1. “ But who shall offend one of these little ones which believe in me, it were better for him
that a millstone were hanged about his neck, and that he were drowned in the depth of the
sea. “ ( Jesus speaking with his disciples discussing a remedy for those who hurt children)
Matthew 18:6
Introduction
In 1987 Cheryl Massip took her 6 week old child and threw him into oncoming traffic,
and when that attempt failed to end her young son’s life, she picked him up went into her garage
struck him on his head with a blunt object, then ran over him with her car twice. When asked by
the authorities why she did it, her excuse was he had colic and cried too much.1
A jury found Massip guilty and convicted her of second degree murder .2
However, two
short months later the trial judge overturned the verdict of the jury. In doing so he stated that it
was apparent that Massip was suffering from temporary insanity and ordered that she complete a
minimum of one year of psychiatric outpatient therapy.3
The trial judge concluded his opinion by
stating the evidence in the record was sufficient to support a finding at the very least Massip had
some “emotional disturbances” .4
The decision of the trial judge in the Massip case begs the following questions: Are we
living in a day and age where we as a society can accept such atrocious acts towards a child?
What legal argument can be made to defend an individual who has committed such a heinous act
against their own child?
1
Margaret G. Spinelli, MD Infanticide: Psychological and Legal Perspectives on Mothers Who Kill (2003). This
article displays a candid and detailed perspective outlining the chronological history of infanticide while
incorporating the psychological and cultural,aspects of this tragic offense).
2
People v. Massip, 271 Cal. Rptr. 868, 869 (Cal. App. 4 Dist, 1990) ( After giving birth to her newborn son, Massip
became symptomatic for post partum depression with psychosis, after killing her infant son Michael, Massip hid his
body in a trash can and alerted the authorities that he had been kidnapped. Only to recant her story later; initially she
was found guilty of second degree murder. The trial judge later vacated her verdict reduced it to voluntary
manslaughter and ordered her to participate as an outpatient in a treatment program for psychiatric disorders).
3
Id.
4
Id.
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2. Consideration should be given to the existence of certain variables that may be present in
incidents of infanticide before pre-judgment is made. This article posits the current case law as
well as the currents of social policy support the argument that the death penalty is not an
appropriate sanction for women convicted of infanticide that are clinically diagnosed with a
mental disorder.
The History of the Death Penalty
The implementation of the death penalty as a sentence for adjudicated offenses dates back
to the Eighteenth Century B.C. 5
Under the leadership of King Hammuarabi; a code was created
identifying twenty-five crimes that a person could be executed for. 6
Although there is much
debate today as to whether the death penalty is violative of the Eighth (8th
) amendment’s
definition of cruel and unusual punishment, during the time King Hammuarabi’s Code was being
enforced it was customary for a death sentence to be carried out in what could be considered
some of the most cruel and unusual ways.7
In the Century that followed, William the Conqueror forbade executions except during
times of war. However, after Henry the VIII became the new King that prohibition was lifted.
He would end his reign having executed some seventy two thousand (72,000) people.8
The year 1767 would prove to be essential for those in opposition of the imposition of the
death penalty. In that year Casare Beccaris, a European theorist authored an essay titled ”On
5
L. Randa “Society’s Final Solution: A History and Discussion of the Death Penalty, “ University Press of
America, 1997.
6
Id.at 2.
7
It was not uncommon for an individual to be executed by crucifixion, drowning, beating to death, burning alive and
impalement.
8
Id.at 3 .
- 2 -

3. Crimes and Punishment”.9
Beccaris’ theory was that there was never any real justification for
the taking of any human life.10
The first reform for the death penalty was called by Thomas
Jefferson.11
His plea was for Virginia’s death bill to be revised to reflect the death penalty
should be used only for crimes of murder and treason. Sadly this bill would never be passed as it
was defeated only by one vote.12
In 1958, the U.S. Supreme Court interpreted the 8th
Amendment
of the U.S. Constitution to contain an “evolving standard of decency”.13
Death penalty opponents have interpreted that standard to mean as a progressive country
we should not tolerate the use of the death penalty.14
In 1972, the Supreme Court suspended the
use of the death penalty in the seminal case Furman v. Georgia, 408 U.S. 238.15
By 1976, the
holding of the Supreme Court in Gregg v. Georgia, 428 U.S. 153; Jurek v. Texas, 428 U.S. 262;
and Proffitt v. Florida, 428 U.S. 242 later known as the Gregg decision(s) would change the
dynamics of the death penalty. 16
9
W. Schabas, The Abolition of the Death Penalty in International Law, Cambridge University Press, 2nd Edition
1997. ( Describes how early theorists categorized the uses of the death penalty and why it was thought to be one of
the most heinous offenses towards mankind).
10
Id at pg. 1 This theory gave abolitionists the much needed support and voice behind their movement against the
death penalty. Beccaris’ theory became a very popular one in the United States.
11
Id.
12
Id.
13
See Trop v. Dulles 356 U.S. 86 (1958), Albert L. Trop was a native-born American. In 1944, he was a private in
the U.S. Army, serving in French Morocco during World War II. Imprisoned there for a disciplinary offense, he
escaped on 22 May. Although Trop never offered any resistance and had been gone only one day, he was tried
before a court-martial and convicted of desertion. In 1952 Trop, after serving his 3 yr sentence, Trop applied for a
passport. The State Department refused to issue one, citing a provision of the Immigration and Nationality Act of
1940 which made a conviction for wartime desertion and dishonorable discharge punishable by loss of American
citizenship. Trop sued in federal district court seeking a declaratory judgment that he was still a citizen. Federal
Court ruled against him, on appeal to the United States Supreme Court it was reversed and remanded back to the 2nd
Circuit, Justice Warren citing the 8th
amendment of the US Constitution as the “evolving standards of decency” and
held being stripped of citizenship as cruel and unusual punishment.
14
See R. Bohm, Deathquest: An Introduction to the Theory and Practice of Capital Punishment in the United
States, 1999, See also, Infra note 74 ( for discussion of applicability of “evolving standard of decency to refute
arguments supporting the execution of any individual with mental illness, specifically diagnosed women guilty of
infanticide)
15
See Furman v. Georgia, 408 U.S. 240 at 2727-2728) This case marked the landmark decision that the Death
Penalty was considered cruel and unusual punishment and set forth a standard that a punishment would be
considered “cruel and unusual punishment” if it was too severe for the crime, if it was deemed arbitrary, if it
offended society’s sense of justice, or if it was not more effective than a less severe penalty. The decision was based
on nine separate opinions of the justices.
