Exempt from the death penalty defendants who, at the time of the offense, had a serious mental illness that significantly impaired their capacity to (a) exercise rational judgment in relation to conduct, (b) to conform their conduct to the requirements of law, or (c) to appreciate the nature, consequences or wrongfulness of their conduct.
- Individuals with serious mental illness have diminished culpability because of the adverse effects of serious mental illness
- Similar to current exemptions and procedures for individuals with intellectual disabilities (Atkins and Lott) and juveniles (Roper)
- Defendants would still be found guilty and sentenced to term of imprisonment
- Defendants required to present evidence to support exemption, and state has opportunity to rebut evidence
- Responds to appeal from Ohio Supreme Court justices for legislature to address the problem, as identified in several court cases
I. Proposal to Exclude from the Death Penalty—But Not from a Finding of Guilt—Individuals with Severe Mental Illness
Proposal: New Ohio Revised Code § 2929.025 to exempt from the death penalty defendants who, at the time of the offense, had a serious mental illness that significantly impaired their capacity to (a) exercise rational judgment in relation to conduct, (b) to conform their conduct to the requirements of law, or (c) to appreciate the nature, consequences or wrongfulness of their conduct.
This proposed exemption would affect only eligibility for the death penalty. It would not absolve defendants of legal responsibility for their crimes. They could be tried, convicted, and sentenced to long terms of imprisonment.
This proposal does not exempt from the death penalty those capital defendants whose mental disorders are attributable solely to voluntary use of alcohol or drugs.
Purpose: Individuals with serious mental illness have diminished criminal culpability because of the impairments caused by serious mental illness, thus they should not be subject to the ultimate penalty of death for their crimes.
It is well-established that individuals with serious mental illness experience barriers to evidence-based treatment that are caused by external factors outside of their control.
The proposed exemption is in line with similar exemptions for individuals with intellectual disabilities and juveniles; these exemptions are similarly based on the diminished culpability of the defendants.
A defendant shall not be sentenced to death if he/she had a serious mental illness at the time of the offense that impaired his/her ability to control his/her behavior. If the defendant submits prima facie evidence that he/she suffered from a diagnosis listed in paragraph (B)(1) at the time of the offense, it shall be rebuttably presumed that the condition significantly impaired the defendant’s capacity as described in paragraph (B)(2), such that the defendant shall not be sentenced to death. The state shall have the opportunity to put on evidence to contestwhether the defendant has a diagnosis of a serious mental illness and whether the serious mental illness significantly impaired the defendant’s capacity at the time of the offense.
Definition of “serious mental illness” (SMI): A defendant has a “serious mental illness” if he or she meets the criteria in (1) and (2), as limited by (3).
- The person has been diagnosed with one or more of the following conditions:
- Schizoaffective disorder
- Bipolar disorder
- Major depressive disorder
- Delusional disorder
- At the time of the offense, the condition(s), while not meeting the standard to be found not guilty by reason of insanity as defined at Revised Code 2901.01(A)(14), nevertheless significantly impaired the person’s capacity:
- to appreciate the nature, consequences, or wrongfulness of his/her conduct,
- to exercise rational judgment in relation to his/her conduct, or
- to conform his/her conduct to the requirements of the law.
- A disorder manifested primarily by repeated criminal conduct or attributable solely to the acute effects of voluntary use of alcohol or other drugs does not, standing alone, constitute a serious mental illness for the purposes of this provision.
- The person has been diagnosed with one or more of the following conditions:
III. Procedure Modeled After Similar Exemptions for Juveniles and Individuals with Intellectual Disabilities
The procedure to determine whether a defendant is exempted from the death penalty due to SMI is based upon the current procedures for determining whether a defendant was under age 18 at the time of the offense and whether a defendant is exempted from the death penalty due to an intellectual disability.
Defendant has the burden to raise the issue of SMI.
When raised, the judge holds a pre-trial hearing.
- Defendant has the burden of going forward with evidence to meet SMI criteria, including diagnosis and impairment.
- If defendant submits prima facie evidence of a diagnosis in (I)(B)(1), there is a rebuttable presumption that the condition so significantly impaired the defendant’s capacity at the time of the offense (I)(B)(2) that the defendant should not be eligible for a sentence of death.
