involved in the Devoe case. "It's not within the spirit of the law. Once the information is made public, the court can't pretend to take it back with a sealing order."

Normally, White said, a defendant's psychiatric records are sealed until they are used in a trial. Once used in a judicial hearing, they become public record, he said.

Devoe will be sent to a maximum security psychiatric facility in North Texas.

Capital Murder Defendant Deemed Incompetent

According to the Austin American-Statesman, Paul Devoe, who is facing capital murder charges, has been deemed incompetent to stand trial (January 13, 2009). Competency relates to a defendant’s mental state at the time of trial, not at the time of the alleged crime.

According to Chapter 46B, Texas Code of Criminal Procedure: Article 46B.003. Incompetency; Presumptions:

(a) A person is incompetent to stand trial if the person does not have:

1. sufficient present ability to consult with the person’s lawyer with a reasonable degree of rational understanding; or

2. a rational as well as factual understanding of the proceedings against the person.

(b) A defendant is presumed competent to stand trial and shall be found competent to stand trial unless proved incompetent by a preponderance of the evidence.

Here's the article from the Statesman:

"Paul Devoe, accused of killing five people in Texas and a woman in Pennsylvania in 2007, has been found mentally incompetent to stand trial.

Two doctors, one hired by the prosecution and another by the defense, declared Devoe incompetent to assist in his defense. The order was signed by Judge Brenda Kennedy on Dec. 22, Travis County Assistant District Attorney Dayna Blazey said Monday. She said that doctors expect Devoe to recover from his current state with care and medication and that she expects him to eventually stand trial.

Devoe, 45, is accused of killing a Marble Falls bartender, four people in a Jonestown house and a woman in Pennsylvania during August 2007 before being arrested in Shirley, N.Y.

'This has nothing to do with his state when he committed the offense,' Blazey said. 'All it has to do with is right now; he is unable to understand the charges against him or unable to cooperate with his attorneys.'

Devoe's mental condition deteriorated while he was in custody, Blazey said. The state's psychiatric report states that he is unable to communicate with his lawyers, she said. He will be sent to Vernon State Hospital, a maximum security psychiatric facility in North Texas, until he is able to stand trial again, Blazey said. Travis County records indicate Devoe is in custody at the county correctional center in Del Valle.

Prosecutors said they were not aware of why the December decision was not disclosed until Monday.

Blazey said Devoe's trial was tentatively scheduled to begin in March. She expects him to recover in about two or three months, after which he would go to trial and prosecutors would seek the death penalty.

'We believe the evidence supports a conviction for capital murder,' Blazey said.

One of Devoe's attorneys, Tom Weber, declined to comment on the decision.

Jonathon Griffith, the son of murder victim Paula Griffith, 46, and brother of victim Haylie Marie Faulkner, 15, said he was not pleased with the declaration of incompetence.

'I think he's trying to game the system,' Griffith said. 'I personally think he's doing this on purpose. I'm sure he's been given medications, and he's not taking them.'

Griffith said he hopes Devoe will become lucid and stand trial 'sooner rather than later.'

Kennedy ruled in July that most of the potentially incriminating statements that Devoe made will be admissible at trial. Devoe's lawyers sought to suppress a series of statements that witnesses say he made about the crimes, including telling a cellmate, 'I killed six people,' and telling his sister that he shot people. According to court testimony, he also asked a Suffolk County, N.Y., police officer, 'Do you know how many bodies they found?'

In 2007, Devoe told the Long Island newspaper Newsday that he doesn't remember shooting five of the six victims and that he 'never meant to hurt anybody in any shape or form.'

But while in jail in Suffolk County, he said he was haunted by their deaths.

'All I hear is screams,' Devoe told the paper."
***
The article is available here.

More on Andre Thomas

The New York Times has this story about Andre Thomas ("Texas Death Row Inmate Pulls Out Eye, Eats It," January 9, 2009):

HOUSTON (AP) -- A Texas death row inmate with a history of mental problems pulled out his only good eye and told authorities he ate it.

Andre Thomas, 25, was arrested for the fatal stabbings of his estranged wife, their young son and her 13-month-old daughter in March 2004. Their hearts also had been ripped out. He was convicted and condemned for the infant's death.

While in the Grayson County Jail in Sherman, Thomas plucked out his right eye before his trial later in 2004. A judge subsequently ruled he was competent to stand trial.

