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New Look at Execution, Mental Illness

By Cathy Young | March 4, 2002

THE TRIAL OF Andrea Yates, the Houston woman who drowned her five children in a bathtub, has revived the debate about mental illness and capital punishment. Prosecutors are seeking the death penalty for Yates despite admitting that, while not legally insane, she suffers from serious mental illness. Yates had been under psychiatric care and had reportedly tried to commit suicide. Her horrific act was apparently motivated by the belief that something was dreadfully wrong with the children and with her own mothering and that she was killing them to save them.

Critics of capital punishment, such as Washington Post columnist Richard Cohen, regard the execution of someone so obviously sick as particularly heinous. In fact, reading about the reported details of Yates's condition, it is hard to disagree (which has nothing to do with the absurd attempts of some feminists to portray Yates as an oppressed Everymother). But the discomfort most of us feel at this thought may tell us something important about the larger issue of the death penalty.

Does a mentally ill or mentally incompetent person suffer more than a sane one from being put to death? Not necessarily. Cohen himself concedes that perhaps ''the most humane thing to do is execute [Yates] and the least humane is to let her live with the knowledge of what she has done.'' They argue, however, that our society is guilty of nothing less than a barbarity when we execute people who are so mentally incompetent that they are barely aware of their crime, of their legal rights, or of what is happening to them.

One oft-cited case is that of Arkansas cop killer Ricky Ray Rector. In 1992, his execution sparked a heated controversy not only because then-Governor Bill Clinton took time off from the presidential campaign to fly back to his home state and sign the death warrant, but also because Rector was severely brain-damaged following a suicide attempt. A detail repeatedly cited as especially horrifying is that on his way to the death chamber, Rector asked his lawyers to save the dessert from his last meal ''for later.''

The story is indeed cringe-inducing, but why? Again, not because of the suffering inflicted on the condemned. Surely, it's far more cruel to send a man to his death when he is fully aware that there will be no ''later.'' Rather, the issue is the defendant's perceived lack of moral agency, his inability to feel responsible for his act and to connect it to his punishment.

This suggests that capital punishment isn't simply, as its critics say, a form of vengeance. Revenge, in many cases, may be disproportionate to the offense and unconcerned with intent. If a child is killed in a car accident, the bereaved parents in their grief and rage may want to see the driver dead, even if she was blameless or at worst negligent; in a few extreme cases, they may even act on that wish. Yet we can hardly imagine official authority carrying out such a revenge - just as we cannot imagine anyone suggesting that the family of a murderer be killed as a form of ''payback,'' even though private vengeance may be directed at the wrongdoer's loved ones.

Supporters of capital punishment see it as retribution, not revenge - the difference between the two being the focus on the moral culpability of the offender. A number of conservatives, such as political scholar Walter Berns, explicitly argue for the death penalty on moral rather than practical grounds - as a moral act in response to a purposeful evil, similar to the death of Macbeth at the end of Shakespeare's tragedy.

In her 1995 book, ''It's All the Rage: Crime and Culture,'' liberal commentator Wendy Kaminer dismisses Berns's grandiose vision as a poetic fable. She writes that ''there are no Macbeths on death row,'' only ''dull-witted . . . damaged and crazy people.''

Empirically, it's hard to tell which picture is more accurate. (The actions of Oklahoma City bomber Timothy McVeigh, for instance, seem no less purposefully evil than those of Macbeth). Yet there is a certain irony in the fact that Berns's argument for the death penalty seems to be more respectful of human dignity and free will than Kaminer's argument against it.

There are other problems with the death penalty, above all the danger of executing a wrongly convicted innocent person. But in order to make their case, opponents of capital punishment should be willing to recognize the legitimacy of retribution as an element of justice.