concurring.
{¶ 210} Ketterer is not a sympathetic defendant. He brutally murdered a family Mend because he felt that his friend had been disrespectful to him when Ketterer asked to borrow some money. After the ruthless murder, Ketterer stole whatever he could find and traded the ill-gotten goods for cocaine.
{¶ 211} However, there are other facts also vital to understanding this apparently senseless murder. Ketterer is a person with a serious mental illness. His family also has a long history of mental illness and suicide attempts. Ketterer himself was hospitalized repeatedly and attempted suicide several times. His mental illness was fueled by drug and alcohol abuse. Two psychologists testified that Ketterer had a serious mental illness, known as bipolar disorder, which makes it difficult for him to control impulses normally. Not even the state *102disputed that he was seriously mentally ill. But the state argued that Ketterer could have controlled his behavior. The three-judge panel accepted the state’s position. Ketterer has now been sentenced to death.
{¶ 212} Ketterer did not meet the standard for being found not guilty by reason of insanity. Under our current law, the evidence supported a finding of guilt. However, we can never truly know whether Ketterer would have committed this senseless crime against a long-time friend had he not been seriously mentally ill. The undisputed testimony regarding Ketterer’s serious mental illness places him in a very different category from persons without a mental illness. One expert clearly testified that Ketterer was not able to control his impulses. The facts of the crime seem to show that Ketterer had the ability to plan and act. But how can we truly judge the effect of this terrible illness?
{¶ 213} I believe that the time has come to reexamine whether we, as a society, should administer the death penalty to a person with a serious mental illness.
{¶ 214} Although the majority opinion deals mostly with guilt-phase issues, the court does acknowledge that Ketterer suffers from an undisputedly serious mental illness. However, a deeper exploration of the facts yields greater insight on this issue.
{¶ 215} The defense presented solid, unrefuted evidence at trial that Ketterer had been afflicted by lifelong mental illness. Dr. Bobbie Hopes, a clinical psychologist testifying for the defense, completed a forensic evaluation of Ketterer’s competency. At trial, she testified, “As a child, [Ketterer] was severely physically abused by his father. His two older brothers and his mother were also physically abused. His father died when Ketterer was 13 years old, and despite years of physical abuse, Ketterer found this death very traumatic. And he started hearing voices, his father’s voice, within about a year after his father died, so around age 15 he started hearing his father’s voice. Primarily what he would hear would be his father threatening to beat him or telling him to assume the position for a beating.” ■
{¶ 216} In preparing for her evaluation, Dr. Hopes reviewed psychiatric records from at least 13 different cities and hospitals where Ketterer had been admitted. He had had at least one hospitalization in each of these facilities and some private hospitalizations. According to Dr. Hopes, Ketterer’s history of mental illness dates to 1979, with treatment and hospitalizations in Veterans Administration (“VA”) hospitals in at least five states. In addition, his treatment included at least three in-house drug-treatment programs.
{¶ 217} Dr. Hopes testified that Ketterer has had different diagnoses throughout his life. For many years, the primary diagnosis was major depressive disorder. More recently, from about 1997 on, the more common diagnosis has *103been bipolar disorder. In addition, various reports refer to personality-disorder, antisocial, and borderline-personality traits.
{¶ 218} Dr. Hopes testified that Ketterer also has a long history of chemical abuse. His voluminous hospital records refer to a long history of drug and alcohol dependency and “multi-drug abuse,” including abuse of marijuana, amphetamines, cocaine, and narcotics. Narcotics abuse followed his 1996 spinal injury.
{¶ 219} According to Dr. Hopes, in the months preceding the crimes, Ketterer had deteriorated so much that he attempted suicide after his landlord would not fix the windows immediately. He drank half a bottle of whiskey and took his entire month’s supply of Klonopin, an antianxiety drug, and Elavil, an antidepressant. In the opinion of Dr. Hopes, Ketterer was so embarrassed by his relapse that he did not tell his psychiatrist at the VA hospital about his relapse, so he went for a month without his medicine, deteriorated further, began another drinking binge, started using cocaine, and was again mixing Klonopin with alcohol.
{¶ 220} In Dr. Hopes’s opinion, Ketterer suffers from bipolar disorder, a severe mental disease or defect, with symptoms of both manic and depressive disorders and features of personality disorders. Dr. Hopes opined that Ketterer’s mental illness includes psychotic features, including auditory hallucinations and paranoia.