16
See Gregg v. Georgia 428 U.S. 153 at 2919-2922, If everyone found guilty of a capital crime cannot automatically
be sentenced to death, the sentencing judge and jury must guided discretion in choosing between life imprisonment
- 3 -

4. Since the reenactment of the death penalty there have been 1099 executions in the United
States.17
Currently, there are 14 states which have abolished the death penalty.18
Of the 3,350
prisoners on death row; women comprise 1.7% of the population roughly 51 in number.19
Of
that population 11 were convicted for killing their children.20
Infanticide
Cultural Perspective
Infanticide is defined as the act of killing a newborn child, especially by the parents or
with their consent.21
Female infanticide has for centuries been a prominent and socially
acceptable event in two areas of the world: India and China.22
It is clear that the onerous costs
involved with the raising of a girl, and eventually providing her an appropriate marriage dowry
was the single most important factor in allowing social acceptance of the murder at birth in
India.23
With an extremely high infant and child mortality rate, and because of sparse food supply
and medical care, a married couple needed to raise three sons in order to ensure the survival of
one into adulthood. The prevalent attitude of the past in these nations was one of lesser value for
and the death penalty on a case by case basis. This choice must take into consideration both the nature and
circumstances of the crime and the character and background of the offender. In addition the jury must take into
account any aggravating factors that may have been present as well as mitigating factors on behalf of the defendant,
the defendant has a right to an automatic appeal and a proportionality review.
17
Id. at pg 2
18
Death Penalty Information Center, See year end report for 2007 (pdf file). The following states have abolished
the use of the death penalty: Alaska, Hawaii, Iowa, Maine, Massachusetts, Michigan, Minnesota, New Jersey, New
York, North Dakota, Rhode Island, Vermont, West Virginia, Wisconsin and the District of Columbia
19
Victor Streibs “ Death Penalty for Female Offenders January 1973- to December 2002”. Ohio Northern
University. ( A 20 year history of the effects of the death penalty implemented against women and societal views ).
20
Id.
21
See Black’s Law Dictionary 356 (18th
ed. 2005)
22
The Society for Prevention of Infanticide, See also, Larry S. Milner, MD., ”Hardness of Heart, Hardness of Life,
The Stain of Human Infanticide”. University Press of America 2000
23
Id. pg. 36
- 4 -

5. females and a reluctance to take on what was perceived to be a financially cumbersome
obligation. Therefore they were often killed at birth.24
Some remnants of this attitude remain
today in those cultures.
In stark contrast to India and China, infanticide was so prevalent in early England that
Parliament enacted the Infanticide Act of 1922 .25
This act provided that a woman who was
found to have murdered her young infant/child was spared the death penalty if she could prove
that while giving birth there was a disturbance to her mind.26
In 1938, the act was extended to
include women who were affected by the consequential lactation that took place after the birth of
the child. 27
In England, infanticide has been treated as a lesser offense of manslaughter; whereas in
the United States it is categorized as murder. In December 1638, Dorothy Talby became the first
woman ever executed in the United States. She had been found guilty of the murder of her
weeks old infant daughter Difficulty.28
In 1642, the State of Massachusetts enacted a law
making the concealment of a murdered illegitimate child a capital offense.29
Various sources cite economic strife as a factor contributing to the incident of infanticide
while other sources contend that mental disorders play a colossal role in this all too often tragic
24
Id.
25
Supra Note 26 “Society for the Prevention”
26
Id.
27
Id., The purpose of this Act was to ensure that the mother would receive a more proportionate sentence for her
crime, because it was typical for most women to receive a mandatory life sentence or the death penalty for the
offense of Infanticide in Early England, without giving consideration to her mental state of mind.
28
Laura James, Esq., See “Mad as Ophelia”, John and Dorothy Talby came to the United States from England and
settled in the colony of Massachutes. After the birth of their fifth child, Dorothy began to exhibit signs of
postpartum, not identifiable in those days, she was subjected to public beatings and chained to a pole in the middle
of the square for the mistreatment of her infant daughter, Difficulty. She strangled the child and admitted to doing so
at her trial, as a result of old common law she was sentenced to death and requested to be beheaded; however she
was hanged in the town square just 2 days after her conviction.
29
See Ho:Ka Encyclopedia of Death and Dying, Infanticide Forum; See also Susan Crimmins and Sandra Langley
discussing societal views and why as a society we expect convictions for women who have killed their own children
because the thought of mental illness is shielded by the act itself. “Convicted Women Who Have Killed Their
Children” A Self Psychology Perspective, Journal of Interpersonal Violence Vol.12, 1997 at 51-53
www.deathreference.com/Ko-Ka/Infanticide.html (2007)
- 5 -

6. occurrence. Statistically, the United States ranks high on the list of countries whose inhabitants
kill their children. For infants under the age of one year, the American homicide rate is 11th in
the world, while for ages one through four it is first and for ages five through fourteen it is
fourth. From 1968 to 1975, infanticide of all ages accounted for almost 3.2% of all reported
homicides in the United States.30
More than 600 children were killed by their parents from 1982-1987 in the United
States.31
At least 1.1% were under the age of one year. Typically the youngest child was at risk
for infanticide; however an older child was typically murdered by someone other than the
parent.32
In the United States, poverty seems to be the most prevalent factor, coupled with the
mother’s age, lack of education, employment, substance abuse issues and psychiatric history.33
Religious Perspectives
In the view of the Christian church throughout Europe, infanticide was considered a
forbidden act against the church.34
The typical punishment by the church for a woman found
guilty of killing her child ranged from eating only water and bread for one year or two years
without wine or meat and even death in some circumstances .35
However, the resistive views of
the pagans and their vast superstitions laid premise for infanticide to continue.36
The laws of Judaism were clearly against the taking of human life, and specifically
forbade the killing of any newborn infant.37
From this perspective, infanticide was regarded as a
30
See Supra Note 22 “ Larry S. Milner MD”.
31
Id. at 133
32
Id. at 133-134
33
See Supra Note 32, these factors are not always typical of the assailant, the most common factor seen today would
be described a mental infirmity or impairment.
34
William L. Langer, Infanticide: A Historical Survey, 1 Hist. Childhood Q. 353, 355 (1974).
