Jodi Arias’ defense attorneys issued a statement to The Arizona Republic, regarding their belief that Jodi Arias is mentally ill. Their point was that Dr. DeMarte, the expert psychological witness for the prosecution, had diagnosed Jodi with borderline personality disorder. They contended that since she is mentally ill, she should not get the death penalty.
Bill Montgomery, the Maricopa County attorney, responded that Jodi “was found competent to stand trial and that any statement that she isn’t fit for the proceedings is simply inaccurate.”
Mr. Montgomery is correct. Jodi Arias is mentally competent. There is a big difference between being diagnosed with a mental illness and being mentally incompetent. In other words, mental illnesses vary in severity. Only the most severe, the psychoses, would make one mentally incompetent and thus not qualified for the death penalty.
The statement by her defense attorneys might be a preview of what we can expect them to argue at retrial. They might try and argue that she is mentally ill and should be spared the death penalty. Can having borderline personality disorder spare you from the death penalty? By itself no, unless you were also psychotic at the time. No expert witnesses have claimed that Jodi was at any time psychotic.
The Task Force on Mental Disability and the Death Penalty, established by the Individual Rights and Responsibilities section of the American Bar Association (ABA-IRR), has proposed that the ABA adopt three recommendations when considering mental illness or disability in capital cases. Four other professional organizations, including the American Psychiatric Association, American Psychological Association, National Alliance on Mental Illness, and Mental Health America, also recommend the prohibition of the executing individuals with severe mental illnesses.
As I will explain, the key word severe is important with regard to mental illness and the death penalty.
The first Task Force recommendation prohibits the use of execution or death sentences if “at the time of the offense, they have significant limitations in both their intellectual functioning and adaptive behavior, as expressed in conceptual, social, and practical adaptive skills, resulting from mental retardation, dementia, or a traumatic brain injury.”
As you can see, their first recommendation focuses on exempting those individuals with significant limitations in intellectual functioning from being given a death sentence. The Supreme Court concluded that individuals who are intellectually disabled are “not even as culpable…as the “average murderer” much less the type of murderer who deserves the death penalty.” An individual is considered intellectually disabled if before the age of 18, their IQ is approximately 70 or below. This exemption would not work for Jodi Arias because her IQ has been measured at above average, 120.
In the case of mental illness and the death penalty the Task Force has made the following second recommendation:
“Defendants should not be executed or sentenced to death if, at the time of the offense, he or she had a severe mental disorder or disability that significantly impaired their capacity (a) to appreciate the nature, consequences, or wrongfulness of their conduct; (b) to exercise rational judgment in relation to conduct; or (c) to conform their conduct to the requirements of the law. A disorder manifested primarily by repeated criminal conduct or attributable solely to the voluntary use of alcohol or other drugs does not, standing alone, constitute a mental disorder or disability for purposes of this provision.”
In the second recommendation, the Task Force is focused on the term severe with regard to mental illness. Severe refers to the most serious disorders, including schizophrenia, or other psychotic disorders, mania, major depressive disorder, and dissociative disorders. On rare occasions, personality disorders may be considered severe but only if there is a psychotic component.
In the majority of cases personality disorders are excluded from death penalty exemptions. With regard to borderline personality disorder, those diagnosed “can experience psychotic like symptoms… during times of stress” but these symptoms can only be considered if they occurred at the time of the capital offense. That was not the case with Jodi Arias.
The “significant impairment” requirement section of recommendation two, focuses on individuals whose disorders make it difficult for them to appreciate the wrongfulness of their conduct. For instance, an individual who is psychotic and who believes that God has ordered them to commit a crime, might be unable to appreciate the wrongfulness of their conduct.
The Task Force also explains what they mean by exercising “rational judgment in relation to conduct” during the commission of a crime. Irrational judgment does not mean that an individual lacked inaccurate, unusual or bad judgment. Irrational, in the context of severe mental illness, means that an individual was experiencing disoriented, incoherent and delusional thinking, the type of thinking that only someone with a severe mental illness could experience. Not the prosecution nor the defense, nor did any expert witness suggest that Jodi Arias has or had incoherent, delusional thinking.
The third Task Force recommendation for individuals who should be excluded from the death penalty, is a “significant incapacity to conform one’s conduct to the requirements of the law.” This recommendation is meant to exclude individuals who experience significant cognitive impairment during the commission of a crime. The Task Force exclusively notes that “significant impairment” cannot be attributed to drugs and alcohol nor can it exempt individuals whose only diagnosis is antisocial personality disorder or a related disorder such as borderline personality disorder. There was nothing, in Jodi Arias’ psychological makeup that would have impaired her from conforming with the law. In fact all of the evidence stated that she was well aware of the law, knew that it was wrong to murder and did her very best to cover her involvement in the murder of Travis Alexander.
Each of the three recommendations, that I have listed from the Task Force, is attempting to make a distinction between individuals who cannot appreciate the wrongfulness of their actions due to a mental disorder or disability and “the average murderer.”
There’s no evidence to suggest that at any time Jodi Arias ever experienced psychosis or that she has a severe mental illness. Remember, borderline personality disorder or even antisocial personality disorder are not considered to be “severe mental illnesses.”
Psychosis is associated with disorders such as schizophrenia. I’ve written extensively about the fact that there is no evidence to suggest that Jodi Arias experienced any symptoms of schizophrenia or related psychotic disorders. Jodi Arias, in the context of an insanity defense, would be considered an “average murderer” and not someone who killed due to a severe mental illness.
In death penalty cases, juries are allowed to consider mental illnesses as mitigating factors when they are deciding whether or not to impose the ultimate penalty of death. Though the jury is allowed to consider mental illness, it must make a distinction between severe mental illness and other mental illnesses. Having a mental illness has never and is not at this time, a factor for the jury’s consideration in a death penalty case.
The law is very clear and consistent. In essence, it says that if you have a very low IQ or if you are delusional or if you cannot control yourself, then you should be spared the death penalty. It is of course very complicated and I have done my best, in this article and in previous articles, to discuss the details of the law. No one could build a case, that is based on law, that would exempt Jodi Arias from the death penalty.
Jodi’s defense team has struck out repeatedly in this trial. They will also go down swinging when their latest contention crosses the plate.
Slobogin, C. (2005). Mental disorder as an exemption from the death penalty: The ABA-IRR Task Force recommendations. 54 Cath. U. L. Rev. 1133
Winick, B. (2009). The Supreme Court’s evolving death penalty jurisprudence: Severe mental illness as the next frontier. 50 B.C. L. Rev. 785.