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303.7 Death Penalty: Specific Mitigating Factors

    303.7.2 Death Penalty: Mental Impairment As Mitigation

    303.7.2.1 Death Penalty: Extreme Mental Or Emotional Disturbance -- Reasonable Person Standard Inapplicable
    303.7.2.2 Death Penalty: Mental Impairment Not Limited To Excuse Or Negation Of An Element
    303.7.2.3 Death Penalty: Mental Illness, Emotional Disturbance And Retardation As Mitigating Factors Upon Which Jury Must Be Instructed
    303.7.2.4 Death Penalty: Consideration Of Less Than Extreme Mental Or Emotional Disturbance
    303.7.2.5 Death Penalty: Mental Impairment Not Limited To Excuse Or Negation Of An Element
    303.7.2.6 Mental Or Emotional Disturbance As Mitigation: Consideration Contributing Circumstances

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RATIONALE: In considering mitigating evidence of the defendant's mental or emotional disturbance the jury may tend to discount the impact of such evidence if it would not have influenced a reasonable person in the same circumstances. This may be especially true if the jury has been instructed on the reasonable person standard in other contexts in the trial. (E.g., self defense, heat of passion.) Hence, special instruction on this point may be appropriate.

POINTS AND AUTHORITIES: The "reasonable person" standard is inappropriate in determining whether the defendant actually acted under extreme mental or emotional disturbance. (See People v. Holt (CA 1997) 15 C4th 619, 710-11 [63 CR2d 782], concurring opinion.) Hence, the persuasive force of the proffered mitigating evidence may not be discounted due to a belief that a reasonable person would not have been under such influence. (See generally Lockett v. Ohio (1978) 438 US 586, 604-09 [98 SCt 2954; 57 LEd2d 973] [jury consider all relevant mitigating evidence].) To do so would be to fail to accord the defendant's mitigating evidence the weight to which it was legally entitled in violation of the Federal Constitution (8th and 14th Amendments). Clarification of this distinction is particularly important in cases where instruction on the reasonable person standard was given on other subjects such as self defense or heat of passion.)

    See also NCJIC 303.7.2.4 [Death Penalty: Consideration Of Less Than Extreme Mental Or Emotional Disturbance].

FEDERALIZATION: To federalize this request, click here. [Death Penalty Macro 13.11].

    Evidence has been received for the purpose of showing that the defendant was under the influence of extreme [mental] [emotional] disturbance at the time that the offense was committed. Your only concern in this regard is whether the defendant was actually under the influence of such a disturbance. If the defendant was under the influence of such a disturbance you may consider it as mitigating evidence even if a reasonable person in the same situation would not have been so influenced.

[Source: NCJIC.]

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    303.7.2.2    Death Penalty: Mental Impairment Not Limited To Excuse Or Negation Of An Element

RATIONALE: Without special instruction the jury may improperly assume that a mental impairment must totally excuse or negate guilt to be mitigating. The specific instruction is necessary for the jury may not understand the broad relevance of mental impairment at the penalty trial as opposed to the more limited scope of such evidence at the guilt trial.

POINTS AND AUTHORITIES: It is also beyond dispute that intoxication or mental impairment, even if insufficient to defeat the guilt charges, is a fact which the jury may consider in mitigation. (See People v. Lucero (CA 1988) 44 C3d 1006, 1029-1131 [245 CR 185]; see also Penry v. Lynaugh (1989) 492 US 302, 320-28 [109 SCt 2934; 106 LEd2d 256]; Schneider v. Delo (8th Cir. 1996) 85 F3d 335, 340 [even if evidence of defendant's mental condition is not strong enough to convince jury to accept insanity or diminished-capacity defense, evidence might cause that jury not to recommend sentence of death]; State v. Richmond (AZ 1976) 560 P2d 41, 52 [where, to avoid imposition of death penalty, there is demonstrated either impairment of capacity to appreciate wrongfulness or impairment of capacity to conform, the impairment in either case is not required to be so great as to constitute defense to prosecution]; Quince v. State (FL 1982) 414 So2d 185, 187 [defendant may be competent to stand trial, and yet nevertheless receive benefit of mitigating factors involving diminished mental capacity in determining whether death penalty should be imposed]; U.S. v. Gramley (IL 1995) 883 FSupp 225, 242 [Illinois death penalty statute does not require defendant to be mentally retarded in order for him to present evidence of his IQ in mitigation but, rather, jury can rationally consider evidence of diminished mental capacity of defendant who is not mentally retarded when determining appropriate sentence]; State v. Awkal (OH 1996) 667 NE2d 960, 970 [even if jury determines that defendant has failed to establish mitigating factor that he lacked substantial capacity to appreciate criminality of his conduct or to conform his conduct to requirements of law because of mental disease or defect, jury may view defendant's psychological evidence as mitigating]; State v. Cooey (OH 1989) 544 NE2d 895, 915 [capital defendant's mental state may be considered in his favor, whether or not it is product of mental disease or defect]; State v. Wood (UT 1982) 648 P2D 71, 88 ["It is obvious to us that the legislature intended to permit the jury to take into consideration, in deciding not to impose the death penalty, an abnormal mental condition short of legal insanity. It may be a mental disease or defect which diminishes the offender's capacity for self-control and for forming the specific and deliberate intention to cause the killing charged, or it might be such other mental disease or defect affecting the act as the jury might feel was of a nature that indicated that the ultimate penalty of death should not be imposed"].)