35
See Kathryn L. Moseley, M.D. The history of Infanticide in Western Society, 1 Issues in Law and Medicine 345,
349, 1986
36
Kate Dauber, Infanticide: The Practice of the Pagans at 63-65 (1998)
37
Id. at 65
- 6 -

7. criminal act and worthy of the death penalty.38
They denounced the practices utilized by the
Israelites known as child sacrifice and strongly opposed what had become known as a religious
custom held in the strict accordance with the embedded social tenets of all the powerful and
ancient civilizations.39
Mental Illness
The Diagnostic and Statistical Manual- IV is a listing of categorized classes of various
mental disorders written by the American Psychiatric Association.40
Although the DSM-IV
provides the most accurate data for assessing mental disorders, no inference should be made that
all individuals who have the same mental disorder also have the same characteristics.41
The
DSM-IV is critical for its’ use as a classification instrument in the area of mental disorders.42
Because of both the mental and physical complexities involved, the DSM-IV merely acts as a
guide to better understand the concepts of a mental disease and/or disorder. The DSM-IV does
not offer definitive expressions of what constitutes mental illness. It is not a substitute for the
judgment of a trained and qualified physician or psychologists.43
Sentencing guidelines that refuse to consider the diagnosis of a qualified physician,
prohibit or limit the ability of the court to use that diagnosis as a mitigating circumstance, or
38
Daniel Schiff, Abortion in Judaism, at pg. 23 explaining the law according to the “Mishnah” ( The Jewish
Torah/Bible) expressing the acceptance of the death penalty for the act of infanticide of a infant as young as one day
old. (2002)
39
John C. Caldwell, and Bruce K. Caldwell, Family Size Control by Infanticide in the Great Agrarian Societies of
Asia, Journal of Comparative Family Studies, Vol 36, (2005)
40
Diagnostic and Statistical Manual IV at xxxi, (2004) The DSM uses a multi-axial or multidimensional approach
to diagnosing because rarely do other factors in a person's life not impact their mental health. It assesses the
following five dimensions: Axis I, Clinical Syndrome, Axis II, Developmental Disorders and Personality Disorders,
Axis III, Physical Conditions, Axis IV, Severity of Psychosocial Disorders and Axis V, Highest Level of
Functioning.
41
Id. at xxxi, See Issues in the Use of the DSM-IV
42
Id. at xxx, See Definition of Mental Disorder
43
Id. at xxx, See Supra Note 52
- 7 -

8. deny the effect of a pre-existing condition on the mens rea of the mother convicted of infanticide
also contravene the expertise of the medical professional.
As with the DSM-IV the legislature of any state should not substitute its’ judgment for
that of a trained and qualified physician. Similar to the treatment of the DSM-IV, the legislating
bodies of the States should not be allowed to substitute their judgment for that of a trained and
qualified physician.
Commonly Diagnosed Mental Illnesses Associated With Infanticide
Schizophrenia is a mixture of characteristic signs and symptoms (both positive
and negative) that have been present greater than a one month period.44
Most often the individual
experiences delusional concepts and hallucinations and ideations of persecutions.45
Delusions
can be bizarre or non-bizarre.46
A person labeled psychotic has been diagnosed with a form of schizophrenia that is often
associated with postpartum disorders.47
It is often associated with delusions, hallucinations,
disorganized speech, and catatonic behavior.48
We will examine this disorder later in greater
detail.
The delusional patient will often have more than one non-bizarre delusion that may last
as long as one month.49
It is not common for the patient to experience auditory or visual
hallucinations with this disorder, however they may present with symptoms associated with
44
Id. at pg. 298
45
Id. at 298-299
46
DSM-IV at 299 defines bizarre as having ideations that your organs have been removed from your body and
placed into someone else’s. Non bizarre is also considered as paranoia delusions, example: One may believe that
they are being followed by the police.
47
Id at 343, DSM-IV codes this disorder as 298.90 and suggests that this disorder is one that is ordinarily used when
there is inadequate information to make a specific diagnosis or when the information gathered upon assessment is
contradicted, or the patient’s symptoms do not meet the criteria for any other psychotic disorder.
48
Id. at 344
49
Id at 323, DSM-IV codes this disorder as 297.10. This type of disorder is often accompanied with one of seven
subtypes, Erotomatic, Grandiose, Jealous, Persecutory, Somatic, Mixed and Unspecified Type.
- 8 -

9. tactile or olfactory hallucinations.50
Usually when the olfactory is affected by delusions with this
disorder, the patient may express physical infestation of insects all over their body or that the
body is emitting a foul odor. 51
By comparison, the brief psychotic disorder almost mirrors a psychotic form of
schizophrenia. However, there are some subtleties that set them both apart. One difference is
that a delusional episode can last anywhere from one day to one month.52
This disorder has been
observed when specific symptoms manifest themselves at the time the patient is experiencing an
episode.53
Women commonly diagnosed with this disorder may have experienced the birth of a
child within the past four weeks.54
Most patients diagnosed with this disorder have experienced
insurmountable confusion and/or an extreme emotional upset.55
Evidence suggests that this
disorder may be different from schizophrenia and mood disorders as a whole.56
Postpartum Depression
The diagnosis of Post Partum depression dates back to the Fourth Century.57
It is
believed that Hippocrates was the first medical practitioner to diagnose a patient with this
illness.58
It is not uncommon for new mothers to shelter their feeling of depression from fear of
being categorized as “bad mothers” foregoing the receipt of necessary treatment to combat their
50
Id. at 323
51
Id. at 323, the patient normally feels that the odor is coming from a body orifice. This is no a consistent symptom
exhibited by most patients.
52
Id. at 329, this form of schizophrenia may often be found in women directly after they have given birth and is
considered what is called a “stressors”. Stressors can be marked or unmarked, meaning that the events that would
typically lead to a “ psychotic episode” have no particular bearing on the patient., and the “episode” was caused by
some other factor not present at the time of the patients initial assessment.
53
Id. at 330
54
Id. at 330 See Specifiers
55
Id at 330 describing a stressful event which may initiate a psychological breakdown such as one that the patient is
unable to develop normal and proper coping skills.
56
Id at 331 See Associated Features and Disorders
57
Jeffrey Liberman, “The American Psychiatric Publishing Textbook of Schizophrenia”, at pg. 4 (2006)
58
Id. at pg 4
- 9 -

10. illness.59
They tend to isolate themselves from friends and family in an attempt to communicate
about the way they may be feeling towards their baby.60
Women who experience this form of
depression may be void of any psychosis.61
Patients diagnosed with post partum depression
commonly have delusional ideations that their baby is possessed and must be killed.62
This
condition is most prevalent in first time mothers63
, even though the mother may have never
experienced a psychotic episode.64
However, it is not atypical for a woman to experience post
partum depression with subsequent deliveries, particularly if she has a history of post partum
mood disorder.65
By contrast, “baby blues” 66
are considered much milder usually having no effect on the
mother’s cognitive abilities,67
symptoms usually consist of mild sadness, anxiety, crying spells
and poor personal hygiene.68
Mother’s accused of killing their children should be mandated to
submit themselves to a battery of psychological testing before the sentencing phase of the trial
begins. If a medical finding is made that a preexisting mental condition influenced the behavior
of the mother the defendant should be precluded from receiving a sentence of death.
59
See American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (1994) illustrating a
case study of a mother suffering alone from postpartum depression because she is trying to reconcile with both the
guilt and shame that arises from her bitter feelings about her baby) See also Elizabeth K. Herz, “Prediction,
Recognition ND Prevention in Post partum Psychiatric Illness”, “A Picture Puzzle” at pgs. 65-66 (1992)
60
See Cheryl L. Meyer et al., “Mothers Who Kill Their Children” (2001) Explaining why the financial value of a
dowry is so important as a symbol of social status in keeping the family from social ridicule).