- The state may then respond with evidence to rebut the defendant’s diagnosis (I)(B)(1) and/or the defendant’s capacity at the time of the offense (I)(B)(2).
- Only if trial judge finds that state refutes the presumption by a preponderance of the evidence, is the defendant eligible for the death penalty.
If trial judge finds that state refutes the presumption by a preponderance of the evidence, the defendant may submit the issue to jury at trial.
- Jury can find that defendant is not eligible for the death penalty based on SMI.
- Jury can also follow current procedure and find that aggravating evidence does not outweigh mitigating evidence (including defendant’s mental illness).
- If jury does not find defendant ineligible for death penalty and recommends death penalty, trial judge will consider evidence and can find defendant ineligible for death penalty and also follow current procedure to determine whether aggravating evidence outweighs mitigating evidence (including defendant’s mental illness).
Expert Testimony Required: The court must order an evaluation of the defendant. Current law regarding payment of indigent defense expenses applies (R.C. 2929.024).
Retroactivity Follows Procedure from Lott Case Re Individuals with Intellectual Disabilities: A defendant currently in prison under a sentence of death may file a petition for post-conviction relief specifically raising a claim under this section within 365 days from the effective date of this section. Petitions filed more than 365 days after the effective date must meet the statutory standards for untimely and successive petitions for post-conviction relief. As to capital cases currently pending trial, the trial court should hold hearings in accordance with this section.
IV. Individuals with Serious Mental Illness (SMI) Should Be Exempted from the Death Penalty Because They Have Diminished Culpability
Public opinion would appear to support such an exemption. A May 2002 Gallup Poll indicated that 75% of those surveyed opposed the death penalty for individuals with mental illness.
SMI causes serious impairments in the most important aspects of daily life.
- Education, Employment, and Housing: The impairments associated with serious mental illness (SMI) are of such severity that “[p]eople with SMI often have difficulty successfully completing their education, obtaining and maintaining competitive employment, acquiring adequate and safe housing, and establishing ongoing supportive relationships… with friends and family members.” As a result, people with serious mental illness have higher rates of unemployment and a greater likelihood of homelessness than the rest of the population.
- Social Functioning and Discrimination: Serious mental illness can cause serious and pervasive consequences for a person’s social functioning. “People with SMI are often unable to establish or maintain interpersonal relationships, and often lack even minimal social support systems.” They also experience social stigma, which results in “discrimination and prejudice from potential friends, neighbors, employers, landlords, and advocates.” 
- Co-Morbid Conditions and Early Death: Schizophrenia typically emerges when a person is in the prime of life between late teens and early 30’s. Cognitive deficits are common in schizophrenia, which in turn lead to vocational and functional impairments just at the time in life when fulfilling one’s education and/or career path is most crucial. Individuals with schizophrenia also often are in poor health and have a reduced life expectancy. Weight gain associated with medications, diabetes, cardiovascular and pulmonary diseases are common and the risk of chronic diseases is higher.
- Mood Swings and Behavior Impacts: Those persons with a bipolar disorder can experience months or years of recurring mood swings that wreak havoc on their daily lives. Their serious impairment “results from the major depressive episodes or from a persistent pattern of unpredictable mood changes” that are “sufficiently severe to cause marked impairment in social or occupational functioning or to necessitate hospitalization to prevent harm to self or others, or there are psychotic features.” As with schizophrenia, people with bipolar disorder also have high rates of serious and untreated medical conditions.
- Profound Impairment in Functioning: Those who experience major depressive episodes are often profoundly impaired in their ability to take part in and have simple enjoyment of daily life activities. “Many individuals report impaired ability to think, concentrate, or make even minor decisions.” Small, routine tasks such as getting dressed are exhausting. There is often a “sense of worthlessness or guilt associated with a major depressive episode….that may be of delusional proportions….Blaming oneself for being sick and for failing to meet occupational or interpersonal responsibilities as a result of the depression is very common….”