    Accordingly, this defense theory should be explained to the jury upon request. (See State v. English (LA 1979) 367 So2d 815, 819 [reversible error to refuse defendant's instruction that mental disease or defect as used in the penalty phase was not to be confused with insanity]; see also Drinkard v. Johnson (5th Cir. 1996) 97 F3d 751, 756 [instruction may not constitutionally preclude jury from considering mitigating evidence that did not rise to the level of temporary insanity]; State v. Fletcher (NC 1998) 500 SE2d 668, 686 [the court erred in failing to instruct jury regarding mental or emotional disturbance as mitigating factor]; cf., Martin v. Ohio (1987) 480 US 228, 234-35 [107 SCt 1098; 94 LEd2d 267] [evidence insufficient to prove affirmative defense must still be considered as to elements of the charged offense].)

    The sample instruction below, which is patterned after the federal death penalty statute (see 21 USC 848(m)(1)), clarifies the defense theory that mental impairment, even if insufficient to establish insanity or to negate any elements of the offense, is a valid mitigating circumstance which, alone and/or in consideration with other factors, justifies sparing the defendant's life. (See U.S. v. Beckford (VA 1997) 962 FSupp 748, 752 ["the controlling statute affords the death eligible several opportunities to rely on his mental health or condition to oppose imposition of the death penalty"].)

FEDERALIZATION: To federalize this request, click here. [Death Penalty Macro 13.11].

    The mental impairment referred to in this instruction is not limited to evidence which excuses the crime or reduces defendant's culpability, but includes any degree of mental defect, disease or intoxication which you decide is of a nature that death should not be imposed. Even if the defense of insanity, diminished capacity or diminished actuality have been rejected at a previous stage of the proceedings, this does not prevent your consideration of the evidence showing some impairment as a reason not to impose death.

[Source: Adapted from 21 USC 848(m)(1).]

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    See NCJIC 303.7.2.2 [Death Penalty: Mental Impairment Not Limited To Excuse Or Negation Of An Element].

    See also NCJIC 302.1.3 [Death Penalty: Constitutionality Of Executing The Mentally Retarded].

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RATIONALE: The jury should be permitted to consider any mental or emotional disturbance of the defendant.

POINTS AND AUTHORITIES: Some death penalty statutes state that "extreme" mental disturbance or impairment is a mitigating factor. Such a limitation violates the settled principle that the jury must consider any and all mitigating evidence. (See NCJIC 301.4.1.1 [Death Penalty: The Jury Must Consider All Mitigating Evidence].)

    Hence, there is a basis under the 8th and 14th Amendments to the Federal Constitution to challenge any instruction which precludes the jury from considering a mental or emotional disturbance which is less than extreme. Moreover, even if it were theoretically possible to interpret the catch-all factor to allow consideration of disturbances falling short of extreme (see People v. Sanchez (1995) 12 C4th 1, 80 [47 CR2d 843]), a specific instruction which incorrectly states the law cannot be cured by other generally-correct instructions. (See People v. Hamilton (CA 1978) 80 CA3d 124, 135 [145 CR 429] [Franson, J., concurring]; see also People v. Murtishaw (CA 1981) 29 C3d 733, 765 fn 25 [175 CR 738]; see also NCJIC 297.1.6 [Specific Instruction Controls Over General].) In a capital case, the court must clearly and explicitly instruct the jury about mitigating circumstances in order to comply with the 8th and 14th Amendments of the Federal Constitution. (See Spivey v. Zant (5th Cir. 1981) 661 F2d 464, 471; see also Washington v. Watkins (5th Cir. 1981) 655 F2d 1346, 1377.)