61
DSM-IV-TR at 422, See Postpartum Onset Specifier, patient may exhibit signs of mood fluctuations , obsessive
behavior regarding the infants state of well being and experience delusionary thoughts. There is an increased risk of
harm to the infant with severe delusions and ruminations.
62
Id.
63
Id at 423 There is 30%-50% increased risk of recurrence of postpartum depression with each delivery even though
there is no significant family history of mental disease or defects..
64
Id
65
Id at 423 See continuation of Postpartum Onset Specifier
66
Definition of baby blues, transient in nature and generally subside faster and affect up to 70% for new mothers
immediately after childbirth.
67
Id at pg 423
68
H. Winter Griffith, Steven Moore, and Kenneth Moore M.D “Complete Guide to Illness, Symptoms and Surgery”
at pg. 536 (2006) stating the most common signs and symptoms of “baby blues”.
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11. Postpartum depression is recognized as an affirmative defense in 29 countries, including
Great Britain, Canada, Italy and Australia. Those countries have infanticide laws, which state
that when a woman kills a child under the age of one year and she can prove that the “balance of
her mind is disturbed” 69
by reasons relating to giving birth, the maximum charge the woman can
face is manslaughter.70
In the United States a defendant charged with infanticide can assert a
defense of temporary insanity due to postpartum psychosis, but cannot assert post-partum as an
affirmative defense alone.71
As a legal defense post partum depression presents some difficulties. A juror will likely
have a bias or be predisposed because the crime relates to motherhood and the heinous nature of
infanticide.72
The burden is on the defense to prove to the jury beyond a reasonable doubt that
the defendant did fully understand the nature of their act when it was committed.73
Jurors may
not understand the complexities of this disorder and may fail to realize that with the use of
medication the disorder may be abated. 74
Use of the Death Penalty for Infanticide
69
Fiona Brookman, “Understanding Homicide” at pg. 193-194, (2005)
70
Michelle Oberman “Mothers Who Kill” at pg. 3 (2003) See also Supra Note 1 “Spinelli”
71
Robert M. Regoli, “ Exploring Criminal Justice”, at pgs.44-45 explaining the use of temporary insanity and
postpartum depression as a defense for persons convicted of various crimes including defendants such as Andrea
Yates. In addition the author also gives an in depth view of each jurisdictions acceptance of comparable defenses to
the postpartum defense.
72
Id. at xvi
73
Houston Defense Atty. George Seacrest, describing an argument for the defense. Seacrest represented Evonne
Rodriguez. She was on trial for the killing of her four month old son in 1997, a jury found her not guilty by reason
of insanity, Rodriguez believes that the child was possessed by demons.
74
Benjamin Sadock MD, “Synopsis of Psychiatry”, 914 (2007); See Also, Gerald F. Rosenbaum, Handbook on
Psychiatric Drug Therapy, 1 (2005)
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12. In the United States, infanticide is classified as a homicide, and depending on the
jurisdiction it may very well be a death eligible offense.75
In Trop v. Dulles76
the Eighth
Amendment was interpreted as containing an “evolving standard of decency” 77
which marked
the progress of a maturing society.78
If society has accepted the principal expressed by the
Dulles Court; then in the very least we should have evolved far enough not to execute women
who are mentally ill. The ideology being that as a society grows, it grows wiser; and social
norms change. Put simply, that which was allowable or acceptable should be looked at under a
new lens and judged to be acceptable or not based on the maturation of the society and
reconciled with the acknowledged errors of the past.
The determinative factor of the effectiveness of this argument is the response from
legislatures of the state to the proposition that the standard of decency has evolved to the point
that it is no longer acceptable to execute mothers diagnosed with mental illness who have
murdered their children.79
The deference afforded to legislation essentially provides courts with
a presumption of constitutionality. However, utilizing legislative standards the court can require
a number of jurisdictions who are in opposition of the death penalty to deem it as cruel and
unusual punishment.80
The concept of an evolving standard of decency established by the Trop
Court heightened the fervor of the opponents of capital punishment in the 1960’s and became the
basis of a legitimate argument against the use of the death penalty.
75
Id at 52
76
356 U.S. 86,78 S. Ct. 590 (1958)
77
Id. at 611
78
356 U.S. 86 (1958) Supra Note 13 “Dulles” Despite the fact that the constitutional attacks were rejected, this
marked the beginning of the “fine tuning” of the death penalty with the development of both jury and prosecutor
discretion in the imposition of death.
79
See Earl Martin, Towards an Evolving Debate on the Decency of Capital Punishment, 66 Geo. Wash. L. Rev. 84
at 100. (1997)
80
See Id at p.102, (explaining how the Court in Stanford v. Kentucky 492 U.S. 361 (1989) upheld the death sentence
of a defendant who was 17 yrs old at the time of the offense, although in 28 other states this defendant’s sentence
would not have been accepted.
- 12 -

13. Relentless dissent by justices against the death penalty not only brings to focus the moral
overtones of penological practice, but also begs the question whose morality is being upheld as
we continue to impose the death penalty against mentally ill mothers convicted of infanticide.?
81
The decision recognized that in Trop was handed down morality was an issue before the
court.82
It has somehow become a part of the decision.83
Citing Trop, the Court in Atkins v.
Virginia, 536 U.S. 304 (2002)84
and Roper v. Simmons, 543 U.S. 551 (2005)85
created a class of
persons exempt from the death penalty; the mentally retarded and juveniles.86
Classifying the
mentally retarded as exemption from capital punishment in Atkins, the Court based its’ decision
on the ever increasing consensus against the imposition of the death penalty.87
The holding in
Atkins mirrors a clear and convincing majority of States which prohibit execution of the mentally
retarded. The Atkins Court set the tone for what some believe was a call for the abolishment of
the death penalty,88
especially for individuals deemed mentally incompetent or lacking the mental
capacity to form the intent required to fulfill the element that must be established to prove guilt
beyond a reasonable doubt. Any mentally ill defendant should be afforded the same advantages
as the defendants in both the Atkins and Simmons courts. It follows that as society’s justifications
for punishment changes, so does the scope of the Eighth Amendment.89
The holding in Roper is indicative of the Court’s acknowledgement of the inability of
juvenile offenders to overcome the limitations of their mindset as it relates to reasoning.
81
Throughout my research of this issue I have come across the opinions of many Justices some dissenting some
concurring regarding the use of the death penalty, including Justices Brennan and Marshall who seem to place a
morality issue upon the court.
82
356 U.S. 86 See Supra Note 13 “Trop” the very fact that the Constitution recognizes the lawfulness of capital
punishment has proven to be an obstacle to fully accepting this argument. As a result, post Furman judgments
increasingly contained arguments where we witnesses moral discourse impregnating legal analysis.
