Criminology

The number of imprisoned individuals with mental disabilities has continued to rise steadily in the past few decades. This has almost make prisons some of the biggest providers of mental health especially in America. The problem is that the prisons are not equipped to deal competently with the case of mentally challenged persons. This problem has worsened so much today that people who are mentally ill are being executed on conviction.  But this should not be the case mentally ill convicts should never be executed.

The environment around and in prisons poses great discomfort to these individuals who may not even be aware of the reasons that lead to their imprisonment in the first place. The impact of this problem is compounded by the fact that these mentally challenged prisoners have impaired thinking and emotional responses. These conditions are brought about by diseases such as schizophrenia, major depression, bipolar disease, and other major mental illnesses (Jamie, 2010).

In prison, the mentally challenged are also faced with other challenges such as lack of privacy, isolation from family and friends, lack of meaningful activities that could help them get better faster, violence from both fellow inmates and the prison wanders hence denying them peace of mind, uncertainty of the condition of life after prison, overcrowding and lack of sufficient health care facilities. The fact that the mentally ill prisoners lack sufficient mental health care facilities leave them either mistreated or under treated. This may also result to many prisoners receiving wrong types and quantities of medication. This may lead to further impairment hence deteriorating their conditions (Jamie, 2010)

According to Mental Health America, there are major gaps in the protection accorded by the law to the mentally challenged, especially when they are defendants, charged with capital crimes or convicted of the same. Sadly, America still permits the execution of the mentally ill convicts. This problem is not as simple as it may seem. According to research done by one of the leading mental health group, five to ten percent of all the inmates on death row suffer from acute mental illness (Mental Health America, 2010)

The mentally ill in prisons
Despite the fact that there is insufficient historical data, Jamie (2010) believes that the percentage of mentally ill prisoners is on the rise. A survey carried out in 1998 showed that out of the 31 states that responded, nineteen reported a disproportionate rise in the number of people sent to prison with mental illnesses in the previous five years. On one end, this may be attributed to the improvement in the diagnostic technologies. However, it is arguably true that the major cause for this trend is the fact that the number of people who are being imprisoned is rising steadily (Jamie, 2010).

One of the contributing factors to the number of mentally ill people in prisons, according to Jamie, is the crisis in the mental health system in the United States. It was recently reported by the presidential advisory commission that this system is in chaos. Some of the challenges facing this system include serious under-funding, fragmentation, and inability to be accessed by the minority classes. As a result of this situation, so many people who need services in mental health that are publicly financed are finding it very hard to obtain them. This happens until someone is in an acute state and considered dangerous both to him or herself and to others (Jamie, 2010).

When these individuals who have serious mental illnesses are left untreated and unstable, it becomes easy for them to break the law and face the system of justice. This is especially so if the concerned victims are poor addicted to drugs, homeless or are suffering from alcoholism which has not been treated. Criminalizing of the mentally ill, as Jamie calls it, is the resulting factor in this whole process (Jamie 2010)

Jamie provides some statistics that show the proportionate increase in the number of prisoners who are mentally ill. A survey of prisons conducted by The National Institute of Corrections (NIC) conducted a survey of prisons concerning mental health requirements and services shows that eighteen of twenty five states that participated reported a rise in the volume of prison populace with mental disabilities. In Connecticut, for example, the number of inmates with severe mental illness amplified from 5.2 to 12.3 of the state jail population. In New York prisons, the mental health cases have shot up by 73 from 1991, 5 times the prison populace increase. The percentage of prisoners with key mental infirmity in Colorado was five or six times more in 1998 than in 1988 (Jamie, 2010)
 
The report from Colorado, according to Jamie, includes the outcomes of its study of prison mental health directors concerning the percentage of inmates with severe mental disorders. Nineteen of thirty-one states participating in the survey observed a disproportionate rise in the population of inmates who have serious mental illnesses in the past five years (Jamie, 2010). Many people with mental illnesses would not have ended up in jail or even faced charges in court had they received the services they needed. It is the duty of the mental health system itself to ensure that the mentally ill persons do not enter the criminal justice system, if it has to be regarded as effective (Jamie 2010).

The punitive and aggressive policies by the state that are meant to fight crime have largely led many people who are mentally ill to end up in prisons. This trend is fanned by the so called war on drugs that has been carried out by security forces. These tough approaches in fighting crime have led to large numbers of prisoners. Among the ones cornered are the mentally ill. And due to the problems and challenges faced by such people during the process of prosecution, most of them end up in prisons (Jamie, 2010).