- Impaired Perceptions: Delusional disorder is a type of serious mental illness called a “psychosis” in which a person cannot tell what is real from what is imagined. The main feature of this disorder is the presence of delusions, which are unshakable beliefs in something untrue. People with delusional disorder experience non-bizarre delusions, which involve situations that could occur in real life, such as being followed, poisoned, deceived, conspired against, or loved from a distance. These delusions usually involve the misinterpretation of perceptions or experiences. In reality, however, the situations are either not true at all or highly exaggerated. People with delusional disorder often can continue to socialize and function normally, apart from the subject of their delusion, and generally do not behave in an obviously odd or bizarre manner. Delusional disorder most often occurs in middle to late life and is slightly more common in women than in men.
- Impact of Beliefs on Behavior: Delusional disorder can affect persons of all ages, but appears to be most prevalent in older individuals. Many with delusional disorder often have little functional impairment compared to other psychotic disorders and may not seek treatment. For some, the beliefs can be quite disruptive and influence a person’s behavior. When work, relationships, or other aspects of life are affected, it is usually because of the interference of the beliefs themselves. This interference can be devastating, and although most people experience only delusional disorder, some go on to develop schizophrenia.
Failures in treatment of people with serious mental illness are often caused by the disease itself or by external factors such as medication side-effects or lack of funding
- Awareness of Treatment Needs: Many people with SMI, particularly those with schizophrenia, do not realize or think that they need treatment. “Unawareness of illness is typically a symptom of schizophrenia itself rather than a coping strategy.” As one expert explains, people with schizophrenia “may be convinced that the profound delusions and hallucinations they experience at such times are reality – and that those who are trying to convince them to take their medications are the ones who are sick.”
- Medication Side Effects: The side-effects of medication are also a discouraging factor. People with serious mental illness may “resist medication because they know it can have serious side-effects, requires long-term maintenance, and is unevenly successful.”
- Lack of Access to Treatment: Finally, there is wide-spread lack of access to community-based treatment for serious mental illness. “As one study indicated, most people with mental disorders do not seek treatment because they ‘do not realize that effective treatments exist, fear discrimination because of the stigma attached to mental illness, afford treatment because they lack insurance that would cover it.’”  The American Psychological Association recognizes that “individuals with SMI are underserved generally, and the clinical services they do receive are seldom the evidence-based practices that have been shown to produce positive outcomes.” Government reports on services for serious mental illness “conclude that treatments of known effectiveness often do not reach the individuals that could benefit from them….[S]tigmatization and poor social policy account for much of this gap. In addition, there are too few psychologists with the clinical, administrative, and advocacy skills to make appropriate services available….”
Substance abuse and SMI are often co-morbid conditions, including self-medication
- Self-Medication: Because there is chronically inadequate access to treatment, and because some people with serious mental illness simply lack awareness of their disorders, self-medication with alcohol and/or drugs is common in people with serious mental illness.
- Co-Existing Conditions: Rates of “comorbidity” for substance abuse are high in people with schizophrenia and bipolar disorder. “[S]ubstance use disorder is the most common co-morbid complication associated with serious mental illness. It has been estimated that half of individuals with serious mental illness will have a co-occurring substance abuse problem at some point in their lives.” 
- Serious mental illness often co-exists with substance abuse. Thus, it is important to stress that a person with serious mental illness should not be subject to the death penalty unless it is determined that the person’s conduct is attributable solely to the voluntary use of alcohol or drugs.
V. Similar Death Penalty Exemptions Currently Exist for Individuals with Intellectual Disabilities and Juveniles
Atkins: Protection for Individuals with Intellectual Disabilities
In Atkins v. Virginia, 536 U.S. 304 (2002), the Supreme Court held that it is unconstitutional to execute individuals with intellectual disabilities, for two reasons. First, “[b]ecause of their disabilities in areas of reasoning, judgment, and control of their impulses, they do not act with the level of moral culpability that characterizes the most serious adult criminal conduct.” Second, “their impairments can jeopardize the reliability and fairness of capital proceedings”.
The Atkins Court reasoned that individuals with intellectual disabilities have deficits in understanding and processing information, communication, the ability to learn from mistakes, to engage in logical reasoning, and to control their impulses. This “diminished capacity” diminished their personal blameworthiness and did not advance the traditional reasons for capital punishment, deterrence and retribution.
