Mental Disorder as an Exemption from the Death Penalty: The ABA-IRR Task Force Recommendations

Abstract

The Task Force on Mental Disability and the Death Penalty (Task Force) established by the Individual Rights and Responsibilities Section of the American Bar Association (ABA-IRR) has proposed that the ABA adopt three recommendations concerning the role of mental disability in capital cases. The first two recommendations call for a prohibition on execution of offenders whose mental disorder rendered them less culpable at the time of the offense, and the third would prohibit execution of those whose mental disability currently renders them incompetent to pursue appeals or to be executed. This Article discusses the first two, culpability-related, recommendations. With respect to each recommendation, this Article first presents the language of the recommendation, then provides the related commentary currently approved by the Task Force (which, as an unofficial reporter for the Task Force, I had a significant hand in writing), and finally engages in a brief discussion of some of the controversies that each recommendation might occasion.