Emily Schmidt, Associate Member, University of Cincinnati Law Review
Mental Health America estimates that at least twenty percent of people on death row have a serious mental illness. On June 17, 2021, an Ohio court vacated two death sentences imposed upon David Braden, a man with a documented history of schizophrenia, resentencing him to life without parole. After twenty-two years on death row, David Braden became the first person in the United States spared from execution because of Ohio’s new law, House Bill 136. The Bill exempts those with serious mental illness (“SMI”) from the death penalty.
Since 2006, the American Bar Association (“ABA”) has taken a firm stance against the death penalty for people who have severe mental illnesses. In 2016, the ABA’s Death Penalty Due Process Review Project published a paper as a tool for policymakers to use in creating laws that categorically exempt execution for those with severe mental illness. Five years later in April 2021, Ohio became the first jurisdiction to enact such a categorical ban through House Bill 136, shielding people with certain serious mental illnesses from the death penalty.
This article will provide an analysis of Ohio House Bill 136 (“Bill”). Section II will provide background on the Bill and relevant Ohio Revised Code provisions on the death penalty for people with serious mental illness, and the ABA’s guidance on the matter. Section III will discuss and resolve concerns presented by Bill opponents at Ohio legislative hearings. Finally, Section IV will conclude by recommending other states adopt similar categorical bans against executing people with serious mental illnesses.
A. Ohio Legislation and Statute
Ohio H.B. 136 went into effect on April 12, 2021, following years of lobbying efforts from bipartisan groups of legislators and community organizations, such as the Ohio Alliance for the Mental Illness Exemption and Ohioans to Stop Executions. The Bill created a new statutory provision in the Ohio Revised Code, preventing defendants who meet the diagnostic criteria for schizophrenia, schizoaffective disorder, bipolar disorder, or delusional disorder at the time of an alleged aggravated murder from receiving the death penalty.
In Ohio, a person over age eighteen is eligible for the death penalty if indicted for aggravated murder and one of ten aggravating circumstances applies. Prior to H.B. 136, the only exception to this stemmed from the landmark case Atkins v. Virginia. In Atkins, the Supreme Court held that people with intellectual disabilities could not be executed. Now, Ohio is the only state with a capital punishment scheme to categorically bar the death penalty if defendants meet the statutory criteria for intellectual disability or for serious mental illness. In some criminal cases, if a defendant has a serious mental illness, the defendant may be found not guilty by reason of insanity (“NGRI”) or found incompetent to stand trial (“IST”). H.B. 136 pertains to those with serious mental illnesses that—for whatever reason—do not meet the criteria for NGRI or IST,  like David Braden.
The Bill created a new section in the Ohio Revised Code entitled “Sentencing for aggravated murder when offender had serious mental illness at time of offense.” Under this provision, a defendant in Ohio charged with aggravated murder will be exempt from the death penalty under the following conditions:
(1) the person met diagnostic criteria for schizophrenia, schizoaffective disorder, bipolar disorder, or delusional disorder at the time of the alleged aggravated murder; and
(2) their mental health condition significantly impaired the person’s capacity to exercise rational judgment: to conform their conduct to the requirements of law, or to appreciate the nature, consequences, or wrongfulness of their conduct.
The defendant must prove these two conditions by a preponderance of the evidence during the pretrial phase.
For the 133 people presently on Ohio’s death row, H.B. 136 created a time-sensitive postconviction remedy under ORC § 2953.21(A)(1)(a)(iv), allowing a person with a serious mental illness who was sentenced to death to petition the court to vacate their death sentence. Instead, the defendant consents to a sentence of life imprisonment without parole. The statute provides that in most circumstances, the petition must be filed no later “than three hundred sixty-five days after the effective date of this amendment.” This means that any person presently on death row in Ohio who meets the serious mental illness criteria outlined in ORC § 2929.025 has until April 12, 2022 to petition the court to vacate their death sentence. So far, David Braden is the only person who has obtained this postconviction relief.
B. ABA Guidance on the Death Penalty and SMI
Much of the language in Ohio H.B. 136 came directly from ABA Recommendation 122A, which urged jurisdictions with capital sentencing schemes to bar the death penalty for anyone with a severe mental disorder or disability:
[T]hat significantly impaired their capacity (a) to appreciate the nature, consequences or wrongfulness of their conduct, (b) to exercise rational judgment in relation to conduct, or (c) to conform their conduct to the requirements of the law. A disorder manifested primarily by repeated criminal conduct or attributable solely to the acute effects of voluntary use of alcohol or other drugs does not, standing alone, constitute a mental disorder or disability.
This is the same language used in ORC §§ 2929.025(A)(1)(b)(i)-(ii) and (B).
