Unlike most of us, Allen Holman knew in advance when he was going to die: Friday, March 9th, 2007, shortly after two o’clock in the morning. Almost ten years ago, Holman shot and killed his wife Linda in the parking lot of a convenience store. Ironically, Linda was a nurse at the prison where Allen Holman was scheduled to be executed, and the question of whether medical professionals should participate in lethal injections is what has put his execution on hold.
Allen Holman is a volunteer – someone who has willingly abandoned his appeals in order to expedite execution. Between 1977 and 2003, ninety-seven other death row inmates volunteered for execution. One study (John Blume, Killing the Willing: Volunteers, Suicide, and Competency, 103 Mich. L. Rev. 939 (2005)) found that 88% of those volunteers suffered from mental illness and/or substance abuse problems which may have contributed to their decision to die. Holman, 47, has a history of mental illness stretching back to his teen years, including at least five suicide attempts. This time, he had hoped to let the State do the job for him.
Suicide is no longer a crime in North Carolina. While there is technically no law prohibiting it, killing someone on their request would likely be prosecuted under the regular homicide statutes. (Dr. Kevorkian, for example, could be prosecuted under either the “murder by poison” or “premediated and deliberate” theories of first-degree murder.) When the State assists a suicide, as when it commits murder (death certificates of the executed list the cause of death as homicide), the legal penalties are not the same for those involved. But what is the moral cost?
How is executing the severely mentally ill or brain-damaged so different from executing the mentally retarded, which was recognized as cruel and unusual punishment by the Supreme Court in 2002? In its decision, the Court noted that the nature of mental retardation is such that the ends of retribution and deterrence are not served by executing the retarded. (For example, because the mentally retarded are less capable of engaging in logical reasoning than the average person, they are less likely be deterred from crime by the execution of others.) Without a valid penological objective, executing the mentally retarded was found to be a “purposeless and needless infliction of pain and suffering.”
Two days ago, a bill was filed in the General Assembly by Representatives Insko (D-Orange) and Harrison (D-Guilford) which would prohibit the execution of the severely mentally disabled. The bill would exempt the severely mentally ill and brain-damaged from the death penalty, but would not relieve them of criminal liability altogether. All other sentences, including life imprisonment, would remain possible.
The bill defines “severe mental disability” as a mental disability which significantly impairs a person’s capacity to do any of the following:
(1) Appreciate the nature, consequences, or wrongfulness of the person’s conduct;
(2) Exercise rational judgment in relation to conduct; or
(3) Conform the person’s conduct to the requirements of the law.
A person who doesn’t know what they’re doing or who is unable to control themselves is clearly less morally culpable than a person who makes a cold and calculated decision to kill. When we choose to kill the mentally ill or brain-damaged, our own moral standing is in serious question.
Consider Ricky Ray Rector. Before his arrest, Rector attempted to commit suicide by shooting himself in the head. A large section of his brain was destroyed, but Rector survived. He was clearly severely disabled – Rector was frequently observed howling, barking, and dancing in his cell – but the law held no exception for someone in his situation. On the night of his execution, the guards asked Rector why he hadn’t eaten the pecan pie from his last meal. He replied that he was saving it for later.
Insko and Harrison’s bill is neither an excuse nor an easy way out. Built into the bill is a provision making clear that, “a mental disability manifested primarily by repeated criminal conduct or attributable solely to the acute effects of alcohol or other drugs does not, standing alone, constitute a severe mental disability.” Furthermore, the defendant bears the burden of proving his or her disability status to the judge or jury by a preponderance of the evidence – the State has no obligation to prove anything.
A bill to prohibit the execution of the severely mentally disabled is not a radical proposition. It doesn’t undermine the death penalty, rather it recognizes the larger goals underlying capital punishment and strives for a system more consistent with those aims. Choosing death for the brain-damaged and mentally ill means doing what we fear most in the accused – killing for the sake of killing.