83
Id. at 596
84
Atkins v. Virginia, 536 U.S. 304 (2002)
85
Roper v. Simmons, 543 U.S. 551 (2005)
86
See Ed Cray, Chief Justice: A Biography of Earl Warren 359 (1997) (describing the standard);
87
See Atkins, 536 U.S. at 313-16
88
Atkins, 536 U.S. at 315
89
356 U.S. 86, 101 (1958)
- 13 -

14. Juveniles are more likely to be persuaded by others often times older than themselves.90
This
view introduces a variance of issues.
The rationale in Atkins is applicable to mentally ill women who have already been sent to
death row. The opinion in Roper can be applied as given as a blueprint to bar executions for
other categories of criminal capital defendants such as mentally ill women. The argument in
Atkins is furthered by the application of this description offered by the Court: “ By our approach
in these cases, we shall first review the judgment of legislatures that have addressed the
suitability of imposing the death penalty on the mentally retarded and then consider reasons for
agreeing or disagreeing with their judgment”.91
While it is arguable that some of the women who commit the crime of infanticide may be
fully aware of their actions, that view cannot be applied to all as most often others are both
simply unaware and incapable of being able to judge their actions or and in some cases even
comprehend the consequences of their actions.92
The very fact that there is proof of a mental
defect should be one of the most important aspects before the jury, it becomes a game of cat and
mouse between the defense and the prosecution to determine what extent the defendant was
actually impaired at the time the offense was committed.93
Congress plays an integral role in the enforcement of public policy standards of the
American Government. When Senator Sam Brownback94
called to order a hearing regarding the
90
See Supra Note 81 at 596
91
See Supra Note “Atkins” at 313
92
The American Law Institute’s Model Penal Code reads: “ A person is not responsible for criminal conduct if at the
time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the
criminality of his conduct or to conform his conduct to the requirements of law”. (1985) (216-217)
93
Tests for insanity include the McNaughten test: If at the time of the act the person either did not know that nature
and quality of the act or he/she did not know that it was wrong, and the Durham test: if the unlawful act was the
product of mental disease or defect. Joshua Dressler, Understanding Criminal Law at 319-23(1995); See also Model
Penal Code 4.01(1) (1974), a person is not responsible for a criminal act if he “lacks substantial capacity to
appreciate the wrongfulness of his conduct or the requirements of law because of a mental disease or defect which
existed at the time of the criminal conduct”.
94
Senator Sam Brownback-R- Kansas of the 110th
District
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15. use of the death penalty in the United States, it is no wonder that he was both clear and explicit
in stating his objective to gain a better understanding of the punishment currently in place within
this country.95
Although some government officials have made their view points known in
opposition of the death penalty 96
to others, the death penalty still serves as a powerful
deterrent.97
It is a well argued point among within the legal community that the use of the death
penalty does serve as a deterrent in the respect that most people will not commit acts that are
death eligible.98
Opponents of the death penalty counter that argument and contend that in most
almost all of the studies conducted the results of a defendant who elects to be executed should
have been configured into the data as well.99
In addition they feel that it is more likely that a
sentence of life without parole serves as a stronger deterrent in that most people do not want to
die of natural causes in prison.100
95
“An Examination of the Death Penalty of the United States”. Senatorial Judiciary Hearing discussing the use of the
death penalty “I enter into this hearing seeking wisdom and seeking information from people that have been around
this topic for a long period of time. This has been a long debate in the United States and I want to hear from people
that have thought a long time about it and I want to hear from people that have been affected directly by it”. 2006.
See Sen. Hrg. 109-540, at pg. 7 A statement of Senator Sam Brownback, R- Kansas,
96
Id. at Pg.. 7, Sen. Russell D. Feingold, sharing his views against the death penalty, but respecting the need to
discuss it as it debatable issue among the many witnesses present to testify.
97
Id. at Pg. 6, Sen, Brownback entering into the record a report offered by Senator Kyl, stating the use of the death
penalty as deterrent among today’s standards.
98
See Supra Note 94 “Sen Hrg”, at Pg. 24, Paul H, Rubin, Professor of Economics and Law, Emory University,
Atlanta Georgia describing a statistical model devised by the methods of economics which indicates the likelihood
that the use of the death penalty provides a comprehensive approach to deterrence and recidivism.
99
Id. at pg. 25, 26 Jeffery Fagan, Professor of Law and Public Health, Columbia University, rebuts the presumption
that the death penalty is an effective tool to deter future criminal acts, instead he illustrates that the number of
defendants who elect to be executed is critical to obtain true and accurate statistics which would reflect the proper
percentages of all persons currently on death row, whether they elect to be there or not. Further indicates that the
tests are either flawed by some technical or conceptual error.
100
See Supra Note at 98 “ Fagan” stating that defendants who are sentenced to life in prison without the possibility
of parole are more likely to be deterred by that aspect of dying of natural causes in prison, and by the sheer
introduction may be harmful in itself to aid in deterrence.
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16. Congressional hearings shed light and offer public opinion from both sides of the coin.101
Advocates in favor of the death penalty argue that the statistics are flawed at best and cite other
discrepancies which may aid an inmates release from death row102
or false DNA results. On the
other hand at least one perspective shared by the opponents of the death penalty as to why the
death penalty should meet its’ demise is the growing trend of exoneration by DNA evidence.103
Congress, is completely aware of the economic disadvantages that will always be attached to a
death penalty case. 104
Advocates for the death penalty offer testimony which illustrates the
costs of maintaining someone in prison for the rest of their life can be just as costly.
Congressional testimony is resplendent when it comes to the costs involved in a death
penalty case. Opponents of the death penalty contend that the costs to successfully prosecute a
death penalty case can be used elsewhere and would serve a much more beneficial purpose to the
101
See Supra Note 94 at pg. 10 “Sen Hrg” testimony of Mrs. Ann Scott whose daughter was brutally murdered by a
defendant who was a classic repeat offender. Mrs. Scott believes that the death penalty is the best method to ensure
we are doing everything in our power to combat the worst elements of society explaining how the defendants
conducting post conviction has held and her family in a state of psychological bondage. See Also, the testimony of
Ms. Vicki A. Schieber, Chevy Chase Maryland, whose daughter was found raped and beaten in her apartment
located in Philadelphia four blocks from Wharton School of Business where she attended classes on a full
scholarship. Ms. Schieber opposes the death penalty for it ‘non-healing” effect on the families, and finds that it
serves no purpose.
102
Id. at pg. 18-21, Testimony of Professor John McAdams who illustrates that based on his statistical data, a
defendant is not always removed from death row because of scientific evidence, in some case it can be a procedural
error on the part of the attorney, or because the higher court in that jurisdiction has vacated the lower courts verdict.
Which in part he contends does not justify innocence. See Also “ The Death Penalty Information Center” Year End
Report for 2001.
