This is happening tomorrow by the way. A mentally ill man is being executed in Ohio. The story is here. The basis of the execution is that Abdul Awkal killed two people. As far as I can tell, he did not plead insanity. However, while in prison, he has been diagnosed with PTSD as well as Schizoaffective disorder. And the condition is recognized by the courts, only, not enough to warrant an appeal. And the biggest difficulty that I find in this case is that the diagnosing psychiatrist says that Abdul Awkal is so detached from reality that he does not know why he is being executed. If this is all true, then the state is executing someone who has no understanding of his crimes.
Hearing this prompted me to think about executing anyone with a severe mental illness. There are three ways of looking at how mental illness might be involved in a homicide, the mental illness was present at the crime and persists during the stay in prison, the mental illness presented in prison, and the mental illness dissipated after medication while in prison.
I won’t debate the technical details of the death penalty, like cost. Instead, I’m interested in the overarching idea of it. The two prominent arguments are justice and deterrence. So I will look at those two.
Justice is sometimes thought to be served by matching a penalty with the crime. At least, this is the common reading of justice and goes by the name of retributive justice. It is the old eye for an eye style of justice, only it focuses on paying back to an individual the harm that s/he inflicted on another. It is an individual to individual style of justice. Under this idea, the government acts as a moderator in settling harms between people. This has some grounding to it. The early forms of justice were between families, where if one family or fiefdom injured another, the victim would retaliate. An arbiter was established by the state to, in a sense, keep things civil and later to prosecute crimes where the victim had no family to respond. It is a system that has some merit to it in that it satisfies some personal injury. If someone robs you, they should pay you back. This has been abstracted in modern law and developed into another form of justice.
Restorative justice views crimes not as personal acts, but as acts against the entire community. We can thank the philosopher John Locke and its later codification into our own constitution for this view. This view, the social contract view, the individual not injures an individual, but breaks a trust/contract with the entire community. We rely upon everyone being well behaved in order to carry on without arming ourselves with guns and gating our doors. When someone breaks this trust, he threatens everyone and the community seeks punishment to repair the injury. This kind of justice sits behind the motivation for community service. The person who committed a crime is not serving the victim, he is serving the entire community.
Both of these arguments can bolster the death penalty. Under retributive justice, it is rather obvious. If you kill a person, you must pay with your life. It is an equivalency relationship. Under restorative justice, it gets a little harder. Life imprisonment can also do the trick since you are removing the individual from society and not allowing them back into the contract. But, the death penalty can also be argued for on this ground. Homicide is an act that violates the most sacred tenets of the social contract, that one must permanently remove that person from society.
And this leads into the second argument, deterrence. Under retributive justice, deterrence isn’t an option. It is a person to person, victim to criminal, relationship. The death penalty isn’t deterring future crimes against that particular family or group of victims. Instead, we commonly understand the argument to be a deterrence for all murders against anyone. The prospect of losing your own life if you commit a crime is great enough to prevent you from violating the social contract. That’s the theory at least. But for now we’ll proceed with taking it as a given. It makes it more interesting that way.
Now down to business with mental illness. I’m going to assume that there is some detachment from reality, through psychosis, a very extreme mania that boarders on psychosis, of a fundamental lack of engagement with social constructs (severe autism). This is because other serious mental illnesses, like OCD, do not furnish delusions that muddy the waters of the social contract. OCD and other serious mental illnesses can be hell, but the mind is still fairly rational and aware of what it is doing, even if it can’t stop it.
The first option is a persistent state before and after the crime and punishment. This means that the individual does not have any idea of why things are happening to them and no realistic conception of what they did or why it was wrong. They committed a crime on unrealistic grounds and continue to exist on those grounds. In this case, retributive justice would still say execute the individual since it is an equivalence relation. And I’ll just state it out right, it will recommend the death penalty in all cases. However, our modern idea of justice involves a sense of fairness and proportionality. We factor in motivations to differentiate between voluntary and involuntary homicide as well as between homicide and manslaughter. We’ve graded the scales of murder by accounting for various factors. So even though I’ve run across the idea of retributive justice in arguing for the death penalty, adopting it would dispense with a lot of our legal realities. And so I won’t be talking about it further.
The other idea of justice, restorative justice, has a much harder time with this. Since it is based on the social contract, one must be aware of that social contract to participate in it. If someone is persistently not in contact with it in terms of how his actions interact with it, it’s hard to say that one can even punish them. The social contract works by people agreeing to it, if you don’t agree to it, it’s hard to say that you can really punish. It shows that this sense of justice is a little off our conceptions, but think of it like someone being in another country. When there, you abide by those laws and are punished accordingly, not by your country’s laws. Our sense of justice might say that those laws are unjust, but at the very least, it does tell us where the law can enter. And the law is the foundation of when the death penalty can apply.
