Executing the Mentally Ill: Do We Deserve to Kill Them?

On January 13, 2021, Lisa Montgomery was the first woman executed in 68 years by the federal government, for what the Department of Justice called an “especially heinous murder.” She was the twelfth individual killed since July 2020, when the former administration resumed federal executions after a 20 year hiatus.

On December 16, 2004, Montgomery drove from her home in Kansas where she lived with her husband and four children to the home of eight-month pregnant Bobbie Jo Stennet. Upon arriving, Montgomery strangled Stennett unconscious, took a kitchen knife, and cut into Stennett’s abdomen.

Montgomery called her husband on the drive back to Kansas to let him know she had given birth to a baby girl while out running errands. That night the family celebrated their new arrival, Abigail. Police arrested Montgomery the next day. In October 2007, Montgomery was found guilty of federal kidnapping resulting in death by the U.S. District Court for the Western District of Missouri.

Last October, Montgomery’s lawyers, supported by numerous civil rights organizations, filed a clemency petition asking former President Trump to halt the execution and reduce the sentence to life without parole. No one doubted Montgomery was guilty of murdering Bobbie Jo Stennett and kidnapping her child. No one was enthusiastically calling for her release.

What was being asked was how the federal government could morally justify the killing of someone with severe mental illness caused by a level of childhood abuse so horrific it could be “akin to torture.”

Akin to Torture

The abuse Lisa Montgomery endured from a young age was so severe that her neurological functioning and development was compromised. Until the age of 4, she lived with her mother, Judy Shaughnessy; her biological father; and her half-sister, Diane. Years later, Diane would testify about the endless physical and psychological abuse the girls endured and the depth of Shaugnessy’s cruelty. Another sibling would recount that Shaugnessy killed the family dog right in front of Montgomery and her half-siblings as a punishment, smashing the dog’s head in with a shovel until its brains oozed out.

Shaugnessy frequently left Diane and Montgomery alone with her male friends. One of the men would regularly go into the girls’ room at night to rape 8-year-old Diane while 4-year-old Montgomery slept inches away. Diane was later removed from the house by child protective services; Montgomery was left behind with her mother.

Home life deteriorated further when Montgomery was in kindergarten. After separating from Montgomery’s father, Shaugnessy married Jack Kleiner, who physically abused Montgomery, frequently kicking and choking her and forcing her to strip naked before whipping her with a belt.

Around the time Montgomery turned 11, Kleiner began fondling her, which quickly escalated to rape. From ages 13 to 16, Montgomery would be raped by her stepfather at least two to three times a week in a makeshift bedroom/rape chamber he built off the family home. Kleiner would allow his friends, sometimes multiple men at once, to rape Montgomery as well. A cousin testified in court that Montgomery confided to him about being repeatedly orally, vaginially, and annally raped. “She said it was over and over, one man right after the other, and went on for hours … They would beat and slap her if she was ‘doing it wrong.’ When they were done, they urinated on her like she was trash.”

Shaugnessy, well aware of the sexual torture Montgomery was experiencing, blamed Montgomery for the abuse. After divorcing Kleiner, Shaugnessy began prostituting out teenage Montgomery in exchange for money and services, like electrical repairs and new indoor plumbing. Shaugnessy told her daughter that submitting to the abuse was how Montgomery had to “pay” for her “own room.”

At Shaugnessy’s insistence, 18-year-old Montgomery married her 25-year-old stepbrother and had four children in less than five years, enduring additional horrific physical, mental, and sexual abuse at the hands of her husband. Her mother and husband pressured her into an involuntary sterilization procedure after the birth of her fourth child. In sworn statements, family members detailed a severe decline in her mental health after the procedure, her role in life having been defined by being a mother. Montgomery became suicidal, struggled to keep a job, drank heavily, got into multiple car accidents, and expressed extreme delusions, insisting numerous times that she was pregnant.