Looking at the numbers of the mentally challenged persons in the prisons, one can conclude that these institutions have been turned into facilities of providing mental health care. This is so despite the fact that prisons do not have the requisite facilities for these tasks. The mentally ill prisoners therefore fail to get the services they need both in terms of quality and quantity. These individuals need a team of staff which is qualified in order to evaluate the extent of their illness, plan and carry out treatment procedures and also to follow up on their progress (Jamie, 2010).  In prisons, they are given treatment that is little more than medication, which is not properly administered or even monitored. In some cases, they do not receive any treatment at all. They lead a life that is deficient of diversity of the interventions of mental health they need. The therapeutic and supportive environment that would help them manage their illnesses is not provided, and in cases where it is provided, it is on short term basis. This makes them suffer the pain of the symptoms of their illnesses as their condition deteriorates (Jamie, 2010).

On top of the mental health services issue, that one is never sure whether or not it will be provided, prisons usually treat prisoners with mental illness in the same manner as all other prisoners. The prisons do not have special allowances for the mentally challenged. Prison wanders use the same facilities on them, require them to follow the same routines, and require them to observe the same rules and regulations (Jamie 2010)

A significant number of those mentally ill individuals who are arrested are normally charged with capital cases. When found guilty, most face the threat of facing the hangmans noose.

Executing the mentally ill
In the United States, capital trials have been divided into two phases since 1976. The first question that needs to be answered is whether the accused is guilty or innocent of the offence he is charged with. In case it is proven that the defendant is guilty of a murder case that would call for execution, he proceeds to the next phase. This phase is called the penalty phase. Here, the decision to be made by the jury is whether to imprison the convict for life or to rule for execution (Mental Health America, 2010).

According to Mental Health America (2010), the issue of mental illness is very crucial when it comes to issues of capital trials. There are several aspects to be considered before subjecting an individual with mental illness to the process of capital trial. These aspects are discussed below.

First, it is important to note that those people with mental illnesses are more susceptible to pressure from police and may end up giving false confessions. Studies have shown that some characteristics associated with mental illnesses can cause a patient to give incorrect testimonies and false confessions. These characteristics include problems in cognitive processing, impulsivity, suggestibility, extreme compliance and delusions. It has also been established that mentally ill patients who are not mentally retarded have problems with understanding the Miranda rights which guard against self incrimination. They also have problems when it comes to the issue of access to an attorney that they are asked to forego by the police during the process of interrogation. It is therefore evident that mentally ill individuals may not demand their rights fully during the process of police interrogation. They may also end up give false confessions (Mental Health America, 2010).

Another aspect to be considered is the issue of competence to stand trial. The constitution of the United States is very clear on this matter. It states that before the actual trial starts, it must be proven that the concerned person is competent enough to stand the trial. Competence hearing will seek to establish whether the accused has both factual and rational understanding of the proceedings. It also determines whether the defendant has the ability to seek advice from a lawyer with a rational degree of understanding.  If for example a defendant is suffering from schizophrenia and is not at par with reality and has severe delusions, which means that such a person cannot expressively consult with the lawyer with a sensible amount of rational understanding, should be ruled out incompetent to stand trial (Mental Health America, 2010).

According to Mental Health America (2010), it is the duty of courts and juries to ensure that the mentally ill meet basic standards of competency before starting the trial. This they normally do on a routine basis. This implies that just because a defendant is delusional or schizophrenic, he she does not have to be judged incompetent to stand trial.

When a trial judge rules out that a defendant on capital trial seems incompetent to stand trial, he or she will be transferred to a mental hospital run by the state. Here, the doctors normally try to improve the mental condition of the patient. This is aimed at making sure that the patient attains the minimum standards required to face trial. In 2003, the Supreme Court came up with rules and regulations about when a defendant should be forcibly medicated to make them competent to stand trial. These rules relate to defendants who are not dangerous to themselves or to other people (Mental Health America 2010). According to the ruling in sell vs. United States, forcible medication should be restricted to those cases which are rare. Such medication should be medically appropriate, should be free from those side effects that may in one way or another distort the fairness of the trial, and should be necessary to considerably promote important government trial-related interests. This is after taking into consideration other possible alternatives. If a process like counseling would be an appropriate alternative, the government cannot force someone to take medication. The forcible medication may also not take place if the side effects threaten to abuse the fairness and equity of the trial process (Mental Health America 2010)

The insanity defense
Insanity is an important aspect when it comes to the process of prosecuting persons with mental illnesses. This issue is handled differently by different states. However, a common stand point is that insanity is a defense that the defense must raise and prove. The MNaghten test, is the most common test of insanity and seeks to determine whether the accused was unable to comprehend what he or she was doing when they committed the crime because of a problem in reasoning or an illness of the mind. In case the accused knew what he or she was doing, the test will seek to determine whether they knew that what they were doing was not right. The second test for insanity that is commonly used is the American Law Institute test (ALI). This test seeks to analyze the defendants ability to understand the criminality of his or her actions or conform his conduct to the requirements of law as a result of a mental disease or defect (Mental Health America, 2010).

