The Kentucky legislature has passed HB 269 and sent it to the Governor for approval. The Bill precludes the death penalty for individuals who had “active symptoms” and a “documented history” of certain enumerated mental disorders at the time of the offense conduct. The list includes schizophrenia, schizoaffective disorder, bipolar disorder and delusional disorder. The proposed legislation does not require proof that the “active symptoms” had impaired the defendant’s rationality in any manner during the commission of the crime.
This approach has many problems, but I will briefly discuss two.
First, the term “active symptoms” is not defined and is thus a legislative construction. However, many of these disorder are notable for their negative symptoms. These include reduced motivation and a diminished experience of pleasure in life. These are real symptoms and their effects can profoundly adversely affect a person’s quality of life, particularly since they tend to endure even when other symptoms of the disorder have abated. However, given their nature, it is likely that anyone who has a documented history of one of the enumerated mental disorders will qualify as having “active symptoms” despite their level of lucidity.
Second, there is no logical or just reason why people only with a “documented history” should be treated differently. Obviously, the legislation envisions fraud as a reason for this requirement. But it is relatively common for people with these disorders to have no treatment history during the early course of their illness —not to mention that there is no moral reason to treat those who have not had the opportunity for treatment to be subject to a different punishment.
This is a bad Bill whatever your stance is on the death penalty.