{¶ 221} Dr. Hopes testified that when she interviewed Ketterer, he was experiencing five symptoms of depression: crying, lack of appetite, insomnia, fatigue, and diminished ability to concentrate. He was distracted by his own thoughts and could not concentrate on any one topic. Dr. Hopes testified that it normally takes her two hours to do a competency evaluation, but in Ketterer’s case, it took her three hours, and she obtained less information from him than she obtains in two hours during the usual evaluation.
{¶ 222} Dr. Hopes noted that the primary characteristics of mania are poor impulse control and impaired judgment. “People with this disorder tend to do things that are inappropriate, unethical and illegal, and things that they wouldn’t normally do if they weren’t in a manic phase.” Moreover, Ketterer’s use of alcohol and illicit drugs seriously intensified his mental illness and accelerated his poor judgment and lack of impulse control.
{¶ 223} Dr. Hopes also noted that Ketterer fell into the category of about 20 to 30 percent of people with bipolar disorder who have residual symptoms that never go away. Dr. Hopes testified that there is a genetic component to mental illness and that many of Ketterer’s family members suffer from depression and bipolar disorder. Ketterer’s brother was diagnosed with and treated for major depressive disorder for many years, and more recently, he has been treated for *104bipolar disorder. Another brother was hospitalized at a state mental hospital, and a cousin was treated for depression. A cousin and an uncle both committed suicide.
{¶ 224} Dr. Jeffrey Smalldon, a respected board-certified forensic psychologist, also interviewed Donald Ketterer and testified for the defense. In addition to his clinical evaluation, Dr. Smalldon administered IQ tests. Ketterer’s verbal IQ estimate was 76, his performance IQ estimate was 73, and his full-scale IQ estimate was 72. According to Dr. Smalldon, 72 falls within “the borderline range of IQ. And what that means is that typically IQs 70 and below are associated with diagnosis of mental retardation. * * * So [Ketterer] falls toward the bottom of that borderline range that comes between mild and mental retardation and low average.” Although Dr. Hopes estimated a verbal IQ of 84, Dr. Smalldon noted that Dr. Hopes failed to administer the “vocabulary subtest, which was one of the verbal subtests on which Ketterer obtained his lowest score. Had she administered that subtest, that would have significantly lowered his verbal IQ estimate from 84 to somewhere within the 70s.”
{¶ 225} Dr. Smalldon counted 13 different psychiatric hospitalizations between 1995 and 2002. Dr. Smalldon testified that Ketterer suffers from a major mental illness: “Certainly in my diagnostic impression, the most severe, the most significant mental illness is bipolar disorder mixed meaning at various times manifesting periods of major depression and other times manifesting in a manic episode or highly elevated, energy and extreme problems in self-regulation and impulse control. Certainly the bipolar mixed with at least fluctuating psychotic symptoms over time is the most significant mental health problem that I have diagnosed him as having.”
{¶ 226} As for Ketterer’s substance-abuse problems, Dr. Smalldon testified that Ketterer’s mother told Ketterer that his alcoholic father had put alcohol in his baby bottle to make him sleep. Ketterer began drinking by choice at around age 14, shortly after his father’s death. He continued to drink throughout his adolescence. When he entered the Army at age 19, he began drinking more heavily and using speed more heavily. For over 30 years, he was chronically alcohol dependent and abused a wide variety of substances, such as marijuana, speed, barbiturates, and cocaine.
{¶ 227} Dr. Smalldon testified that because of Ketterer’s bipolar disorder, Ketterer “lacked substantial capacity at the time or around the time this offense was committed to conform his conduct to the requirements of the law.”
{¶ 228} The defense testimony regarding Ketterer’s severe mental illness was unrefuted. Even the majority acknowledges that no evidence contradicted these findings, and it gave his mental illness weight in mitigation. See R.C. 2929.04(B)(3). However, the majority relied on Dr. Smalldon’s description of *105bipolar disorder as “one of the most treatable of the major mental illnesses,” despite Dr. Hopes’s conclusion that Ketterer was in the category of persons with bipolar disorder whose recurrent symptoms never go away.
{¶ 229} The issue here is not Ketterer’s guilt. The three-judge panel had sufficient evidence for its finding. In light of the evidence presented, the panel could choose to discount the expert’s testimony regarding Ketterer’s lack of substantial capacity to conform his conduct to the law, even though no professional refuted that testimony. And under our current law, the court’s sentence of death is also supported. It is, however, the current law, I believe, that we as a society should reexamine.