Roper: Protection for Juveniles
In Roper v. Simmons, 543 U.S. 551 (2005) the Supreme Court held that execution of juvenile offenders under 18 was unconstitutional. As in Atkins, the Roper Court reaffirmed that the death penalty must be limited to “those offenders…whose extreme culpability makes them ‘the most deserving of execution.’” The Court decided that juveniles lacked that extreme culpability because of their immaturity and vulnerability and, again as in Atkins, held that “retribution is not proportional if the law’s most severe penalty is imposed on one whose culpability or blameworthiness is diminished….”
These Eighth Amendment principles of diminished moral culpability or blameworthiness apply with equal force to defendants in capital cases whose serious mental illness has a causal relationship to the crime or crimes committed.
- Similar Impairments: People with serious mental illness are not intellectually impaired. But, like people with intellectual disabilities, people with serious mental illness experience both cognitive and behavioral impairments as a result of their mental illness.
- Diminished Culpability: As the ABA Recommendation explains, serious mental illness diagnoses “are typically associated with delusions . . . hallucinations . . . extremely disorganized thinking, or very significant disruption of consciousness, memory and perception of the environment.” Thus, like people with intellectual disabilities, those with serious mental illness are significantly impaired in their reasoning, judgment, and impulse control. They do not act with the level of moral culpability required for imposition of the death penalty.
- Individualized Assessment: The proposal to exempt people with serious mental illness from the death penalty is not a categorical exemption like those for intellectual disabilities and juveniles. Rather, as the ABA recommendation stresses, it is an individualized and functional assessment of each defendant’s eligibility for the death sentence.
- First, the defendant must be found to have a serious mental illness at the time of commission of the crimes. But “preclusion of a death sentence based on diagnosis alone would not be sensible, because the symptoms of these disorders are much more variable….”
- Then, the defendant’s serious mental illness must be found to occur in connection with the crime. That is, the defendant must be found to have acted irrationally in connection with the offense; or that he failed to appreciate the nature, consequences or wrongfulness of his conduct at the time of the offense; or that he was unable to conform his conduct to requirements of law at the time of the offense.
- Finally, the defendant would not be exempted from the death penalty if his criminal conduct were “attributable solely to the acute effects of voluntary use of alcohol or other drugs.”
- And, any individual exemption from the death sentence would not negate the person’s criminal responsibility. Like other defendants, those with serious mental illness can and “should be tried and punished when they commit crimes.”
The Not Guilty by Reason of Insanity (NGRI ) Defense is Very Narrow
The ABA Recommendation notes that many seriously mentally ill offenders in capital cases will still be convicted and sentenced to death because of “the narrow reach of the (insanity) defense in most states….”
Ohio’s insanity defense is in fact very narrowly crafted. Under Ohio law, a person is not guilty by reason of insanity only if “the person did not know, as a result of a severe mental disease or defect, the wrongfulness of the person’s acts.” This standard does not allow for any degree of impairment, even one that is significant, in a defendant’s ability to “know” the wrongfulness of his conduct. It also does not allow for volitional impairment.
Although some defendants with serious mental illness might meet this high standard, many would not. “For example, people who have a mood disorder with psychotic features might understand the wrongfulness of their acts, but nonetheless feel impervious to punishment because of delusion-inspired grandiosity.” Yet there is no provision in Ohio’s law for a defendant to make a showing of NGRI by reason of impaired capacity to exercise rational judgment or impaired capacity to conform conduct to the requirements of law.
Mitigating Factors are Not Weighed in Favor of Individuals with SMI
Defendants in capital cases can present mitigating evidence of serious mental illness under two sections of the Ohio Revised Code. Section 2929.04 (B)(3) states that a mitigating factor is whether, at the time of the offense, the defendant lacked substantial capacity to appreciate the criminality of his conduct or to conform his conduct to requirements of law by reason of “a mental disease or defect.” Section 2929.04(B)(7), the “catch-all” provision, also allows capital defendants to present evidence of mental illness that might not rise to the level of subsection (B)(3).
