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WOMEN, POSTPARTUM DEPRESSION, AND CAPITAL PUNISHMENT

ONIKKI T. WALKER

I. Introduction Once the mind of man becomes nurtured through education, he can no longer remain still or content in his current setting. When the seed of knowledge is planted, man will alter his surroundings to ensure that his social, moral, and physical environment correspond with his newfound awareness. The constant evolution of man’s awareness is all too evident in the American legal system, and can be found at the very core of conversations regarding capital punishment in this country. Seventy four years have gone by since man considered it socially acceptable to conduct legal executions before the public. 1 As medicinal knowledge has advanced, modern methods of capital punishment such as lethal injection 2 and electrocution, 3 have aroused more than mere suspicion that these formerly acceptable procedures, may not only be inhumane, 4 but “cruel and unusual” means of
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NPR: The Last Public Execution in America, http://www.npr.org/programs/morning/features/2001/apr/010430.execution.html (last visited March 22, 2011) (explaining that the last legal public execution in America occurred in Owensboro, Kentucky).

Kyle Janek & Leonidas Koniaris, Execution By Lethal Injection Branded Inhumane, NEW SCIENTIST, Apr. 23, 2005, at 6, available at http://www.newscientist.com/article/mg18624963.500-execution-by-lethalinjection-branded-inhumane.html. 3 Nergui Manalsuren, Rights-US: One Electric Chair Band Can Lead To Others, http://ipsnews.net/news.asp?idnews=41529 (last visited March 19, 2011).
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News.Sky.com, Death Row Execution Fails in Vein Blunder, http://news.sky.com/skynews/Home/World-News/Romell-Brown-Ohio-Prison-

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punishment per the Eighth Amendment of the United States Constitution. 5 As the standard for what is considered to be an inhumane method of punishment has changed, it is only natural that the category of persons who would be on the receiving end of such punishment also be reevaluated. Today, the Supreme Court of the United States has prohibited the death penalty for both juveniles 6 and the mentally retarded. 7 Considering the minuscule presence of women on death row, 8 it would be easy to assume that issues specifically pertaining to women and capital punishment would have no place amongst discussions concerning those who should be considered “less culpable than the average criminal.” 9 The truth however, is that the small number of women who receive the death sentence has brought massive attention to the commonality of crimes these women commit to become eligible for the death penalty. Because there exists an undeniable trend amongst female murderers to kill their children, 10
Injection-Failed-Vein-Attempt-Postpones-Execution-On-DeathRow/Article/200909315382334 (last visited March 26, 2011).
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David Heffernan, America The Cruel And Unusual? An Analysis Of The Eighth Amendment Under International Law, 45 CATH. U. L. REV. 481, 488-489 (1996) (the Eighth Amendment was adopted, as part of the Bill of Rights, in 1791 and prohibits excessive bail and cruel and unusual punishment. Cruel and unusual punishment describes criminal punishment which is considered barbaric and torturous or punishment which inflicts wanton or unnecessary pain). Roper v. Simmons, 543 U.S. 551, 559 (2005) (holding that the execution of individuals who are under 18 years of age at the time of their capital crimes is prohibited by the Eighth and Fourteenth Amendments).

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Atkins v. Virginia, 536 U.S. 304, 306 (2002) (Justice Stevens, held that executions of mentally retarded criminals were “cruel and unusual punishments” prohibited by Eighth Amendment). Victor Streib, Death Penalty for Female Offenders, June 30, 2009, http://www.deathpenaltyinfo.org/news/past/31/2009. Atkins v. Virginia, 536 U.S. 304, 316 (2002).

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Victor Streib, Death Penalty for Female Offenders, June 30, 2009, http://www.deathpenaltyinfo.org/news/past/31/2009.