However, the new Ohio statute defines “serious mental illness” more narrowly than the ABA. The ABA’s Death Penalty Due Process Review Project looks to the American Psychiatric Association’s definition of SMI—“mental disorders that carry certain diagnoses, such as schizophrenia, bipolar disorder, and major depression; that are relatively persistent (e.g., lasting at least a year); and that result in comparatively severe impairment in major areas of functioning.” The ABA Project includes an unexhaustive list of diagnoses that may be considered serious: schizophrenia, schizoaffective disorder, bipolar disorders [bipolar I, bipolar II, and cyclothymic disorder], major depressive disorder, post-traumatic stress disorder (PTSD), and traumatic brain injury (TBI). In contrast, Ohio’s Bill only impacts people with diagnoses of schizophrenia, schizoaffective disorder, bipolar disorder, and delusional disorder.
Ohio H.B. 136 passed with bipartisan support in a 72-14 House vote, and a 27-3 vote in the Senate. Despite the overwhelming support to shield those with serious mental illness from execution, staunch opponents expressed concerns. Some concerns were addressed through revision, such as removing major depressive disorder from the list of SMIs, and amending the Bill’s postconviction relief provision to automatically resentence those seeking retroactive relief to life without parole.
However, the Ohio legislature did not address every concern with the Bill. This article addresses those unresolved concerns. Because H.B. 136 was the first in the nation to create a categorical ban against executing people with severe mental illness, it has the potential to serve as a model for other states with existing capital sentencing schemes. Therefore, it is crucial to address legitimate concerns. Throughout the legislative process, five witnesses testified against H.B. 136 (and companion S.B. 54): the Ohio Prosecuting Attorneys Association, Allen County Prosecutor, Cuyahoga County Prosecutors Office, Portage County Prosecutor, and Ohio Attorney General Dave Yost. Multiple opponents shared the following concerns with H.B. 136.
A. Concern #1: Other legal mechanisms already protect people with SMIs from execution.
All five H.B. 136 opponents argued that the Bill was unnecessary because Ohio laws already protect people with serious mental illnesses from being sentenced to death. They pointed to the insanity defense, competency to stand trial requirements, and the wide latitude capital defendants have in presenting mitigating evidence at trial. When considering the death penalty, courts and juries must weigh both aggravating circumstances and mitigating factors, including “whether, at the time of committing the offense, the offender, because of a mental disease or defect, lacked substantial capacity to appreciate the criminality of the offender’s conduct or to conform the offender’s conduct to the requirements of the law” pursuant to ORC § 2929.04(B)(3).
Yet, David Braden was not deemed criminally insane or incompetent to stand trial under Ohio law. The Ohio Supreme Court said his diagnosis of paranoid schizophrenia was “not synonymous with incompetence to stand trial.” Although five mitigation witnesses presented ample evidence of Braden’s history of serious mental illness, the court found his schizophrenia did not qualify as a mitigating factor under ORC § 2929.04(B)(3). Prior to H.B. 136, Ohio’s insanity, competency, and mitigation laws did not provide adequate protection to shield David Braden from execution.
David Braden’s removal from death row proves that even within jurisdictions with competency and mitigation requirements and insanity defenses, existing legal mechanisms are inadequate to protect people with serious mental illness from being sentenced to death. Therefore, all states who maintain capital punishment should adopt categorical exemptions for people with serious mental illness to protect defendants like Braden who slip through the cracks of the extraordinarily nuanced and complex existing mental health law system.
B. Concern #2: Jury pools already reflect American sentiment on executing people with SMIs.
Two opponents to H.B. 136 argued the Bill was unnecessary because if Americans opposed imposing death on people with serious mental illnesses, a jury would reflect this sentiment when recommending a sentence. However, Bill proponents stated that capital juries often treat serious mental illness as an aggravating (rather than a mitigating) factor, which is supported by ample empirical evidence. The opponents viewed this statement as irreconcilable with a proffered statistic that “Americans oppose the death penalty for people with mental illness by more than a 2-1 margin.” The two opponents argued that:
Jurors are selected from the same pool of people who make up this 2 to 1 margin. . . . by both the prosecution and defense. It is contradictory for proponents to assert that two thirds of Americans wish to prevent those with serious mental illness from being subject to a death sentence but that the same group of Americans overwhelmingly treat serious mental illness as an aggravating factor once they are on a jury. . . . [D]efense should have no trouble seating jurors who disfavor such a sentence.
