Participation by mental health professionals in capital murder sentencing

International Journal o f Law and Psychiatry, Vol. 1, pp. 283--308, 1 9 7 8 Pergamon Press. Printed in the U.S.A.

0160-2527/78/080143283502.00/0 Copyright © Pergamon Press

Participation by Mental Health Professionals in Capital Murder Sentencing George E. Dix*

In four cases decided on July 2, 1976,1 the United States Supreme Court made clear that despite the implications of F u r m a n v. G e o r g i a 2 - decided four years earlier - the Eighth A m e n d m e n t prohibition against cruel and unusual punishment does not bar the use of the death penalty in American criminal proceedings. The decisions strongly suggested, however, that the Eighth A m e n d m e n t would be read as creating stringent procedural requirements for application o f the maximum penalty. The split among the members of the Court (no single opinion in the four cases attracted a majority of the Court) leaves somewhat unclear the precise nature of those requirements. There is widespread agreement, however, that the Court regards the constitutional mandate as demanding that the procedure by which the penalty is imposed require thorough examination of the propriety of the death sentence for each particular defendant. In W o o d s o n v. N o r t h C a r o lina, 3 the Court held invalid a procedure that made the imposition of death mandatory upon conviction o f first degree murder. Justice Stewart, in an opinion joined by Justices Powell and Stevens, noted that the penalty of death is qualitatively different from a sentence o f imprisonment, however long, and therefore "there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case. ''4 The North Carolina procedure failed to meet Eighth A m e n d m e n t requirements because, among other reasons, it failed " t o allow the particularized consideration of relevant aspects o f the character and record of each convicted defendant before the imposition upon him of a sentence o f death. ''s Summarizing the underlying constitutional requirement, Justice Stewart stated: [W]e believe that in capital cases the fundamental respect for humanity underlying the Eighth A m e n d m e n t . . . requires consideration of the character and record o f the individual offender and the circum*Professor of Law, University of Texas School of Law, Austin, Texas. Funds for the travel necessary to examine the transcripts in the Ohio cases covered by this study were provided by the Hogg Foundation for Mental Health. 1Roberts v. Louisiana, 428 U.S. 325 (1976); Woodson v. North Carolina, 428 U.S. 280 (1976); Jurek v. Texas, 428 U.S. 262 (1976); Proffitt v. Florida, 428 U.S. 242 (1976). Gregg v. Georgia, 428 U.S. 153 (1976). 2408 U.S. 280 (1972). 3428 U.S. 325 (1976). 4id. at 305. Id. at 303.

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stances o f the particular offense as a constitutionally indispensable part of the process of inflicting the death penalty. 6 In the companion case of J u r e k v. Texas, 7 Justice Stewart - again speaking for himself and Justices Powell and Stevens - elaborated further: "What is essential is that the jury have before it all possible relevant information about the individual defendant whose fate it must determine. ''8 This emphasis was repeated in L o c k e t t v . O h i o , 9 decided in July, 1978, which invalidated a death sentence imposed under the Ohio statute. In the plurality opinion, joined in by four members of the Court, Chief Justice Burger expressed the view that the Ohio statute violated Eighth and Fourteenth Amendment requirements because it did not permit the sentencing authority to consider, as mitigating factors, the defendant's character, prior record, age, lack of specific intent to cause death, and relatively minor part in the crime. While the split among the members of the Court 1° makes it unclear whether a majority o f the Court will require that death penalty procedures authorize consideration of all o f these factors in determining penalty, the thrust of the L o c k e t t decision is clearly towards further individualization in capital sentencing as a constitutional imperative. States have responded to these requirements (or, in some cases, anticipated them) in a variety o f ways. Virtually all state procedures that arguably meet Eighth A m e n d m e n t standards provide for a separate penalty-determining procedure, begun only after a defendant has been convicted of an offense for which death is a possible penalty. Most have specific language authorizing the admissibility of a broad range o f evidence. Some place the authority to determine penalty in the hands o f a judge or a panel of judges; 11 others give this power to a jury, at least unless this is waived by the defendant.12 Some statutes list "aggravating" and "mitigating" circumstances the sentencing authority may or should consider; under some procedures, these lists purport to be exclusive 13 while others provide that mitigating considerations other than those enumer6 Id. at 304. 7428 U.S. 262 (1976). 8 Id. at 276. 946 U.S.L.W. 4981 (U.S. July 3, 1978). See also Bell v. O h i o , 46 U.S.L.W. 4995 (U.S. July 3, 1978). 1°Justice Blackmun concurred in the j u d g m e n t reversing the sentence o f death on the ground that the Eighth and Fourteenth A m e n d m e n t s require that the sentencing authority be permitted to consider the e x t e n t of the defendant's participation in the crime and the nature of his m e n s rea in regard to the causing of death. 46 U.S.LW. 4 9 8 9 - 9 1 . (Blackmun, J., concurring in part and concurring in the judgment). Justice White concurred in the j u d g m e n t because the Ohio statute permitted the imposition of the death penalty w i t h o u t a finding that the defendant possessed a purpose to cause the death of the victim. 46 U.S.L.W. 4991-93. (White, J., dissenting in part and concurring in the j u d g m e n t of the Court). Justice Marshall concurred in the j u d g m e n t on the ground that the death penalty is inherently cruel and unusual punishment. 46 U.S.LW. 4988-89. (Marshall, J., concurring). Justice Brennan took no part in the consideration or decision of the case. ~ A r i z . Rev. Stat. A n n § 13--454 (A). l~Va. Code Ann. § 19.1 2-264.3 (A). ~3State v. B i s h o p , _ _ Ariz. , 5 7 6 P.2d 122 (1978) (only mitigating factors set out in Arizona statute m a y be considered). Under L o c k e t t , see text at note 9, supra, limited and exclusive lists of mitigating circumstances m a y , of course, be constitutionally invalid.

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ated may be considered.t4 Under many statutes, it is necessary that the sentencing authority make specific findings concerning the existence o f aggravating factors, mitigating considerations or both; is some o f these statutes prohibit a sentence of death unless at least one aggravating factor and no mitigating considerations are found to exist.16 But other procedures simply direct the sentencing authority to consider all factors and to determine whether death is the appropriate penalty. 17 The c o m m o n characteristic o f the procedures, however, is an effort to individualize the sentencing decision and a corresponding discretion in the sentencing authority. Alan Dershowitz has recently noted that the greater sentencing discretion provided, the more input into the sentencing decision the law has sought from psychiatry.IS Given the apparent constitutional necessity for individualization and discretion in capital sentencing procedures, it is to be expected that efforts will be made to involve mental health professionals in the capital sentencing process. In some jurisdictions, at least, this expectation has already proven to be a realistic one. Jurisdictions differ in the manner in which mental health professional participation in capital sentencing is made possible or overtly invited. Under Ohio procedure, psychiatric evaluation of a defendant convicted o f capital murder is mandatory. ~9 California law contains no such requirement but authorizes the presentation of evidence on - among other things - " t h e defendant's character, background, history, mental condition and physical condition. ''2° Despite the reference to "mental condition," this provision is probably no broader than the Texas statute, which states that "evidence may be presented as to any matter that the court deems relevant to sentence. ''z~ There is also considerable variation in the degree to which the statutory guidance given the sentencing authority stresses matters that might be addressed by mental health professional testimony. Some states refer directly to matters within the purview o f mental health concern. The Ohio statute includes as a mitigating factor " t h a t the offense was primarily the product o f the offender's psychosis or mental deficiency. ''= Some statutes tie the matter to the insanity defense. Under the Arizona statute, for example, one mitigating circumstance is that the defendant's "capacity to appreciate the wrongfulness o f his conduct or to conform his conduct to the requirements o f law was significantly impaired, but not so impaired as to constitute a defense to prosecution. ' m Other statutes 14Cal. Pen. Code § 190.3 (j) (trier of fact shall take into account "any other circumstance which extenuates the gravity of the crime even though it is n o t a legal excuse for the crime"). ~SConn. Gen. Stat. A n n . § 53a-46a (d) (special verdict setting forth findings on each factor required). ~ Ariz. Rev. Stat. § 13-454 (D). ~TCal. Pen. Code § 190.3 (trier of fact shall take into account the aggravating and mitigating factors set o u t in statute and "shall determine whether the penalty shall be death or life i m p r i s o n m e n t " ) . 18Alan Dershowitz, "The Role of Psychiatry in the Sentencing Process," Inter. J. o f L a w and Psychiatry 1 (1978): 63. 19Ohio Rev. Code Ann. § 2929.03 (D). 2°Cal. Pen. Code § 190.3. 21Tex. Code Crim. Pro. Ann. art. 37.071 (a). 22Ohio Rev. Code Ann. § 2929.04 (B) (3). 23Ariz. Rev. Stat. Ann. § 13-454 (F) (1).

