They Are Mentally Ill; Some States Want Them Off Death Row

By Marco Poggio | November 17, 2023, 9:37 PM EST ·

A man in a suit pulls back a curtain in a room in a death chamber, with the gurney front and center.

A prison employee draws the curtain between the death chamber and the witness room at Southern Ohio Correctional Facility in Lucasville, Ohio, in this 2005 photo. Nearly three years ago, Ohio became the first state to adopt a law excluding prisoners who suffered from severe mental illness at the time of their crimes from being put to death. Other states have since followed suit, or are considering similar measures. (AP Photo/Kiichiro Sato)

One day in March 2004, at age 20, Andre Lee Thomas woke up to what he described as a divine voice telling him to murder his family.

He slayed his wife, her 1-year-old daughter and their 4-year-old son, cutting out their hearts so they could, he said, be "freed from evil." He then attempted to kill himself with a self-inflicted stab wound to the chest, but failed. Later on, while in custody awaiting trial, Thomas gouged out his right eye, citing biblical scriptures. Three years later, claiming he was trying to prevent the government from reading his mind, he took out his remaining eye and swallowed his retina.

Despite pleading not guilty of his crimes by reason of insanity, Thomas was convicted by a Texas jury and sentenced to death in 2005.

"This is a sad case. Applicant is clearly 'crazy,' but he is also 'sane' under Texas law," Judge Cathy Cochran of the Texas Court of Criminal Appeals, the state's highest court for criminal matters, said in a 2009 concurring opinion that found Thomas fit for the death penalty. Last October, the U.S. Supreme Court declined to hear his appeal, with the three liberal justices dissenting.

While his execution date this past April was put off pending a court-ordered psychiatric evaluation, prosecutors still intend to put him to death. Until psychiatrists are able to weigh in and a judge issues a ruling, Thomas, now 40, remains on death row today, blind and still delusional, his lawyer told Law360.

"He is extremely mentally ill, he continues to be," said attorney Maurie Levin. "Mr. Thomas's case is unprecedented and to pursue his execution, you know, is just ... hard to wrap one's mind around."

A police mugshot of a black man with a blank expression and eyes without irises or pupils

A photo provided by the Texas Department of Criminal Justice of death row inmate Andre Thomas, who is currently awaiting execution for murdering his wife and two children, so they could, in his words, be "freed from evil." While awaiting trial, Thomas gouged out his right eye, citing Biblical scripture as his rationale. Several years later, claiming he was trying to prevent the government from reading his mind, he took out his remaining eye as well. (Texas Department of Criminal Justice via AP)

Death rows across the country are filled with people who, like Thomas, are severely mentally ill. While the U.S. Supreme Court has prohibited the death penalty for certain vulnerable groups — people with intellectual disabilities or who were minors at the time of their crime, for instance — it has not spoken about people who suffer from mental health conditions.

Legal experts say the high court has been reluctant to provide clarity in part because it is difficult to define mental illness in a legal sense. And more broadly, the death penalty remains a political issue where the court dares not to venture, preferring instead to leave decisions on how to administer it to the states.

With the current Supreme Court unlikely to rule on the intersection of mental illness and capital punishment anytime soon, some states that still use the death penalty have taken steps to codify definitions and thresholds for mental illness that are supposed to ensure that only people with sound mental faculties can be executed. Ohio and Kentucky pioneered those efforts, and more states could be following in the coming years.

"As with a lot of areas of the death penalty, the change in the foreseeable future is not going to happen from the Supreme Court. It's going to happen more at the state level," said John H. Blume, a scholar and director of the Cornell University Law School's Death Penalty Project.

In January 2021, Ohio was the first state to enact a bill that excluded people who suffered severe mental illness at the time of their crime from facing the death penalty. The law, which passed with bipartisan support, also offered limited retroactive relief, giving people already sentenced to death one year to petition courts to vacate their sentences. At least five people have been removed from death row under the law, according to the Office of the Ohio Public Defender.

In April, another bipartisan effort put a similar law — although one with no retroactivity provision — on the books in Kentucky. And in 2022, California, which is currently under a death penalty moratorium, enacted a law to prevent people who are permanently mentally incompetent from being sentenced to death. The law is the first of its kind in the nation.

Despite covering only a handful of more serious mental health conditions — schizophrenia, schizoaffective disorder, bipolar disorder and delusional disorder — advocates see these laws as blueprints for other states, and say momentum is growing around the issue.