103
See Supra Note 94 :Sen. Hrg” at pg. 22 Steven B. Bright, Atty., President and Counsel of the Southern Center for
Human Rights, explaining why DNA is a foolproof method for proving a defendants innocence. I think there are a
lot of people that we will never know whether they are innocent or not. The DNA cases prove things conclusively.
You can look at that DNA profile. You can look at whatever it is,the semen, the blood, whatever, and you can say,
that is a match, that is the person.
104
See Supra Note 98 “ Fagan”, at 27, Professor Fagan discusses what the total cost of a death penalty costs in
comparison to allowing a defendant to serve life in prison and who bears the costs. “I think it changes the algebra
when you start to think about public policy choices involving capital punishment. First, the costs of capital
punishment are extremely high. Even in States where prosecutors rarely seek the death penalty, the cost of obtaining
convictions and executions in capital cases range from $2.5 to $5 million per case in current dollars—I have cited
studies in my testimony where these figures came from—compared to less than $1 million for each killer who is
sentenced to life without parole. Local governments bear the burden of these costs, diverting almost $2 million per
capital trial from local services—hospitals, health care, police, and so on, causing counties to borrow money or
perhaps even raise taxes to finance capital prosecutions
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17. taxpayers.105
There is a public distrust towards the criminal justice system in ensuring that the
proverbial wheels of justice will turn without error or further expense to the taxpayers.106
Congress has heard testimony of how unlikely a defendant is to get effective counsel if they are
unable to pay for their attorney.107
In addition, the average court appointed attorney has very
little or any capital defense experience at all, which almost always results in the death penalty
conviction for most defendants.108
Support of a decision to oppose death will be buttress by the
allowable observations of a medical professional who has eliminated any mental illness as a
probative factor in the commission of the crime being adjudicated.
An amicus brief filed on behalf of mentally ill defendant Scott Louis Panetti109
was
persuasive enough to stop the state of Texas from executing him.110
The Court relied on the
reasoning in Ford v. Wainwright, 477 U.S. 399 (1986),111
and felt that the death penalty
provided no deterrent or retributive effect if the defendant cannot logically connect his actions to
105
Id. at pg. 28 See “Fagan” gives his rationale to how better funding can be spent rather then to spend it on the
prosecution of death penalty cases. If States are going to spend hundreds of millions of dollars trying
to buy a small number of executions over the next decade that have uncertain effects on future murders, might we
not spend those dollars more effectively to fund additional police detectives, prosecutors, and judges to arrest and
incarcerate murderers and other criminals who currently escape any punishment?
106
See Supra Note 94 “ Sen Hrg” testimony of Mrs. Ann Scott explaining how she has lost faith in the system, and
the allowance for a defendant to commit heinous acts against private citizens only to receive a life sentence with
parole for an offense that should otherwise be death eligible. Further stating that there are persons who applicable
for the death penalty.
107
Id. at pg. 22 Atty. Steven B. Bright explaining that in most cases a defendant void of financial resources is more
apt to receiving ineffective assistance of counsel, because they are financially unable to secure adequate counsel on
their behalf.
108
Id. at 22, Atty Steven B. Bright narrating the case study of defendant Gary Graham, “But take Gary Graham in
Texas, sentenced to death, represented by Ron Mock, the famous lawyer, 14 people on death row, operated
out of a bar, is one of the worst lawyers in all of Texas, but over and over again, he defended these people, an
identification case. Later evidence comes out that there are people who say they were with Graham, other reasons to
question it.
109
Panetti v. Quaterman, 551 U.S. __ (2007)
110
See Infra Note 116 “Hausmen” an excerpt of the amicus brief filed on behalf of defendant Panetti read: “ Where
the prisoner cannot appreciate the reason, his execution cannot further the retributive process of the death penalty
any more than of the prisoner as in Ford, suffers delusions that can never be executed at all. People with illnesses of
the severity of the Panetti’s cannot rationally understand the reasons for their execution as they frequently suffer
from bizarre delusions that disrupt their understanding of reality.”
111
Ford v. Wainwright, , 451 So.2d 471, 475 (Fla.1984).
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18. his punishment, and therefore considered it to be in violation of the Eighth Amendment.112
In
the views of many opponents the decision in the Panetti Court was colossal. To opponents such
as Gregory W. Wiercioch,113
an attorney for the Texas Defender Service, the Court had finally
reached the correct answer to an age old dilemma.114
This decision reaffirmed the belief that a
society could evolve to a point which that was once successful could be as reprehensible and un
acceptable giving hope that one day women diagnosed with mental illness could be precluded
from sentences of death for having killed their children.
Although the decision in Panetti Court was clear, there still exists no bright line rule that
sets a standard for executing the mentally ill.115
One Supreme Court Justice based his decision
on the issue presented and felt the only reason that the Supreme Court was involved in the
argument was because of it’s superior position in the judiciary. He believed that the decision
should be based on the facts presented on a case by case basis.116
The American Bar Association (ABA)117
filed an amicus brief for the same defendant and
cited to ABA Criminal Justice Standard 7-5.6(b).118
Rule 7-5.6(b) serves as the foundation to
112
Laura Bernstein, U.S. Supreme Court says that Texas may not Execute Severely Mentally Ill Man. The Justice
Project. See Press Room June 28, 2007.
113
Attorney information for George served as a Public Defender for the State of Texas.
114
Id. at pg 1 Atty. Gregory W. Wiercioch, stating “ The Supreme Court today reaffirms the wisdom of a legal
principal nearly a thousand years old, the at the execution of person like Scott Panetti serves no purpose and offends
our sense of decency and common humanity”.
115
Ken Hausmen, See Court Still Clarifying Rules for Executing Mentally Ill. Article suggests that the Supreme
continues to wrestle with the concept of executing the mentally ill. May 18, 2007.
116
See Article “Supreme Court reaches Landmark It Depends Ruling” which cites Justice John Roberts stating
"There were far too many variables to consider," Roberts wrote. "The death penalty is touchy enough without
having to worry about how it relates to the mentally ill. This really seems like one of those things that should be
decided on a case by case basis by the people involved, not by us." The Onion News Report, Issue 43-22, May 28,
2007
117
“The American Bar Association ("ABA") is the principal voluntary national membership organization of the
legal profession. Its more than 413,000 members include prosecutors, public defenders, private lawyers, legislators,
law professors, law enforcement and corrections personnel, law students, and non-lawyer "associates" in allied
fields. Taken directly from Amicus Brief 06-6407 filed by the ABA on behalf of defendant Scott Panetti.
118
ABA 7-5.(b) states: ABA Standard 7-5.6(b) provides that an offender is incompetent for execution if, among
other things, he "cannot understand . . . the reason for his punishment." ABA Criminal Justice Standard 7-5.6(b).4
The accompanying Commentary states that this standard requires, as the minimum measure of
Competence for execution, that the offender have a "rational understanding . . . of the penalty that is about to be
imposed .