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require the sentencing authority to address matters that are not defined in mental health phraseology but that are quite likely to be regarded as within the realm o f mental health professional expertise. The defendant's "dangerousness" is one such factor. Texas procedure requires a sentencing jury to determine " w h e t h e r there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society. ''24 In regard to other matters, the relationship to mental health expertise is less compelling. The Ohio statute, for example, defines as another mitigating circumstance " t h a t it is unlikely that the offense would have been committed, but for the fact that the offender was under duress, coercion, or strong provocation. ''2s Depending upon how those terms are defined, it is not unreasonable to expect that mental health professionals might provide useful insight as to whether "duress," "coercion" or "strong provocation" influenced a defendant in making the choice to kill. The incentive to invite mental health professionals to participate in deciding whether certain criminal defendants should be put to death, then, clearly exists. Statutory frameworks for making the life or death decision sometimes invite or even demand - such participation. But the value o f mental health participation in criminal sentencing has traditionally been a matter of substantial dispute. Given this traditional skepticism and the significance of the sentencing decision in capital proceedings, it is important to consider the extent to which in actual practice mental health professionals do in fact have information useful in making the life or death decision and - to the extent that they may have potentially useful information - how various statutory procedures may make maximum use o f mental health professionals. 26 A full survey o f practice in all American jurisdictions which provide for the death penalty is far beyond the scope of the present undertaking. Moreover, there has probably not yet been enough experience to justify any firm conclusions on the basis o f any such survey as might be possible. The time is ripe, however, for at least some preliminary comments on mental health involvement in life or death decisions under the procedures of several states that raise unusually important issues in this area. To the extent possible, it is useful to consider separately the practice in the trial courts and compare that to the actions and attitudes of the appellate courts as reflected in their published opinions. General experience suggests that the appellate court opinions may not present a

24Tex. Code Crim. Pro. Ann. art. 37.071 (b) (2). 2SOhio Rev. Code Ann. § 2929.04 (B) (2). ~6james S. Liebman and Michael J. Shepard, "Guiding Capital Sentencing Discretion Beyond the 'Boiler Plate': Mental Disorder as a Mitigating Factor," Georgetown L.J. 66 (1978): 757, at 818 argue that it is constitutionally necessary to consider a capital d e f e n d a n t ' s mental condition in mitigation if that mental condition evidences expiation or inspires compassion, if it impaired the offender's recognition or volition and thereby diminished his responsibility, if it rendered him less affected by the deterrent threat of capital p u n i s h m e n t , or if it would reduce the exemplary value of capital p u n i s h m e n t by increasing the difficulty other persons would have in identifying with the defendant. They further argue that if a jurisdiction provides jury sentencing in capital cases and the defendant produces evidence relevant to any of these theories of mitigation, the trial court is constitutionally required to charge the jury on the theory of mitigation. Id. at 819. Clearly existing practice in most if not all American jurisdictions does n o t live up to these standards.

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full and accurate picture o f the problems raised in the administration of the procedure in their trial tribunals. This article discusses practice under the Texas and Ohio statutes and, to a lesser extent, under the Arizona procedure. The Ohio statute was declared unconstitutional in L o c k e t t v. Ohio,27 although the division o f the Court leaves unclear the degree of change that would be necessary to bring the procedure into compliance with constitutional standards. But the Supreme Court's treatment of the Ohio statute did not bear directly upon the provision for participation by mental health professionals in the sentencing process 2aand consequently practice under the statute still deserves examination. Similarly, there are doubts as to the validity of the Arizona 29 and Texas a° statutes but these merely confirm the need to examine actual practices under them.

Texas: Prediction of "Dangerousness" Under the Texas death penalty procedure, the most significant question posed to the sentencing jury is the convicted defendant's dangerousness; the jury is required to determine whether the prosecution has proved b e y o n d a reasonable d o u b t the defendant's future dangerousness as defined in the rather ambiguously-worded standard set out above. 31 No specific provision is made for psychiatric examination of persons charged with or convicted o f capital murder, but practice under the statute has resulted in widespread involvement by mental health professionals in the sentencing process. At the time of this writing, 41 cases in which the death sentence had been imposed had been considered by the state's only appellate court with criminal jurisdiction, the Texas Court o f Criminal Appeals. Transcripts of the penalty hearings in 35 of these cases were examined. In 20 o f the 35 cases studied, some mental health professional testimony had been introduced by the prosecution as part of their p r o o f regarding the defendant's dangerousness. In only five o f these 18 was there also testimony by mental health professionals on behalf of the defendant. Under Texas practice, mental health professional involvement has been substantial, and primarily on behalf of the prosecution. The format of the testimony presented by the prosecution has varied widely.

27See text at note 9, supra. 2s The plurality's suggestion that the sentencing authority m u s t be permitted to consider aspects of the defendant's " c h a r a c t e r " m a y be read as indicating that any psychological abnormality be subject to consideration. If this is the significance eventually given to it, the limitations apparently imposed by or judiciaUy read into the Ohio and Arizona statutes, see text at notes 6 2 - 6 6 , 73, infra, m a y well be constitutionaUy impermissible. 29A federal district court has held the Arizona statute unconstitutional. R i c h m o n d v. Cardwell, 23 Crim. L. Reptr. 2166 (U.S. District Court for Arizona, April 2 1 , 1 9 7 8 ) . Moreover, on the same day it decided Lockett, the Supreme Court vacated an Arizona death penalty and remanded the case for further proceedings with a reference to Lockett. Jordan v. Arizona, 46 U.S.L.W. 3802 (U.S. July 3, 1978). a°See note 81, infra. al See text at note 24, supra. The phraseology of the statutory criterion m a y not be sufficiently precise to meet constitutional requirements. See George E. Dix, "Administration o f the Texas Death Penalty Statutes: Constitutional Infirmities Related to the Prediction of Dangerousness," Texas L. Rev. 55 (1977): 1343, at 1377-84.

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In some cases, the testimony is extremely brief and conclusory. In K l e a s o n v. State,32 for example, a psychiatrist was qualified as an expert witness, testified that he had examined the defendant, and was then asked in the language of the statutory question his opinion. He responded, "My opinion is that there is a probability that the defendant would commit acts o f violence which would endanger society." No diagnosis or explanation was sought or offered. More frequently, however, the expert witness's opinion on the ultimate issue o f the defendant's dangerousness is prefaced by testimony that the defendant is a psychopath or antisocial personality. This diagnosis is then relied upon in explaining the witness's opinion that the defendant is a dangerous person. In a significant number of cases, witnesses called by the prosecution have asserted an ability to accurately predict behavior and offered specific opinions based on that ability. C h a m b e r s v. S t a t e 33 provides an example. Chambers had been convicted of the brutal abduction of two persons and the execution-style killing of one; the other victim had been left for dead but survived. When asked his diagnosis of Chambers, the prosecution witness responded that Chambers had a sociopathic personality disorder. This, he cautioned, was not an illness but rather a descriptive term indicating that a person has certain personality characteristics, most importantly a lack o f guilt and an ability to manipulate. On a scale o f sociopathy, Chambers fell "at the very end of the scale of severity; you cannot become more severe than where he falls." When asked his opinion as to whether Chambers would commit criminal acts of violence that will constitute a continuing threat to society, the witness responded: It's my opinion that it's almost absolute that if Mr. Chambers is alowed to do so, that he will continue to be a threat to members o f our society. I don't have any doubt or reservations whenever I say that. I think it is far greater than a probability; it's almost a certainty. In some cases - but a clear minority - the testimony has been more qualified concerning the predictive ability claimed by prosecution witnesses. In B i r d v. S t a t e , 34 for example, the testifying psychiatrist (after diagnosing the defendant as an antisocial personality) refused to express an opinion as to the defendant's dangerousness in the statutory phraseology. He further testified that the "probability o f recidivism would be high" and " t h e prognosis would be poor insofar as any change was concerned." Explaining his position, the witness testified: I would not suggest that I could predict what an individual might do in the future. I would say that we do predict the probability o f a group o f individuals with this diagnosis. We could predict that the probability would be that a large number would be likely to have some similar type o f offense in the future. When mental health professionals testified on behalf of the defense, the sub35560 S.W.2d 938 (Tex. Crim. App. 1978). 33568 S. W. 2d 313 (Tex. Crim. App. 1978). 34527 S. W. 2d 891 (Tex. Crim. App. 1975).

