Abstract
This study examined the cases of women on death in which evidence of the defendant’s intellectual disability or mental illness was presented at trial. Of the total population of 52 women on death row at the beginning of 2020 and seven recently-executed women, over 50% qualified for the study. According to expert testimony, most of the women in the sample had a below-average IQ score and/or a neurological deficit, and all but three suffered from a serious mental illness. Almost all had abusive and dysfunctional backgrounds. Recent Supreme Court rulings have banned the execution of defendants with intellectual disability and opened the door to a consideration of execution exemption for defendants with severe mental illness or brain abnormalities. However, considerable judicial equivocation over the meaning and measurement of mental impairments remains. Even as a mitigating factor, the mental health problems of the defendants in this study were given little weight.
Introduction
By mid-morning on 15 June 1990, 18-year-old Maria Alfaro had made her first drug score. Some hours later the cocaine and heroin she had used to feed her addiction were gone, and she needed money to buy more. Alfaro settled on a burglary. Her target was the nearby home of a former high school friend whose family had briefly taken a homeless Alfaro in during her second pregnancy. Now pregnant with twins, carrying the younger of her two sons and accompanied by two acquaintances, Alfaro approached the family’s home. Her friend’s nine-year-old sister, home alone after school, recognized Alfaro and opened the door. Once inside, Alfaro picked up a knife from the kitchen and stabbed the young girl more than 50 times, then robbed the home of several objects and left. Alfaro eventually confessed to the murder. In March of 1992, a California jury found her guilty of first-degree murder, and in July of that year, she was sentenced to death. Due to the heinous and cruel nature of the murder and a young child as its victim, her death sentence was not unexpected.
Clearly, Alfaro had experienced a good deal of trauma and heartache in her young life. Both she and her mother were victims of her alcoholic father’s physical abuse. At age nine, she was raped by one of his friends. Her father eventually abandoned the family. By age 14, Alfaro was pregnant for the first of three times. She was already using drugs heavily, exchanging sex for drug money, and at times living on the street. As difficult as her life had been, dysfunctional backgrounds rarely carry much weight as mitigating factors in capital crimes (Smith et al., 2014; Sundby, 1997).
However, Alfaro’s defense did present evidence of a mitigating factor that today could exempt a defendant from a sentence of death regardless of the nature of the crime. Per several U. S. Supreme Court rulings since Alfaro’s sentencing, proof of a defendant’s intellectual disability (previously known and sometimes still referred to as mental retardation) disqualifies her for execution, and thus from a sentence (death) that cannot be carried out. Tests revealed that Alfaro had a significant learning disability and an IQ of 78 (the “average” IQ score is typically set at 100, with a score of 70 or below traditionally qualifying as intellectual disability). In his testimony, mental health expert Dr Consuelo Edwards argued that Alfaro suffered from an ongoing “organic mental disorder”; altogether, he described her intellectual functioning as “borderline.” In addition to these cognitive deficits, Edwards testified that Alfaro suffered from multiple forms of mental illness, including dependent personality disorder, attention deficits, and adjustment issues characterized by trauma-related anxiety and depression (see People v. Alfaro, 2007). However, even severe mental illness does not necessarily protect a defendant from a sentence of death. In spite of several appeals, Alfaro remains on death row, where she has lived for over 27 years.
Terminology around mental health problems is marked by inconsistency. For example, a particular impairment may be labeled a disability, disorder, deficit, condition, illness, or disease. Sometimes these terms are given a distinct meaning by a particular source, but at other times they are used interchangeably. In the most prominent diagnostic and statistical source on mental illness, the Diagnostic and Statistical Manual of Mental Disorders (DSM), all mental illnesses, along with intellectual disability, are referred to as disorders. However, relying on distinctions and terminology typically found in attorneys’ presentation of capital cases, I refer to intellectual disability and mental illness as two separate categories of mental health impairments.
Researchers have found an unusually high rate of mental impairment among death row inmates in the U.S. Of course, because women account for only 2% of death row inmates in the U. S., these findings apply almost exclusively to death-sentenced men.
This study examined the cases of women on death row in the U.S. whose trials and appeals included evidence from expert witnesses of the defendant’s intellectual disability and/or mental illness at the time of the crime. The sample consisted of the 29 women on death row at the beginning of 2020, along with four others who were executed after a June 2002 Supreme Court ruling banning the execution of inmates with intellectual disability, for a total of 33 women. With its gendered focus on the role of mental health issues in capital crime processing, this study contributes to the modest literature on the death sentencing of women in the U. S.