In most cases, where the two tests are used, Mental Health America observes that the juries normally reject the defenses based on insanity even if there is sufficient evidence that the defendant was suffering from severe mental illness during the time when he or she committed the crime, especially in capital cases.

It is required by most capital murder statutes that the state proves beyond any sensible doubt that the accused had a clear intention to kill the victim. This is known as the ability to form criminal intent. It is evident that most defendants with mental illnesses could not be able to form a criminal intent to kill when they committed the said crime. A decided case between Clark and Arizona was particularly disturbing. (Mental Health America, 2010). In this case, the United States Supreme Court decided that defendants with mental illnesses do not have a constitutional right to give evidence showing that they were suffering from severe mental illnesses and therefore were not in a position to form a criminal intent to kill. But Justice Kennedy dissented, and declared,

In my submission the Court is incorrect in holding that Arizona may convict petitioner Eric Clark of first-degree murder for the intentional or knowing killing of a police officer when Clark was not permitted to introduce critical and reliable evidence showing he did not have that intent or knowledge (Mental Health America, 2010).

Mental Health America holds that during the penalty stage in the course of trial, evidence of mental illness may be significantly important. During this stage, the defendant has a constitutional right to give mitigating evidence or any other evidence that would form a strong basis for a life verdict. The defendant may for example prove to the court that he or she was seriously abused when they were a child and this would serve as good mitigating evidence. Despite the fact that evidence of mental health can be a good mitigation, it has been proven that jurors usually misapprehend the relationship between mitigating factors and mental illnesses. They normally consider mental illness a cause to call for death instead of life (Mental Health America, 2010).

There are other challenges that the mentally ill persons face during the process of trial. These include cases whereby due to their condition, they mistrust their lawyers hence failing to coordinate with them appropriately. In many cases, such defenders normally prefer to represent themselves and waive any chances of appeal. They may be led by their delusional beliefs that they are the only ones who can be able to represent themselves competently in a trial.

Case Study Penry v. Lynaugh
On the morning of October 25, 1979, Pamela Carpenter was beaten, brutally raped and stabbed with a pair of scissors. She was in her home in Texas. She died several hours later in the process of treatment. However, before she died she managed to describe her assailant. The description she gave helped the police to suspect someone by the name Penry, who had been recently released from prison on parole after he had been convicted of another rape case. The man made several statements that confessed to the crime. This led him to be charged with a murder case (OCONNOR, 1989).

Before the trial started, Penry was subjected to a competency hearing. In this hearing, Dr. Jerome Brown, said that the accused was mentally retarded. Penry was diagnosed as having organic brain damage. This could have been caused by trauma to the brain at birth. The accused was tested over the years and found to have an Intelligence Quotient of between 50 and 63. This shows serene to moderate retardation. According to Dr. Browns testing before the trial, Penry had an IQ of 54. Dr. Browns assessment also exposed that Penry had the mental age of a six and a half-year-old, despite being 22 at the time of the crime. This meant that he has the ability to learn and the learning or the knowledge of the average 6 12-year-old kid. The social maturity of Penry, or capability to operate in the world, was that of a nine- or ten-year-old. According to Dr. Browns testimony, theres a point at which anyone with Penrys IQ is always incompetent, but, you know, this man is more in the borderline range (OCONNOR 1989)

Penry was found by the jury to be capable to stand trial. On March 24, 1980, the guilt-innocence stage of the trial started. The trial court decided that Penrys confessions were deliberate. They were therefore included into evidence. The defendant brought before the court the issue of insanity. He supported this by the evidence of Dr. Jose Garcia, a psychiatrist. Dr. Garcia held that the accused was suffering from organic brain damage and moderate retardation. This condition led to poorly coordinated impulse control and lack of ability to learn from past experience. According to Dr. Garcia, brain damage that Penry suffered was perhaps caused during birth. This may also have been caused by injuries and beatings received especially from his mother during his early years. Due to the brain disorder that the defendant was suffering from, he was not able to appreciate the guilt of his actions when he committed the crime (OCONNOR, 1989)

According to the defendants mother, Penry was not able to learn at school, and he never went past the first grade. His sister told the court that their mother had frequently beaten him over his head while he was young. The defendant was also locked in a room without a toilet for long periods. He used to be taken to state hospitals every now and then. When he was 12 years old, his father removed him from school altogether. There were attempts by his aunt to teach him how to write his name for a whole year, but she did not succeed. (OCONNOR 1989)

The state on the other hand brought before the court the testimonies of two psychiatrists to counter Dr. Garcias testimony. One of these psychiatrists, Dr. Kenneth Vogtsberger, testified that despite the fact that the defendant was a person of inadequate mental ability, he could differentiate between right and wrong at the time of crime since he was not suffering from any mental illness or defect. He also argued that he had the ability to respect the rule of law. According to him, the defendant had features consistent with unsociable traits. These, according to the psychiatrist, included lack of ability to learn from experience, propensity to be impetuous and to infringe communal norms. Due to the defendants low IQ scores, Dr. Kenneth Vogtsberger believed there was an understatement of Penrys alertness and comprehension of what transpired in his environment (OCONNOR, 1989).