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stance o f their testimony appeared to be that prediction was difficult or impossible. In Collins v. State,3S for example, a psychiatrist called by the defense was asked what kind of predictors psychiatrists usually make. He responded, "Well, as predictors, we tend to be rather p o o r . . , in terms o f predicting people's future behavior." When asked whether there is any certain way that a psychiatrist can accurately predict what a person will do in the future, he responded, " N o t to my knowledge." The formal caselaw has been uncritically deferent to the psychiatric testimony offered to establish defendants' "dangerousness." In regard to the admissibility of the testimony, the court in M o o r e v. S t a t e 36 held that psychiatric testim o n y concerning dangerousness was admissible as "relevant to sentence" under the statute. No serious questions concerning the qualification of particular witnesses to testify on dangerousness was raised until B a t t i e v. S t a t e , 37in which the defense argued that testimony by a psychologist had been improperly received because it was "speculation." The court responded: To authorize the use of [the witness's] testimony, it was necessary that the trial judge determine from common knowledge or p r o o f that the behavior patterns of a sociopath are so related to some science or profession as to be b e y o n d the knowledge of the average layman; and that [the witness] had such skill, knowledge or experience in the field o f psychology that it was probable that his opinion would be o f assistance to the jury in making a factual determination of whether there was a probability that appellant would commit criminal acts of violence and be a continuing threat to society in the future . . . . The judge, on the basis o f c o m m o n knowledge, impliedly found that the behavior patterns o f a sociopath were beyond the knowledge o f laymen and that the witness' knowledge and experience in this field would assist the jury. The evidence was properly admitted. ~ In C h a m b e r s v. State,39 the defense made more sophisticated arguments to the effect that psychfatric expertise in predicting behavior was not sufficiently developed to justify admitting opinion testimony on the issue and that there was insufficient showing that the specific psychiatrist who had testified was qualified to express an opinion on the matter. Without significant discussion, the- court held that appellant's first argument was rejected in M o o r e and that the witness's general professional qualifications as a psychiatrist qualified-him as an expert on the question of prediction. 4° These appellate discussions are amazingly naive in several aspects. First, the court has given no serious consideration to the likelihood that prediction of behavior - if it is a subject of expertise - is sufficiently distinguishable from other areas o f mental health concern that special qualifications should be de3s 548 36542 37551 38551 39560 40560

S.W.2d 368 (Tex. Crim. App. 1976), cert. denied, 430 U.S. 959 (1977). S.W.2d 664 (Tex. Crim. App. 1976), cert. denied, 431 U.S. 949 (1977). S.W. 2d 401 (Tex. Crim. App. 1977), cert. denied, 98 S.Ct. 782 (1978). S.W.2d at 407. S.W.2d 313 (Tex. Crim. App. 1978). S.W.2d at 324.

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manded before a mental health professional is permitted to express an opinion on that matter. Second, the court has never seriously considered whether in fact mental health sophistication in predicting violent behavior is sufficiently developed so as to make the opinion o f such persons of value in making the life or death decision. It almost automatically follows, o f course, that no attention has been given to the danger that jurors will be misled by the apparent expertise of such witnesses and will consequently fail to scrutinize the significance that should be given to their testimony with adequate objectivity and care. The caselaw evidences an uncritical willingness to admit mental health professional testimony on dangerousness after only the most general qualification of the witness as a practitioner in the mental health area. No suggestion appears in any of the decisions that trial judges have or should exercise discretion in permitting such testimony, depending upon the offered witness's demonstrated acquaintance with predictive tasks and the danger that jurors will not objectively consider the weight o f the testimony. The caselaw is equally uncritical in evaluating the weight to be given such testimony. In a number o f cases the court has considered the sufficiency of the evidence to support an affirmative answer to the question submitted to the jury. In virtually all cases, psychiatric testimony has been apparently credited with virtually no effort to objectively evaluate its credibility. 41 To the contrary, the caselaw contains an open invitation to uncritically rely heavily upon this sort of evidence. In Warren v. S t a t e , 42 the only case in which the court reversed a death penalty for insufficiency of the evidence on dangerousness, the court specifically noted that the prosecution had produced " n o evidentiary predictions o f future violence." The only indication in the opinions o f any inclination to scrutinize the credibility o f mental health professional testimony on "dangerousness" has come from Judge Truman Roberts. In L i v i n g s t o n v. S t a t e , 4a the evidence showed that the defendant had participated in a robbery in which a codefendant had killed the victims. The only evidence concerning the defendant's dangerousness was his participation in the robbery and testimony b y two psychiatrists that he was "dangerous" within the meaning of the statute. Dissenting from the majority's affirmance of the conviction and the sentence o f death, Judge Roberts characterized the psychiatric testimony as "inexact and ethereal" and argued that such testimony either alone or together with the evidence produced concerning the defendant's guilt should not be regarded as supporting the jury's finding that the ultimate penalty should be imposed.44 A 4~ This was done in the second case in which the court affirmed a sentence of death under the statute. S m i t h v. State, 540 S.W.2d 693 (Tex. Crim. App. 1976), cert. denied, 430 U.S. 922 (1977). See also F r a n k l i n v. State, _ _ S.W.2d _ _ (Tex. Crim. App. 1978); S h i p p y v. S t a t e , 556 S.W.2d 246 (Tex. Crim. App.), cert. denied, 434 U.S. 935 (1977); Granviel v. S t a t e , 552 S.W. 2d 107 (Tex. Crim. App. 1976), cert.

denied, 431 U.S. 933 (1977). 42562 S.W.2d 474 (Tex. Crim. App. 1977). 43542 S.W.2d 655 (Tex. Crim. App. 1976), cert. denied, 431 U.S. 933 (1977). 44542 S.W.2d at 664 (Roberts, J., dissenting). Judge Roberts took the same position in another case decided the same day. M o o r e v. S t a t e , 542 S.W.2d 6 6 4 , 6 7 7 (Tex. Crim. App. 1976), cert. denied, 431 U.S. 949 (1977) (Roberts, J., dissenting). In Warren v. S t a t e , discussed in the text at note 42, supra, Judge Roberts concurred, disagreeing with the implication o f the majority that had the state introduced psychiatric testimony the evidence would have been sufficient. In the absence of evidence of past violence or

