141

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

1
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).
2
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-lethal-
injection-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).
4
News.Sky.com, Death Row Execution Fails in Vein Blunder,
http://news.sky.com/skynews/Home/World-News/Romell-Brown-Ohio-Prison-
 142

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-Death-
Row/Article/200909315382334 (last visited March 26, 2011).
5
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).
6
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).
7
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).
8
Victor Streib, Death Penalty for Female Offenders, June 30, 2009,
http://www.deathpenaltyinfo.org/news/past/31/2009.
9
Atkins v. Virginia, 536 U.S. 304, 316 (2002).
10
Victor Streib, Death Penalty for Female Offenders, June 30, 2009,
http://www.deathpenaltyinfo.org/news/past/31/2009.
 143

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

11
Id.
12
Algent Health.com, Differences Between Postpartum Depression and Postpartum
Psychosis, http://www.alegent.com/18729.cfm (last visited March 26, 2011).
13
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).
14
Gabrielle Winkel, Postpartum Post-Op,
http://www.soapoperadigest.com/features/general-hospital/interviews/postpartum-
post-op/ (last visited March 27, 2011).
15
Yates v. State, 171 S.W.3d 215 (Tex. 2005).
16
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).
 144

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

17
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).
18
See supra note 12.
19
See supra note 16.
20
See supra note 12.
21
See supra note 16.
22
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.
23
Pregnancy-Info.net, The Baby Blues, http://www.pregnancy-
info.net/baby_blues.html (last visited March 27, 2011).
24
See supra note 12.
 145

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

25
WebMd.com, Postpartum Depression Symptoms,
http://www.webmd.com/depression/postpartum-depression/postpartum-depression-
symptoms (last visited March 27, 2011).
26
Health.Google.com, Postpartum Depression,
https://health.google.com/health/ref/Postpartum+depression (last visited March 27,
2011).
27
Id.
28
Maya Palmer & Eboni J. Baugh, Postpartum Depression, Jan. 2008,

http://edis.ifas.ufl.edu/pdffiles/FY/FY100800.pdf.
29
See supra note 12.
30
Yates v. State, 171 S.W.3d 215, 216 (Tex. 2005).
 146

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

31
Id.
32
Id.
33
Id. at 217.
34
Id.
35
Id.
36
Yates v. State, 171 S.W.3d 215, 217 (Tex. 2005).
37
Id.
38
Id.
39
Id.
 147

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

40
Id.
41
Id.
42
Yates v. State, 171 S.W.3d 215, 217 (Tex. 2005).
43
Id.
44
Id.
45
Id.
46
Id.
47
Id. at 218.
48
Yates v. State, 171 S.W.3d 215, 216 (Tex. 2005).
49
Id. at 215.
50
Id. at 222.
 148

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

51
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-Could-
Be-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.
52
Campaign for liberty, http://www.campaignforliberty.com/blog.php?view=17300.
53
H. 3318, 81st(R) Sess. (Tx. 2009) (LEXIS).
54
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).
55
Atkins v. Virginia, 536 U.S. 304 (2002).
56
Gregg v. Georgia, 428 U.S. 153 (1976).
57
Id. at 183-187.
 149

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
58
Atkins, 536 U.S. at 319.
59
Id. at 318.
60
Id.
61
Id.
62
Id.
63
Coker v. Georgia, 433 U.S. 584, 591-92 (1977).
64
Id. at 592.
65
Atkins v. Virginia, 536 U.S. 304, 319 (2002).
66
See supra note 28.
 150

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

67
See supra note 28.
68
Atkins, 536 U.S. at 319.
69
See supra note 66.
70
Atkins, 536 U.S. at 318.
71
Id. at 320.
72
Id.