Intellectual disability, mental illness and the death penalty: A review
In their landmark 1986 decision in Ford v. Wainwright, the Supreme Court ruled that criminal defendants found to be insane could not be executed. However, the judicial definition of insanity is narrowly drawn. Relying in most jurisdictions on the 1843 M’Naghten rule, a finding of insanity requires that the defense prove that at the time of committing the act, the accused was laboring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he [sic] was doing or, if he did know it, that he did not know what he was doing was wrong. (Queen v. M’Naghten, 1843)
Following the lead of several states that had banned capital punishment for offenders with intellectual disability, the Supreme Court took the ban to the national level in 2002, ruling in Atkins v. Virginia that the execution of persons with intellectual disability violates the 8th Amendment’s prohibition of state-ordered cruel and unusual punishment and is therefore unconstitutional. According to Atkins, a finding of intellectual disability requires proof not only of “significant subaverage intellectual functioning” (usually defined by IQ), but also of “significant limitations in adaptive functioning” (commonly operationalized as a limitation in two or more skill areas), as well as “onset in the developmental period” (typically considered to be under age 18). Decisions about the specific measures used to determine such disability were left to the individual states, resulting in an array of disparate standards of proof (DeMatteo et al., 2007; Farringer, 2001), along with constitutional challenges regarding them (Taylor, 2014).
In Hall v. Florida (2014), the Supreme Court struck down Florida’s standard for intellectual disability as an IQ score of 70 or below; according to the Florida statute, a score above 70 rendered a defendant ineligible to present any further evidence of intellectual disability. The defendant in Hall had tested to an IQ of 71. Writing for the majority, Justice Anthony Kennedy argued that due to the standard error of measurement (SEm), questions about the reliability of IQ tests themselves, and effects of various testing conditions, IQ score on its own is an unsuitable determination of intellectual disability. Moreover, he noted, the “relevant clinical authorities all agree that an individual with an IQ score above 70 may be diagnosed with intellectual disability if significant limitations in adaptive functioning also exist.” Moreover, the American Association on Intellectual and Developmental Disabilities (AIDD) suggests that an IQ score of 75 or lower is a more accurate cutoff point; the AIDD also treats scores up to 84 as borderline intellectual functioning.
Another example of disparate burdens across states is Georgia’s statute requiring that proof of a defendant’s intellectual disability must be “beyond reasonable doubt.” Sara Totonchi (2020), the executive director of the Southern Center for Human Rights, refers to the assertion of a federal appeals court judge that Georgia’s standard for meeting this burden “demands a level of certainty that medical experts simply cannot provide” (p. 1). However, challenges to Georgia’s strict burden of proof have been rejected. The case of Billy Daniel Raulerson provides an example (Raulerson v. Warden, 2019). During his 1997 trial for the murder of three people, Raulerson’s defense presented ample evidence of the defendant’s intellectual disability, including an IQ score of 69. However, early IQ tests had produced higher scores for Raulerson – 78 at age 11, and 83 at age 14. Defense experts argued against the use of childhood scores to determine an adult’s intellectual status. But the judge, who had stated during trial that the IQ scores Raulerson had received as a child “undermine” his defense,” denied Raulerson’s request for sentencing relief.
In contrast to Florida and Georgia, the state of Texas adopted a set of loose, anecdotal standards known as the Briseno factors (based on Ex Parte Briseno, 2004) to determine intellectual disability. The seven factors call for reports from family, friends and others as to a defendant’s adaptive functioning. Among the questions are the following: “Did those who knew the person best during the developmental stage … think he [sic] was mentally retarded at that time, and if so, act in accordance with that determination?” “Does his conduct show leadership or does it show that he is led around by others?” “Can the person hide facts or lie effectively in his own or others’ interests?” In his analysis of Briseno in action, Crowell (2016) provides as an example the capital murder case of Juan Lizcano, who had a full-scale IQ score of 60. Family, friends and others had given an abundance of examples attesting to Lizcano’s adaptive deficits. Some, however, agreed that he could “use a phone, use a pen and pencil, operate a microwave.” The Briseno factors, Crowelll concludes, are “grounded in stereotypes and misconceptions about the intellectually disabled.” In March of 2017, in Moore v. Texas, the Supreme Court found the Briseno standards in violation of the 8th amendment in that they were not based on medical standards, but rather on popular impressions of intellectual disability,
Calls for a variety of neuropsychological defects to be considered as evidence of intellectual disability are numerous (Fisher, 1992; Miora, 2008). Brain abnormalities affecting executive and other functions, acquired brain injuries, drug-induced brain damage, brain atrophy, and learning disorders may all play a role in a defendant’s substantial limitations in adaptive functioning. While the above deficits are increasingly included in defense efforts to prove that intellectual disability may be caused by or go hand-in-hand with neuropsychological defects, courts have been reluctant to accept such arguments. As long as courts adhere to the DSM requirement that the characteristics of intellectual disability must have become visible during the developmental stage of life, this defense effort is likely to fail. However, several states are considering or have introduced legislation that would prohibit the execution of defendants with brain injuries (Baumgartner and Neill, 2017; Dewan, 2017).