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majority of the court has never, however, evidenced any willingness to scrutinize with such care the weight that should be given to mental health testimony on dangerousness. The Texas experience, then, has been one of the use of mental health testim o n y in aggravation o f penalty and specifically upon capital defendants' dangerousness. In a substantial number of cases, the testimony has presented an uncontradicted picture o f mental health ability to predict assaultive behavior that assumes far greater predictive skills than are currently acknowledged by most mental health practitioners/s Diagnoses of personality disorder and especially of antisocial personality have been heavily relied upon despite the absence o f reliable evidence concerning the quantitative significance of such a diagnosis upon the likelihood o f the subject engaging in aggressive behavior. 46 Both trial and appellate courts have accepted this testimony without apparent reservation and without critical evaluation of its credibility. 47 While the minds of jurors are not available for scrutiny, it is reasonable to assume that the testim o n y has been relied upon in a significant number o f cases; the appellate court has clearly given it significance in finding jury "death verdicts" supported by sufficient evidence. Virtually no consideration has been given to the possibility that the condition o f "antisocial personality" may have some mitigating significance. Mental health testimony has, in general, been used to give juries a distorted perspective o f clinical predictive skills and a one-sided view of the possible relationship between a diagnosis o f antisocial personality and the appropriate penalty for killing another human being. ~

Ohio: Psychosis, Mental Deficiency, Duress, Coercion, and Provocation The Ohio procedure obviously is intended to more directly elicit mental health input into the life or death decision. This is implemented by the corn-

that violence was initially intended w h e n the defendant began the burglary in the case before the court, Judge Roberts concluded, "it is inconceivable that psychiatric t e s t i m o n y . . , could alone be sufficient . . . . " 562 S.W.2d at 477 (Roberts, J., concurring). 4SThe empirical evidence concerning violence prediction was recently summarized in John Monahan, "'The Prediction of Violent Criminal Behavior: A Methodological Critique and Prospectus," in Deterrence and Incapacitation: Estimating the Effects o f Criminal Sanctions on Crime Rates (Washington, D.C.: National A c a d e m y o f Sciences, 1978) p. 244, at 246-50. The limits o f present clinical ability were well stated in American Psychiatric Association Task Force on Clinical Aspects of the Violent Individual, Clinical Aspects o f the Violent Individual (Washington, D.C.: American Psychiatric Association, 1974) at 27: "All that m a y reasonably be concluded in m o s t cases is that in the clinician's experience, and from his knowledge of the literature, some persons are at a comparatively higher risk for future violence than are others." While occasional testimony in Texas cases is presented in this fashion (see text at note 34, supra), in most cases the witnesses claim far more predictive ability. 46 See George E. Dix, " T h e Death Penalty, 'Dangerousness,' Psychiatric T e s t i m o n y , and Professional E t h i c s , " A m . J. Crim L. 5 (1977): 151, at 2 0 1 - 0 3 . 47 See George E. Dix, " A d m i n i s t r a t i o n of the Texas Death Penalty Statutes: Constitutional Infirmities Related to the Prediction of Dangerousness," Tex. L. Rev. 55 (1977): 1343, at 1394-99, 1403-07. 4s It is obvious that a limited n u m b e r of practitioners account for a large proportion of the testimony in these cases. In the 20 c a s e s in which mental health professionals were called by the prosecution, there were a total of 29 such witnesses called. Eight mental health professionals each testified once. Two others testified in 12 and 9 cases respectively.

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TABLE 1 Diagnoses Borderline mental retardation Inadequate personality Paranoid personality Alcohol dependence/drug addiction Antisocial personality No diagnosis offered

1 2 1 1 11 16

Total

32*

*The total adds up to more than 29 because some examiners gave multiple diagnoses.

pulsory psychiatric examinations before the penalty h e a r i n g . 49 Moreover, the scheme precludes the death penalty if the evidence establishes that " t h e offense was primarily the product of the offender's psychosis or mental deficiency. ''s° Mental health testimony might also be relevant to another mitigating consideration under the statute, which requires consideration o f whether "it is unlikely that the offense would have been committed but for the fact that the offender was under duress, coercion, or strong provocation. ''sl Unlike the Texas scheme, the Ohio procedure contains nothing that would tend to limit mental health input to the question of the defendant's dangerousness. On the other hand, the use of "psychosis" and "mental deficiency" in the statutory standard might be expected to limit those abnormalities that could form the groundwork for mitigation. In any case, practice under the Ohio statute might well provide some basis for evaluating the extent to which mental health professionals can provide valuable input into the life or death decision under somewhat more flexible procedures and criteria than are contained in the Texas procedure. Eighteen cases in which a penalty of death had been imposed and affirmed by the Ohio Supreme Court were examined, sz The reports o f the examiners appointed by the trial court in fifteen cases were available. Transcripts of the penalty (or "mitigation") hearings were available in seventeen of the cases. A total o f 29 reports were examined. There is no requirement that the examiners provide a diagnosis but some nevertheless did. The results are summarized in Table 1. The reports varied widely. Some were very conclusory and stated simply that the examiners did not find evidence o f psychosis or mental deficiency. A few offered conclusions clearly bearing upon the ultimate senten49See text at note 19, supra. so See text at note 22, supra. sl See text at note 25, supra. S2The manner in which the cases discussed here were selected raises a pot e nt i a l problem. All were cases in which the death penalty was imposed. Methodological problems precluded examining cases in which the death penalty was sought but not imposed. It is possible that an e x a m i n a t i o n of such cases would disclose more effective participation by mental health professionals, greater receptivity to me nt a l health input by trial courts, or both. But the present study and the sample relied upon permit conclusions to be drawn concerning those cases in which greatest concern is arguably necessary - those in which death was determined to be the appropriate penalty.

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cing issue. One examiner, for example, stated, "I find no reason for him not to bear full responsibility for his act and behavior." A number o f reports indicated that the examiners had information or reactions which they believed relevant to penalty but which they apparently concluded could not justify a professional opinion that the defendant's crime was primarily the product o f a psychosis or mental deficiency. Example 1. A psychological report indicated the defendant has impaired memory for recent events, probably due to alcohol or drug abuse, but that this was not the cause of his behavior. The report concluded, "The client is not mentally ill in a legal sense but is certainly a disturbed individual in a psychiatric and psychological sense. That is, he has m a n y personality and character problems but he is in contact with reality and does not demonstrate hallucinations or delusions." Example 2. After having diagnosed the defendant as an antisocial personality, the examiner added, "My feeling is that for various reasons, he chose a life o f crime. These reasons u n d o u b t e d l y include social and environmental, as well as personality factor[s] . . . . " Example 3. The defendant had been convicted o f participation in a scheme to rob a store; the robbery resulted in a murder. A psychological report noted "a carelessly optimistic outlook, a tendency to be simpleminded as opposed to insightful, and a lack of inclination to accurately assess the negative implications o f a negative situation in her mind things always turn out good." The examiner noted a deficient ability to generalize concepts, which "suggests that [she] would probably not be aware of the predicted ramifications and consequences of some verbally presented concepts." Example 4. The defendant had been convicted of the killing of a police officer; apparently the officer shot at the defendant before the officer was struck with the fatal shot. A psychiatric report noted that the defendant "is inordinately proud o f his b o d y . " Concluding, the report stated, "The only significant finding is an inordinate preoccupation with his physique which may have been a very peripheral factor in his behavior when the police officer shot at him, but it certainly was not a central issue." In one case, the report (of two examiners) addressed what was clearly a major matter at issue in the penalty stage: Example 5. Three psychiatrists examined the defendant before trial and found no evidence o f mental deficiency or derangement. He had not been insane and was competent to stand trial. Following the defendant's conviction, two of the examiners were appointed to reexamine him. Their presentence report recounts that at the interview the defendant asserted he was psychiatrically ill and had been hearing voices and seeing visions. The examiners concluded that this was an effort to avoid a death sentence and that the defendant "did not appear to be psychotic nor mentally retarded."