A death-row officer at the Polunsky Unit of the Texas Department of Criminal Justice found Thomas in his cell with blood on his face and took him to the infirmary.

''''Thomas said he pulled out his eye and subsequently ingested it,'' agency spokesman Jason Clark said Friday.

Thomas was treated at East Texas Medical Center in Tyler after the Dec. 9 incident. Then he was transferred and remains at the Jester Unit, a prison psychiatric facility near Richmond southwest of Houston.

''He will finally be able to receive the mental health care that we had wanted and begged for from day 1,'' Bobbie Peterson-Cate, Thomas' trial attorney, told the Sherman Herald Democrat. ''He is insane and mentally ill. It is exactly the same reason he pulled out the last one.''

At his trial, defense lawyers also argued he suffered from alcohol and drug abuse.

Thomas does not have an execution date.

The Texas Court of Criminal Appeals in October upheld his conviction and death sentence for the death of 13-month-old Leyha Marie Hughes. Also killed March 27, 2004, were his wife, Laura Christine Boren, 20, and their son, 4-year-old Andre Lee.

Thomas, from Texoma, walked into the Sherman Police Department and told a dispatcher he had just murdered the three and had stabbed himself in the chest.

Thomas told police how he put his victims' hearts in his pocket and left their apartment, took them home, put them in a plastic bag and threw them in the trash.

Court documents described the three victims as having ''large, gaping wounds to their chests.''
***

Private Defender Program for Defendants with Mental Illness

Texas Lawyer has this update on new model for legal representation in Lubbock ("First Private Criminal Defender Program in Texas to Commence," January 8, 2009):

"A first-of-its-kind program in Texas is scheduled to open Jan. 15 in Lubbock, providing specially trained private practitioners to represent indigent criminal defendants who are mentally ill or retarded.

Philip Wischkaemper , a Lubbock Criminal Defense Lawyers Association (LCDLA) member who helped develop the program, says, 'It's the first private defender service in the state.'

Private attorneys appointed by the director of the Lubbock Special Needs Defenders' Office, a nonprofit corporation formed by the LCDLA in October, will represent the indigent clients, says Lubbock solo Ted Hogan, a member of the corporation's board of directors.

On Dec. 22, the Lubbock County Commissioners Court approved a contract with the corporation to run the program. Precinct 4 Commissioner Patti Jones says the commissioners see the program as a way to ensure that jailed indigents with mental health issues receive legal assistance within 24 hours after they are arrested, so they can receive the services they need. 'That's been a void in the system,' Jones says.

On June 18, the Texas Task Force on Indigent Defense awarded a state-funded four-year grant totaling $419,360 to Lubbock County to set up the program.

David Slayton, Lubbock County's director of court administration, says the amount of state funding for the program will decrease in increments over the first four years of operations as the amount the county provides increases. In the fifth year, the county will assume full responsibility for funding the
program, Slayton says.

Hogan says the county will pay lawyers who represent mentally impaired clients, but the Special Needs Defenders' Office director will review the bills that the attorneys submit for payment.

Wischkaemper, the capital assistance attorney for the Texas Criminal Defense Lawyers Association , says a peer review committee will determine which attorney applicants qualify for appointments.

Attorneys seeking appointments through the new program must complete a minimum of 12 hours of continuing legal education on mental health issues in addition to CLE hours in criminal law, Wischkaemper says.
***

Earlier posts on this topic are available here, here and here.

Update on TX Death Row Inmate Andre Thomas

According to KXII News, Texas death row inmate Andre Thomas has injured himself once again ("Grayson Co. death row inmate gauges out other eye," January 8, 2009). Thomas has been diagnosed with schizophrenia and appears to suffer from frequent bouts with psychotic delusional states and a preoccupation with death, religious, and suicidal thoughts.

Here's an account of his self-mutilation:

"A Grayson County man sentenced to die for killing his wife, her daughter and their son, gouged out his other eye in prison last month.

According to the warden at the state prison in Huntsville, death row inmate Andre Thomas gouged out his left eye in early December and then ate it.

Five days after the murders in March 2004, Thomas gouged out his right eye inside a Grayson County jail cell after reading a Bible verse.

The state's top Criminal Appeals Court upheld Thomas' conviction and death sentence back in October of 2008.

Thomas is now in a psychiatric prison facility in Richmond, Texas.