Without a statutory exemption, however, that defendants have been and will continue to be sentenced to death even if they have a serious mental illness. See section VIII of this outline, which provides case examples from Ohio.
Aggravation instead of Mitigation: The Supreme Court, in both Atkins and Roper, recognized that two other factors that should be powerfully mitigating – intellectual disabilities and youthful age – can be perceived by jurors as aggravating factors
- “[R]eliance on mental retardation as a mitigating factor can be a two-edged sword that may enhance the likelihood that the aggravating factor of future dangerousness will be found by the jury.” Atkins v. Virginia, 536 U.S. 304, 321 (2002).
- “In some cases a defendant’s youth may even be counted against him. In this very case…the prosecutor argued Simmons’ youth was aggravating rather than mitigating.” Roper v. Simmons, 543 U.S. 551, 573 (2005).
Similarly, numerous studies have shown that, despite their instructions, jurors often consider mental illness to be an aggravating factor, not a mitigating factor, usually because they perceive persons with mental illness to be dangerous. Thus, “[j]ust as people with mental retardation and juveniles have ended up on death row despite mitigating characteristics, many people who experienced psychotic symptoms at the time of their crimes are sentenced to death.”
Reliable Testing: It is highly unlikely that a defendant in a capital case could successfully feign serious mental illness. Professionals in the fields of psychiatry and psychology have developed numerous professional instruments designed to reliably assess and detect faking of mental illness. The following are among the instruments developed by clinical and forensic mental health professionals in order to detect feigning.
- Ravens Standard Progressive Matrices
- Millar Forensic Assessment of Symptoms (MFAST)
- Structured Interview of Reported Symptoms (SIRS)
- Structured interview of Malingered Symptomatology (SIMS)
- Paulhaus Deception Scale
Collateral Information: These measures have been studied and validated by professional research. Moreover, use of these measures is not the only tool that experts use to determine if a defendant is feigning mental illness. “Third party” or collateral information is also useful. Forensic examiners rely on accounts of defendants given by family members, friends, neighbors, co-workers and records that document any medical or mental health services provided to defendants in order to make a reliable determination of whether a defendant is trying to feign mental illness.
Professional Diagnoses: As the Supreme Court recognized recently in Hall v. Florida, it is proper for state courts and legislatures to consult and rely on experts to diagnose and define mental conditions. “Those professionals use their learning and skills to study and consider the consequences of the classification schemes they devise in the diagnosis of persons with mental or psychiatric disorders or disabilities.”
No Evidence of Problem: Moreover, “there is virtually no evidence that feigned insanity has ever been a remotely significant problem of criminal procedure.” Indeed, some seriously mentally ill defendants will actually try to feign sanity to avoid the stigma of mental illness, even when their mental illness might otherwise serve as mitigating evidence in capital cases.
Justices Call for Examination by Legislature: Several Ohio Supreme Court justices have recognized the need to assess the proportionality of the death sentence for capital defendants with SMI. While there is no judicially-created exemption for capital defendants with SMI in Ohio, for nearly 20 years individual justices of the state supreme court have questioned the appropriateness of executing capital defendants with demonstrated serious mental illness.
In 1995, then Justice Craig Wright wrote this about a capital defendant, Wilford Berry, whose serious mental illness was not contested: “Some years ago I expressed the view that an individual with an intelligence quotient of a ten year old should not be subject to the death penalty….Similarly, I cannot sanction the penalty of death for a person who appears to be mentally ill.” Berry became the first person in Ohio to “volunteer” to be executed without pursuing post-conviction collateral review.
In 2001, capital defendant Jay D. Scott requested a stay of execution on grounds he was incompetent by reason of serious mental illness. Justice Paul Pfeifer dissented from the denial of a stay:
“Jay D. Scott is in no other way a sympathetic man….But I cannot get past one simple irrefutable fact: he has chronic, undifferentiated schizophrenia, a severe mental illness….As a society, we have always treated those with mental illness differently from those without. In the interest of human dignity, we must continue to do so…In this case, there is not doubt about the mental illness; the trial court found that Jay D. Scott has schizophrenia, a severe mental illness. I cannot sanction his execution.”