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TABLE 2

Testimony by Mental Health Professionals Number of Mental Health Professional Witnesses 0 1 2 3 Total

Number of cases

Percentage of cases

7 2 5 3

41,2 11.8 29.4 17.6

17

100.0

A l t h o u g h psychiatric reports are m a n d a t o r y and t h e r e f o r e always available to the sentencing court, t e s t i m o n y need n o t be taken. But m e n t a l h e a l t h professionals were s o m e t i m e s called to testify. T h e a m o u n t o f t e s t i m o n y b y mental health professionals in the 17 cases e x a m i n e d is s u m m a r i z e d in Table 2. E x a m i n a t i o n o f the hearings in these cases indicates several p r o b l e m s raised b y - o r related to - m e n t a l h e a l t h participation. The first was the u n c e r t a i n t y regarding the significance t o be given evidence o f r e d u c e d intellectual capacity. In a n u m b e r o f cases, the witnesses testified t h a t the d e f e n d a n t was b e l o w normal in intelligence. But there was little a g r e e m e n t on the significance to be given this, and the witnesses were o f little help in resolving the matter. In S t a t e v. E d w a r d s , S3 for example, a psychologist testified the d e f e n d a n t ' s I.Q. was 76 and a l t h o u g h the d e f e n d a n t was lacking in m e n t a l capacity he was n o t " m e n tally d e f e c t i v e . " A psychiatrist testified t h a t the d e f e n d a n t should be labeled " b o r d e r l i n e m e n t a l d e f i c i e n c y or r e t a r d a t i o n . " When q u e s t i o n e d on the e f f e c t o f this, the witness r e s p o n d e d that in general a p e r s o n with this intelligence could f o r m u l a t e the same g o o d j u d g m e n t s as a n o r m a l person b u t in some areas - and especially u n d e r stress - he would be u n a b l e to do so. The p r o b l e m that p e r m e a t e d the hearing was s u m m a r i z e d b y defense counsel in his a r g u m e n t : [ T ] h e . . . p r o b l e m t h a t the defense has . . . [is that] it could n o t really find a clear-cut d e f i n i t i o n o f what m e n t a l d e f i c i e n c y is and what guideline or gauges could be used in trying to impress u p o n the c o u r t t h a t there is mitigation h e r e . . . . In that c o n n e c t i o n the c o u r t tried to assist with the service or help o f two psychiatrists . . . b u t u n f o r t u n a t e l y , as I u n d e r s t a n d their test i m o n y , t h e y readily admit that t h e y t o o d o n ' t k n o w the d e f i n i t i o n for m e n t a l d e f i c i e n c y as the law and o u r legislators had defined it . . . . T h e q u e s t i o n as posed b y defense counsel was the d e f i n i t i o n o f the phrase " m e n t a l d e f i c i e n c y " in the mitigating c i r c u m s t a n c e set o u t in the statute. Yet it seems clear t h a t the real p r o b l e m was the b r o a d e r o n e o f the significance to be given in the sentencing c o n t e x t to evidence that the d e f e n d a n t was intellectually impaired b u t n o t so m u c h as to be u n a b l e to f u n c t i o n in society. Mens349 Ohio St.2d 31. 358 N.E.2d 1051 (1976), vacated and remanded, 46 U.S.L.W. 3802 (U.S. July 3, 1978).

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tal health professionals, who offered what purported to be objective evidence of the degree of the defendant's impairment, were of no help in the further task o f determining the effect of this impairment upon the defendant's conduct. Unfortunately, there is some evidence that sentencing judges tend to define the issue before them as whether the defendant met a m e d i c a l standard. In S t a t e v. Hall, s4 evidence similar to that in E d w a r d s had been introduced. The presiding judge explained the three judge panel's conclusion that no mitigating circumstances had been shown as follows: The word mental deficiency . . . [has] a meaning in the medical profession. Certainly there is some evidence here that the defendant is [a] borderline mental[ly] retarded person, but there is no evidence here, that we were able to find, which translates his borderline mental retardation into saying that this offense was primarily the product of his mental deficiency . . . . " This strongly suggests that the availability of mental health professionals willing to testify in terms o f diagnostic terminology deflected the attention of the sentencing judges from what was the real issue before the court. The court in Hall appears not to have carefully considered whether the degree of intellectual impairment present in the defendant and its impact upon the defendant's behavior sufficiently reduced the reprehensibility of his conduct so as to make death an inappropriately severe penalty. Rather, the issue was posed as the easier one of whether the evidence established "mental deficiency" as that phrase is used in standard diagnostic discussion. This is, o f course, not the issue. A second problem was the significance of evidence that the defendant was an antisocial personality. Given standard disagnostic terminology, there was agreement that such evidence could not establish that the crime was the product of a "psychosis." But in two cases, it was argued that the condition amounted to a "mental deficiency" within the meaning of the statute. Perhaps the strongest case for the proposition was made in S t a t e v. Bayless. ss During the process of making an unsuccessful insanity defense, defense counsel elicited the following from a psychologist: [The defendant] appears to have intellectual ability . . . to discern, discrimindte right from wrong, and to link the consequences of his behavior with the behavior act itself. However, the problem is that his deficit occurs in the c o m m i t m e n t to a pattern of conduct that would be right. We have found [the defendant] has a significant defect in a personal-social conscience, a lack of sincere feeling, true feeling attached to right and wrong. Although intellectually at a verbal level he can discriminate right and wrong and fear the consequences, there is lacking a c o m m i t m e n t or a feeling or a conscience . . . . s448 Ohio St.2d 325,358 N.E.2d 590 (1976), vacated and remanded, 46 U.S.L.W. 3802 (U.S. July 3, 1978). ss48 Ohio St.2d 7 3 , 3 5 7 N.E.2d 1035 (1976), vacated and remanded, 46 U.S.L.W. 3802 (U.S. July 3, 1978).

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This did not render the defendant mentally ill, the witness continued, but it did constitute a mental deficiency in the emotional area. Again, there was some indication of a tendency to frame the issue as one of law - was the statutory language used in the mitigating circumstance intended to include that abnormality currently labeled antisocial personality? A negative answer, o f course, would make unnecessary any inquiry into whether the impairmant established by the diagnosis sufficiently reduced the culpability of the defendant's conduct so as to make death a proper penalty. In S t a t e v. Harris, S6 the panel of three sentencing judges apparently accepted the defendant's argument that this condition could on appropriate facts give rise to a mitigating circumstance. The presiding judge explained the panel's rejection of the defendant's further argument as follows: Whether or not one classified as a psychopath or sociopath is criminally responsible is a question to be determined from [the] totality of all [the] defendant's symptoms by the trier o f facts . . . . Assuming that the defendant was in fact suffering from a mental disorder variously described as an antisocial personality, it must be demonstrated to the c o u r t . . , that the offense was primarily the product of the offender's psychosis or mental deficiency . . . . [T]he required q u a n t u m of evidence has not been presented to the trier of fact. Ohio trial experience indicates that if mental health input into the life or death decision is sought, clinical examination will often indicate a diagnosis of reduced intellectual capacity or antisocial personality. Despite some tendency to reject any argument in mitigation based on such diagnoses, there is acknowledgment that impairment of the sort implied by these diagnoses might well reduce the blameworthiness o f the defendant's behavior so as to render death inappropriate. But, as Harris demonstrates, mental health professionals have provided little help on what triers o f fact are likely to regard as the critical issue - the effect of intellectual impairment or the condition o f antisocial personality upon the dynamics o f the particular behavior which is under scrutiny. Testimony is primarily in the abstract and concerns how the witness assumes persons with these characteristics function; it does not address the more specific question of how the d e f e n d a n t ' s c o n d i t i o n affected his decision to engage in the homicidal behavior for which he has just been convicted. Unless and until mental health professionals are able to address this matter more directly and with reasonable credibility, they are unlikely to be of significant assistance in making the life or death decision in the numerous cases in which the defendant has no impairment other than intellectual impairment or a diagnosis of antisocial personality. A third problem in the cases examined was raised-by defendants' claims that they were under significant influence by another person and therefore were under "duress" or "coercion" within the meaning o f the statute. In two cases, defendants made arguments that such influence existed. In both cases, the s648 Ohio St.2d 3 5 1 , 3 5 9 N.E.2d 67 (1976), vacated and remanded, 46 U.S.L.W. 3802 (U.S. July 3, 1978). Compare the treatment of the same issue by the state appellate court in this case; see text at note 65, infra.