A bill similar to those enacted in Kentucky and Ohio was introduced by Democratic lawmakers in Arizona in February but has so far failed to advance. The bill, which covers a broader range of mental health conditions, is still pending but is unlikely to be passed this year. Its sponsors, however, are committed to reintroduce the proposal next year if the current one fails, although it will need bipartisan support to pass, said Kat Jutras, state advocacy director at Death Penalty Alternatives for Arizona.

Since 2022, severe mental illness exclusion bills, also referred to as SMI bills, have been introduced in at least five other states, including Texas, but have so far failed to gain the political traction needed to cross the finish line. Previously, Virginia and Colorado considered their own mental health exclusion legislation but instead ended up abolishing capital punishment altogether.

"It's encouraging to see that ... mental health and mental illness are being recognized by both parties," Jutras said. "Our goal is to, of course, abolish the death penalty, but until we get there, it's to narrow [down] who is qualified under it."

More States Are Considering Mental Illness Exclusions for Death Row

Ohio and Kentucky were the first states to pass laws excluding people diagnosed with forms of severe mental illness from the death penalty. Since 2022, at least seven states have considered bills that would remove from death row people who suffered from severe mental illness at the time of their crimes. California enacted a law that excluded people who are permanently mentally incompetent.

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Source: Death Penalty Information Center

Meanwhile, overall support for the death penalty nationwide has continued to ebb. Twenty-seven states currently have capital punishment. Six states with the death penalty have governor-imposed moratoriums. And twelve states this year have introduced bills seeking to abolish the death penalty.

The bipartisan support is due in part to the fact that mental illness has brought the topic of the death penalty closer to average people, advocates say.

"The death penalty is such an abstract issue, it doesn't touch most people. But mental illness is something that touches many families," said Stefanie Faucher, the deputy director of the 8th Amendment Project, a national coordinating body for the nationwide movement to end the death penalty.

Several victims' rights organizations contacted by Law360 declined to comment for this story.

Defining Mental Illness

Frank R. Baumgartner, a political science scholar at University of North Carolina at Chapel Hill who has researched the death penalty extensively, said that the number of people who are mentally ill on death row is "off the charts." In a study done with fellow researcher Betsy Neill, Baumgartner found that about 43% of the 824 people executed in the U.S. between 2000 and 2015 had been diagnosed with some form of mental illness. Baumgartner said the figure was likely an undercount.

"What we see is that there's a consistently very, very high rate," Baumgartner told Law360.

The study also found that about 40% of executed prisoners had suffered child abuse — four times the percentage for the general population. Baumgartner's analysis also looked at a particular group of inmates — those who used their own execution as a form of suicide by dropping all appeals — and found that they were about 15% of the total number of people who were executed since 1976. Among that group, which anti-death penalty advocates call "volunteers" because of the role they play in seeking their own executions, rates of certain kinds of mental illness are twice or three times as high as those for the general population.

"The whole thing is just a monumental tragedy," Baumgartner said.

But defining mental illness in a legal sense and pinpointing it throughout a person's life can be hard. The term includes a wide range of conditions, from light forms of anxiety and depression up to severe psychosis involving auditory and visual hallucinations. Plus, some forms of mental disorder can already be present at the time of a crime, while others could develop later as a person's criminal case plays out, or after a person has already been sentenced to die.

Robin M. Maher, the executive director of the Death Penalty Information Center, which compiles data on executions, said that psychiatric evaluations of criminal defendants are often omitted during their trials. That makes it difficult to get a full picture of how many people may have been suffering from mental illness before beginning their death sentences. From there, Maher said, the extreme deprivation and isolation of life on death row can contribute to the development or worsening of mental illness for people held there.

"Even people who do not have a mental illness when arriving in prison will often develop a mental illness because of the conditions in which they are kept," Maher said.

All of this has posed a challenge for the Supreme Court to find a definition of mental illness to make a part of the nation's case law, as well as for state and federal legislators looking to take action.

"Mental illness comes in a variety of degrees," Blume said. "Where are you going to draw the line?"

As a result, several people suffering from serious conditions such as psychosis, schizophrenia, bipolar illness and delusional disorders are currently awaiting execution or have been put to death in recent years. Cases such as Thomas' have left legal experts, and the American public, wondering how people with such conditions could be eligible for the death penalty in the first place.

According to a survey released last year by the nonprofit Justice Research Group, about 60% of the poll's 1,100-plus respondents opposed the use of the death penalty against people with severe mental illness. The consensus was bipartisan, with 55% of Republicans, over 60% of Democrats, and about as many independents taking that position.

In 1986, the U.S. Supreme Court ruled in Ford v. Wainwright that executing people who don't understand that they are being put to death, and the reasons for it, amounts to the kind of "cruel and unusual punishment" the Eighth Amendment forbids. In that ruling, however, the 5-4 majority did not articulate an objective definition of mental illness that could be used under the test.

