Raleigh, N.C. — State House lawmakers are expected to vote next week on a bill that would let judges take the death penalty off the table for capital defendants with severe mental disability.
The measure, House Bill 722, won approval from a House Judiciary B subcommittee Wednesday evening. It sets up a very specific definition for "severe mental disability" involving a history of problems, an inability to understand the the wrongness of the crime or to exercise rational judgment.
The accused would have to present "clear and convincing evidence" of the disability and could not use the defense for a crime committed under voluntary intoxication, even if habitual.
A judge would be allowed to decide at a pre-trial hearing whether a defendant meets the criteria. If the judge agreed, the death penalty couldn't be sought, but the defendant wouldn't be able to raise the insanity defense at trial.
The measure also provides for retroactive application through Motions for Appropriate Relief for those already on death row.
Sponsor Rep. Paul Stam, R-Wake, said the issue of executing the mentally disabled is "nothing new," quoting 18th century legal scholar William Blackstone: "A madman shall be punished by his madness alone."
"You don't deter crime by punishing those that everybody knows can't be deterred – the people who are clearly mentally disabled or deficient," he said in committee. "That's what this bill is about. It's not – not, not, not – about weakening the death penalty on capital crimes."
Stam said the House passed an identical measure in 2011, but the Senate refused to consider it.
"We think there may be a change of thought in the Senate side," he told the committee. "Frankly, I think they will take it up this time. Once the capital punishment main bill is settled, it makes it easier to do that, because we're not in an indefinite moratorium."
North Carolina Conference of District Attorneys director Peg Dorer spoke against the proposal, saying claims of severe mental disability are common in every capital case.
"DAs oppose this bill," she said. "The issue of mental disability should be weighed by the jury, not by the judge. it only takes one juror to make that decision, and the death penalty is not found."
Dorer said the change would encourage "judge shopping" and would cost more money, as opposed to saving it, as proponents claim. She predicted that all the current inmates on the state's death row would seek relief under the measure, forcing the state to re-litigate those cases.
That concern was echoed by Rep. Debra Conrad, R-Forsyth, who said her local DA "compared the bill to the Racial Justice Act," predicting that "it will the end death penalty as a punishment in North Carolina."
Dorer said she hadn't talked with a single DA who supports the bill. But co-sponsor Rep. Rick Glazier, D-Cumberland, said that many DAs will admit privately they'd rather let a judge make the decision in such cases.
"There are cases where, because of the politics of the case, of repercussions in the community, a DA feels they have no choice but to proceed" to seek the death penalty despite mental disability, Glazier said, "even if they know what the outcome will be."
Glazier said such cases cost hundreds of thousands of dollars and take weeks to try. He said allowing judges to rule on disability before the trial would cut out much of that.
"This gets us to where we're going to be in 99.9 percent of these cases, anyway," he said.
In 1992 in Fayetteville, Glazier defended one of the infamous "Ninja Killers" who killed three people. The other defendant was sentenced to death – "and rightly so," Glazier added – for stabbing his victims 44 times.
Glazier's client, the other defendant, had stabbed one victim once. He was 19 with a history of mental illness since early childhood. He had been institutionalized twice and was kicked out of the military shortly before the crime because "he wasn't capable of doing his job."
The DA still sought the death penalty. The trial took six weeks and included 38 witnesses, and Glazier said the jury, after four days, found his client guilty but sentenced him to life in prison without parole because of his mental disability.
"My client went catatonic the last day of trial and has never spoken a word since in Central Prison," he said.
Glazier said House Bill 722 would also end the abuse of the insanity defense for drug or alcohol use.
"Right now, you can use the insanity defense for any case where you can make a case for it," he said. "It should be an exceptional defense that is rarely used."
The measure passed the committee with two no votes from freshmen Reps. Conrad and Brian Brown, R-Mecklenburg. Its next stop is the House floor.