In 2003, then Chief Justice Thomas Moyer, joined by Justices Pfeifer and Lundberg Stratton, also dissented from the court’s affirmance of the death penalty for Stephen Vrabel:
“I am persuaded by clear evidence in the record that appellant suffers from a severe mental illness. On the record before us, I cannot conclude beyond a reasonable doubt that Vrabel’s mental illness did not contribute to his tragic criminal conduct, thereby reducing his moral culpability to a level inconsistent with the ultimate penalty of death.”
Justice Lundberg Stratton has been urging the Ohio Legislature to enact provisions exempting people with serious mental illness from the death penalty since her opinion in State v. Ketterer, 111 Ohio St. 3d 70, 2006-Ohio-5283, 855 N.E. 2d 48 (2006). Ketterer’s serious mental illness was undisputed in this case, and Justice Lundberg Stratton observed that “[d]eterrence is of little value as a rationale for executing offenders with severe mental illness when they have diminished impulse control and planning abilities.” The Justice wrote that “[t]he time has come for our society to reexamine the execution of persons with severe mental illness,” and urged the Ohio General Assembly to “consider legislation setting the criteria for determining when a person with a severe mental illness should be excluded from the penalty of death.”
Donald Ketterer, State v. Ketterer, 111 Ohio St. 3d 70 (2006): Death penalty imposed despite unrefuted evidence of history of SMI.
Ketterer went to the home of an elderly acquaintance whom he had known for many years, Lawrence Sanders, and asked to borrow money for a court fine. When Sanders said he had no money, Ketterer hit Sanders in the head with a skillet and then stabbed him, causing Sanders’ death. Ketterer took $60-70 and some loose change and left. Police later asked him to come to the police station, which he did. After denying that he killed Sanders, Ketterer confessed. He was capitally indicted for aggravated murder during the commission of an aggravated burglary and an aggravated robbery.
At trial, Ketterer waived a jury and want to trial before a three-judge panel. He pleaded guilty to a capital offense and was convicted. At the penalty phase, Ketterer presented testimony from two psychologists, Dr. Bobbie Hopes and Dr. Jeffrey Smalldon.
Their testimony and other evidence established that Ketterer had been severely abused by his father, who died when Ketterer was 13. After his father died, Ketterer began hearing his father’s voice, threatening to beat him. He had been hospitalized in 13 different cities and had a history of mental illness dating back to 1979. He attempted suicide multiple times. Ketterer’s family also was rife with mental illness. As Dr. Hopes testified, his family was “filled with people with depression, bipolar disorder, and suicides.” Dr. Hopes testified that Ketterer had a serious mental disorder, bipolar disorder, with psychotic features in that he had auditory hallucinations and paranoia. Like many people with bipolar disorder, Ketterer abused drugs and alcohol. According to Dr. Hopes, in the months preceding the crime, Ketterer deteriorated to the point that he attempted suicide after his landlord would not immediately fix the windows. According to Dr. Hopes, Ketterer had both poor impulse control and impaired judgment.
Dr. Smalldon likewise diagnosed Ketterer with a serious mental illness, bipolar disorder. Dr. Smalldon testified that, at the time of the crime, Ketterer lacked substantial capacity to conform his conduct to the requirements of law.
This penalty phase evidence was unrefuted. The three-judge panel, however, found that the aggravating circumstances outweighed any mitigating factors and sentenced Ketterer to death. The Ohio Supreme Court affirmed the death sentence. The court discounted Ketterer’s serious mental illness on grounds it was treatable and that Ketterer had failed many opportunities to take control of his life.
In her concurrence, joined by Justice Pfeifer, Justice Lundberg Stratton pleaded with the Ohio General Assembly to “reexamine the execution of persons with serious mental illness. Until the General Assembly does so, under our current law, they will continue to be executed.”
Stephen Vrabel, State v. Vrabel, 99 Ohio St. 3d 184 (2004): Death penalty imposed despite clear demonstrations and evidence of SMI.
