By Joe Beck
The Journal Gazette
Feb. 29, 2004

Indiana's willingness to execute Joe Corcoran and other mentally ill prisoners convicted of murder shows no regard for fairness or decency. The injustice is deepened by a disparity in the law that spares the lives of mentally retarded defendants convicted of the same crimes.

Joe Corcoran would not be on death row if he were suffering from mental retardation instead of mental illness. The law regards the severely mentally retarded as not responsible for their actions in committing a murder. But the standards for the mentally ill are tougher, and Corcoran has been sentenced to death for killing four people on July 26, 1997.

The reasons for the disparity stem from erroneous public perceptions about differences between mental illness and mental retardation. Contrary to legal distinctions between the two, mental retardation does not stand apart from mental illness. Mental retardation is one of numerous mental illnesses ranging from mild, easily managed afflictions to those requiring indefinite care in a psychiatric institution.

The list includes the diagnosis that Dr. Philip Coons of the IU School of Medicine gave Corcoran at his trial: schizotypal personality disorder and schizophrenia.

"Schizophrenic or bipolar disorders are just as severe as mental retardation and just as likely to impair judgment," Coons says.

Corcoran has used every opportunity since his conviction to remove any legal barrier to execution.

Two months ago, over the objection of his attorneys, he waived his right to appeal his sentencing. Allen Superior Court Judge Fran Gull ruled that Corcoran was competent to waive his right and reluctantly approved his decision. She sent the case on to the Indiana Supreme Court for review of Corcoran's waiver.

Assessing defendants

Mistaken beliefs that mental retardation is easier to diagnose and harder for defendants to fake than mental illness have contributed to the harsher treatment of the mentally ill. The ability to put a number on mental retardation through IQ test scores makes lawmakers and jurors feel more comfortable than with mental illness, which relies heavily on patient interviews.

But Coons said in an interview that a crafty defendant can fake a performance on an IQ test, perhaps more easily than someone trying to appear mentally ill during an interview with a psychiatrist.

"I don't think it's any more difficult to assess the defendant whether for mental retardation or mental illness," Coons said in an interview. "What you do is look at their actions. Did they try to cover things up? Did they try to run away? If they didn't, it's possible they were not guilty by reason of insanity."

Joe Corcoran didn't cover anything up, nor did he run when he shot and killed his brother and three other men. He exploded in rage after believing that he heard them talking about him in a house on Bayer Avenue. Five years earlier, a Steuben County jury acquitted Corcoran, then 17, of murdering his parents with a shotgun.

Corcoran was found mentally competent to stand trial for the 1997 murders. A jury convicted him and recommended the death penalty. Allen Superior Court Judge Fran Gull weighed Corcoran's mental illness among other mitigating factors in deciding whether to follow the jury's verdict. None was deemed enough to spare his life.

Those with troubled minds like Joe Corcoran are unfit to make life-or-death decisions for anyone, including themselves. "At what point are we assisting in a suicide and not meting out punishment?" said Monica Foster, an Indianapolis attorney with 19 years experience specializing in death penalty cases.

Atkins v. Virginia

Corcoran is inching toward execution even as hope is growing among death penalty opponents for an end to its use against the mentally ill. The time is probably still a ways off, but a U.S. Supreme Court decision last year may create a link between bans on executions for the mentally retarded and the mentally ill.

The court in Atkins v. Virginia banned the executions of the mentally retarded in all states. In doing so, the justices cited Indiana and 17 others that already banned the death penalty for mentally retarded prisoners. Of the remainder, only five executed any prisoners with an IQ of less than 70 - the most widely recognized benchmark for mental retardation - during the previous decade.

The justices concluded that the official and unofficial prohibitions among the states put the those that still allowed such executions in violation of the Eighth Amendment banning cruel and unusual punishment.

Justice Antonin Scalia's dissent in the case illustrated the central objection of those who oppose exempting the mentally ill and retarded from the death penalty.

"The symptoms (of retardation) can be feigned," Scalia wrote. "This will turn the process of a capital trial into a game."

Scalia's objections are overblown. He failed to cite any cases to support his claims, perhaps because they aren't easy to find. A far more common problem is prisoners with mental problems that are all too real who do not receive adequate treatment behind bars.

"I can't think of a time when I had a client who tried to make me think he was crazy," Foster said. "I would say most, if not all, of my clients at one level or another have profound problems."

The Atkins case has raised hope among death penalty opponents that a similar decision addressing the mentally ill may be issued one day. They interpret the decision as a sign the court will follow the lead of the states again if enough of them pass laws banning execution of the mentally ill.