Constant terror and anticipation of sexual violence caused Montgomery to disassociate from her surroundings as a form of survival. Montgomery’s consistent dissociation from reality caused her to develop complex post-traumatic stress disorder (C-PTSD), a chronic mental illness commonly found in victims of torture. Dr. Katherine Porterfield, a clinical psychologist specializing in trauma associated with torture and sex crimes, testified that Montgomery’s severe childhood trauma resulted in “an adult with a disconnected sense of her emotions, a tenuous hold on reality, a completely warped view of human relationships, and a split and damaged sense of herself and of her body.” Dr. Porterfield stated that she found Montgomery’s diagnosis to be “one of the most severe cases of dissociative I’ve ever seen.”

The United States and Capital Punishment: A Twisted History

Capital punishment has been a tradition in the United States since the country’s inception. In the colony of Virginia in 1623, Daniel Frank was the first person in North America to be legally executed for allegedly stealing a calf. The framers of the Constitution did not explicitly address or prohibit capital punishment, leading many to believe that the founding fathers at least tolerated the idea that it was permissible for a court of law to sentence a citizen to death.

On June 25, 1790 in Massachusetts, Thomas Bird was hung at the gallows, becoming the first person executed by the federal government. The first woman executed by the federal government was Mary Surratt on July 7, 1865, hung for allegedly taking part in the conspiracy to assassinate President Lincoln, despite not being allowed to take the stand in her defense. From 1700 to 2017, there had been over 15,787 individuals executed in the United States by either regional, state, or federal governments.

By the mid 1800s, a growing movement of U.S. citizens who opposed the death penalty influenced many states to restrict the number of crimes that warranted the sentence​. Michigan became the first state in 1845 to abolish the death penalty for all crimes except treason. Six years later, Rhode Island abolished the death penalty with no exceptions. By 1917, nine states had abolished the death penalty with only one state — Tennessee — allowing it solely in the case of rape. However, by the 1920s, legislators in six of the nine states who had abolished the death penalty reversed their decisions, a blow to abolitionists’ initial gains.

In 1972, the Supreme Court case Furman v. Georgia established the first major reform to the death penalty at the federal level, over 170 years after the first federal execution. In a 5-4 ruling, the Court declared that the death penalty violated the Eighth and Fourteenth Amendments, being an unconstitutionual form of punishment. Four years later, the ruling was overturned in Gregg v. Georgia. The Court found that the Georgia legislators adequately revised the state’s death penalty statute by considering mitigating circumstances and establishing clear guidance on what constitutes imposition of the death penalty.

It was not until 1986, in Ford v. Wainwright, that the Supreme Court ruled it unconstitutional to execute an incarcerated individual found to be insane at the time of their offense, though it is notoriously difficult for a defendant to claim insanity. To qualify as insane, an individual must have at the time their crime “had a severe mental disorder or disability that significantly impaired their capacity (a) to appreciate the nature, consequences or wrongfulness of their conduct, (b) to exercise rational judgement in relation to conduct, or (c) to conform their conduct to the requirements of the law.” This past March, the Court ruled that Kansas did not violate the Constitution by outright barring an individual from invoking an insanity defense.

In recent years, the Supreme Court has ruled that an individual’s mental illness, outside of an insanity defense, should be taken into consideration during sentencing. It has not, however, ruled against the death penalty for those suffering from a serious illness.

Slipping Through the Cracks

Roughly 37% of incarcerated individuals in the United States have suffered or currently suffer from a diagnosed mental disorder, compared to only 18% of the entire adult population in the United States. Incarcerated females are more likely to suffer a mental disorder (65.8%) than incarcerated males (34.8%). Women who experienced a childhood of abuse and neglect are significantly more likely to be arrested for a violent and/or non-violent crime.

In the last two decades, an estimated 43% of executed intimates suffered from a diagnosed mental disorder. A study done by American Psychological Association on 43 individuals on death row found that 97% were physically and/or sexually abused during childhood. Numerous studies done on death row inmates in prisons across the United States show similar trends.

