The Supreme Court has no idea what to do about mentally ill defendants.

The Supreme Court Has No Idea What to Do About Mentally Ill Defendants

The Supreme Court Has No Idea What to Do About Mentally Ill Defendants

The law, lawyers, and the court.
June 19 2017 5:13 PM

Dodging Insanity

The Supreme Court doesn’t know how the justice system should deal with mental illness.


Photo illustration by Lisa Larson-Walker. Photo by iStock/Thinkstock, Boston Public Library/Flickr CC.

In a 5–4 decision on Monday, the Supreme Court ruled in favor of an indigent Alabama death row prisoner who had no dedicated mental health expert to help explain his condition to the court that sentenced him to die. The task before the court in McWilliams v. Dunn was to determine what kind of expert psychiatric assistance an indigent defendant deserves at trial. The court—with Justice Anthony Kennedy weighing in with the liberal wing—ruled very narrowly but in a way that suggests that five justices are pretty certain that a defendant receiving almost no expert help in explaining at trial a serious mental health issue is problematic, if not unconstitutional. The ruling could have an impact on two Arkansas death row inmates—Bruce Earl Ward and Don Davis—whose executions had originally been set for April 17 before being halted over similar questions. The death penalty may still be dying in America. But we continue to have no idea what to do about mentally ill defendants in court.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate and hosts the podcast Amicus.

In 1984, James McWilliams was convicted and sentenced to death for the rape and murder of Patricia Reynolds during a robbery at a Tuscaloosa, Alabama, convenience store. A three-member state “Lunacy Commission” examined McWilliams at a state hospital and concluded he was competent to stand trial. But McWilliams had no expert witness testify on his behalf at trial or help in the preparation of his defense, despite the fact that two days before his sentencing hearing a court-appointed psychologist concluded that McWilliams had “organic brain dysfunction.” His lawyer also only received 1,200 pages of critical prison records the day before sentencing. They revealed that McWilliams was being treated with strong psychotropic drugs. His defense counsel pleaded with the sentencing judge for time and an expert to help him understand all the new material, which as a layman he could not understand or explain. The judge gave him three hours, no expert, then concluded that the accused was “feigning, faking and malingering.” McWilliams was sentenced to death. On appeal, McWilliams argued that the trial court denied him the right to meaningful expert assistance as guaranteed by the 1985 case Ake v. Oklahoma. In Ake, the Supreme Court established that when an indigent defendant’s sanity becomes a major issue at trial, “the State must, at a minimum, assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense.”  


In an opinion authored by Justice Stephen Breyer, the court concluded Monday that McWilliams did not receive such assistance and sent the case back to the 11th U.S. Circuit Court of Appeals to determine whether that kind of help would have made a difference at sentencing. The majority did not rule on the broader constitutional question of whether Ake meant that indigent defendants have the right to have meaningful assistance and participation from these expert mental health witnesses.

Breyer—writing for Justices Kennedy, Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan—found that even though Ake was decided after the McWilliams conviction, that conviction could be revisited under existing death penalty law if it was “contrary to, or involved an unreasonable application of, clearly established Federal law.” That is typically a very big lift, but the court found that the bar was met. So McWilliams—on death row for more than 30 years—will get another look.

Breyer first noted in his opinion that McWilliams was indeed indigent and indeed suffered from a mental condition that was relevant to his punishment. Breyer rejected Alabama’s claims that McWilliams’ lawyer had a volunteer expert he never called and the claim that his lawyer never asked for an expert.

Breyer then found that Ake clearly held that a defendant must receive the aid of a mental health expert who can “assist in evaluation, preparation, and presentation of the defense” and noted that most states now provide defendants with their own experts who do just that. The only question, then, was whether Alabama did enough to meet that standard. Breyer found that an independent expert dumping a report on a defense counsel’s desk prior to a sentencing hearing without any assistance in understanding it was not enough. He ruled that while Alabama met the examination requirement of Ake, it failed completely to provide an expert to help out with the evaluation, preparation, and presentation prongs of the case. He concluded that this sort of assistance might have made a difference at sentencing for James McWilliams.


Justice Samuel Alito—writing in dissent on behalf of Chief Justice John Roberts and Justices Clarence Thomas and Neil Gorsuch—was clearly annoyed by this ruling. He was angry that the majority ducked the larger question of whether the decision in Ake clearly established that an indigent defendant whose mental health was a significant factor in a case is “entitled to the assistance of a psychiatric expert who is a member of the defense team instead of a neutral expert.” Alito called this duckage “a most unseemly maneuver.” After excoriating the majority for deciding the case narrowly, Alito argued that in any case, Ake was ambiguous about what kind of psychiatric help a defendant must receive. Further, he wrote that ruling clearly stated that an indigent defendant does not have a constitutional right to “choose a psychiatrist of his personal liking or … receive funds to hire his own.” Alito insisted that the court in Ake held only that a defendant is entitled to have “access” to “one competent psychiatrist” and concluded that “Ake is ambiguous, perhaps deliberately so.” He concluded that the majority’s decision to rule only on the facts of the case and not the broader issue is “acutely unfair to Alabama,” which briefed only the broader question. He argued that the state was not given a fair chance to respond to this narrow question, and so the ruling would come as “nasty surprise” to the state.

At least now Alabama will know how McWilliams’ lawyer felt.

Alito finally argued that the lack of expert help was a “harmless error” that wouldn’t have made a difference in the sentencing anyhow.

Alito made the narrowness of the ruling a key bone of contention, but the passage of time and state statutes that now afford the kinds of assistance required in this case will eventually obviate the need to decide this broader question. So, perhaps simply correcting the injustice done to McWilliams is enough. But what is lost as a result is a focus on the massive disparity between the resources available to prosecutors and those available to indigent defendants. That’s a divide that continues to expand. I asked Stephen Bright, McWilliams lawyer at the Supreme Court, why the disparity in resources matters so much. He said, via email:

It’s not fair for the prosecution to be able to hire any expert it wants and as many experts as it wants while the defense is not even allowed to consult with an expert. The adversarial process cannot function properly if the prosecution can retain mental health experts, but the defense is not even allowed to consult with [one]. Today there is great reliance on experts in many areas of the law. A mental health expert who can assist in the evaluation, preparation, and presentation of the defense is indispensable in a case which is decided by expert testimony.

It seems to me that latter bit is also somewhat lost in these dueling opinions: the acute crisis in the mental health of defendants and prisoners. As I noted at the time of oral arguments, a recent Bureau of Justice Statistics report estimated that 64 percent of local jail inmates, 56 percent of state prisoners, and 45 percent of federal prisoners have serious mental health illnesses. Mental health diagnoses cannot merely be a “check the box” enterprise for the justice system. Rigorous analysis and explanation is necessary. That the court is fighting over whether only McWilliams deserved better or whether all indigent defendants deserve better is pretty much reflective of the problem itself: Mental illness isn’t simple; brain science is ever more complicated, and whether the courts go big or go small on that question doesn’t make the desperate need for the justice system to acknowledge all that go away.

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