Vrabel lived in Mahoning County with a woman, Susan Clemente, with whom he had a 4 year old daughter, Lisa. One day he went to a gun store and bought a .22 caliber handgun. He returned the apartment he shared with Ms. Clemente and began drinking and smoking marijuana. He then shot Ms. Clemente in the head as she was walking toward their kitchen. Vrabel said he shot her a second time because he did not want her to suffer. Then he thought that since her mother was dead and her father was going to prison for it, he should shoot their daughter. He shot Lisa in the head, killing her as well. He left the apartment, went to Wheeling and Columbus, and then returned to the apartment. He poured paint stripper over the bodies and went to sleep. When he woke up the next day he wrapped their bodies in blankets. He put Ms. Clemente’s body in the refrigerator and his daughter’s body in the freezer compartment. He put two stuffed animals in the freezer with his daughter.
Vrabel later drove to Parma and told a priest that he was involved in the murders of his wife and daughter. He asked the priest to come with him to the police station, where he was taken into custody. He confessed to the killings and was indicted on two counts of capital murder.
The trial judge appointed mental health experts to evaluate Vrabel’s competency to stand trial. He was diagnosed with paranoid schizophrenia or personality disorder with schizophrenic and/or paranoid features. These experts stated that Vrabel experienced hallucinations and said he heard the voices of Ms. Clemente and Lisa calling to him. According to the experts, Vrabel also said the his dead father’s voice ordered him to “kill us or them.” He was found incompetent and committed to the Timothy Moritz Forensic Center, where he remained from 1990-1994. In August 1994, doctors reported that he was competent to stand trial, and he was reindicted on the capital offenses.
After reindictment, Vrabel filed a pre-trial motion requesting a change of venue preferably to the “‘SPIRIT WORLD’ or if not permitted – North Korea, Vietnam, or any anti- American Islamic nation.” He listed the “Queen of Hearts” on a pro se witness list, and stated that “as character witnesses I need to go to North Korea where many women will testify I never laid a hand on them.”
After initially refusing to cooperate, Vrabel allowed two mental health professionals to evaluate him for an NGRI defense. Dr. Douglas Darnell concluded that Vrabel did not know the wrongfulness of his acts at the time of the murders and so testified at the guilt phase of trial. In rebuttal, the state presented testimony of Dr. James Giannini, who testified that Vrabel did know the difference between right and wrong at the time of the charged offenses. The jury convicted Vrabel on all counts.
Prior to the penalty phase, Vrabel informed the court that he was requesting that his counsel present no witnesses at the penalty phase other than himself. A psychiatrist appointed by the court found that Vrabel was competent to waive presentation of mitigating evidence. The only “mitigating” evidence presented to the jury was Vrabel’s unsworn statement in which he told jurors “[B]asically what I am saying is there is nothing of a mitigatory factor that can outweigh the aggravating circumstances that occurred most notably of two people’s lives being wiped out.” He was sentenced to death. The Ohio Supreme Court affirmed this sentence, stating that Vrabel’s mental illness did not outweigh the aggravating circumstances involved in the killing of Ms. Clemente and their daughter.
Chief Justice Moyer dissented, arguing as follows: “It is true that appellant did not meet the criteria of the insanity defense. However, the criteria for that defense are not legally equivalent to those required for mitigation.” As the Chief Justice put it:
I am persuaded by clear evidence in the record that appellant suffers from a severe mental illness. On the record before us, I cannot conclude beyond a reasonable doubt that Vrabel’s mental illness did not causally contribute to his tragic criminal conduct, thereby reducing his moral culpability to a level inconsistent with the imposition of the ultimate penalty of death.
Vrabel waived all further appeals after the Ohio Supreme Court decision. He did not file a clemency application. His counsel informed the parole board of Vrabel’s desire not to be interviewed for a clemency hearing and that he did not deserve clemency. He was executed on July 14, 2004.
Individuals with serious mental illness have diminished criminal culpability, but Ohio law fails to protect them from imposition of the ultimate penalty of death. It is essential that the legislature enact an exemption to ensure that the death penalty is not imposed on individuals with severe mental illness.
 Death Penalty/Gallup Historical Trends, http://www.gallup.com/poll/1606/Death-Penalty.aspx last visited July 22, 2014.