No execution date has been set."
***
An earlier post about Thomas is available here.

New Mental Health Court in Harris County

The Houston Chronicle reports that Harris County judges have voted to get in line with the growing number of mental health courts nationwide ("Harris Judges Vote for Felony Mental Health Court," January 8, 2009).

According to the Criminal Justice/Mental Health Consensus Project, "Mental health courts (MHCs) are specialized dockets that link defendants with mental illnesses to court-supervised, community-based treatment in lieu of traditional case processing." In The Essential Elements of a Mental Health Court, the authors note that "Mental health courts are a recent and rapidly expanding phenomenon. In the late 1990s only a few such courts were accepting cases. Since then, more than 150 others have been established, and dozens more are being planned." Other mental health courts in Texas have been established in Smith, Bexar, El Paso, Tarrant, and Dallas Counties.

Here's the full article:

Harris County's criminal district judges voted Wednesday to designate a full-time felony mental health court, which will likely focus on defendants diagnosed with schizophrenia, bipolar disorder and severe depression.

State District Judge Jan Krocker will preside over the court, the first of its kind in Harris County. A start date has not been determined. Funding is still needed, she said. She did not give an estimate, saying details must still be finalized.

About 30 percent of the defendants who come through Harris County's criminal courts have a mental illness, Krocker said. She expects many of those defendants also will need treatment for substance abuse.

"It is a tragedy both for society and the defendant when mentally ill offenders go through the system without treatment," Krocker said Wednesday. "The mental health court can rewrite some very sad stories so there are great endings."

Mental Health Association of Greater Houston President and CEO Betsy Schwartz lauded the move, noting that mental health courts have been in place for years in other parts of the country and have proved successful.

She said she hopes that the court will prevent some offenders from "recycling" through the system.

"Individuals with serious mental illness can be matched with case management and services in the mental health court and the judge will know them as a person, have a relationship with them," Schwartz said.

The new court might also help some veterans suffering from post-traumatic stress disorder when they return to Houston from Iraq, Krocker said.

"We need to be prepared for the possibility that (some) may be mentally ill and homeless and may end up in the criminal justice system," Krocker said.

Harris County District Attorney Pat Lykos, who recently took office, applauded the judges' decision. Lykos emphasized mental health treatment as a theme in her election campaign last year.

"I think this is a major initiative," Lykos said Wednesday. "The criminal justice system is the last institution available to deal with these individuals. It's the institution of last resort. This is a moral issue. It's a dollars and cents issue."

Krocker plans for mentally ill defendants to be assigned to her court immediately after they are charged with a criminal offense if they have previously been diagnosed with a mental illness in the criminal justice system through the Mental Health and Mental Retardation Authority of Harris County.

Krocker also proposed that mentally ill defendants could be transferred to her court from another felony court if the judge, prosecutor and defense attorney involved in the case agree.

More than 7,700 defendants received psychotropic medications in Harris County in 2007, Krocker said. The Harris County Jail is the county's largest psychiatric hospital.

The court designation is one step in helping the mentally ill, Schwartz said, adding that other components must be in place.

"It can only be as good as the community support services that are available," Schwartz said.
***
Earlier posts on mental health courts are available here and here. More information is available from the Consensus Project.

Editorial: Unjust death penalty

The following editorial appeared today in the Fort Wayne Journal Gazette regarding the case of death row inmate Joseph Corcoran. This year, the Indiana Legislature will consider a bill that would prohibit the death penalty for offenders determined to suffer from severe mental illness.

Unjust Death Penalty

"Reinstatement of the death penalty against Joseph Corcoran marks another sad twist in a cruel and misplaced effort to extract justice from a mentally ill man. The sentence should again be thrown out on appeal, and Indiana lawmakers, in the meantime, should finally pass a law banning the execution of the mentally ill.

Corcoran is a prime example of why such a law is needed. He demonstrated classic signs of paranoid schizophrenia when he shot to death his brother, his sister’s fiancé and two other men in 1997 because he thought they were talking about him. Five years earlier, he had been charged but acquitted in the shotgun slaying of his parents.

His horrific story would have ended with a life sentence if Corcoran had agreed to bench trial – with a judge instead of a jury reaching the verdict – but the terms of the deal from then-Allen County Prosecutor Robert Gevers placed the death penalty back on the table with a jury trial. After he was
convicted, Corcoran changed his mind and decided to pursue an appeal, but the Indiana Supreme Court ruled that his decision came too late.