It wasn't until 2007, in a decision involving a schizophrenic Texas man named Scott Panetti who was sentenced to death for murdering his in-laws, that the high court provided further guidance. In Panetti v. Quarterman , the court clarified that, under the Ford ruling, a simple understanding of the fact and reason for being executed was not enough to be considered competent enough for the death penalty. A rational, deeper understanding of the connection between crime and punishment is also necessary.

While able to say that he was condemned to die because he had killed his wife's parents, Panetti believed that his death sentence was the result of a conspiracy between the State of Texas and the devil to prevent him from exposing a pedophile ring in Fredericksburg, Texas.

Panetti narrowly avoided the death chamber first in 2004, and then in 2014, when the U.S. Court of Appeals for the Fifth Circuit stayed his execution six hours before it was scheduled to be carried out. In September, a federal district court ruled that he was unfit for execution under the Supreme Court precedent bearing his name. Texas did not appeal the ruling.

Gregory W. Wiercioch of the University of Wisconsin Law School, who represents Panetti, said his client continues to be delusional and remains on death row.

"He is just not going to be cured of schizophrenia — there is no cure. His condition is just going to continue to deteriorate," Wiercioch told Law360. "The best prospect for him is that he remains on death row without an execution date."

But while Panetti was able to successfully argue his incompetency, attorneys for other people on death row say the bar set by his case is hard to meet.

Callie Heller, a federal public defender in the Western District of Oklahoma who represents Wade G. Lay and James Ryder, two men sentenced to death for murder who will have competency trials in the coming months, said only a small number of people claiming mental illness have gotten relief under the Panetti ruling. That contrasts with a perception by members of the public and criminal courts that see it as an easy cop-out.

"You hear this phrase, 'Opening the floodgates' ... If we grant this right, everyone is going to be able to say that they are mentally ill, and they don't understand the reason, and they won't be executed,'" Heller said, "But in actuality … we see this being applied very infrequently."

The case of Andrea Yates, a mother from Houston who killed her five children in June 2001 by drowning them one by one in the family's bathtub. According to her lawyers, a mix of postpartum psychosis and religious-themed delusions made Yates think her children, the oldest of whom was seven, were possessed by demonic powers and that, by killing them, she was saving them from evil. After the killing, Yates called 911 and asked to send the police, saying she had drowned the children.

The case helps illustrate that, even in the throes of psychosis, people might still be aware of their actions, something that complicates efforts to present insanity defenses both before and after trials.

In the Yates case, prosecutors used her 911 call as evidence that she acted rationally when she killed her children — and asked for the death penalty. She presented an insanity defense at trial, but a jury found her guilty of murder in 2002. Nonetheless, the jury refused to impose the death penalty, choosing to sentence her to life in prison instead.

Years later, after a forensic psychiatrist and government witness admitted having provided erroneous testimony in her case, a Texas appellate court ordered a new trial. In 2006, a jury found Yates not guilty by reason of insanity. She is currently confined to a low-security mental hospital in Kerrville, Texas.

Mental Illness: A Double-Edged Sword

Legal experts say mental illness is not given proper consideration throughout a criminal defendant's life in the justice system, from the trial phase of their case to the moment they are executed, which are usually many years apart.

Ron Honberg, former legal director of the National Alliance on Mental Illness, said state clemency boards and appellate courts have refused to give mental illness the weight it should be given when deciding prisoners' fates.

"I saw cases where people seemed to be, based on all reports, very, very, very psychotic — so psychotic that they really, were not even necessarily aware of what the consequences of execution were, or, if they were aware of that, why they were being executed," he said.

Legal experts say mental illness is a double-edged sword. If argued successfully by a defense lawyer, it can help a defendant dodge the death penalty. But when not properly explained to a jury or judge, it can be viewed as aggravating evidence to justify a capital sentence.

In at least five states, juries in death penalty cases are required to consider "future dangerousness" when deciding whether to impose capital punishment. Mental illness, along with a history of being a victim of child abuse and substance addition disorder, often tip the scale in favor of dangerousness — and significantly increase the chances for the death penalty.

In Texas, that concept drew attention earlier this month when attorneys for death row prisoner Brent Brewer challenged his sentence on the basis that it relied on testimony by an expert witness for the prosecution who said Brewer had "no conscience" and would be dangerous.

Brewer was put to death through lethal injection on Nov. 9.

Overall, cases involving mentally ill people charged with capital offenses often shock juries because of the gruesome nature of the crimes, which both attorneys and psychiatrists say can be a direct result of their conditions.