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lawmakers must take into consideration that postpartum depression could be triggering many of these crimes, and thus, should be available as an affirmative legal defense to capital punishment. Currently under the American judicial system, the mentally retarded are ineligible for death sentencing 11. Acknowledging that postpartum depression is recognized as a legitimate mental disorder by the American Psychiatric Association, 12 this article argues that women who kill their children as a result of postpartum depression, should also be exempt from capital punishment. II: Postpartum Depression vs. The Baby Blues From actress-model Brooke Shieldses candid confession, 13 popular television Soap Opera General Hospital’s 2009 storyline, 14 to the national headlining news of Andrea Yates, 15 television is introducing millions of Americans to postpartum depression. Arguably, this type of media attention should drive laypersons and legislators alike, to seriously regard postpartum depression as more than just the “baby blues.” 16

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Id.

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Algent Health.com, Differences Between Postpartum Depression and Postpartum Psychosis, http://www.alegent.com/18729.cfm (last visited March 26, 2011). Today.MSNBC.com, Brooke Shields Battles Postpartum Depression, http://today.msnbc.msn.com/id/7748616/ns/today-books/, (last visited March 26, 2011) (Brooke Shields famously came under attack from fellow actor Tom Cruise for taking medication to deal with depression after the birth of her first child). Gabrielle Winkel, Postpartum Post-Op, http://www.soapoperadigest.com/features/general-hospital/interviews/postpartumpost-op/ (last visited March 27, 2011).
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Yates v. State, 171 S.W.3d 215 (Tex. 2005).

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Science Daily.com, More Than Just Baby Blues: How Postpartum Depression Arises and How It Could Be Prevented, http://www.sciencedaily.com/releases/2010/06/100616102854.htm (last visited March 27, 2011).

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Postpartum depression and the “baby blues” are not the same. “Baby blues” 17 refers to the normal changes in mood that new mothers experience shortly after childbirth; whereas postpartum depression is a recognized mental disorder. 18 Nearly 70 percent of women experience sleeplessness, anxiety, irritability, sadness, and loss of appetite immediately following childbirth. 19 These symptoms are all associated with “baby blues” and usually fade within the first few weeks after childbirth. 20 Years ago “baby blues” were accepted as the normal mood swings that accompany child bearing, but there were no real answers about what was triggering this behavior in new mothers. 21 Researchers have since discovered that “baby blues” symptoms are directly related to the dramatic loss of estrogen and changes to enzymes in the woman’s brain following childbirth. 22 The physical strain that giving birth has on a woman’s body only enhances the symptoms of “baby blues,” but after two weeks, the symptoms usually fade and hormone levels return to normal. 23 Severe symptoms that last longer than two weeks, are usually tell tale signs that a woman could be suffering from postpartum depression. 24

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FamilyDoctor.org, Postpartum Depression And The Baby Blues: Are Mood Swings Common After Childbirth?, http://familydoctor.org/online/famdocen/home/women/pregnancy/ppd/general/379. html (last visited March 27, 2011). See supra note 12. See supra note 16. See supra note 12. See supra note 16.

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Julia Sacher et al., Elevated Brain Monoamine Oxidase A Binding in the Early Postpartum Period, 67 Arch Gen. Psychiatry 468, 468-74 (2010), available at http://archpsyc.ama-assn.org/cgi/content/abstract/67/5/468. Pregnancy-Info.net, The Baby Blues, http://www.pregnancyinfo.net/baby_blues.html (last visited March 27, 2011). See supra note 12.

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Distorted reality, extreme levels of frustration, as well as thoughts of death and suicide, are all symptoms that medical experts have come to associate with postpartum depression and psychosis. 25 Unlike “baby blues,” postpartum depression will not fade within days or weeks without the assistance of a medical professional. 26 Women who suffer from postpartum depression require professional treatment that may include medication, therapy, and in some instances a combination of both. 27 Without treatment, postpartum sufferers may act upon their depression to dire results. 28 Postpartum sufferer, Andrea Yates, brought international attention to the disorder and the consequences of not treating the condition adequately. 29 III: The Tragedy of Andrea Yates Andrea Yates (“Yates”) and her husband Russell (“Russell”) welcomed their first child, Noah, in February 1994; their second child, John, was born in December 1995; and their third child, Paul, was born in September 1997. 30 After her third pregnancy, Yates told Russell that she felt depressed and overwhelmed, however, Russell suggested that she talk to her mother and a friend – neither of which

WebMd.com, Postpartum Depression Symptoms, http://www.webmd.com/depression/postpartum-depression/postpartum-depressionsymptoms (last visited March 27, 2011).
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Health.Google.com, Postpartum Depression, https://health.google.com/health/ref/Postpartum+depression (last visited March 27, 2011). Id. Maya Palmer & Eboni J. Baugh, Postpartum Depression, Jan. 2008,

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http://edis.ifas.ufl.edu/pdffiles/FY/FY100800.pdf.
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See supra note 12. Yates v. State, 171 S.W.3d 215, 216 (Tex. 2005).