 “Proficiency in Psychology, Assessment and Treatment of Serious Mental Illness,” American Psychological Association (August 2009) at 7,16.
 Id. at 7, 8.
 DSM-5, supra note 4 at 101 – 102 .
 Id. at 102, 105.
 Id. at 124, 135.
 Id. at 132.
 Id. at 164.
 DSM-5, supra note 4 at 101.
 Ronald S. Honberg, The Injustice of Imposing Death Sentences on People with Severe Mental Illnesses, 54 Cath. U. L.Rev. 1153, 1161 (2005).
 Christopher Slobogin, Beyond Atkins: A Symposium on the Implications of Atkins v. Virginia, 33 N.M. L. Rev. 293, 311 (2003).
 Assessment and Treatment of Serious Mental Illness, supra note 14 at 9.
 DSM-5, supra note 4 at 105, 132, 294.
 Assessment and Treatment of Serious Mental Illness, supra note 14 at 3.
 Atkins v. Virginia, 536 U.S. 304, 306 – 307 (2002).
 Id. at 318 – 320.
 Roper v. Simmons, 543 U.S. 551, 568 (2005).
 Id. at 571.
 Recommendation and Report on the Death Penalty and Persons with Mental Disabilities, supra, note 3, at 670.
 Id. at 671.
 Id. at 671 – 672.
 Id. at 672.
 Atkins v. Virginia, 536 U.S. 304, 306 – 307 (2002).
 Recommendation and Report on the Death Penalty and Persons with Mental Disabilities, supra, note 3, at 672.
 Ohio Rev. Code §2901.01(14).
 Recommendation and Report on the Death Penalty and Persons with Mental Disabilities, supra, note 3, at 672.
 Scott Sundby, The Jury as Critic: An Empirical Look at How Capital Juries Perceive Expert and Lay Testimony, 83 V. L. Rev. 1109, 1165 – 1166 (1997); Christopher Slobogin, Mental Illness and the Death Penalty, 1 Cal. Crim. L.Rev. 3, paragraphs 19 – 23 and notes 66 – 82 (2003) describing studies, including studies by the Capital Jury Project as well as studies in California, Georgia, Pennsylvania that demonstrated jurors were more likely to weigh mental illness as an aggravating factor or to see it as inconsequential.
 Christopher Slobogin, What Atkins Could Men for People with Mental Illness, 33 N.M. L. Rev. 293, 304 (2003).
 Eastman, Green, Latham, Lyall, “Handbook of Forensic Psychiatric Practice in Capital Cases,” Appendix One (2013).
 Glenn Smith, “Brief Screening Measures for the Detection of Feigned Psychopathology,” Clinical Assessment of Malingering and Deception, 323 – 339 ( 3rd Ed. 2008).
 Randy Otto, “Challenges and Advances in Assessment of Response Style in Forensic Examination Context,” Clinical Assessment of Malingering and Deception, 365 – 375 ( 3rd Ed. 2008).
 Hall v. Florida, 572 U.S. ___, 134 S. Ct. 1986, 1993 (2014).
 Michael Perlin, The Jurisprudence of the Insanity Defense, 238 (1994).
 Id. at 240 – 241.
 State v. Mammone, __ Ohio St. 3d __, 2014 –Ohio-1942, ___N.E. 3d___ (2014).
 State v. Berry, 72 Ohio St. 3d 354, 367, 1995-Ohio-310, 650 N.E. 2d 433, 444 (1995).
 State v. Scott, 92 Ohio St. 3d I, 11, 2001-Ohio-148, 748 N.E. 2d 11 (2001).
 State v. Vrabel, 99 Ohio St. 3d 184, 200, 2003-Ohio-3193, 790 N.E. 2d 303, 319 (2003).
 State v. Ketterer, 111 Ohio St. 3d 70, 105, 2006-Ohio-5283, 855 N.E. 2d 48, 85 (2006).
 Id. at 108, 855 N.E. 2d at 87. See also, State v. Lange, 129 Ohio St. 3d 512, 560 -567, 2011-Ohio-4215, 954 N.E. 2d 596 (2011), Lundberg-Stratton J. concurring in judgment.