Finally, deterrence. Here, the death penalty really does not succeed. In terms of preventing more crime from a specific person, the individual can be transferred to a psych ward. And for deterring other people, it doesn’t make sense. Killing someone who is unaware of the social contract will not deter other people who are unaware of the social contract. And it doesn’t apply to mentally normal people either, since they will not be in a disconnected state.
The second possibility, criminally insane at the murder, but medicated and stabilized afterwards, follows a similar path as the above case. Restorative justice just cannot justify killing the individual because at the time of the murder, the other person might have as well been in another country. There is no rational connection with the social contract and therefore justice shifts more towards rehabilitation than punishment. That is, it focuses on getting the individual back into the social contract so that laws can be reapplied. Deterrence also fails as well. Just like the above case, the legal idea of deterrence would only apply to those who are not rational, who will not heed the execution at all. Of course, one could always make the case that people will then fake mental illness. But it’s hard to fake psychosis and manias. It’s not just talking weird, it’s an entire pattern of behavior and reaction. And, of course, you can always make the rules tighter for what qualifies if you’re a hardliner.
The final one is a lot more interesting. This is where someone is sane and rational at the time of the murder, but mental illness presents later on. In this scenario, someone is engaged in the social contract and willfully kills someone. But then that person loses contact with reality. Under restorative justice, this is a really grey area. Because while the state has perfect right to execute someone when their sane, if that person no longer has contact with reality or the social contract, it can be said that the person slips outside the jurisdiction of the state. Think of it like this, if you run away to Canada, you have to be extradited. When out of contact with reality, you’re in Canada (sorry to any Canadian readers for equating your country with severe mental illness). On the other hand, one can say that the presentation is just because enough time lapsed between the trial and the execution and it should proceed anyways. That is, just because you no longer know why you did something, that doesn’t erase the fact that at one point you did.
However, we must tease out whether it is a prejudice against mental illness or something more solid. For instance, imagine that someone is on death row and a horrible kitchen accident lobotomized our murder. In this case, for me at least, I no longer see any restoration that would be gained by executing this person. Here’s the possible reason why, identity. It’s the same body, but not the same mind. For instance, if you have a murderer and a dry cleaner and switch their brains, which body would you execute. I’m sure (hope too) that 100% said that if we must execute someone, it should be the murderer’s brain in the dry cleaner’s body. A similar case might be made for someone who goes criminally insane in prison while awaiting execution. While disconnected from reality, it could be said that a different person/identity is in that body. Same brain, same body, but different identity through chemical imbalances. But, there is a caveat to this argument. If someone develops a severe mental illness and disconnects from reality, and then through medication comes back, then they would be eligible to execute under restorative justice. However, if the individual cycles through psychotic phases and non-psychotic states, all bets are off on that one. There is simply no bright line defining whether the person is the same before the illness and then after. And to me, it seems a little malicious to time the execution for when the person will be sane.
And coming to a close, there’s deterrence. If we again look at our lobotomized prison chef, we see the cracks in deterrence here. The criminal element is gone and in its place is someone who is not a part of the social contract and is disconnected from reality. It’s very hard to see how our chef would deter anyone, rather, I think we would pity the individual. And I think that the permanence of the situation as well as the identity transformation makes us see the chef as a different human than the criminal. In which case, we would be executing an innocent man who in a previous life committed a crime. Again though, if medication succeeds, then it could be thought of as a deterrent. But up until that point, it appears unfair.
That’s about as far as one can take theories of justice. Restorative justice still relies a bit on retributive justice, so both can substantiate the death penalty. But it gets difficult with restorative justice since the death doesn’t really restore anything. A life in prison making license plates does more for society than death. And it’s also an older theory of justice. One that has been supplanted by things like Rawlsian (John Rawls that is) social contract theory. Under that, and it’s a strong force in modern law, the death penalty is very hard to justify since one would have to believe that they should be executed if they killed someone. The details are too long for this, but it essentially requires an extreme masochist to warrant the death penalty. And the waters get murky with Social Benefit theory (previously known as Utilitarianism). Where the death penalty, after number crunching, isn’t nearly as beneficial as making a life sentence work for his entire life. And these theories just make it hard to justify killing anyone, let alone someone who is mentally ill.
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