In 2002, the United States Supreme Court handed down Atkins v. Virginia – that’s less than ten years ago.  Hard to believe, in many ways.

In 2009, Bruce Winick, Professor of Law and Professor of Psychiatry & Behavioral Sciences, and Director, Therapeutic Jurisprudence Center, University of Miami, Coral Gables, Florida, published an article in the Boston College Law Review entitled, "The Supreme Court’s Evolving Death Penalty Jurisprudence: Severe Mental Illness as the Next Frontier."

You can read the full article online here in a downloadable format.. Citation for the article: Bruce J. Winick, The Supreme Court’s Evolving Death Penalty Jurisprudence: Severe Mental Illness as the
Next Frontier, 50 B.C.L. Rev. 785 (2009),

What does Professor Winick suggest?

First, Professor Winick opines that the decision on whether or not the Eighth Amendment should apply in a case of mental illness should be done on an individual case bases, because not all mental illnesses can impact responsibility to the degree necessary for the Cruel and Unusual standards to come into play.  He gives personality disorders and voluntary intoxication as examples.

He believes that the decision is one to be made pretrial, through a combination of factual evidence and expert opinion by the trial judge.  It’s really not something for a jury.

Lastly, he delves into what will be happening — and what is happening now, really, with things like QEEG – when scientific understanding of the brain and human behavior moves forward to a point where we can concretely understand more of the "why" of things. 

Add to this the technological impact of DNA testing and the increasing number of exonerations based upon DNA evidence. 

Will the High Court be moved by the scientific realities or will it be swayed more by society’s norms of the time?

In June 2009, Bobby v. Bies reversed the 6th Circuit and returned the defendant to the Ohio state courts for evidentiary hearings on his mental incapacity. 

Professor Winick’s article is a good read if you like to ponder and predict.  And, hats off to the Boston Law Review for releasing the article on the web with access to all.