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were mental health care professionals. 31 Despite Yateses feelings of depression, their fourth child, Luke, was born in February of 1999. 32 Four months after the birth of Luke, Yates suffered severe depression and tried to commit suicide by taking an overdose of an antidepressant that had been prescribed for her father. 33 Yates was admitted to the psychiatric unit of Methodist Hospital only to be released six days later under the outpatient care of psychiatrist, Dr. Eileen Starbranch. 34 On July 20, 1999, after Russell found her in the bathroom with a knife to her neck, Dr. Starbranch recommended Yates be admitted to Spring Shadows Glen Hospital. 35 At the hospital Yates revealed that she had visions and heard voices since the birth of her first child; symptoms most commonly associated with the most extreme form of postpartum depression - postpartum psychosis. 36 Before discharging Yates from the hospital, Dr. Starbranch warned Yates and Russell, that there was a high risk of another psychotic episode if Yates had another baby. 37 Despite the warning, Yates gave birth to her fifth child, Mary in 2000. 38 In March 2001, following yet another serious spell with depression, Yates was admitted to Devereux Hospital where she was observed as being catatonic or nearly catatonic, and possibly delusional or having bizarre thoughts. 39 Under new treatment from Dr. Mohammed Saeed, Yates was placed on suicide watch, however, she was discharged on April 13, 2001 upon her own and Russell’s

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Id. Id. Id. at 217. Id. Id. Yates v. State, 171 S.W.3d 215, 217 (Tex. 2005). Id. Id. Id.

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request. 40 At the time of her release from the hospital, Dr. Saeed recommended that someone stay with Yates at all times, and advised that she not be left alone with her children. 41 In April 2001, Russell’s mother began to visit the Yateses home every day and observed that Yates was almost catatonic, nonresponsive to conversation, stared into space, trembled, scratched her head until she created bald spots, and did not eat. 42 On May 3, 2001, Yates filled a bathtub with water. 43 When asked why she had run the bath, Yates said, “I might need it.” 44 After a ten day re-admittance to Devereux Hospital, Yates received medication and was again discharged from the hospital. 45 Although Yates was still uncommunicative and withdrawn, Russell decided that it was not unsafe to leave his wife alone with their children. 46 On June 20, 2001, at 9:48 a.m., Yates called 9-1-1 and told the operator that she needed an officer to come to her home because she had drowned her five of children. 47 Yates was subsequently charged with capital murder for the deaths of her children. 48 Despite legitimate medical documentation, the jury rejected Yateses insanity defense, and she was subsequently sentenced to serve life in prison.49 However, prosecutorial misconduct ultimately led to a reversal of that decision. 50
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Id. Id. Yates v. State, 171 S.W.3d 215, 217 (Tex. 2005). Id. Id. Id. Id. Id. at 218. Yates v. State, 171 S.W.3d 215, 216 (Tex. 2005). Id. at 215. Id. at 222.