Signs of change

Jim Ellis, who argued on behalf of Atkins before the Supreme Court, cites a Connecticut law as a possible model for overcoming objections to sparing the lives of mentally ill defendants.

Connecticut asks death penalty juries a special question after convicting a defendant: Does the defendant have a mental illness that interferes with his ability to follow the law? If the answer is yes, the defendant may be sentenced to life in prison.

Ellis believes the Connecticut law is unique in allowing jurors to focus on mental illness separate from other factors in analyzing its role in a crime. "While the crime may be the worst of the worst, the defendant's culpability in the crime may not be the worst of the worst," he said in an interview with The Journal Gazette.

Another sign that change may be on the way comes from the American Bar Association. The nation's premier lawyers' organization has assigned a task force of more than 20 lawyers, psychiatrists and other experts to explore ways in which the mentally ill might be exempted from the death penalty.

John Parry, a member of the task force and director of the ABA's commission on mental and physical disability, said the complexity of the issue requires lengthy deliberation before recommendations are finalized.

"Mental retardation and mental illness are different in the sense that many mental illnesses are treatable and a person's situation can change, whereas mental retardation tends to be constant," he said.

Indiana's indifference

The leadership shown by Connecticut and the ABA stands in contrast to Indiana's reluctance to address the issue over the last five years. The state's far-sighted approval of the ban on the mentally retarded eight years before the Atkins decision makes the failure to pass the same protections for the mentally ill especially disappointing.

Rep. Bill Crawford, D-Indianapolis, sponsored the ban on executions of the mentally retarded and tried to follow up in 1999 with a bill for the mentally ill.

The legislation failed to gain a hearing, an outcome Crawford attributes to public opinion reaching its limits on curtailing the death penalty. "There's still a lot of public support for the whole concept of capital punishment in Indiana, unfortunately," Crawford said.

He said he has also found advocates for the mentally retarded to be more effective lobbyists than those supporting the mentally ill. "Mental health professionals and others should be more vocal on that issue," Crawford said.

A commission appointed by the late Gov. Frank O'Bannon in 2000 to study the fairness of the death penalty represented another lost opportunity. The 139-page report shows no sign that the commission took up any issues pertaining to the mentally ill. Commission members can't even agree on whether they discussed executions of the mentally ill.

William Alexa, a former Democratic state legislator from Valparaiso who headed the commission, said commission members were unable to reach a consensus after a closely divided debate. But Paula Sites, a commission adviser and assistant director of the state's Public Defender Office, says she has no memory that the issue was discussed, nor do her notes give any evidence that it was considered.

A more recent attempt to prod state officials also fizzled. The Indianapolis-based Citizens to Abolish Capital Punishment met a cool reception in trying to rally public support during 2003 for a ban on execution of the mentally ill.

Crawford believes the chances for equalizing potential penalties for mentally ill and mentally retarded prisoners will improve as the public comes to realize that change does not mean freeing dangerous prisoners. "With the appropriate persuasive argument, we can create opportunities for people to understand we still have the option for life without parole," he said.

A Supreme Court decision eliminating the death penalty for the mentally ill would be welcome. But it will come too late to save Joe Corcoran if the courts refuse to interfere with his apparent death wish.

Kim Brown, one of his sisters, maintains regular contact with him. She opposes his execution despite the emotional trauma inflicted on her by two trials involving the murders of three family members.

"The issue is: Are we going to execute a mentally ill person? And I don't think that's right," she said.

Complete abolition of the death penalty remains the surest way of preventing the execution of defendants whose actions are seen at a later date as not warranting the ultimate punishment. But piecemeal improvements in the law are all that can be achieved until public opinion recoils at the idea of the government taking lives for reasons other than self-defense.

In the meantime, exempting the mentally ill from the death penalty law would fix one of its most unfair and indefensible provisions.

Joe Beck is an editorial writer for The Journal Gazette. He has been writing about state and local governments in Indiana, Illinois and Wisconsin since 1972. His e-mail address is joebeck@jg.net .

Verdict options

Verdicts and range of possible sentences in Indiana murder cases with mentally ill defendants:

Not guilty.

Guilty. Forty-five years imprisonment to death by lethal injection.

Not responsible by reason of insanity. Indefinite commitment to a mental institution.

Guilty, but mentally ill. Forty-five years imprisonment to death by lethal injection. (Inmate to receive psychiatric treatment in prison.)

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