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19. why at least by the standards set forth by the ABA a mentally ill person should not be executed.
The brief argued that the death penalty defeats the retributive effect if a defendant is unable to
understand why he is being executed.119
The ABA states the reason the lower courts do not exempt mentally ill defendants from
execution is because even though they may not be able to comprehend that they are being
executed for their offense; they may think that they are being executed for their own thoughts
and that concept is acceptable to the Court, even though those thoughts are delusional.120
Andrea Yates and Dena Schlosser
Yates and her husband lived outside of Houston with their five young children.121
Yates
had a history of mental illness and suffered a severe breakdown after the birth of her fourth
child.122
During her trial, the defense offered a surplus of expert testimony to support its’
assertion of insanity. Nonetheless the prosecutor still sought the death penalty against Yates.123
However the jury sentenced her to life in prison.124
Although Yates was clinically mentally ill,
119
Amicus Brief filed by the American Bar Association on behalf defendant Scott Louis Panetti.
120
Supra Note 120 “ABA Amicus Brief” outline the flawed reasoning used by the lower court: In Barnard v.
Collins, 13 F.3d 871 (5th Cir. 1994), and the present case, the Fifth Circuit held that a death row inmate is
competent to be executed if he knows that the State is going to execute him and that the State's ostensible reason for
executing him is his conviction for one or more capital crimes. Under this approach, it is irrelevant if the offender,
due to a serious mental disability, is under the delusion that, regardless of the State's announced rationale, he in fact
is being executed for reasons having nothing to do with the crime. Thus, a paranoid schizophrenic who suffers from
the delusion that he will be executed not as punishment for his crime but rather to stop him from preaching the
Gospel would be considered competent for execution.
121
Evan Thomas See Motherhood and Murder depicts that Russell (Rusty) and Andrea lived with their children 6
month old Mary, 2 yr. old Luke, 3 yr. old Paul, 5 yr. old John and 7 yr. old Noah. She was a Registered Nurse and
Russell an Engineer for NASA’s space program. They were a typical upper middle class family from all outward
appearances., Newsweek, July 2, 2001.
122
See Anne Belli Gesalman, Signs of a Family Feud: The Trial of Andrea Yates Tests the Insanity Defense as
family members try to cope with an “Unspeakable Crime, Newsweeks Jan 21, 2001 at 41.
123
Lisa Teachey, DA will seeks death penalty against Andrea Yates, Houston Chronicle August 9, 2001, at 1.
124
Carol Christina and Lisa Teachey, Yates Found Guilty, Jury takes 3 hours to Convict Mother in Children’s
Deaths, Houston Chronicle, March 13, 2002 at A1.
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20. the state considered the verdict a success. The state defended their bittersweet victory by stating
that Yates case should be used as “deterrent” to similar crimes of this nature.125
However on appeal Yates’ conviction was thrown out,126
not because she was insane, but
because of the false testimony of one of the State’s expert witness’s Dr. Park Dietz.127
It would
be fair to say that had Dr. Dietz not come forward, Yates would still be in prison. Perhaps the
jury the did not think Andrea Yates was insane, maybe they did and that is why she was not
given the death penalty.
Dena Schlosser was responsible for the severing of her newborn daughter’s arms,128
her
reason, “ God told her to do it” .129
But Schlosser’s outcome was dramatically different than that
of Yates.130
The deciding factor could have been that while Schlosser’ would give the ultimate
impression of mental illness in the state of Texas when a person is charged with a criminal
offense of this magnitude and enters a plea of “not guilty by reason of insanity”, the jury only
needs to know whether defendant knew the act of killing was wrong.131
The need for inquires
into whether the defendant was mentally impaired or diagnosed with a defect which would
125
Id. at A1 Prosecuting Attorney Joe Owmby making a statement : That the Yates case should be considered as a
deterrent to crimes similar in nature”.
126
See Laura Parker, Yates’ Murder Conviction Tossed, USA Today, January 6, 2005
127
See CourtTV News,Witness at Heart of Yates Appeal explains Error”. Dr. Dietz explaining that he made a
mistake about an episode of Law and Order, where he claimed that he was a consultant to the production regarding
an episode of a woman who drowns her child and is found not guilty by reason of insanity. The state argued that
since Yates was a regular viewer of the program she must have watched that episode and figured that she could use
it as a defense, the episode never aired, nor was it ever considered by the production crew, thus earning Yates a new
trial. January 7, 2005.
128
Jennifer Emily, Dad’s Lack of Emotion in Baby’s Death in Psychiatric Report, Dallas Morning News, February
11, 2005 at A1 (describing Schlossers psychiatric history and the circumstances of her crime).
129
Thomas Korosec, “ Mom to Officer, I Felt Like I Had To “ New Details Emerge in Case: Psychiatrist to Weigh
Woman’s Mental State, Houston Chronicle December 15, 2004, at B4.
130
Dena was placed into the North Texas State Hospital in Vernon, Texas to be held until she is no longer deemed a
threat to herself or others. Ultimately, it was determined that Dena Schlosser suffered from post-partum psychosis
and depression.
131
Texas Penal Code Ann. 8.01 (Vernon 2005) Outlining of the Texas Version of the M’Naghten test.
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21. render the defendant incapable of full control of their actions and the comprehension of the
offense committed is not relevant.132
The flaw in that rationale is the inability of the jury to reasonably draw a conclusion
about the act without the considering the defendant’s mens rea.133
The jury cannot deliberate on
these types of offenses without taking into consideration the defendant’s state of mind. The
result is tragedy for the defendant who truly is mentally ill. In an ironic twist, Yates is now the
roommate of Dena Schlosser.134
Aggravating Circumstances
Fours years Post Furman, Gregg v. Georgia set procedural standards for imposition of
the death penalty.135
Among those standards are aggravating circumstances or factors.136
Each
jurisdiction delineates its’ own standards of aggravating circumstances; what determines a death
eligible offense in one state are not necessarily the same factors in another jurisdiction.137
If any
132
AAPL Practice Guideline for Forensic Psychiatric Evaluation of Defendants Raising the Insanity Defense, 30 J.
Am Acad. Psychiatry & L. S1, S4-S9(Supp 2002).
133
Jack G. Handler as defined in Ballentine’s Legal Dictionary at pg. 335 Mens Rea “ An answerable intent, an
intent for which one is answerable, an evil intent, a guilty mind; a criminal intent. As defined in Ballentine’s Legal
Dictionary (1994)
134
Jennifer Emily, Schlosser and Yates find Solace in Friendship, The Dallas Morning News, October 8, 2006,
( Depicting the friendship and compatibility that Yates shares with her roommate Dean Schlosser, while both are
being held at a North Texas State Hospital).
