The Ohio Supreme Court released its opinion in the death penalty case of State v. Lang, 2011-Ohio-4215 on August 31. While Justice Evelyn Lundberg Stratton joined the majority in affirming Lang’s conviction and death sentence, she makes an impassioned case to ban the execution of those who are seriously mentally ill when they commit their crimes. She raised this same concern five years earlier in State v. Ketterer (2006), 111 Ohio St.3d 70, 2006-Ohio-5283.
Edward Lang was convicted in 2007 for the murder of Marnell Cheek and Jaron Burditte during an attempted drug-related robbery. During the sentencing phase of trial, evidence of Lang’s mental health was admitted. Throughout his childhood he had taken anti-depressants and anti-psychotic drugs, and sought frequent treatment in psychiatric facilities (though the exact diagnosis of his mental illness was never specified). When Lang was 10, he was abducted by his father, who prevented Lang from returning home to his mother for two years. As a result of the severe abuse and trauma suffered at the hands of his father during this time, Lang’s mental health issues got progressively worse in the years leading up to the murder.
The jury convicted Lang of the aggravated murder of Cheek and Burditte, and recommended a sentence of death in Cheek’s case, and life with no possibility of parole in Burditte’s . The trial court accepted these recommendations and sentenced Lang accordingly. On appeal to the Supreme Court in the Court upheld the capital conviction. In its discussion of Lang’s mitigating factors, it found no significant connection between Lang’s mental illness and the murders.
The U.S. Supreme Court established the “evolving standards of decency” approach in Trop v. Dulles (1958), 356 U.S. 86, where then Chief Justice Earl Warren stated that the Eight Amendment’s prohibition against cruel and unusual punishment must “draw its meaning from the evolving standards of decency that mark the progress of a maturing society.” Application of this test usually involves examining trends in capital punishment laws amongst the various states, and, more controversially, elsewhere in the world.
In Atkins v. Virginia (2002), 536 U.S. 304, the Court held that execution of the mentally retarded is cruel and unusual punishment under the “evolving standards” test. In Roper v. Simmons (2005), 543 U.S. 551, the Court similarly outlawed execution of defendants who are under 18 when they committed their crimes.
In State v. Lang, Justice Stratton acknowledged that the U.S. Supreme Court has yet to decide the constitutionality of imposing the death penalty on those who are seriously mentally ill at the time of the commission of a crime. She argued that the same “evolving standards of decency” which prohibit the execution of juveniles and the mentally retarded should prohibit execution of the severely mentally ill. She noted that although Connecticut is the only state to prohibit such punishment thus far, the issue is being examined by legislatures in Kentucky, North Carolina, Indiana and Tennessee. Furthermore, the American Bar Association, American Psychiatric Association, and other bar associations and advocacy groups have recommended that execution of the severely mentally ill be prohibited.
However, Justice Stratton also noted the stark differences between mental retardation and mental illness, recognizing that a finding of mental illness involves a “more complicated analysis” than the clinical tests used to diagnose mental retardation or the simple test of age for a juvenile offender.
The Ohio Supreme Court has the power itself to hold that the execution of the seriously mentally ill is unconstitutional, but Justice Stratton neither presently commands a majority on this point, nor asks the Court to do this. Rather, she makes it clear that any such change should come from the General Assembly, after hearing from interested parties and experts in the field.
Justices Pfeifer and McGee Brown joined Justice Stratton in her separate concurrence in this case.