As noted, in the past the narrow definition of insanity left most forms of mental illness off the table as qualifications for death penalty exemption (Beitsch, 2017; Dewan, 2017). Yet, there has been some effort to change this situation, particularly in regard to “severe mental illness.” Several prominent organizations, including the American Psychological Association, the American Psychiatric Association, the National Alliance on Mental Illness, and the American Bar Association, have passed resolutions recommending death penalty exemptions for defendants with severe mental illness. And, in June of 2007, SCOTUS ruled in Panetti v. Quarterman that certain mental illnesses could render a defendant incompetent for execution. Writing for the majority, Justice Kennedy explained: “[G]ross delusions stemming from a severe mental disorder may put an awareness of a link between a crime and its punishment in a context so far removed from reality that the punishment can serve no proper purpose. It is therefore error to derive … a strict test for competency that treats delusional beliefs as irrelevant….”
The American Psychological Association (APA) refers to severe mental illness as “mental disorders that carry certain diagnoses, such as schizophrenia, bipolar disorder, and major depression; that are relatively persistent; and that result in comparatively severe impairment in major areas of functioning.” Lists of serious mental disorders vary by source and some include, in addition to the above, schizoaffective disorder, delusional disorder, post-traumatic stress disorder, and personality disorders (American Bar Association, 2006; Dewan, 2017; Jaffe, 2017). However, these latter disorders are less likely than the APA’s examples to be included in legislation seeking to provide execution exemption for severe mental illness. Unfortunately, categorical operationalization ignores any consideration of the severity of the particular illness in a given individual.
Additionally, mental illness may actually work against a defendant’s interest: research suggests that jurors may view mental illness as an aggravating factor, particularly in regard to “future dangerousness,” a key issue in death penalty decisions (Blume et al., 2001). Additionally, mental illness may negatively affect a defendant’s courtroom decisions or behaviors (e.g. mistrust of attorneys, withholding of mitigating circumstances, abnormal affect in the courtroom) (Mental Health America, 2016).
Overall, death-sentenced inmates have notably higher rates of mental illness not only than those of the general public but also than those of other inmates (Brink, 2005; Cunningham and Vigen, 2002; Dunham, 2020; Freedman and Hemenway, 2000). While data on the rates of mental illness among death-sentenced women are lacking, there is some evidence that female inmates in general have higher rates of mental illness than their male counterparts in the U.S. Due in great part to variations in definitions and measurements, the numbers vary widely, e.g. 31% of women and 14.5% of men inmates at five jails in the northeast with a current serious mental illness (Steadman et al., 2009); 73% women and 55% of men in state prisons and 61% and 44% in federal prisons, respectively, with a mental health problem (Varney, 2014). And in his survey of recent research on the epidemiology of mental illness in correctional institutions, Brink (2005) found that female inmates had higher rates of mood disorders than male inmates.
Adversities such as childhood trauma and domestic violence are often presented by the defense as contributors to, even a part of, a given defendant’s mental illness. Histories of child abuse, while relatively high for both sexes, appear to be more common among female than male inmates (for comparisons, see Baumgartner and Neill, 2017). Other research (Lynch et al., 2012; Tripodi and Pettus-Davis, 2013) has found a clear link between histories of trauma and abuse and subsequent mental health problems, particularly among female inmates.
While the Supreme Court has ruled that defendants with intellectual disability cannot be executed, it has been more equivocal regarding mental illness as either an exculpatory or important mitigating circumstance. This study examined the case of each woman on death row in the U.S. to gain an understanding of the role of defendant’s mental health status (at the time of the crime) in sentencing and appeal decisions. Data on defendants’ background adversities were collected to give a fuller picture of the defendant’s life difficulties.
Methodology
Sample
The population to be considered for this study consisted of the 52 women on death row in the U. S. at the beginning of 2020 (NAACP Legal Defense and Educational Fund, 2020), along with seven women who were executed after the 22 June 2002 Atkins ruling. The criteria for inclusion in this study were:
one or more mental health experts presented evidence that the defendant had at least one of the following: below average IQ score; neuropsychological deficits; diagnosis or multiple symptoms of a mental illness previously identified as an Axis I or Axis II disorder in the DSM IV, including major depression, post-traumatic stress disorder, bipolar disorder, attention-deficit disorder, schizophrenia and other delusional disorders, and personality disorders; and at least one of the following issues: unspecified mental illness, long-term alcohol or drug addiction, prior suicide attempt, or battered woman history.