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claimed influence was sufficiently subtle that it would be reasonable to expect that the psychiatric reports and testimony would be o f help in evaluating the claim. This was not the case. In S t a t e v. Carl O s b o r n e , s7 the defendant had been convicted of killing the wife of his mother's former boyfriend; this was apparently done at the mother's request. The defense claimed that the influence over the defendant by his m o t h e r mitigated the seriousness of the defendant's conduct. Two psychiatrists testified at the penalty hearing. One did not address the defendant's relationship with his mother. The other testified that "in some ways" the m o t h e r was a strong and dominating personality and that the defendant normally followed the will of his mother. He added, however, that at times the defendant also acted in a rebellious way. No effort was made by either the defense or the prosecution to elicit from the witnesses any detailed consideration o f the mother-son relationship or the effect of this relationship upon the son's decision to kill the victim. A similar argument was made in S t a t e v. Bates, SS in which the eighteen year old defendant had been convicted of a killing perpetrated during a robbery in which the defendant and a thirty-nine year old companion participated. No witnesses were called at the penalty hearing but the court had copies of reports by three psychiatrists. None o f these reports made any effort to explore the dynamics of the relationhip between the defendant and his companion. One report (a joint report by two examiners) stated only: He denies being under any coercion from [his companion] at the time of the crime. He denies being threatened by his companion, to participate in the crime and he does not feel that there would have been other moral or physical pressures applied to him. These cases involved claims that seem quite likely to arise in numerous future cases. There is little doubt that the culpability of various participants in a joint venture of killing is to some extent affected by the relationship between or among them and the roles played by the various participants. Psychological expertise is not needed to identify the issue. But the Ohio experience also suggests that such expertise is unlikely to be of help in resolving the matter. Certainly in the two cases studied the mental health professionals provided virtually no information of value in addressing the defendants' claims that their relationship with others involved in the offenses was such that their own blameworthiness was less than might appear at first glance. A final problem was presented by one case in which the defendant's participation in a brutal killing appeared inconsistent with his history and personal characteristics. In S t a t e v. Weind, S9 the defendant had been convicted o f participation in the killing of the wife of a man who had formerly had a personal relationship with the mother of one of the defendant's companions. Testimony 5750 Ohio St.2d 211,364 N.E.2d 216 (1977), vacated and remanded, 46 U.S.L.W. 3802 (U.S. July 3, 1978). s~48 Ohio St.2d 315,358 N.E.2d 584 (1976), vacated and remanded, 46 U.S.L.W. 3802 (U.S. July 3, 1978). s950 Ohio St.2d 224,364 N.E.2d 224 (1977), vacated and remanded, 46 U.S.L.W. 3802 (U.S. July 3, 1978). This killing was the same as that for which Carl Osborne (see text at note 57, supra) was convicted.

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showed that when the victim resisted her abduction, the defendant struck her repeatedly with a gun. At the penalty hearing, there was agreement that this behavior was inconsistent with what else was known about the defendant. But the mental health professionals who testified were not helpful in providing insight into whether this should be regarded as significantly mitigating the seriousness of the defendant's behavior. The first witness expressed the opinion that it was unlikely that the offense would have been committed in the absence of duress, coercion or provocation, although he acknowledged that the defendant had not reported during the interview any such duress, coercion or provocation. When asked whether the offense was the product of psychosis or mental illness, he responded: I would certainly say that [the offense] would be most atypical, unusual, and nonconsistent behavior for the man that I interviewed a couple of weeks ago and I would then have to assume that something very intense was going on in him to make him act that way. Whether it was a mental illness at that t i m e . . . I couldn't say. It would just be very, very unusual f o r . . , the man that I interviewed as he was when I interviewed him. A second witness testified that his evaluation and the results of psychological tests indicated that the defendant was free of aggressiveness. When pressed as to the significance o f such a person participating in and witnessing the abduction, beating, and execution of a somewhat older woman, the witness responded: " I f a person continues to be beastlike in their attacks, then one of two things . . . . [T]hey are basically aggressive or undergoing some kind of psychotic break at that m o m e n t . " After being provided with the details of the offense, the witness testified that "possibly" the defendant was suffering from a temporary psychosis at the time of the crime but he could not state "with reasonable medical cert a i n t y " that his had been the case. In regard to this situation, the mental health professionals did not appear to provide much insight above what a reasonably perceptive lay person would have seen presented by the facts. While they confirmed that a violent aggressive act inconsistent with a person's general behavior would seem to have been influenced by some factors, they were of virtually no help in identifying what factors might have accounted for the behavior. The Ohio appellate caselaw has been of little help in resolving the problems which trial court practice discloses are created by implementation of the death penalty scheme. In the early case of B l a c k v. State,6° the Ohio Supreme Court indicated that despite the use of the potentially limiting phrases "psychosis" and "mental deficiency," the statute authorized consideration of virtually any psychological abnormality: It is clear that the General Assembly chose t h e . . , language to allow the trial judge or panel the broadest possible latitude in the examination of the defendant's mental state and mental capacity for the pur6°48 Ohio St.2d 262,358 N.E.2d 551 (1976), vacated and remanded,46 U.S.L.W. 3802 (U.S. July 3, 1978).

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poses o f the mitigation inquiry . . . . [ A ] n y mental state or incapacity may be considered in light o f all the circumstances and including the nature o f the crime itself so that it may be determined w het her the condition found to have existed was the primary producing cause o f the offense. 61 But in subsequent cases, the court failed to overturn trial court determinations that no mitigating circumstances existed and sometimes used quite restrictive language in doing so. In S t a t e v. R o y s t e r , 6 2 a death sentence was upheld despite evidence that the defendant's I.Q. had been measured at 75 and 54; the court relied u p o n psychiatric t e s t i m o n y that the lower test scores were attributable to uncooperativeness and "developing personality traits." " [ T ] h e testimony o f the psychiatrists," the court n o t e d with apparent approval, "did not equate I.Q. with mental deficiency. ''63 In S t a t e v. E d w a r d s , 64 the court affirmed the sentence o f death despite evidence o f below-average intelligence and "educational d ef icien cy. " Apparently approving a definition o f mental deficiency that gave the sentencing court substantial discretion, the court cited opinion testim o n y that the d e f e n d a n t was not retarded or deficient and held there was substantial evidence to support the verdict. In S t a t e v. Harris, 6s the appellate court considered defendant's argument that the evidence established he was a " s o c i o p a t h " and therefore mentally deficient. The language rejecting Harris' argument can be read as holding as a m a t t e r of law that the condition o f sociopathy cannot give rise to the sort o f impairment that can constitute a mitigating circumstance: Counsel submits that appellant was a recognized sociopath according to the doctors who examined him as well as by the two lower courts that passed j u d g m e n t on him. We agree with this conclusion. However, we do not equate 'sociopath' as being either a psychosis or a mental deficiency. 6e In regard to influences by anot her person, the Ohio Supreme Court in S t a t e v. W o o d s 77apparently adopted a broad definition o f "duress" and " c o e r c i o n " : The essential characteristic o f coercion . . . is that force, threat o f force, strong persuasion or d o m i n a t i o n by another, necessitous circumstances, or some combination o f these, has overcome the mind or volition o f the d e f e n d a n t so that he acted other than he ordinarily would have acted in the absence o f those circumstances. 68 61358 N.E.2d at 555-56. 6248 Ohio St.2d 381, 358 N.E.2d 616 (1976), vacated and remanded, 46 U.S.L.W. 3802 (U.S. July 3, 1978). 63359 N.E.2d at 622. 4449 Ohio St.2d 31,358 N.E.2d 1051 (1976), vacated and remanded, 46 U.S.L.W. 3802 (U.S. July 3, 1978). 6s48 Ohio St.2d 351, 359 N.E.2d 67 (1976), vacated and remanded, 46 U.S.L.W. 3802 (U.S. July 3, 1978). The trial court's handling of this case is discussed in the text at note 56, supra. 66359 N.E.2d at 73. 4748 Ohio St.2d 127, 357 N.E.2d 1059 (1976), vacated and remanded, 46 U.S.L.W. 3802 (U.S. July 3, 1978). 48357 N.E.2d at 1066.