However, this argument ignores the Supreme Court’s decision in Lockhart v. McCree, condoning “death-qualified” juries in capital trials. Death-qualified juries intentionally exclude potential jurors in capital cases who “cannot and will not conscientiously” impose the death penalty under any circumstances. In Lockhart, the Court held it constitutional for states to “death qualify” juries, even if these juries are “somewhat more ‘conviction-prone’ than ‘non-death-qualified’ juries.” Because jury pools consist only of jurors willing to impose death, death-qualified juries fail to reflect public sentiment against the death penalty.
C. Concern #3: H.B. 136 defines serious mental illness too broadly.
Four opponents raised concerns that the Bill defines serious mental illness too broadly and does not account for nuances of illness severity. Defining serious mental illness is a legitimate and complicated concern for any jurisdiction considering a categorical exemption. Instead of creating an exclusive or comprehensive list of SMIs, the ABA’s Death Penalty Project proposes that serious mental illnesses are characterized by their severe and persistent functional impairments. The ABA relies on the American Psychiatric Association’s (“APA”) Diagnostic and Statistical Manual of Mental Disorders, or the DSM, as “one of the most authoritative classification and diagnostic guides” to provide contemporary terminology and definitions for serious mental illnesses.
Opponents raised serious concern about H.B. 136’s reliance on the DSM-5, the fifth edition of the guide. Some opponents misstated that the DSM is not designed for forensic use. While primarily designed for clinicians, the:
DSM-5 is also used as a reference for the courts and attorneys in assessing the forensic consequences of mental disorders. . . . When used appropriately, diagnoses and diagnostic information can assist legal decision makers in their determinations. . . . However, the use of DSM-5 should be informed by an awareness of the risks and limitations of its use in forensic settings.
Ohio H.B. 136 was drafted with the risks and limitations of the DSM-5 in mind. For example, use of the DSM-5 is limited in that providing diagnoses requires clinical training. A person cannot simply obtain a copy of the DSM and check off symptoms to form a diagnosis. The drafters of the Bill further limited reliance on the DSM by requiring that in addition to meeting diagnostic criteria for one of four uncommon mental illnesses, a person seeking relief under the Bill must prove by a preponderance of the evidence that the illness significantly impaired their capacity to conform with the law or to appreciate the nature, consequences, or wrongfulness of their conduct. This eliminates the possibility that a person with a non-severe mental illness would meet the criteria for serious mental illness under ORC § 2929.025.
While no simple definition of serious mental illness exists for the purposes of creating a categorical exemption from the death penalty, the DSM-5 can be used appropriately as a source of diagnostic information. Ohio H.B. 136 conscientiously limits reliance on the DSM-5 by including additional requirements beyond a diagnosis and by placing the burden of proof on the defendant to present evidence of significant impairment.
In becoming the first jurisdiction with a capital sentencing scheme to create a statutory categorical exemption from the death penalty for people with a serious mental illness, Ohio took an important step forward in creating a fairer and more just criminal legal system. The legislation did not come about without opposition; opponents argue that such a law is unnecessary or overly broad. However, David Braden’s removal from death row demonstrates the meaningful impact of H.B. 136. The state of Ohio will no longer pursue killing a man with an extensive, documented history of a severe and debilitating mental illness. States would best serve the interests of fairness and justice by eradicating the death penalty entirely. However, at a minimum, other legislatures should follow Ohio’s lead to create categorical exemptions shielding people with serious mental illnesses from execution.
 Mental Health America, Position Statement 54: Death Penalty and People with Mental Illnesses, https://perma.cc/PS48-696N (last visited Sept. 27, 2021); See also Robert J. Smith, The Failure of Mitigation?, 65 Hastings L.J. 1221, 1245 (2014); Death Penalty Information Center, Report: 75% of 2015 Executions Raised Serious Concerns About Mental Health or Innocence (Dec. 18, 2015), https://perma.cc/2V3S-WNUW.
 American Bar Association Death Penalty Due Process Review Project, Severe Mental Illness and the Death Penalty 1 (2016) [hereinafter ABA Death Penalty Project] (“[I]t is significant to note that, since 2006, none of the jurisdictions that use capital punishment have passed statutes to categorically prevent the execution of individuals with severe mental illness. . . . It is, therefore, now time to convert the ABA’s policy into a meaningful tool to help states pass laws.”).
 Am. Sub. H.B. 136, 133d Gen. Assemb., Reg. Sess. (Ohio 2020).
 Ohio Rev. Code § 2929.05.
 See Ohio Rev. Code § 2903.01.
 Ohio Rev. Code §§ 2929.04(A)(1) – (A)(10).
 Atkins v. Virginia, 536 U.S. 304, 321 (2002).
 Ohio established its own procedure for determining intellectual disability in State v. Lott, 97 Ohio St.3d 303 (2002).
 Ohio Rev. Code § 2929.025(A)(1)(b).
 Ohio Rev. Code § 2929.025.