    Cases holding that the word "extreme" need not be deleted (e.g., Blystone v. Pennsylvania (1990) 494 US 299, 308 [110 SCt 1078; 108 LEd2d 255] [virtually without explanation]; Hendricks v. Vasquez (9th Cir. 1992) 974 F2d 1099, 1109; People v. Benson (CA 1990) 52 C3d 754, 803-804 [276 CR 827]) are based on the assumption that a jury will understand that, despite the reference to "extreme," mental or emotional disturbance of a lesser degree may be considered under the catch-all factor. The Zeisel study (Free v. Peters (7th Cir. 1993) 12 F3d 700, 704-05) demonstrated that this assumption is wrong. One of the questions in the survey was the precise question of whether mild emotional disturbance could be a mitigating factor, given that the instructions identified "extreme" emotional disturbance among the mitigating factors. A clear majority, 58.9 percent, of the respondents concluded that it could not be mitigating. (United States ex rel. Free v. Peters, supra, 806 FSupp at p. 723.)

    The conclusion in Hendricks v. Vasquez, supra, that failing to delete the word "extreme" from factor (d) in California penalty jury instructions is not federal constitutional error, is also inconsistent with two other Ninth Circuit decisions holding that it would be federal constitutional error for a judge conducting a capital sentencing hearing without a jury to fail to weigh and consider mitigating evidence merely because it did not rise to a state statutory standard such as "extreme," "substantial," or "significant." (Jeffers v. Lewis (9th Cir. 1992) 5 F3d 1199, 1204, reh'g en banc granted (9th Cir. 1994) 22 F3d 199; Smith v. McCormick (9th Cir. 1990) 914 F2d 1153, 1166-1169.)

FEDERALIZATION: To federalize this request, click here. [Death Penalty Macro 13.11].

STRATEGY NOTE: Notwithstanding the jury instructions, the prosecutor should not be permitted to argue that mental or emotional problems should not be considered unless they raise to the statutory level of extreme mental or emotional disturbance. (Wilson v. Kemp (11th Cir. 1985) 777 F2d 621, 626-28. [reversible penalty phase error for prosecutor to suggest mercy was an inappropriate sentencing consideration.].)

RESEARCH NOTES:

See Capital Punishment Handbook [4.8.2.3a. Good Prison Behavior/Potential For Rehabilitation: Authorities].

    [Replace the word "extreme" with the word "any"]

[Source: NCJIC.]

    See NCJIC 303.7.2.2 [Death Penalty: Mental Impairment Not Limited To Excuse Or Negation Of An Element].

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RATIONALE: Without an explanatory instruction the jury may focus only on the defendant's mental or emotional disturbance without also considering the circumstances that contributed to the disturbance.

POINTS AND AUTHORITIES: The jury should consider all of the relevant circumstances which may have contributed to his or her mental or emotional state. (McDougall v. Dixon (4th Cir. 1990) 921 F2d 518, 525.)

    This is especially true when the defendant has relied upon such circumstances as a theory of the defense at the penalty trial. The rule that the defendant has a right to a pinpoint instruction which relates the theory of the defense to an element of the charge (see People v. Saille (CA 1991) 54 C3d 1103, 1120 [2 CR2d 364]; People v. Wharton (CA 1991) 53 C3d 522, 572 [280 CR 631]) should apply with equal force to the relation of the theory of the defense at penalty to the specific aggravating and mitigating factors.

FEDERALIZATION: To federalize this request, click here. [Death Penalty Macro 13.11].

    Mental or emotional disturbance may result from any cause or may exist without apparent cause. For this mitigating factor to exist, it is sufficient that the defendant's mind or emotions were disturbed, that is, interrupted or interfered with, from any cause whether from long-term chemical addiction, extensive incarceration in maximum security prisons and security housing units and/or any other cause.

    In deciding whether defendant suffered from a mental or emotional disturbance you must consider all of the relevant circumstances in which the defendant found himself. These circumstances include but are not limited to ___________________ [e.g., the impact of chemical addictions; long-term incarceration in maximum security prisons].

[Source: Adapted from McDougall v. Dixon (4th Cir. 1990) 921 F2d 518, 525.]