Of the population of 59 women, 33 (55.9%) qualified for inclusion in the sample. Racial breakdowns were similar for the full population of 59 (61.0% white, 24.2% black, 10% Latina) and the sample of 33 (60.6% white, 27.3% black, 12.1% Latina).
Data sources
Extensive searches revealed multiple sources containing information on the population of death-sentenced women and their cases. One particularly useful source was the Death Penalty Information Center, a national non-profit organization that provides “analysis and information on issues concerning capital punishment.” Court transcripts and summaries offered precise descriptions of the crimes, as well as prosecutorial and defense perceptions of the women, the “facts” of their cases, and testimony from mental health experts. Google Scholar provided references to numerous academic and newspaper articles on the study subjects and their social histories. Finally, a variety of popular websites gave in-depth case information, along with links to articles and court cases; among them were www.murderpedia.org, www.thoughtco.com, www.wikipedia.org, www.deathpenaltyusa.org, www.thewomancondemned.com, and www.mycrimelibrary.com. Data collection continued until no new information was surfacing.
For the most part, there was consensus among these various sources. The plethora of material allowed for considerable cross-checking and thus greater confidence in the reliability of the data. However, the data for this study did focus heavily on court testimony by expert witnesses for the defense. Given our adversarial system of justice, it is not surprising that in some (but not all) cases, the state challenged defense expert witnesses’ mental health diagnoses or their relevance to the crime at hand.
Of final concern is the likelihood of an undercount of the women on death row who met the requirements for inclusion in the study. Many of the women on death row have declared and maintained their actual or factual innocence. Here, in both the initial trial and subsequent appeals, the defense typically argued the case from this innocence perspective. Thus, rather than emphasizing mitigating circumstances such as mental illness, drug addiction, or abuse history during the sentencing phase of the trial, the defense focused on “poking holes” in the case itself, emphasizing evidentiary inconclusiveness or procedural violations in the state’s case. In some instances, the defendant had refused to talk with potential psychiatric witnesses, or at least had not been forthcoming in any such session in which she did participate. As a result, very little or perhaps nothing is known about some women’s mental health status other than an affirmation of their competency to stand trial. As ruled in Dusky v. U. S. (1960), competency only requires that the defendant be able to consult rationally with her or his attorney and have a rational and factual understanding of the proceedings against her or him.
Analytic strategy
Drawing from a review of the literature on mental impairment concepts, data from trial transcripts and related articles were coded under the sub-categories neurophysiological defects, diagnosed mental illness, and unspecified mental illness. And, based on prior findings regarding common background characteristics often presented by the defense as mitigating circumstances, I selected sub-categories for placement under the category “Background Adversities.” These data were then converted into frequencies and percentages and analyzed as such. For further analysis, I selected and presented individual cases typical of prominent patterns identified numerically.
Results
Overview
Table 1 provides a look at the mental health impairments, along with background adversities that might have contributed to such problems, of each of the 33 women. Twenty (60.6%) of the women had a low IQ score and/or a neurological deficit. Where specific IQ scores were available in court transcripts, they are so noted. Of the fourteen women with below-average IQ scores, at least four, including Maria Alfaro, had IQs in the 70s. Michelle Tharp, sentenced to death for the starvation murder of her seven-year-old daughter, had an IQ score of 71. A psychologist who evaluated her pre-trial diagnosed Tharp with schizoaffective disorder, adjustment disorder with anxiety, depressive disorder, and passive-aggressive disorder, but still found her competent to stand trial. According to another mental health expert who testified at her trial, Tharp also suffered from depression and drug addiction; she was abused as a child and a victim of domestic violence as an adult (see Pennsylvania v. Tharp, 2013).
Women on death row with mental health impairments, by race, by background adversities.
aThe “i” following notation of childhood sex abuse indicates that the abuse was incestuous in that offender’s abuser (or one of them if there were multiple abusers) was a family member (all of whom were males).
bdk refers to cases on which the author was unable to find any information.
cA “minus” following a notation indicates testimony that the offender had a below-average IQ or symptoms of the stated disorder; that is, these seem to be less certain or serious conditions.
dA “plus” following a notation indicates extremely violent battering or multiple suicide attempts..
