Killing the Non-Willing: Atkins, the Volitionally Incapacitated, and the Death Penalty

Jamie Wilson, nineteen years old and severely mentally ill, walked into a school cafeteria and started shooting. Two children died, and Jamie was charged with two counts of capital murder. Because he admitted his guilt, the only issue at his trial was the appropriate punishment. The trial judge assigned to his case, after hearing expert testimony on his mental state, found that mental illness rendered Jamie unable to conform his conduct to the requirements of law at the time of the crime—not impaired by his mental illness in his ability to control his behavior, but unable to control his behavior. The following day, the same judge sentenced Jamie to death. Whether a practice is unconstitutional, of course, is hardly determined by whether it is sensible, and the South Carolina Supreme Court has held that, sensible or not, it is constitutional. In so holding, the fact that no other defendant—in South Carolina or any other state—has ever been sentenced to death after the factfinder determined that he lacked volitional control did not sway the court. Atkins v. Virgina, decided in 2002 by the United States Supreme Court, casts further doubt on the South Carolina highest court’s holding. Reversing its 1989 holding in Penry v. Lynaugh, the Supreme Court in Atkins held that the Eighth Amendment’s ban on excessive and cruel and unusual punishments prohibited the execution of individuals with mental retardation. In this Article, we consider the implications of Atkins for mentally ill defendants, arguing that it does indeed compel the conclusion that executing a defendant for conduct he was unable to control is a violation of the Eighth Amendment. Part I briefly reports on the life of Jamie Wilson and the litigation of his case. Part II summarizes relevant Eighth Amendment law, focusing on the Supreme Court’s decision in Atkins. Part III applies the Atkins rationale to the execution of persons whose mental illness rendered them unable to control the conduct for which they were prosecuted, and Part IV begins to explore the harder question of what the Eighth Amendment says about the execution of persons who are able to control their conduct, but who are nonetheless seriously mentally ill