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Although in recent years it has become a bit easier to discuss mental health challenges in public, mental illness is still somehow viewed by many in the public as a moral failing. It is that underlying judgement, that unwillingness to look at the many sources that leads to profound misunderstandings by the public, particularly in the context of a criminal trial. In this article I examine these issues in that context in order to better identify, and come to a better understanding of where our shared biases get in the way of a reasoned view of such evidence. The article examines some broad policy questions regarding what we, as a society, do with our mentally ill, and then looks at public perceptions and their impact on criminal justice decision making.

While it is true that in Atkins v. Virginia the United States Supreme Court held that it was unconstitutional to execute the mentally retarded, the Court left it up to the states, both substantively and procedurally, to define and remove the mentally retarded from the pool of death-eligible capital defendants. History teaches us that these procedures and policies will not always remove the mentally retarded from that pool, and that the capital defender is often left defending a death penalty case for a mentally retarded defendant. This article explores the challenges presented in jury selection when that is the case.

A mythology is associated with the death penalty in this country - and also with death row. It is a mythology rooted in the depravity of the offenses committed by these inmates, and our mixed fascination and revulsion toward those who have perpetrated such misdeeds. It is a mythology enhanced by expectations of the certain malevolence of persons under a sentence of death. American correctional policy towards death-sentenced inmates, however, is ostensibly guided by science, sound data, and "legitimate peneological interest" - not mythology. A segregated death-row is a near ubiquitous characteristic of this correctional policy. Central to the death row segregation rationale are assumptions that the nature of their capital offenses renders death-sentenced inmates at much greater risk to assault and injure correctional personnel and other inmates in prison, and that this risk is amplified by their having "nothing to lose." Accordingly, death sentenced inmates have been widely viewed as requiring extraordinary security procedures - procedures that result in far more draconian living conditions. Most death rows in the United States keep the inmate in an individual cell for 22 or 23 hours out of each day; restrict access to books, visits, telephone, and programs; limit showers and exercise; and require that any movement include shackling, often both on the ankles and at the waist. Astoundingly, the risk-driven assumptions undergirding segregated death rows and their associated intensive security procedures have not been based on demonstrated necessity. Whether death row reflects a legitimate penological interest in risk management, or embodies a conventional but erroneous wisdom rooted in the mythology of these prisoners and the ritual of the death row units that contain them, was without illumination. That darkness no longer exists. After over a decade of disciplinary data had been collected by the Missouri Department of Corrections, Cunningham, Reidy, and Sorensen undertook a comparative examination of the prevalence and frequency rates of violent institutional misconduct among the death-sentenced, life-without-parole, and term sentenced inmates who had been confined in PCC between 1991-2002. This analysis demonstrated that, far from being a disproportionate menace to institutional order, death-sentenced inmates had rates of violent institutional misconduct that were equivalent to inmates sentenced to life-without-parole, and were only a fraction of the rate of violence of parole-eligible prisoners. The risk-driven assumptions of death row were resoundingly debunked, leaving only mythology as a correctional rationale.

The issue of racial disparity in the administration of the death penalty is a persistent theme in modern capital jurisprudence. Starting with Furman v. Georgia and continuing on to McCleskey v. Zant,courts have struggled to come to grips with this issue. This article does not explore all of the legal ramifications of race and the death penalty, nor its political import. Rather, it tackles some of the practical problems facing a capital defense attorney in the courtroom by providing a brief overview of motions practice in this arena by using a federal capital case the author recently tried as an example.