Benjamin Cole, an Oklahoma man executed last October, was sentenced to death for murdering his nine-month-old daughter in 2002 by snapping her spine in half, severing her aorta. He told detectives he was trying to get the child to stop crying. After killing the child, court papers said he played video games and denied anything was wrong when confronted by the girl's mother.

Although Cole's trial attorneys never pursued an insanity defense, his federal habeas lawyers argued years later that he was already mentally ill before he committed the crime.

Emma Rolls, a federal public defender who represented Cole, said he endured sexual abuse when he was a child growing up in extreme poverty. He also had a family history of schizophrenia and serious mental illness that was ignored by the jury that sentenced him, and later by state appeal courts.

"Prosecutors will turn evidence of mental illness into aggravation. And if you get a defense team who has not thought about presenting it in a proper way, doesn't maybe have the right experts, doesn't have the right social history to back up any type of diagnosis, then it can be really dangerous," Rolls told Law360. "The crime was horrific. I don't want to minimize how horrific that crime was. But if you looked at the entirety of Mr. Cole's life, it, too, was so, so tragic."

While in custody, Cole's mental condition continued to deteriorate to the point that he was living in "catatonic" state much of the time, his attorney told federal courts during habeas proceedings.

The U.S. Supreme Court, however, declined to stop his execution, providing no reasoning.

Medicating Prisoners: A Legal and Moral Dilemma

Because assessing competency for execution is so crucial to a prisoner's fate, capital litigation sometimes focuses on whether or not a person who has been under potent antipsychotic medications should be under the effects of the drugs when evaluated by psychiatrists.

Attorneys for Lisa M. Montgomery, who was executed by the federal government in 2021 for murdering a pregnant woman, cutting out the unborn child and claiming it was her own, considered suspending her regime of antipsychotic medications, which allowed her to function on a day-to-day basis, in order to prove to the courts and the public that she was severely mentally ill.

"Asking her to go off her meds would be very scary for Lisa," Kelley Henry, a federal public defender who represented her, told Law360. "Should we then torture her, essentially, in order to try to save her? And we wrestled with that moral question, and ultimately, we decided not to."

Montgomery's federal habeas attorneys said she suffered from pervasive physical, sexual and emotional trauma throughout her life, beginning when she was an infant.

Questions over a medication regime have come up in Thomas' case in Texas as well and are currently being litigated ahead of psychiatric evaluations by two experts — one chosen by the state and one by the defense — that he is scheduled to undergo in the next few months.

In August, Thomas' defense team asked a trial judge in Grayson County to ensure their client was taken off his antipsychotic medication sufficiently in advance of the psychiatric interviews to ensure the influence of the medication was able to fully abate.

But in September, Judge Jim Fallon ignored that request, instead ordering that two mental experts, one chosen by the state and one by the defense, conduct their evaluation "in the manner that is customary in their field."

Levin, one of Thomas' lawyers, called the lack of jurisprudence around medication for mentally ill capital prisoners a "black hole in the law." However, at least two court decisions provide some guidance.

In 1990, the U.S. Supreme Court ruled in Washington v. Harper that it is constitutionally permissible to force prisoners to take antipsychotic medications against their will if failing to do so makes them dangerous to others, but the court also required that the drugs be prescribed in the prisoners' "best medical interests."

Federal legal precedent concerning medication at the time of execution, on the other hand, exists only at the Court of Appeals level, with a 2003 ruling by the Eighth Circuit in Singleton v. Norris holding that it is constitutional to continue to involuntarily medicate an inmate after an execution date is set. The panel explained that setting an execution date doesn't change the medical interests determination for a prisoner.

Levin questioned whether medicating Thomas would ensure that his mental evaluation would be accurate.

"It raises the question of what it means to do a competency evaluation," she said.

But J. Kerye Ashmore, one of the attorneys with the Grayson County District Attorney's Office who prosecuted Thomas, said it is up to Thomas, not his lawyers, to decide whether to continue to take his medication.

And ultimately, Ashmore added, neither the medication issue nor Thomas' acts of self-mutilation are relevant. Instead, he said that what matters is that Thomas' jury and multiple courts have found him competent to be put to death.

"We had a two-week-long trial. He was found to be sane and guilty, and sentenced to death. A jury decided to do that," Ashmore said. "They were aware that he had pulled one eye out when they found him sane and sentenced him to death. So who do you think is in the best position to know? It's the jury — they heard all the evidence."

--Editing by Dave Trumbore. Graphics by Ben Jay.

Have a story idea for Access to Justice? Reach us at

Correction: A previous version of this story misstated the age of Benjamin Cole's daughter. The error has been corrected.

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