 Ohio Rev. Code § 2929.025(A)(1)(a).
 Ohio Rev. Code § 2929.025(A)(1)(b).
 See Ohio Rev. Code §§ 2929.025(E)(1) – (2).
 Ohio Rev. Code § 2953.21(A)(3)(b).
 Ohio Rev. Code § 2953.21(A)(2)(b).
 ABA Recommendation 122A, supra note 4, at 1.
 Ohio legislation uses the term “serious mental illness,” while ABA Recommendation 122A uses the term “severe mental disorder or disability.” Both terms refer to the same concept.
 ABA Death Penalty Project, supra note 5, at 10-15.
 Ohio Rev. Code §§ 2929.025(A)(1)(a)(i) – (iv).
 See Ohio Rev. Code § 2953.21(A)(3)(b) (“If a person sentenced to death files such a petition and asks the court to render void the sentence of death and to order the resentencing of the person . . . the act of filing the petition constitutes a waiver of any right to be sentenced under the law that existed at the time the offense was committed and constitutes consent to be sentenced to life imprisonment without parole.”). This language was not originally included in the introduced version of H.B. 136, and several Bill opponents presented concern that postconviction relief could allow a person on death row to be released on parole. See Hearing on S.B. 54 Before the S. Judiciary Comm., 133d Cong. (Ohio Oct. 9, 2019) (statement of Saleh Awadallah, Assistant Prosecuting Att’y, Cuyahoga Cnty. Prosecutors Off.) https://perma.cc/UN2Z-GFKS.
 See Ohio Rev. Code § 2945.40.
 See Ohio Rev. Code § 2945.37.
 See Ohio Rev. Code § 2929.04(C).
 See Ohio Rev. Code § 2929.04(B)(3).
 State v. Braden, 98 Ohio St. 3d 354, 375 (Ohio 2003).
 Id. at 377-80.
 Id. at 381 (“Braden’s paranoid schizophrenia undoubtedly played a role in his crimes. Thus, we give some weight to Braden’s lifelong mental illness as a mitigating ‘other factor’ under R.C. 2929.04(B)(7).”) (emphasis added).
 See Hearing on H.B. 136 Before the H. Crim. Just. Comm., 133d Cong. (Ohio May 16, 2019) (statement of Louis Tobin, Exec. Dir., Ohio Prosecuting Att’ys Ass’n) [hereinafter H.B. 136 Hearing (statement of Tobin)] https://perma.cc/2T68-CX4V; Hearing on H.B. 136 Before the S. Judiciary Comm., 133d Cong. (Ohio Oct. 9, 2019) (statement of Vic V. Vigluicci, Portage Cnty. Prosecuting Att’y) [hereinafter H.B. 136 Hearing (statement of Vigluicci)] https://perma.cc/UEA6-BHS4.
 ABA Death Penalty Project, supra note 5, at 22-23. See Marla Sandys, Heather Pruss & Sara M. Walsh, Capital Jurors, Mental Illness, and the Unreliability Principle: Can Capital Jurors Comprehend and Account for Evidence of Mental Illness?, 36 Behav. Sci. Law 486-87 (2018).
 H.B. 136 Hearing (statement of Vigluicci); see also H.B. 136 Hearing (statement of Tobin).
 Lockhart v. McCree, 476 U.S. 162 (1986).
 Id. at 176. See also State v. Kirkland, 160 Ohio St. 3d 389, 396 (Ohio 2020) (“The standard for determining when a prospective juror may be excluded for cause based on his views on capital punishment is whether the prospective juror’s views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and oath.”).
 Lockhart, 476 U.S.at 173.
 See generally Richard C. Dieter, A Crisis of Confidence: Americans’ Doubts About the Death Penalty (2007); Aliza P. Cover, The Eighth Amendment’s Lost Jurors: Death Qualification and Evolving Standards of Decency, 92 Ind. L.J. 114 (2016); Brandon Garrett, Daniel Krauss & Nicholas Scurich, Capital Jurors in an Era of Death Penalty Decline, 126 Yale L.J.F. 417 (2017), https://perma.cc/5PUT-4WKC.
 ABA Death Penalty Project, supra note 5, at 9-10, 14.
 American psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (5th ed. 2013 [hereinafter DSM-5].
 See H.B. 136 Hearing (statement of Vigluicci); see also H.B. 136 Hearing (statement of Tobin).
 DSM-5, supra note 49,at 25.
 Id. at 19.
 The lifetime prevalence of schizophrenia is 0.3–0.7%; schizoaffective disorder is 0.3%; bipolar I disorder is 0.6%; and delusion disorder is 0.2%. Id. at 102, 107, 130, 92.
 See Ohio Rev. Code § 2929.025.