Teresa Lewis, convicted of the murder-for-hire shootings of her husband and adult stepson, scored a full-scale IQ of 72, with a 70 on the verbal skills portion of the test. Lewis was also diagnosed by an expert for the defense with dependent personality disorder and drug dependency (see Theresa Wilson B. Lewis #1227, n. d.). She was executed in Virginia in 2010 after living on death row for eight years.
Lisa Graham, death-sentenced in 2015 for the murder-for-hire of her troubled 21-year-old daughter, had an IQ score of 77, along with neurological abnormalities. More than one expert for the defense reported that Graham suffered from borderline personality disorder, and a psychiatrist who had been treating her for two years before she was sentenced testified that Graham was afflicted with “recurring and severe depression.” At some time before the murder, Graham had also been prescribed medication for schizophrenia (Chitwood, 2015).
All but two of the women were diagnosed by one or more expert witnesses with a personality disorder and/or another Axis I or II mental illness identified in the DSM-IV. Additionally, at times mental health experts described persistent behavioral symptoms they judged to be indicative of mental illness, but either chose not to give or were unsure of the precise diagnosis. The fifth column in Table 1 identifies such cases with an “x”. At least four of the women had attempted suicide, three on multiple occasions.
The most commonly identified personality disorders were borderline and dependent, both of which are often associated with histories of significant abuse and trauma. Also among the commonly-diagnosed illnesses were clinical depression and post-traumatic stress disorder (PTSD), frequently linked to abusive backgrounds as well. This connective pattern continues with the number of offenders described by the defense as battered or dominated women (n = 14). Moreover, as referenced in Table 1, most of the women reported adult histories of troubled relationships with men.
History of abuse, intellectual disability and mental illness
Often described by defense experts as leading to or exacerbating their mental health problems were the decidedly dysfunctional backgrounds of the women; all but one of the women on whom there were family background data had grown up in very abusive households. Most had been victims of child or teen sexual abuse; in ten of those cases, the abuser was the victim’s father, and the abuse resulted in pregnancy in four of those cases. As further noted in Table 1, almost one-third of the women had had one or more teen pregnancies, and close to one-third had given up or lost custody of a child.
Death-sentenced for the robbery murder of two people and the wounding of a third in three separate incidents, Celeste Carrington had been under extreme emotional stress as she attempted to meet her female domestic partner’s “demands” for financial and care-taking support for their family of four. As a child, Carrington was the victim of ongoing parental abuse and neglect; her mother was rarely present. Between the ages of 7 and 14, she was regularly raped by her father, resulting in a pregnancy and abortion at age 14. A relationship with a boyfriend resulted in a second teen pregnancy (and birth). Testifying for the defense, psychiatrist Dr George Woods diagnosed Carrington with bipolar disorder. Moreover, he added, her long-standing depression and “environmental difficulties” contributed to her mental state at the time of her crimes. According to clinical psychologist Dr Myla Young, tests yielded evidence of a brain abnormality that compromised Carrington’s cognitive skills; the cause, said Young, could be genetic, trauma or illness (see People v. Carrington, 2009).
Like Carrington, Lisa Coleman grew up with abusive and neglectful parents; as a child, she was sexually assaulted by a family member and again by an acquaintance. She was raped in her teens and gave birth to the child born of that assault. Coleman, death-sentenced for the murder-by-abuse of her partner’s young child, was also diagnosed by an expert for the defense with severe depression and bipolar disorder. Additionally, Coleman had begun drinking and using drugs at age 13 or 14. Slipping further into the drug subculture, at age 18 she was arrested and given a five-year prison sentence for possession of a controlled substance. In her appeal, Coleman unsuccessfully argued that she should have been evaluated for neurological abnormalities (see Lisa Ann Coleman #1389, n.d.). She was executed in Texas in 2014.
Defense experts often described the ways in which repeated head trauma led to brain damage that affected the cognitive abilities of the defendant. The case of Virginia Caudill, sentenced along with a male co-defendant to die for the murder of Caudill’s ex-boyfriend’s mother, is illustrative. At her trial, an expert for the defense referred to tests showing that Caudill had a learning disability and “extensive brain damage from head trauma and drug abuse….” He also said that, according to personality tests, Caudill was “about as submissive as you can get, particularly with respect to men.” Following a childhood of physical abuse from her father, she had extremely violent adult relationships with a string of men. One former boyfriend reported that he had “backhanded Virginia so hard that she became unconscious.” Psychologist Dr Peter Schilling testified that Caudill had been “hit in the face by men more times than she could remember.” One of her boyfriends had broken “her wrist, nose and jaw at various times” and “repeatedly struck her face…” (see Caudill v. Conover, 2018).
