Bill that Bars Death Penalty for Convicts with "Serious" Mental Illnesses Fails Committee

Mar 7, 2019

Members of the House Judiciary Committee listen to Rep. Vivian Flowers's presentation on her bill.
Credit Sarah Kellogg / KUAR

A bill that would bar Arkansas prosecutors from seeking the death penalty for those convicted of a crime and with a diagnosed serious mental illness failed in the House Judiciary Committee on Thursday.

According to the legislation, qualifying medical conditions would include symptoms of delusions, hallucinations, extremely disorganized thinking, and mania.

The bill considers a person with a serious mental illness as someone who, "at the time of the offense, has active symptoms of a serious mental illness that substantially impaired his or her capacity to appreciate the nature, consequences, or wrongfulness of his or her conduct," among other qualifiers.

Rep. Vivian Flowers, D-Pine Bluff, the bill’s sponsor, who has introduced similar legislation in the past, spoke about the historical context of the death penalty and some who were against it.

"President James Madison, the author of the Constitution and the Bill of Rights opposed the death penalty. Benjamin Franklin similarly wasn’t a fan. Thomas Jefferson, who was known for frugality and limited government early in his political career, drafted legislation to limit executions at the state level in Virginia," Flowers said.

Jeff Rosenzwieg, a criminal defense lawyer, who has represented many death row inmates, spoke on behalf of the bill. He says current law prohibits the death penalty as a possible punishment for youth or the mentally disabled.

"The question is, 'Do we extend this to people who have mental illnesses?' Which are not their fault, just in the same way that youth is not someone’s fault or that mental retardation is not someone’s fault, but who has a mental illness. Do we make a societal judgement just that we are not going to execute this person," Rosenzwieg said.

Flowers said that a 2018 study by the American Bar Association estimates that this type of bill would save a state over $1 million a year. While this legislation would have impacted future cases, there is a clause that makes sure the law is not retroactive and does not apply to current inmates on death row.

Daniel Shue, the Twelfth Judicial District attorney for Arkansas, spoke against the legislation. He said although the bill says it would not allow previous cases to be affected by this new law, he was not sure if that would completely be the case.

"Even though it says it’s not retroactive, any defense attorney worth their salt is gonna claim equal protection. 'Well if it’s good for him and it’s good now, it should be good for me,'" Shue said.

More than one legislator had questions on whether this sentencing bill would change matters, considering defense attorneys can already pursue an insanity defense during a trial. Rep. John Maddox, R-Mena, was one of those lawmakers. He asked Dr. Benjamin Silver, a psychologist who spoke on behalf of the bill, about some of the examples of mentally ill patients Silver brought up during his testimony.

"Wouldn’t you agree with me that in all of these cases, their criminal defense attorney is going to raise the defense of not guilty by reason of insanity?" Maddox said.

The bill failed by a voice vote. However a roll vote was the called with 11 members of the committee voting against the bill, and five members voting for it.