The significant prevalence of incarcerated individuals on death row with a background of abuse, neglect, and trauma raises the question of society’s culpability. A common theme in these cases is the lack of intervention by individuals, institutions, and systems in place meant to prevent abuse that directly or indirectly allowed for the infliction of continuous trauma. Lisa Montgomery is a perfect example.

Her half-sister Diane credits the actions of child protective services with saving her life. She was able to be adopted into a home with nurturing parents who provided the love and resources needed to overcome her traumas. Despite living in the same — documented — abusive household, no one came to save Montgomery.

In grade school, teachers observed signs that Montgomery was experiencing problems at home. Once Kleiner began raping her, family members and friends noticed Montgomery frequently spacing out. In high school, when her mother started sex-trafficking her, Montgomery’s grades declined so severely she was placed into special needs classes. School administrators suspected Montgomery was experiencing abuse at home, but did not take the steps to adequately investigate the situation further or report suspicions to the authorities. At Shaughnessy and Kleiner’s divorce proceedings, Montgomery’s mother admitted to the court that she was aware of the sexual abuse. She even described once catching Kleiner raping Montgomery, saying “He was in her. He was pumping her.”

While the court admonished Shaughnessy for not reporting the abuse to the authorities, no further steps were taken. The police were not notified, even though the statute of limitations had not run out. Shaughnessy was even allowed to keep custody of Montgomery, giving her the opportunity to later prostitute her daughter out for money. As one mental health expert who examined Montgomery put it, “it’s not just the childhood maltreatment and psychological abuse and neglect, or the incredible sexual abuse by her stepfather, or the sex trafficking … it’s also people hearing it, knowing it and doing nothing about it. And, in fact, blaming her for it.”

Guilty But Mentally Ill

Individuals with severe mental disorders are not 100% innocent of the crimes they committed. Many understand, to an extent, that they are guilty of an extreme offense. And many should stay under some form of institutional supervision and even serve life sentences (while receiving proper mental health care). However, as a society that failed to heed warnings or commit adequate resources to aid those suffering from severe mental illness, do we deserve to kill them?

A number of bills have been proposed in state legislation in the last five years to ban the death penalty for those with severe mental illness and have been advocated for by organizations like the American Bar Association. A few bipartisan efforts have been successful, like Ohio’s House Bill 136 in 2019. In the same year, however, a similar bill failed to pass the Virginia State House. Short of a total ban on the death penalty, legislative action by the states is a significant step in establishing safeguards to “reduce unfairness in the administration of capital punishment.”

Another tool that can safeguard the mentally ill is the expansion of the newly popular guilty but mentally ill (GBMI) verdict. On paper, the verdict is a win-win. The defendant is shown a degree of compassion by the jury while still being held accountable for the crime committed. This can be argued in the cases where an insanity defense is not applicable or accepted by the court.

As it is currently exercised, however, GBMI individuals lose key constitutional rights, such as loss of liberty relating to mandatory therapies and possible body constraints to undergo unwanted treatments. GBMI does not explicitly protect an individual from the death penalty. Advocates call for judicial reforms of GBMI to address the constitutional concerns and to make it an equal ruling with not guilty by insanity, which would officially bar a death sentence.

In prison, Montgomery required a complex regime of psychotropic drugs to bring her episodic psychosis under control. Prison doctors administered a cocktail of anti-psychotic, anti-epileptic, and antidepressant medications including Risperdal, Depakote, bupropion, Zoloft, Elavil, and lithium. The severity of mental health issues Montgomery suffered from made it difficult for her to process information and navigate social relationships. She struggled to maintain proper hygiene and plan simple tasks and frequently lost focus during conversations.

On November 11, Montgomery’s lawyers released a series of letters that were sent to then-President Trump asking for clemency. Montgomery’s lawyers stressed that they were not seeking a pardon. “In a death penalty case, clemency is everything … It is the one chance that lawyers have to put everything before a decision make and to say … look at the person’s entire life.” By asking for clemency, Montgomery gave us one last chance to show compassion and come to the aid of a woman whom we as a society have failed again and again. On January 13 at 1:31 a.m., we failed her one last time.