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But the court then affirmed the sentence of death, despite evidence that the young defendant was "easily led" and had come under the influence of his older companion. Evidence that the defendant had an opportunity to flee and fired upon the deceased police officer without specific demand or urging of his companion negated the other evidence. 69 Similarily, in S t a t e v. Bell 7° the court noted that the defendant's y o u t h and other circumstances could have established that the influence of his companions constituted duress or coercion. But again the court affirmed the death sentence, relying heavily upon the defendant's opportunity to escape from the scheme before the killing took place. To some extent, the Ohio Supreme Court cases can be read as recognizing broad discretion in sentencing courts and consequently as encouraging mental health professional testimony concerning intellectual and emotional abnormalities as well as the influence of other persons. It is clear, however, that the court is unwilling to compel sentencing trial courts to credit evidence o f this sort. Moreover, the opinions may be read as an invitation to ignore what insights may be available from mental health professionals. R o y s t e r and E d w a r d s can be read as approving the rejection of intellectual deficiency on the basis of evidence that the defendant was able to marginally survive in the community. Woods and Bell can be read as inviting rejection o f evidence o f subtle domination by another on the basis o f proof that the defendant had an opportunity to avoid participating in the scheme without running the risk of immediate and certain repercussions from the dominating others. Harris can be read as a bar to efforts to establish that the effect of being an antisocial personality was sufficient on the facts of particular cases to establish mitigation. Despite the attractive language in some of the opinions, the action of the Ohio Supreme Court, like the action of at least some o f the lower courts, creates an atmosphere clearly unsympathetic to reliance upon information of any subtlety from mental health professionals. The Ohio experience, then, has been one of mental health participation in virtually all capital cases. But the results have not been encouraging. Diagnoses of antisocial personality have been frequently made. But the information provided to sentencing courts has not been o f value in relating this to the offender's culpability. The major deficiency appears to be an inability to credibly relate the "conditions" of intellectual impairment or antisocial personality to the dynamics of those activities for which defendants have been convicted. Similarly, mental health professionals have sometimes offered insights concerning offenders' behavior that, if believed, would bear significantly upon culpability. But these insights have been ignored by sentencing courts, most likely because of the lack of a persuasive case for the proposition that they are in fact valuable insights into the actual dynamics o f the behavior at issue. Mental health professionals proved o f little or no help in evaluating defendants' claims that they were subject to subtle but significant influence by other persons and that the act at issue was so inconsistent with the offender's general behavior that it must have been influenced by some factor that mitigated the offender's culpability. ~9Id ' 7°48 Ohio St.2d 270,358 N.E.2d 556 (1976), reversed and remanded, 46 U.S.L.W. 4995 (U.S. July 3, 1978).

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Appellate caselaw has not encouraged trial courts to give greater significance to mental health professional input. To the contrary, it can be read as rejecting the possibility that personality disorders can constitute a mitigating factor and stressing gross characteristics of the offense itself (such as the ability of an offender to physically escape participation in a killing) over psychological evaluation of the offender, such as claims of subtle influence by others. Despite the relatively broad framework for mental health participation, the Ohio courts do not seem to have found mental health professional input o f much value in making the life or death decision.

Arizona: Quasi-Insanity The Arizona capital murder statute also invites psychiatric testimony in mitigation. But the standard for determining whether such evidence will in fact mitigate the seriousness o f the offense is phrased in terms related to the insanity defense. It is a mitigating circumstance under the statute that the defendant's "capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements o f law was significantly impaired, but not so impaired as to constitute a defense to prosecution. ''71 No survey of trial court practice under this statute is available but two cases decided by the Arizona Supreme Court bear directly upon the administration of this aspect o f the capital murder penalty process. In S t a t e v. R i c h m o n d , 72 the defendant had been convicted of a brutal killing during a robbery. At the mitigation hearing, defense counsel called two psychiatrists who testified that the defendant was psychopathic and therefore came within the statutory mitigating circumstance. The first witness noted that Richmond's record contained indications that he had committed at least 22 crimes including murder and rape. In the witness's opinion, Richmond's capacity to conform his conduct to the law was substantially impaired. Explaining, the witness asserted that the defendant had a reduced frustration threshold and a reduced ability to control his impulses: This man knows in a technical sense rape is wrong, but if there is an opportunity he may act out. Even though he knows it is wrong, he will act on, the spur of the m o m e n t when his impulse hits him. On cross examination, the witness acknowledged that he believed all persons who repeatedly commit crimes are psychopaths. The second witness agreed with the diagnosis made by the first but added that he believed the defendant was also an explosive personality. He expressed the opinion that at the time o f the crime, Richmond's ability to conform to the law was impaired; he disclaimed the ability to define what "substantial" meant when questions were phrased in terms o f substantial impairment. On cross examination, he acknowledged Richmond's ability to avoid acting on an impulse to rob if the victim was armed, but explained:

7, See text at note 23, supra. 72114 Ariz. 1 8 6 , 5 6 0 P.2d 41 (1976), cert. denied, 433 U.S. 915 (1977).

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I think that is a m a t t e r o f degree. He might . . . be clever enough to postpone these things to a certain extent. But he could not post pone . . . the urge . . . to satisfy his needs. It would have to come out one way or another . . . . [ S ] o o n e r or later [sociopaths] . . . f i n a l l y . . . start to do things with disregard [for the risk o f apprehension]. The trial court found that the mitigating circumstance was not established by the evidence. On appeal, the Arizona Supreme Court affirmed and specifically held that "character or personality disorders are not mitigating circumstances within the meaning o f the statute. ''73 The court relied upon caselaw holding that psychopathic condition cannot give rise to the insanity defense in Arizona, 74 a provision in the Arizona Mental Health Code excluding character and personality disorders from the definition o f mental disorders, 7s and the similarity between the language o f the mitigation statute and that o f the Model Penal Code insanity provision. 76 The last factor was seen by the court as indicating legislative approval o f that portion o f the Model Penal Code's formulation o f the insanity defense that excludes abnomalities "manifested only by repeated criminal or otherwise anti-social conduct. ''77 The court did not discuss the significance o f the legislative failure to e m b o d y in the mitigation statute the readily-available language from the Model Penal Code purporting to eliminate such abnormalities from consideration. R i c h m o n d , however, must be contrasted with State v. Doss. 78 Charles Doss shot a fellow student in a crowded college gymnasium; two police officers were within 45 feet o f the shooting at the time. Doss and the victim had engaged in heated disagreements during a class and on the morning o f the killing, the victim had suggested that Doss " b l o w hi m . " Doss went to his home, obtained and loaded a gun, returned to the school, and killed the victim. In a confession given soon after the killing, Doss indicated that he had felt an "implosion o f rage" building up inside o f him; he related that the victim had insulted and badgered him and that he was glad that the victim had caused the rage to " t e r m i n a t e . " At trial, an insanity defense was asserted. Two defense psychiatrists testified that in their opinion, Doss suffered from paranoid schizophrenia and as a result believed at the time o f the killing that his act o f killing was ethically justified. It was established that Doss had engaged in sexual activity with two of his teenage daughters and experienced great guilt concerning this. One defense psychiatrist testified that Doss c o m m i t t e d the killing as a means of assuring that he would be removed from his family and would t hereby avoid further incestuous activities with his children; this, the witness explained, evidenced clearly psychotic reasoning. A n o t h e r defense psychiatrist explained the dynamics o f Doss' actions as follows:

73560 P.2d at 52. 74SeeState v. Cross, 88 Ariz. 389,357 P.2d 136 (1960). 7SAriz. Rev. Stat. § 36-501 (18). 76See Model Penal Code § 4.01 (P.O.D. 1962). 77Model Penal Code § 4.01 (2) (P.O.D. 1962). 7, 116 Ariz. 156,568 P.2d 1054 (1977).