Similarly, Margaret Allen, death-sentenced for the murder of her housekeeper, had been a victim of severe relationship violence. Neuropsychologist Dr Joseph Wu testified that Allen had at least 10 traumatic brain injuries, primarily in the frontal lobe. The damage, according to Wu, affects “impulse control, judgment, and mood regulation,” resulting in significant impairment to “her ability to understand and regulate proportionate responses in a consistent manner.” It would be hard, he continued, “for her to consistently conform her conduct to the requirements of society” Neurological physician Dr Michael Gebel concurred, noting that in at least four incidents, Allen had been beaten to the point of unconsciousness. According to Gebel, Allen suffered from organic brain damage and was at the “lower end of intellectual capacity”. Like Wu, Gebel testified that Allen “would have difficulty conforming her conduct to the requirements of the law.” Based on this testimony, the state argued that it was precisely these mental conditions that made the defendant a future danger to society. In an appeal, Allen’s defense team argued unsuccessfully that the trial court had erred in its dismissal of the substantial impairment of Allen’s capacity “to conform her conduct to the requirements of the law” as a mitigating factor. The appellate court responded that neither of the above experts “testified that Allen’s health condition substantially impaired her ability to conform her conduct to the requirements of the law,” as mandated in the express language of the relevant legislation (see Allen v. State, 2013).
Arguably the most infamous of death-sentenced women was Aileen Wuornos, convicted of the murders of six different men, all of whom had picked her up as she hitchhiked highways looking for tricks. Wuornos was vilified in the media, described as a man-hating lesbian and a she-wolf. Both state and defense experts diagnosed her with borderline personality disorder and agreed that at the time of her crimes she was experiencing mental disturbance and suffering from impaired capacity. As her trial progressed, her mental state worsened. Upon reviewing her records, psychologist Dr Jethro Toomer reported that Wuornos exhibited “transient periods of bizarre behavior, irrational impulses and delusional thoughts” and that her “overall functioning was characterized by the existence of mini-psychotic episodes, where reality is blurred and she is unable to adequately test reality.” Three defense psychologists testified that Wuornos showed evidence of brain damage, and that her capacity for conforming her conduct to the law was substantially impaired. As in the case of Margaret Allen, the question in the end was not over the existence of Wuornos’s impairment but rather whether or not such impairment was “substantial.” (Mental illness issues in the Aileen Wuornos case, n.d.). Wuornos was executed in Florida in October of 2002, some three months after the Atkins ruling took effect.
Substance addiction, intellectual disability and mental illness
Mental health experts for the defense frequently argued that long-term alcohol or drug addiction had negatively affected a given defendant’s cognition and/or was a factor in her mental illness. At least two-thirds of the women had long-term or off-and-on struggles with alcohol and/or drug addiction.
Shawna Forde, death-sentenced for the shooting murders of a father and his nine-year-old daughter during a home invasion robbery, had a long history of drug abuse. Forde, also a victim of childhood physical and sexual abuse and parental abandonment, started smoking marijuana when she was 10 years old. By the age of 12 she had become addicted to prescription opiates. At times as a young woman, Forde lived on the street and exchanged sex for drug money; she attempted suicide with drug overdoses on three difference occasions. Psychologists testifying for the defense also found that Forde had a below-average IQ and impaired insight and judgment. Furthermore, according to expert testimony, she suffered from emotional detachment and “several personality disorders” said to be brought on or aggravated by her childhood trauma and drug-affected early life (Sterling, 2011).
Lisa Chamberlin and her boyfriend were sentenced to die for the 2004 robbery murders of the boyfriend’s cousin and his girlfriend. Chamberlin began drinking at age 12; by age 13, she was using methamphetamine. At the time of the murders, both Chamberlin and her boyfriend were heavily addicted to meth. Chamberlin was raised in an abusive environment by alcohol and drug-abusing parents and sexually abused by a family member and others; as an adult, she endured multiple violent relationships with men, including her co-defendant boyfriend. At her trial and again during an appeal, court-appointed expert Dr Beverly Smallwood testified that Chamberlin had a below-average IQ, a learning disability and memory impairment. She also, according to Smallwood, suffered from PTSD and met the criteria for borderline personality disorder (see Chamberlin v. State, 2010).
Sample and data conundrums
As I collected data on each woman and her case, I faced several sample and data conundrums. I describe and give examples of them as both caveats and findings.
