Mental illness on all sides of the death penalty

By Clive Stafford Smith
Reprieve’s Founder & Director

While a mental health expert might have a more objective insight, my personal diagnosis of my life-long focus on the death penalty largely credits my father, Richard. To be sure, most of what I learned from my father was incidental rather than intentional on his part, but it played a pivotal role regardless of his motive.

My father, who died ten years ago, was a brilliant man – he courageously played his part in Bomber Command, enjoyed a briefly glittering life in Cambridge academia, and suffered for the rest of his life from a largely untreated bipolar disorder after his first hospitalization in 1963. The unkindest thing I ever said about him (which I did not mean for distribution, but rather explanation) was that due to his illness nothing in his life ever came to fruition.

Yet even more unkind, perhaps, were those who viewed his many failures as frauds: if there was one thing certain, it was that Dad believed fervently in each scheme that he would concoct, and never meant to rip people off. Unfortunately, his brain would race along at a pace that left the rest of us behind, and it similarly affected his impatient lack of judgement. He was, in the rather harsh terms of the politically incorrect aphorism, not bad, but mad.

When I was young, various things he did were perplexing. The prism through which I have always viewed him was ground into my psyche when I was seven: he sat me down on the sofa and announced that, in contrast to his wartime service as a teenager, I was being rendered fatally immature by the English system. It was, he announced, time for me to strike out on my own. Here was £200, and I was to go live where I liked, and pay him back later in life.

There were two sides to this proposal, from my point of view: the money was magnificent (I later worked out it was 80 years’ worth of my pocket money). I was less comfortable with the idea of going to live alone. As so often happened, my mother intervened, took away the bank notes, and sent me to bed.

Paradoxically, I only came truly to understand this in preparing to dissect a government psychiatrist in a New Orleans death penalty case many years ago, early in my career. I had collected and annotated the transcripts from every trial in which he had ever testified. As I prepared my cross-examination I felt that rising thrill of certainty: the jury were going to despise this man.

When he was paid by the State, he was invariably testifying against a young black man – and his diagnosis was inevitably ‘Anti-Social Personality Disorder’ (the modern variant on sociopath): The defendant had no conscience, and would inexorably continue to wreck havoc on society. Hence, he intimated, the death penalty was the only appropriate punishment.

On the other hand, when the same doctor was hired by the defence, his patient was always a middle class white man (who could afford the fee). Thus purchased, the doctor’s opinion was equally consistent: the man was suffering from bipolar disorder (once called manic depression). And here is the kicker: such a person, he said, when manic, simply did not know the difference between right and wrong. The defendant was therefore exempt from criminal punishment, since he was legally insane.

When I first noticed the doctor’s obvious pattern, I labeled him no more than a charlatan. And I did expose him in front of the jury, to the benefit of my client, who thereby avoided the dreadful end the doctor apparently wished on him.

However, in the meantime, I had paused to ponder: while the doctor was indeed a charlatan, by happenstance he was half-right in a way I had never recognized before. My father, Cambridge First and part time professor, sometimes met the M’Naghten test of insanity, going back to 1843: “at the time of the committing of the act” – say, seeking to dispatch me from home at the age of seven – “the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong.”

My Dad was legally insane at all the times that people most hated him.

My father used to sign every letter “Have Fun!” This, despite a series of paragraphs that were often venomous. It was immensely liberating to learn that the person I loved for all this – the Dad I had – was not guilty of the wicked scams that were whispered against him. And all around me I saw men, women and children who should be allowed to share my father’s defence.

For the most part they were those I represented. I still feel guilty about Troy Dugar – fifteen years old when he was sentenced to death in Lake Charles, Louisiana in 1987. I adopted him on appeal, and we were in court when Troy explained to me, matter of fact, how he was watching Judge Arthur Planchard floating off the bench towards the ceiling, drool dripping from the side of his mouth. Judge Planchard was far from my favourite jurist, and I could almost imagine it myself. For Troy, though, it was the eloquent drama of his schizophrenia.

I was young myself, and though I got him off death row without too much trouble, I manifestly failed the lad: he was no more guilty of a crime than my father, yet he remains in prison thirty years later, well into a tormented middle age.

Equally, I have never quite got over Sam Jones, the pseudonymous Louisiana executioner. I debated him on television and, as with any witness, I prepared thoroughly for his exam. He announced that he would gladly execute Troy, who was then still on Death Row. I asked him how he would spend the $350 in Judas money he would trouser for electrocuting a fifteen year old: he said he generally restocked his fridge with beer. I asked him if he felt Troy was “vermin, and like vermin should be extirpated”? He said, yes. I said that was a quote from Mein Kampf. “Great man, that Adolf Hitler,” he replied without hesitating.

A teenager was one matter. I asked him whether he would execute a five year old if the State called upon him to do so: of course. My digging had revealed the existence of his five year old grandson Chris. I asked him whether he had ever told his Chris that Grandpa would execute him if he did anything wrong. He said, yes. I asked how Chris was doing in therapy.

I still feel rather sordid for trashing Sam Jones on television, for there is a fair range of mental illness on all sides of the death penalty. Fully a third of the people I have called clients have been defined as mentally disabled – it is so easy to convict a person who is so malleable. It was my unhappy duty to shame Jerome Holloway, whose IQ was just 49 (you get 45 points for taking the test, so he was four points above the shackles that bound him). The only way to illustrate his limitations was to cross-question him, in a gentle leading tone, until he confessed to assassinating President Lincoln. Everyone laughed at him, and that was the one humiliation that infused him, but it saved his life.

Another tranche of the condemned are overtly suffering from a range of mental disorders. But sometimes the illness inflicts the parent or the paedophile who has abused my clients. And I generally feel that a similar mitigation should be extended to the executioners, prosecutors and judges who express such satisfaction at the prospect of an execution.