A week before the execution, Muhammad’s lawyers, Jon Sheldon and James Connell, filed a petition for a stay of execution with the U.S. Supreme Court.  They asked the court to review evidence of Muhammad’s "severe mental illness."   The attorneys also asked Virginia Governor Tim Kaine to commute Muhammad’s sentence to life without parole.  Both court and governor declined.

This case starkly portrays one of the ways a defendant’s severe mental or cognitive disability can come into play in a criminal prosecution.  There are other ways, as well.  A person cannot be put on trial if she is so disordered that she cannot understand the nature of the proceeding or assist her lawyer.  The insanity defense is available in most courts for defendants who can prove that they were unable to understand or control their actions due to a “mental disease or defect.”  The US Supreme Court has found that a convict should not be executed if he cannot understand that he is being put to death or the reason that it is being done. 

The Supreme Court has also ruled that execution of children and people with “mental retardation” is prohibited because it is cruel and unusual punishment.  The Court has never decided if execution of a person with schizophrenia or other psychotic disorder is similarly unconstitutional.  (Muhammad’s lawyers did not argue that his disease made him exempt from the death penalty but that the jury should have been given an opportunity to exercise leniency.)

It’s clear that both the death penalty and questions of criminal responsibility for people with mental and cognitive disabilities are hot button issues.  Even when removed from dreadful and emotionally-charged cases like that of John Muhammad, people have a hard time seeing eye-to-eye in this area.  My experience tells me that juries should have all the information to make their decisions, but what those decisions will be is hard to predict.

The Supreme Court decided to prohibit the execution of people with “mental retardation” in 2002.  The Court left it up to each state to decide how to define “mental retardation” and how to determine if a defendant was truly mentally retarded.  Most states have done this, but not Oregon.  Why?  Because we can’t agree.

The latest attempt to find common ground was in 2008.  The Attorney General convened a group of disability advocates, prosecutors, defense attorneys and victim advocates to talk it over.  We were able to find common ground on a variety of matters but not on the main issue:

If a murder defendant claims to be exempt from the death penalty due to mental retardation and all the tests and evaluations show that the defendant is right on the border line, disability advocates and defense attorneys would err on the side of life without parole while prosecutors and victim advocates would err on the side of execution.  We all agreed that this type of case would be very rare but none of us were willing to concede the point.

If John Muhammad’s jury had been given all the information about his schizophrenia, would it have spared him from the death penalty?  I’d say it depends who was on the jury.

Should people with schizophrenia get an automatic pass on the death penalty?  Given the our still limited medical understanding of the disorder and the wide variety of people's severity, symptoms and treatments, I'd say no.  At least, not until the rest of us get that pass, to which I'd say yes.