Decisions in regard to sample inclusion were not always easily made. The behaviors of some women were suggestive of mental illness, but expert testimony to that effect was weak, often consisting only of very general descriptions of “character defects” or problematic behavioral patterns. I did not include such cases in my sample. For several reasons, I did decide to include one woman in the study who did not openly meet the “other issues” requirement for sample inclusion. In 2019, Tiffany Moss was sentenced to die for the murder-by-abuse of her 10-year-old stepdaughter. Moss eventually won the right to defend herself, but she presented no case – gave no opening or closing statement, called no witnesses. On rare occasions, she briefly questioned a witness for the state. According to one reporter, when Moss did speak, she was “polite and pleasant, sometimes bubbling up with nervous laughter” (Rankin, 2019).
Neurological tests had shown that Moss had “damage to the premotor and prefrontal regions of the brain.” According to Dr Don Stein of the Brain Research Laboratory at Emory University, these areas of the brain “are very much thought to be intimately involved in executive function, decision making and impulse control” (quoted in Kellogg, 2019: 1). Because of the finding of brain damage, along with her trial behavior, I felt that there was probable cause to include Moss in this study.
In a few instances, the prosecution did present evidence of a defendant’s mental illnesses, but either used the diagnosis as evidence of her guilt or future dangerousness, or dismissed its relevance regarding the defendant’s conviction or sentence. At times, prosecutors argued that psychological findings were invalid due to the defendant’s untruthfulness.
The case of Antoinette Frank, sentenced to die for the murder of three people in the course of a robbery, provides an example. Testifying for the state, psychiatrist Dr George Seiden referred to an intake expert’s diagnosis that Frank had narcissistic personality disorder with anti-social tendencies. However, he argued, this diagnosis was not a mitigating factor because people with such conditions “are the dangerous and evil people in our world.” Although Seiden dismissed many of the findings from Frank’s MMPI test as a result of what he perceived to be her self-embellishing answers, he reported that she did reach clinical significance on a psychopathic deviate scale that measures authority conflict and rebelliousness. Additionally, the results of an earlier psychiatric exam had shown Frank to be below average in “insight and empathy, sound judgment and common sense, [and] freedom from [sic] psycho-pathology….” Another state witness, Dr Philip Scurria, testified that he believed she suffered from some psychopathology, but that evidence of a major psychiatric disorder was lacking. Overall, there was considerable confusion and disagreement regarding the “truth” about Frank’s mental health status and about her self-described history of family abuse. Initially, Frank made no mention of a background of repetitive physical and sexual abuse (leading to impregnation) by her father. In fact, it wasn’t until she had participated in several court-ordered psychiatric sessions that she described this abuse, leading the prosecutor to again question her truthfulness. On the other hand, Frank’s brother, Adam Frank, Jr, testified that his mother had told him after he had become an adult that his sister had been a victim of sexual abuse by their father (see State v. Frank, 2007).
Procedural issues: Defense appeals and mental-health-related mitigating factors
In addition to substantive issues, defendants’ post-trial appeals typically claimed various procedural “errors.” Such claims frequently involved the presentation of evidence of their mental state, the lack of attention to their mental illness as even a mitigating factor, and the low weight given to mitigating factors in general. For example, Angelina Rodriguez stated in her appeal that in spite of the court’s recognition of the need for a further psychiatric evaluation to determine her competency, no such evaluation took place. Michelle Tharp noted in her appeal that her defense team had failed to call the psychologist who had evaluated and diagnosed her with multiple mental illnesses to testify during the penalty phase of her trial. Virginia Caudill argued that the defense should have but did not call a particular expert witness who would have testified that she most likely had “cerebral damage” from her years of head trauma and severe drug abuse. And, Suzanne Basso’s appeal stated that her attorneys presented no mitigating evidence of any sort at her sentence hearing. In these and other cases, the court found against the appellant’s claims and affirmed both her conviction and sentence.
A particularly egregious case was that of Erica Sheppard. Sheppard pointed out that the findings of a psychiatrist regarding her competency to stand trial were not offered as evidence for mitigation in her sentencing. Had this psychiatrist or other experts been asked to testify as to mitigation, Sheppard argued, they would have uncovered overwhelming evidence of her cognitive deficiencies and mental illness. In her appeal, she presented evidence submitted by mental health experts to the effect that her intellectual functioning was below average, that she had a “brain dysfunction which impaired her judgment and decision-making ability,” and that she suffered from major depression, PTSD, and dissociative disorder. These mental illnesses, reported the diagnosing psychiatrist, were provoked by her “childhood and adolescent trauma.” In this case, the court did issue Sheppard a certificate of appealability on one of her several claims, i.e. “that counsel rendered ineffective assistance in the investigation, development and presentation of mitigating evidence during the punishment phase at trial” (see Sheppard v. Davis, 2017). As of August 2020, however, Sheppard was still on death row.