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The initial Yates decision was considered not only inhumane, but unjust by many, and almost immediately led to the push for an Infanticide Bill. 51 Currently, in Texas, killing a child under the age of six is a capital crime, punishable by life in prison or by death. 52 Under the Infanticide Bill, postpartum defendants would be found guilty of infanticide; a felony that carries a maximum two-year jail sentence, mandatory treatment, and a fine. 53 The bill did not pass in the state of Texas and there is still no national remedy available to keep postpartum defendants from facing death row. 54 IV: Analyzing and Applying the Atkins Decision The Supreme Court decision in Atkins provides the best reason why postpartum sufferers should be constitutionally exempt from facing capital punishment. 55 In Atkins, the Court referred to its reasoning in Gregg v. Georgia 56 to examine the social purposes of the death penalty: retribution and deterrence. 57 The Court held that the imposition of the death penalty on mentally retarded persons would
H. 3318, 81st(R) Sess. (Tx. 2009) (LEXIS); NBCDFW, Texas Could Be First State To Have Infanticide Law, http://www.nbcdfw.com/news/local/Texas-CouldBe-First-State-to-Have-Infanticide-Law.html (last visited March 27, 2011). Under the Infanticide Bill, women who commit postpartum related crimes within one year after giving birth to their children could use postpartum depression as a legal defense. Instead of facing capital punishment, this crime will be considered a felony with a maximum two year jail sentence and mandatory mental treatment.
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Campaign for liberty, http://www.campaignforliberty.com/blog.php?view=17300. H. 3318, 81st(R) Sess. (Tx. 2009) (LEXIS).

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Legis.State.TX.US, Bill Stages, http://www.legis.state.tx.us/BillLookup/BillStages.aspx?LegSess=81R&Bill=HB33 18 (last visited March 27, 2011) (illustrating that the Texas House Bill 3318 did not pass). Atkins v. Virginia, 536 U.S. 304 (2002). Gregg v. Georgia, 428 U.S. 153 (1976). Id. at 183-187.

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not satisfy either of those purposes. 58 In reaching this decision, the Court relied on evidence that demonstrated mentally retarded persons tend to act on impulse rather than, in compliance with premeditated plans. 59 The Court also recognized a trend amongst the mentally impaired to act under the direction of other, stronger minded individuals. 60 The Court reasoned that these tendencies did not excuse mentally diminished persons for their criminal actions; rather, these trends provided evidence of their diminished culpability. 61 The Court did not believe that the execution of the mentally retarded would have any deterring factor on those criminals who were not retarded. 62 Relying on its conclusion in Coker v. Georgia, 63 the Court found that imposing the death penalty on mentally retarded persons without clear evidence that doing so would achieve the goals of deterrence or retribution, would not only be a purposeless, needless imposition of suffering, but an unconstitutional punishment. 64 According to the Court’s reasoning in Atkins, the use of the death penalty as an effective means of deterring potential criminals is only served when murder is the result of premeditation and deliberation, or the presence of “cold calculus” before the commission of the act. 65 Many women who suffer from postpartum depression experience uncontrollable, hormonal changes which often disable the mind and cause them to act without a conscious. 66 It is not
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Atkins, 536 U.S. at 319. Id. at 318. Id. Id. Id. Coker v. Georgia, 433 U.S. 584, 591-92 (1977). Id. at 592. Atkins v. Virginia, 536 U.S. 304, 319 (2002). See supra note 28.

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uncommon for women with postpartum depression to feel exhausted, overanxious, and ashamed of unexpected, intrusive thoughts of hurting their infant. 67 These symptoms are brought on by the body’s own chemical imbalances and can cause women to act with the same lack of impulse and rationale that the Court recognized as “cognitive and behavioral impairments that make mentally retarded defendants less morally culpable.” 68 Women who suffer from postpartum depression often know the difference between what is right and what is wrong, but act out as a result of impaired judgment. 69 The Court in Atkins found that this was the case with many retarded persons. Just as there was no evidence that retarded persons were more likely to engage in criminal conduct than others, there is no evidence that women who suffer from postpartum depression are more likely to act more criminally than others. 70 Considering that many of the behavioral deficiencies that the Court found to make death a purposeless punishment for mentally retarded criminals are shared by postpartum women, there can be no constitutional basis for postpartum defendants to face the death penalty. 71 Furthermore, if there is no evidence to show that the execution of postpartum women would assist in promoting the deterrent or retributive purposes of the death penalty, there must be a substantive restriction on the State’s power to take the life of a postpartum sufferer. 72

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See supra note 28. Atkins, 536 U.S. at 319. See supra note 66. Atkins, 536 U.S. at 318. Id. at 320. Id.

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