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EDITORIAL: Not the worst of the worst, or why Ohio should spare from execution those with severe mental illness

Akron Beacon Journal - 6/11/2017

June 11--Evelyn Lundberg Stratton recently reminded state lawmakers about the "evolving standards of decency" when it comes to the death penalty. The former Ohio Supreme Court justice noted that the execution of juveniles has been barred. The same applies to those with intellectual disabilities. She supports House Bill 81 that would exempt from the death penalty those diagnosed with severe mental illness at the time of the capital offense.

The measure, sponsored by state Rep. Bill Seitz, reflects the work of a task force formed by Chief Justice Maureen O'Connor. The panel of highly regarded and representative stakeholders looked for ways to improve the conduct of capital punishment. Three years have passed since it put forward 56 recommendations. Some have been enacted. Too many have not.

One that received strong panel approval was the exemption for severe mental illness, such as schizophrenia, bipolar disorder and major depressive disorder.

In testimony before the House Criminal Justice Committee last month, Evelyn Stratton stressed the absence of a deterrent value when an offender has "diminished impulse control and planning abilities." In that way, the offender hardly qualifies as the worst of the worst, the common measure of deserving death.

On Tuesday, John Murphy, the executive director of the Ohio Prosecuting Attorneys Association, presented a rebuttal. He argued the system already protects against a death sentence falling on those with mental illness. He cited standards for competence to stand trial and the option to plead not guilty by reason of insanity.

Murphy added that jurors may see mental illness as a mitigating factor in weighing whether to apply the death penalty.

The problem, as discussed at the hearing by state Rep. Seitz, is that such protections do not go precisely to the state of mind when the crime is committed. In addition, David Niven of the University of Cincinnati explained that jurors often view severe mental illness as an aggravating factor. Thus, without the exemption, such defendants remain more likely to receive a death sentence.

Seitz and the task force recognized the need to define carefully what qualifies as a severe mental illness. That is especially so in view of the bill rightly following precedent and permitting those currently on death row to seek to resentencing and life in prison without parole.

Prosecutors warn about a flood of requests, even suggesting the effective end of the death penalty. Actually, as Evelyn Stratton pointed out, just 10 percent to 15 percent would qualify to make an application. The bill places the burden on the defense to show that the defendant suffered from severe mental illness.

The worry about abuse of the exemption is curious, the hard line suggesting: Better to execute an offender who was ill at the time than open the door to another somehow gaming the system. The legislation isn't about leniency. The punishment remains most tough. Rather, the bill goes to how Ohioans define capital punishment, and what it says about our sense of decency.

The task force examined fully the death penalty and recommended it would be improved by the exemption for severe mental illness. Now the Ohio House should do its part and move quickly to approve the legislation.

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(c)2017 the Akron Beacon Journal (Akron, Ohio)

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