As in the instances described above, the appellants often claimed that procedural violations rendered their conviction or sentence invalid. However, judges did not agree; none of the women in the study has had their conviction or sentence reversed through appeal. Some appellants also claimed that mitigating circumstances were given little weight in the sentencing phase of their trial. The evidence from this study is consistent with this latter argument. Weighed against the severity of the aggravating circumstances in these capital cases, mitigating factors appeared to lose ground in the eyes of judges and juries.
Discussion: Gendered mental health problems among death row inmates
According to prior research, schizophrenia, anti-social personality disorder and bipolar disorder are among the most common mental illnesses found among men on death row (Baumgartner and Neill, 2017). At the same time, previous studies of mental illness among correctional inmates overall in the U.S. have concluded that women have a higher rate than men of DSM disorders associated with trauma and abuse (e.g. battered person syndrome, borderline personality disorder, dependent personality disorder, mood disorders, and abuse-related PTSD) (Brink, 2005). Findings from the current study suggest that these gender differences hold for death row inmates. Over 90% of the women in this study were diagnosed by at least one expert with one or more of the disorders of female inmates listed above; in contrast, there were just two cases of anti-social personality disorder and one case of (possible) schizophrenia among the women. Moreover, all but one woman on whom there were family background data had seriously traumatic and abusive childhoods; about 70% had been victims of sexual abuse. Additionally, beginning in their teens and continuing through adulthood, the women were often involved in a series of failed or abusive relationships with men. Over 40% were identified by one or more mental health experts as battered or dominated women.
Conclusion
Many of the women in this study had borderline IQs and considerable social adaptation limitations. However, the lack of agreement about specific measures of intellectual disability worked against these defendants at trial and in eventual appeals. This finding is consistent with prior research: due in great part to judicial insistence on a precise IQ score and a limited or vague definition of social adaptation, defense attorneys have struggled to make a convincing case that a particular defendant meets the criteria for execution exemption due to intellectual disability (Johnson et al., 2018.). Additionally, despite the arguments of numerous mental health experts that intellectual disability is not necessarily an inherent condition, it may be that the popular understanding of intellectual disability (especially known by its former label “mental retardation”) as a condition with which an individual is born has ample staying power.
Unlike intellectual disability, a confirmed diagnosis of “severe mental illness” does not legally require exemption from execution but only that such illness may be considered for exemption. Here also, one could argue that the reigning definition of insanity continues to resonate with many. Prosecutors often referred to or paraphrased one or more of the insanity criteria as evidence that various mental illnesses failed to meet the standard for execution exemption. Furthermore, the prosecutorial argument that the defense had failed to prove that a given mental illness had led to the defendant’s criminal act seemed to be successful, thus diminishing its importance as a mitigating factor. Relatedly, mental health experts’ explanations of links between histories of trauma and cognitive impairment did not seem to convince juries and judges to assign greater mitigation weight to such histories.
For the most part, the murders for which these 30 women were sentenced to die met legal requirements for capital punishment consideration (see Legal Information Institute, n.d.).For example, the crimes were committed in an especially heinous, cruel, or depraved manner and in the course of another felony, and they most often had involved planning and premeditation. On the other hand, the finding of possible intellectual disability and diagnosed mental illness among more than half of the women on death row in the U.S. does raise questions as to the legitimacy, as well as the appropriateness, of their capital sentence. Three of these women have been executed within the last ten years, long past the 2002 Atkins v. Virginia decision that not only banned capital punishment for defendants with intellectual disability but also expanded the definition of such disability to include substantial social adaptation limitations. Additionally, the 2007 ruling in Panetti v. Quarterman that required at least a consideration of severe mental illness as a condition for execution exemption was simply ignored in these cases.
Perhaps most importantly, the 8th Amendment’s prohibition of state-ordered cruel and unusual punishment was intended as an ethical safeguard following a criminal conviction. Advancing this intention was the Supreme Court’s 1958 ruling in Trop v. Dulles affirming courts’ right to nullify criminal punishments that are antithetical to “the evolving standards of decency that mark a maturing society.”
Supplemental Material
sj-pdf-1-pun-10.1177_1462474521998437 - Supplemental material for Intellectual disability and mental illness among women sentenced to death in the U.S.: Constitutional and evidentiary dilemmas
Supplemental material, sj-pdf-1-pun-10.1177_1462474521998437 for Intellectual disability and mental illness among women sentenced to death in the U.S.: Constitutional and evidentiary dilemmas by Kathryn Farr in Punishment & Society
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