{¶ 230} Our law requires “a system of capital punishment at once consistent and principled but also humane and sensible to the uniqueness of the individual.” Eddings v. Oklahoma (1982), 455 U.S. 104, 110, 102 S.Ct. 869, 71 L.Ed.2d 1. In Atkins v. Virginia (2002), 536 U.S. 304, 321, 122 S.Ct. 2242, 153 L.Ed.2d 335, the United States Supreme Court concluded that executing mentally retarded offenders constituted cruel and unusual punishment forbidden by the Eighth Amendment to the United States Constitution. The court determined that “evolving standards of decency” dictated that conclusion. Id., quoting Ford v. Wainwright (1986), 477 U.S. 399, 405,106 S.Ct. 2595, 91 L.Ed.2d 335.
{¶ 231} Atkins identified “ ‘retribution and deterrence of capital crimes by prospective offenders’ ” as the social purposes served by the death penalty. Id. at 319,122 S.Ct. 2242,153 L.Ed.2d 335, quoting Gregg v. Georgia (1976), 428 U.S. 153, 183, 96 S.Ct. 2909, 49 L.Ed.2d 859. Atkins noted that there was a serious question as to whether either justification applied to mentally retarded offenders. Id. at 321, 122 S.Ct. 2242, 153 L.Ed.2d 335. I too question whether either justification applies to severely mentally ill offenders.
{¶ 232} Deterrence is of little value as a rationale for executing offenders with severe mental illness when they have diminished impulse control and planning abilities. As for retribution, capital punishment still enjoys wide public support among Americans, but a Gallup Poll conducted in October 2003 found that while almost two thirds of Americans surveyed support the death penalty, 75 percent of those surveyed in 2002 opposed executing the mentally ill. Kevin Drew, Arkansas Prepares to Execute Mentally 111 Inmate, CNN.com, Jan. 5, 2004, at http:// www.cnn.com/2004/LAW/01/05/singleton.death.row/index.html.
{¶ 233} Society’s discomfort with executing the severely mentally ill among us is further evidenced by the American Bar Association’s formation of a task force in 2003 to consider mental disability and the death penalty. After studying the issue, the task force made recommendations that were adopted by the ABA House of Delegates in August 2006:
*106{¶ 234} “RESOLVED, That the American Bar Association, without taking a position supporting or opposing the death penalty, urges each jurisdiction that imposes capital punishment to implement the following policies and procedures:
{¶ 235} “1. Defendants should not be executed or sentenced to death if, at the time of the offense, they had significant limitations in both their intellectual functioning and adaptive behavior, as expressed in conceptual, social, and practical adaptive skills, resulting from mental retardation, dementia, or a traumatic brain injury.
{¶ 236} “2. Defendants should not be executed or sentenced to death if, at the time of the offense, they 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 judgment in relation to conduct; or (c) to conform their conduct to the requirements of the law.” See ABA Report with Recommendation No. 122A, Adopted August 2006, at http://www.abanet.org/leadership/2006/annual/daiiyjournalfiiundredtwentytwoa. doc. See, also, Symposium: The Death Penalty and Mental Illness, Recommendations of the American Bar Association Section of Individual Rights & Responsibilities Task Force on Mental Disability and the Death Penalty (2005), 54 Cath.U.L.Rev. 1115.
{¶ 237} The National Alliance on Mental Illness (“NAMI”) adopted both of these recommendations as part of its public policy platform. Public Policy Platform of NAMI (7th Ed.Rev.), Sections 9.6.1.1 and 9.6.1.2. The American Psychological Association adopted both recommendations, and the American Psychiatric Association adopted the second recommendation. Tabak, Overview of Task Force Proposal on Mental Disability and the Death Penalty (2005), 54 Cath.U.L.Rev. 1123,1125-1126, fn. 11 and 12.1
{¶ 238} Over the past 30 years, the number of people on death row with mental illness and other disabilities has steadily increased. Although precise statistics are not available, it is estimated that five to ten percent of people on death row have a serious mental illness. National Mental Health Association, Death Penalty & People with Mental Illnesses (2006), http://www.nmha.org/position/ deathPenalty/deathpenalty.cfm.
{¶ 239} Moreover, Ketterer suffers from co-occurring disorders: a serious mental illness and substance-abuse issues. Research has shown that co-occurring disorders are very common. The NAMI website cites reports published in the Journal of the American Medical Association, finding, “Roughly 50 percent of *107individuals with severe mental disorders are affected by substance abuse.” http://www.nami.org/Template.cfm?Section=ByIllness&template=/ ContentManagement/ContentDisplay.cfmContentlD=10333.
