The House bill that would prohibit people from receiving the death penalty if they were suffering from certain mental illnesses at the time of the offense was approved by a Senate committee Thursday — with the implication the bill will face questioning when the full Senate hears it.
House Bill 148, which passed the House earlier this week, bars anyone found to have been suffering from a “serious mental illness” from receiving the death penalty if a judge determines the person was being affected by the illness at the time he or she committed the offense.
The bill lists five mental illnesses where the death penalty would be prohibited — schizophrenia, schizoaffective disorder, bipolar disorder, major depressive disorder and delusional disorder. A person who has a “documented” history of one of those disorders would receive a hearing at least 90 days before trial when the judge would decide if the person has a “serious mental illness.”
State law already prohibits executions of people with a “serious intellectual disability.” The state currently has a moratorium against imposing the death penalty and hasn’t executed anyone since 2008.
The bill’s sponsor, Rep. Chad McCoy, a Bardstown Republican and a member of the GOP House leadership, said, “This is not going to do away with the death penalty. It’s a very narrow bill.”
A hearing on the issue must be held at least days before the beginning of the trial date. That was a change from the original version, which said such as hearing could be held as late as 10 days before trial.
Chris Cohron, commonwealth’s attorney in Warren County and legislative director for the state Commonwealth’s Attorney’s Association, opposed the bill. He said there are protections for defendants with serious mental illnesses in case law.
Cohron said the use of the word “documented” was a concern.
“This is a point that will cause a great deal of litigation — ‘documented’ by who?” Cohron said. The disorders listed in the bill are encountered frequently in the criminal justice system, he said.
The bill, if approved, is not retroactive and would apply to death penalty cases after the law takes effect. Cohron said he believed people currently on death row would use the bill to appeal their cases.
“If you look at the 30-some people sitting on death row, many of these issues would have come up,” Cohron said. “The odds of (cases) not being challenged and litigated retroactively are zero.”
McCoy said the bill is not retroactive, and people who were found to be “seriously mentally” ill would face prison sentences.
“They are still going to serve life without parole,” McCoy said.
Senate President Robert Stivers, a Manchester Republican, said there is a difference between a “documented” mental illness and a “diagnosed” one, and a person could have a documented mental illness and still “commit an offense with all your cognitive skills in place.”
“But the death penalty would come off the table,” Stivers said, adding later, “You may never have been diagnosed (with) depression, but if you can show a documented history ... that raises the question.”
McCoy said a judge would have to determine the defendant was suffering from the illness at the time of the offense.
The bill was passed out of the committee, but only after Sen. Danny Carroll, a Benton Republican, changed his vote from “no” to “yes,” because he had not heard the entire debate. Carroll said he had voted “no” on a similar bill in the past.
The bill next goes to the full Senate for consideration.
Earlier in the day, the Senate Veterans, Military Affairs and Public Protection Committee approved a bill that creates a new definition of “riot,” and allows for enhanced penalties if a defendant is determined upon conviction to have committed an offense connected to the riot.
“I want to make it clear again: This is not about protests,” Carroll, the bill’s sponsor, told committee members. “This is not about lawful protests ... What this deals with are those who cross the line and commit criminal acts.
“We saw this across the summer,” Carroll said. “We feared a riot on these grounds several weeks ago.”
The enhanced penalties include a fine and preventing the defendant from being released on probation or parole until they’ve completed a certain amount of incarceration time for misdemeanor offenses, depending on the offense.
The bill “puts penalties (in place) that are harsh enough to deter riot-based crime,” Carroll said.
Some misdemeanor offenses would become felonies if committed during a riot, such as obstructing emergency responders and resisting arrest.
The bill also creates a presumption that a person had a reasonable fear of death or serious physical injury if he or she uses “defensive force” under certain circumstances during a riot, such as using defensive force to escape a riot while being intentionally blocked.
Carroll said he had made several changes based on comments he’d received from legislators, such as removing mandatory enhanced sentences for felonies associated with a riot. A provision about unlawful camping on property during a riot, which would be a misdemeanor under the bill, was changed to not include people who are homeless.
A section that pertained to a person losing some government benefits if convicted of a riot-related offense was removed.
The bill was approved, but some lawmakers said they had issues with portions of it. Sen. Wil Shroader, a Wilder Republican, said barring probation or parole for people convicted of riot-related offenses conflicted with other crimes where probation is allowed.
“We have all kinds of crimes that don’t have that language,” Shroader said, and called the provision in Carroll’s bill “very inconsistent.” The latest version of the bill was given to committee members during the hearing, which prompted one “no” vote. The wrong version was initially provided to lawmakers.
“I’m not against the bill,” said Sen. Dennis Parrett, an Elizabethtown Democrat. “But I am against getting a 34-page document put in our hands that is still hot” during the discussion.
Carroll’s bill next goes to the full Senate.
James Mayse, 270-691-7303, email@example.com, Twitter: @JamesMayse