135
428 U.S. 153 (1976), Gregg v. Georgia
136
See Scott E. Sunby,: A Life and Death Decision, A Jury Weighs the Death Penalty at pg. 10; defining what an
aggravator is by most standards in most jurisdictions. Special Circumstances which are passed by legislation which
the jury takes into consideration that may possible make the defendant’s offense death eligible. Aggravators will
also include other special circumstances such as if the killing involved a “police officer”, “a child under the age of
six” and various others depending on the jurisdiction. See Also Bryan A. Garner, at pgs.102 Black’s Law
Dictionary Third Edition an act or conduct which increase the seriousness of a criminal act or the gravity of its
effect, Courts are more likely to impose severe sentences when there are aggravating circumstances present. (2006)
137
For instance in the State of Texas where two cases mentioned prior to this section we discussed, the jury only had
to take two of the eight aggravators into consideration to consider the death penalty. Texas Model Penal Code §
19.03, See Also Texas Revised Penal Code §19.03(a)(9). ( A jury may consider if the murder was a public safety
officer, firefighter or a correctional employee; murder during the commission of specified felonies (kidnapping,
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22. jurisdiction found that execution of mothers diagnosed with mental illness and convicted of
infanticide was cruel and unusual an argument could be made for the applicability of that finding
to all similarly situated mothers. To hold otherwise may implicate for due process and full faith
and credit considerations.
Justice Douglas of the United States Supreme Court is stated in his concurring opinion in
Furman expressing concern that “death penalty statutes void of a standard for the jury to abide
by would most likely result in a race and class bias”.138
It would be fair to include the mentally
ill in that view. Justice Douglas was not alone in that viewpoint, Justice Stewart felt equally the
same if not similar, in that he described the imposition of the death penalty as “ wanton and
freakish ”139
and declared that it was an outright violation of the Eighth Amendment.140
Mitigating Circumstances
A jury must consider the mitigating circumstances in a capital crime.141
In Florida a
mental disability must be factored into the ability of the defendant to form the requisite intent to
be convicted of having committed a capital crime.142
In Miller v. State 373 So. 2d 882 (Fla.
1979). the trial court applied the defendant’s history of mental illness as an aggravating factor
burglary, robbery aggravated rape and arson) murder for re-numeration; multiple murders; murder during prison
escape; murder by a state prison inmate who is serving a life sentence for any of five offenses; and murder of an
individual under six years of age.
138
See Supra Note 18 Furman v. Georgia at 250. Justice Douglas stated ( the death sentence is disproportionately
imposed and carried on the poor, the negro, and the members of unpopular groups)”.
139
Id at 238
140
Id
141
Lockett V. Ohio 438 U.S. 586 (1978), Defendant Sandra Lockett, encouraged and drove the getaway car for the
armed robbery of a pawnshop, which resulted in the murder of the pawnshop owner, was found guilty of murder and
sentenced to death due to the terms of the Ohio statute. Lockett argued that the statute was unconstitutional due to
the fact that it does not allow the sentencing judge to consider mitigating factors in capital cases, which is required
by the Eighth and Fourteenth Amendments
142
Florida Statute Chapter§ 921.141 6(b) states : The capital felony was committed while the defendant was under
the influence of extreme mental or emotional disturbance and (f) states: The capacity of the defendant to appreciate
the criminality of his or her conduct or to conform his or her conduct to the requirements of law was substantially
impaired.
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23. instead of a mitigating factor.143
On appeal the Court stated that the lower court erred in their
application of the defendant’s mitigating factors and went on further to state that their decision
did not follow the legislative intent.
The Court furthered the argument by stating the initial purpose of the legislature
requiring mitigating circumstances to be used in the sentencing process was to enable the jury to
mitigate the death penalty to a life sentence for defendant’s whose capacity was diminished at
the time the offense was committed.144
There can be no greater circumstance more appropriate to
the application of this policy than the instance in which a mother who has killed their child has
been diagnosed with a mental illness and but for suffering from that mental illness they would
have not committed such an act.
Although the defendant may not use insanity as a defense, the Court may still consider
statutory mitigating factors associated with mental illness at sentencing.145
This rule has been
applied to more than a few cases in Florida.
CONCLUSION
The death penalty has evolved throughout history. It has been applied circumstantially
by various means. It remains today just as controversial as in the days of King Hammurabi. The
143
Miller v. State 373 So. 2d 882, 886 (Fla. 1979)
144
Id at 886
145
Mines v. State, 390 So. 2d 332, 337 (Fla. 1980) Defendant was convicted in the Circuit Court, Indian River
County, Royce R. Lewis, J., of first-degree murder, and aggravated battery, and he appealed. The Supreme Court
held that: (1) evidence was sufficient; (2) where defendant had ability to understand proceedings and assist counsel
in his defense, fact that his competency was the result of approved medical treatment and medical science did not
invalidate finding of competency; (3) there was no error in trial court's acceptance of jury waiver; but (4)
circumstances in connection with and following the aggravated battery, two to six hours after the murder, were not
properly used as aggravating circumstance, for purposes of imposing death penalty, that defendant created great risk
of death to many persons when he murdered the victim; and (5) in light of evidence of defendant's mental condition,
despite finding of sanity, trial court erred in not considering mitigating circumstances of extreme mental or
emotional disturbance and substantial impairment of capacity of defendant to appreciate the criminality of his
conduct. Conviction affirmed and cause remanded for resentencing.
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24. presumption of the constitutionality of the death penalty has provided a guide of instruction in
the treatment of mankind. Some strict constructionists have argued the implementation and
exercise of the death penalty specifically outlines the intent of the framers when drafting the
Eighth Amendment.
Applying “the evolving standard of decency” to the sentencing of persons convicted of
death eligible offenses mandates the inclusion of mentally ill-women in the argument for classes
of individuals necessarily precluded from such a fate. Execution of individuals lacking the
capacity to fully appreciate the nature of their act at the time it was committed whether they are
minors, mentally retarded, or mentally ill is by definition cruel and by custom unusual. The
reality is that there are many more Andrea Yates to come; every time the act of a mother killing a
child is repeated a punishment must follow. The conflict arises when that punishment runs afoul
of the fundamental rights enumerated in the Constitution.
Balancing aggravating and mitigating circumstances is crucial to ensure individuals
receive the proper sentence. Failure in that procedure is just as invasive as the mental defect the
defendant is already contending with. It has been said, “Our country’s greatness is not measured
in power or luxuries, but by who we are and how we treat one another.’’146
146
President Bush’s “State of the Union Address” regarding the treatment of the Iraqi People January 23, 2007.
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25. Women Who Are Clinically Diagnosed With A Mental Illness
And Convicted of Infanticide Should Not Be Death Eligible
By Christine Richardson
- 25 -

26. Death Penalty Seminar
Professor Karin Moore
Senior Writing Requirement
Spring 2008
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