{¶ 240} Further, NAMI cites two surveys as the best data available on the prevalence of co-occurring disorders: the Epidemiologic Catchment Area (“ECA”) Survey, administered between 1980 and 1984, and the National Comorbidity Survey (“NCS”), administered between 1990 and 1992. Id. “Results of the NCS and the ECA Survey indicate high prevalence rates for co-occurring substance abuse disorders and mental disorders, as well as the increased risk for people with either a substance abuse disorder or mental disorder for developing a co-occurring disorder. For example, the NCS found that:
{¶ 241} “• 42.7 percent of individuals with a 12-month addictive disorder had at least one 12-month mental disorder.
{¶ 242} “• 14.7 percent of individuals with a 12-month mental disorder had at least one 12-month addictive disorder.” Id.
{¶ 243} In addition, “[t]he ECA Survey found that individuals with severe mental disorders were at significant risk for developing a substance use disorder during their lifetime. Specifically:
{¶ 244} “• 47 percent of individuals with schizophrenia also had a substance abuse disorder (more than four times as likely as the general population).
{¶ 245} “• 61 percent of individuals with bipolar disorder also had a substance abuse disorder (more than five times as likely as the general population).” (Emphasis added.) Id.
{¶ 246} Justice John Paul Stevens, writing for the Supreme Court majority in Atkins, concluded, “Mentally retarded persons * * * have diminished capacities to understand and process information, to communicate, to abstract from mistakes and learn from experience, to engage in logical reasoning, to control impulses, and to understand the reactions of others. There is no evidence that they are more likely to engage in criminal conduct than others, but there is abundant evidence that they often act on impulse rather than pursuant to a premeditated plan* * *. Their deficiencies do not warrant an exemption from criminal sanctions, but they do diminish their personal culpability.” Atkins, 536 U.S. at 318, 122 S.Ct. 2242, 153 L.Ed.2d 335. There seems to be little distinction between executing offenders with mental retardation and offenders with severe mental illness, as they share many of the same characteristics.
{¶ 247} However, mental illness is not as easily quantified as mental retardation. Mental retardation is a fixed condition with more objective symptoms. Mental illness is a much broader category, with wide ranges of diagnoses and periods of decompensation and remission. Treatment options vary widely, includ*108ing counseling, behavior modifications, group therapy, and medication. Some treatments and medications are controversial as to effectiveness and side effects. Mental illness as a defense is a difficult issue to quantify in a court of law.
Robin N. Piper, Butler County Prosecuting Attorney, Daniel G. Eichel, First Assistant Prosecuting Attorney and Chief, Appellate Division, and Michael A. Oster Jr., Assistant Prosecuting Attorney, for appellee. David H. Bodiker, Ohio Public Defender, and Ruth L. Tkacz and Timothy R. Payne, Assistant Public Defenders, for appellant.{¶ 248} However, we have made enormous medical and scientific advances in both diagnosis and treatment that are now supported by solid research. Therefore, while I personally believe that the time has come for our society to add persons with severe mental illness to the category of those excluded from application of the death penalty, I believe that the line should be drawn by the General Assembly, not by a court. Some would argue that Atkins was the product of an activist court in basing its decision on “evolving standards of decency.” Trap v. Dulles (1958), 356 U.S. 86, 101, 78 S.Ct. 590, 2 L.Ed.2d 630. However, nothing prevents the legislature from examining and using those same evolving standards. In fact, it is the legislature’s role to do so. Therefore, I urge our General Assembly to consider legislation setting the criteria for determining when a person with a severe mental illness should be excluded from the penalty of death. Unlike mental retardation, which can be determined by a number on an IQ test and other basic criteria, mental illnesses vary widely in severity. The General Assembly would be the proper body to examine these variations, take public testimony, hear from experts in the field, and fashion criteria for the judicial system to apply.
{¶ 249} “ ‘[L]aws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times.’ ” Furman v. Georgia (1972), 408 U.S. 238, 409, 92 S.Ct. 2726, 33 L.Ed.2d 346, fn. 7, quoting Letter to Samuel Kercheval, July 12, 1816, 15 The Writings of Thomas Jefferson (Memorial Ed.1904) 40-42.
{¶ 250} The time has come for our society to reexamine the execution of persons with severe mental illness. Until the General Assembly does so, under our current law, they will continue to be executed. As I am bound to follow the law as it stands today, I reluctantly concur in the affirmance of Ketterer’s sentence of death.
Pfeifer, J., concurs in the foregoing opinion.. This information was obtained prior to the final adoption of ABA Recommendation No. 122A by the ABA House of Delegates in August 2006; presumably, these groups will also now adopt the final recommendations.