The other mental specialist who testified in the court for the state was Dr. Felix Peebles. According to him, the defendant was officially sound at the time of the felony and had a full-blown personality which was anti-social. Furthermore, Dr. Peebles informed the court that he had diagnosed the defendant himself with mental retardation both in 1973 and 1977. He said that Penry had an awful life in general. According to him, Penry was both socially and emotionally disadvantaged.  By the time of diagnosis, he had not learned how to write and read properly. The psychiatrist of the two sides agreed to the fact that the defendant was an individual of severe mental limitations and could therefore not learn from his mistakes. The only aspect they disagreed about was the extent and cause of the defendants mental illness (OCONNOR 1989).

Despite the evidence presented in court, the jury discarded the insanity defense by Penry. He was found guilty of capital murder by the court. Despite several trials to invalidate the decision, Texas Court of Criminal Appeals confirmed his conviction and verdict on direct appeal (OCONNOR, 1989).

Dealing with death penalty for the mentally ill
The above case shows clearly that despite the fact that executing people with mental disabilities has been expressly prohibited, a lot needs to be done in the legal system so that this prohibition may be of any significance. There are technicalities involved in defining insanity or mental illnesses and most defendants who deserve pardon end up being executed, as demonstrated by the above case.

According to Amnesty International (2010), the execution of people with mental illness or the insane is unmistakably forbidden by international law. Practically every state in the world prohibits the death sentence of people with mental illness (Amnesty International USA, 2010).

UN Commission on Human Rights requires all states that uphold the death penalty not to impose it on a person suffering from any form of mental disorder not to execute any such person. (Amnesty International USA 2010). UN Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions adds that governments that carry on with the use of the death penalty should do so with esteem to minors and the mentally ill. Above all, he has called upon all governments to bring their domestic legislation into compliance with global legal principles. According to Amnesty International USA, the UN safeguards, guaranteeing safety of the rights of those sentenced to die. The death sentence shall not be carried out on people who have turned out to be insane.

The sentencing to death of the insane means executing someone who dos not comprehend the reality of, or reason for his or her punishment. This clearly violates the United States constitution. The ruling in the case, (Ford v. Wainwright, 1986), gave each state the autonomy to determine for itself the issue of sanity. The United States constitution offers minimal protection to those individuals with other forms of mental illnesses. It is however notable that many people have been executed despite the fact that they suffer from severe mental illnesses. It has been established by The National Association of Mental Health that about five to ten percent of the people sentenced to death suffer serious mental illnesses (Amnesty International USA, 2010).

According to the authors of the op-ed in the Charlotte-Observer A death penalty trial is a long and heartbreaking experience for victims families, and likely especially so when they want the offender executed but the verdict is life. In the Shareef trial, much pain and many resources could have been saved had a law that has been proposed in the General Assembly been in effect. The trial these authors talk about is one in which a death row inmate was instead of being executed, was pardoned on the grounds of insanity (Death Penalty Information Center, 2010).

Current legislations
There is however an array of hope in the current legislations. In 2006, the American Bar Association resolved to call for the exclusion of people with severe mental illness from obligation and carrying out of the death penalty. There is only one state that prohibits the execution of somebody who is mentally unwell. This is Connecticut. The General Statute of Connecticut  exempts a defendant on capital charge from execution if his mental capacity was significantly impaired or his ability to conform his conduct to the requirements of law was significantly impaired but not so impaired in either case as to constitute a defense to prosecution(Mental Health America 2010)
There are other states such as North Carolina Tennessee, Kentucky and Indiana which have proposed bills that will exempt defendants who are suffering from serious mental illness from being executed. Such kind of legislation is vital when it comes to the protection of persons suffering from severe mental illnesses from execution (Mental Health America 2010)

Conclusion
It is evident from the discussion given above that is wrong to execute persons with mental disabilities. Laws have been put in place to ensure that. But these laws are not enough. Several definitions need to be made to rid the judicial system of the technicalities that have been making mentally ill people be executed, regardless of the law.