That ruling was overturned in 2007, but last week the U.S. Court of Appeal issued a 2-1 decision reinstating the death penalty. At issue is the question of whether Corcoran is capable of making a rational choice. In her dissent, Judge Ann Claire Williams pointed to the fact that no testimony was presented to suggest that he was.

'The majority reasons that the Indiana Supreme Court was entitled to believe Corcoran’s contention that he wished to waive further proceedings because of his guilt, and I agree that ordinarily, the Indiana court’s decision to rely on one person’s testimony over other people’s testimony would be one to which we would defer,' Williams wrote.

'But this is not a case where the court picked the opinion of one expert who believed Corcoran could make a rational decision over an expert who disagreed,' she wrote. 'Indeed, the state presented no expert who contradicted the conclusions of these three experts. Rather, the person whom the court
credited was a person diagnosed with a severe mental illness that causes delusions, who told a doctor and his sister he wanted to die to escape those delusions.'

Corcoran’s attorneys said they will seek another hearing before the full federal appellate court. If it is denied, they will appeal to the U.S. Supreme Court.

Gov. Mitch Daniels could also commute the death sentence, which he did in the case of Arthur Paul Baird, who killed his parents and pregnant wife in 1985.

Such cases could be avoided in the future if a bill pending in the Indiana General Assembly is approved. Sen. Karen Tallian, D-Portage, has again filed legislation based on the recommendations of the Bowser Commission. Senate Bill 22 would prohibit use of the death penalty in cases where a defendant is found to suffer from a severe mental illness.

This page has long believed that justice is not achieved by killing people. But even those who support the death penalty should agree that putting to death criminals who are mentally ill serves no purpose."
- - - - -

Senate Bill 22
Proposed bill establishes a procedure to determine whether a defendant charged with murder is an individual with a severe mental illness. Prohibits the imposition of the death penalty on a defendant found to be an individual with a severe mental illness. Provides that a jury serves as the fact finder in a sentencing hearing in a capital case, even if the defendant pleads guilty or is tried. … Permits a defendant to waive the right to impanel a jury during the sentencing hearing.
***
An earlier post on Joseph Corcoran is available here.

Update on Death Penalty Case in Indiana

Here's an update from The Journal Gazette on the case of Joseph Corcoran, a severely mentally ill death row inmate in Indiana ("Quadruple-murderer loses death penalty appeal," December 31, 2008):

The state of Indiana can once again reinstate the death penalty against convicted quadruple-murderer Joseph E. Corcoran, according to a 2-1 ruling by the U.S. Court of Appeals issued Wednesday morning.

Just over a year ago, the 3-judge panel of the 7th Circuit of the U.S. Court of Appeals in Chicago heard arguments about whether Corcoran's death sentence should be overturned.

In 1999, a jury convicted the then-22-year old Corcoran of four counts of murder. In July 1997, Corcoran shot and killed his brother, James Corcoran, 30; his sister's fiance, Robert Scott Turner, 32; and 2 of his brother's friends - Timothy G. Bricker, 30; and Douglas A. Stillwell, 30 -at a Bayer Avenue home.

At issue was whether Corcoran, who has paranoid schizophrenia, was mentally competent when he waived his right to have a court review his death sentence and whether his constitutional rights were violated when then-Allen County Prosecutor Robert Gevers offered to take the death penalty off the table if Corcoran would agree to a bench trial rather than a jury trial.

In April 2007, U.S. District Judge Allen Sharp overturned Corcoran's death sentence, ruling Gevers inappropriately punished Corcoran by pursuing the death penalty against Corcoran after he declined to face a trial before a judge and chose to allow a jury decide his fate.

The Indiana Attorney General's office appealed Sharp's decision and in it sruling, the 7th Circuit ruled that Corcoran's rights were not violated.

"If it is constitutionally permissible to use the threat of more severe punishment to encourage a guilty plea it should follow that the state's use of the same tactics to encourage a defendant to proceed by bench trial would also be constitutionally permissible," Judge William Bauer wrote in his opinion for the majority.

Judge Ann Claire Williams wrote a dissenting opinion, disagreeing with the ruling that Corcoran was mentally competent to waive his right to having a court review his death sentence.

Corcoran's attorneys could appeal this decision to the U.S. Supreme Court.