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[ R l u n n i n g through the whole picture o f Mr. Doss was the whole element o f a man who is fairly u n c o m f o r t a b l e with his male sexual identity . . . . This t o o k the form o f not . . . being able to hold a job long . . . . [ T ] h o u g h [there] had been a longstanding feud [between Doss and the victim] in relationship to questions of drugs and epilepsy and things like that . . . the things that really set [Doss] o f f the most were remarks that related to a sexual nature . . . . [T]hese were the final straws . . . . As a result, the witness concluded, Doss felt his action was justified and therefore was incapable o f distinguishing right from wrong in regard to the act of killing. The final defense exper t witness, a psychologist, stressed Doss' own perception o f himself as ineffectual and his special concern regarding his own sexual c o m p e t e n c y . In light of the victim's c o m m e n t and its homosexual overtones, the witness testified: My opinion is that . . . this man was overwhelmed by his emotions, he was doing what he t h o u g h t was the only thing he could do, he should do. He had no concept i on o f . . . how a n y b o d y else would feel, h o w this would be interpreted by any a n y b o d y else. He was doing what he had to do w i t hout any thought o f the consequences to himself or o f his behavior ot her than destroying someb o d y that he was insanely angry at. Doss himself testified and asserted that he had been influenced in his decision to kill the victim by a desire to assure that further sexual relations with his daughter would be avoided. With apologies to defense counsel, Doss asserted, "I was entirely sane when I shot that m an. " Two psychiatrists testified in rebuttal for the prosecution. Both diagnosed Doss as suffering from a personality disorder; one labeled him a passive aggressive personality and the o t h e r did not offer a specific diagnosis. The first prosecution psychiatrist testified that because o f his passive aggressive personality, Doss "blows up, does n o t exert control over his impulses. He's able to, but he just doesn't do it." The o t h e r agreed with the defense witnesses that Doss had killed to secure his removal f r om his daughters and had regarded himself as justified in killing, but asserted that this did not indicate schizophrenia because Doss' belief in justification was not based upon a specific c o m m a n d from a superior being. Both offered the opinion that Doss was sane at the time o f the killling. The j u r y was instructed unde r the M'Naghten Rule and found Doss guilty o f first degree murder. At the sentencing hearing, the only witnesses were three psychiatrists called by the prosecution. Each testified that in his opinion, Doss was a danger to the c o m m u n i t y ; a defense objection that this t est i m ony was inadmissible because u n d e r the statute dangerousness was n o t an aggravating factor was overruled. Without explanation, the trial judge found that none of the mitigating circumstances had been established and sentenced Doss to death. On appeal, the Arizona Supreme Court affirmed Doss' conviction. The jury's conclusion that he had been sane at the time o f the shooting was supported by

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substantial evidence. But, without summarizing the psychiatric testimony, the court further held that the evidence established that Doss' capacity to control his conduct had been significantly impaired and "this mitigating circumstance is substantial enough to call for leniency. ''79 The sentence of death was consequently set aside and the penalty reduced to life imprisonment. Doss is exceptional insofar as it evidences a willingness on the part o f an appellate court to find that psychiatric evidence showed sufficient mitigating circumstances to render death an inappropriate penalty. The fact that the trial judge had rejected the same evidence without apparent hesitation suggests a significant difference between the receptivity of the appellate court to such evidence and that o f trial judges or juries. Moreover, the appellate court's failure to discuss R i c h m o n d in the Doss opinion leaves open the question of why the testimony in Doss was sufficient to mitigate penalty while that in Richmond was not. The defense witnesses in Doss were willing to testify that Doss' disorder was a traditional psychosis, while the evidence in R i c h m o n d in no way suggested anything but a personality disorder. Yet the witnesses provided little support for their conclusion that Doss' condition was o f psychotic proportions. None testified that Doss experienced hallucinations or delusions. The only specific effort to justify the diagnosis was testimony that Doss's belief that killing was an appropriate method of avoiding incest was so unreasonable as to evidence a psychotic thought process. The court's language in Richmond suggests that the label assigned to Doss by defense witnesses may have been the controlling consideration. But, if so, the court's analysis seems quite artificial. The testimony in Doss as to the existence o f a schizophrenic disorder and a direct relationship between such a disorder and Doss's ability to control his conduct was speculative and contradicted by other testimony. The testimony in R i c h m o n d certainly tended to show that the impact of Richmond's personality disorder was to decrease his ability to control his conduct. But in both cases the court seems to have ignored the substance of the testimony, i.e., the extent to which it credibly showed a significant impact upon the defendants' ability to control their actions, and relied rather upon the diagnostic label attached by the witnesses to the defendants' abnormality. Such an approach is clearly inconsistent with an emphasis upon all characteristics o f the particular offender. There is no apparent justification for regarding some protentially mitigating characteristics as irrelevant to the penalty issue because o f the label which mental health professionals place upon them. Conclusions In light o f the Supreme Court's July 1976 decisions, the trend in death penalty legislation, and L o c k e t t v. Ohio, it seems clear that mental health professionals will be called upon with increasing frequency to participate in the decision whether to take defendants' lives. This study, however, suggests that participation by mental health professionals in this aspect o f litigation is likely to

~9568 P.2d at 1061.

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generate as much controversy as their involvement in other areas, such as determining criminal responsibility. One area of future controversy that is immediately apparent is the significance of the personality disorders and specifically the diagnosis o f antisocial personality or its equivalent. Mental health professionals who examine capital murder defendants will frequently find that the only traditional diagnostic categories that are even arguably applicable are the personality disorders. Given the objective of assuring that the sentencing authority have before it "all possible relevant information about the individual defendant, ''8° there seems little basis for arbitrarily regarding the condition reflected by such a diagnosis as irrelevant to mitigation of penalty. Yet the Ohio and Arizona courts seem inclined in this direction. Perhaps this reflects an impression that mental health professionals are unable to provide specific enough information concerning the impact of a psychopath's abnormality upon the dynamics o f his specific acts to make their testimony of much value in the sentencing process. Insofar as this is true, it identifies what might be regarded as the major impediment to effective participation by mental health professionals in this process - insufficient understanding o f the personality disorders. R i c h m o n d evidenced mental health professionals' inability to persuade the Arizona courts that personality disorders could so impair a defendant's ability to control his conduct as to mitigate his culpability. The Ohio cases, in which mitigation was not tied to impairment of control, demonstrated an inability to convince sentencing judges that when considered in broad perspective personality disorders had mitigating significance. The Texas experience, on the other hand, suggests that evidence o f personality disorder may be given aggravating significance. On the face of the procedure, the diagnosis has been used as evidence o f defendants' future dangerousness. But the testimony also conveys a picture of defendants as unimpaired by " a b n o r m a l i t y , " "just plain mean," and therefore even more deserving of harsh treatment than defendants without such diagnoses~ Until there is better agreement upon the significance of a diagnosis of personality disorder upon defendants' volitional control of their behavior and the likelihood o f future serious criminal conduct, skepticism concerning the value of testimony based upon such diagnoses is understandable. The same is true of testimony based upon a determination of reduced intelligence or "mental deficiency." The Ohio statute and early caselaw reflects a special initial eagerness for mental health input into what is generally acknowledged to be a difficult decision. But the practice and the subsequent appellate caselaw indicate an unwillingness to rely on that input in particular cases where the defendants' conduct is grossly offensive to basic notions o f decency. Both trial and appellate courts have rejected testimony by mental health professionals that, if taken at face value, could easily have been regarded as sufficiently mitigating the blameworthiness o f defendants' behavior to suggest a penalty less than death. The lesson to be learned, apparently, is that mental health professionals are not yet equipped to convince courts that when a decision as important as the life-orS°See tex t at notes 3-8, supra.

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death decision is to be made, relatively subtle insights from the mental health people concerning defendants' personality chracteristics or the dynamics of their criminal acts are sufficiently credible to justify giving them great weight. The attitude o f the courts seems to be a distrust of the state of the art. Despite these problems, it would be unwise to ignore the actual and potential value o f mental health professional testimony in making the life-or-death decision. The Supreme Court's demand that the decision be individualized sets the law to a difficult task that, as will be suggested later, may be beyond the limits of present ability. But as long as the task must be undertaken there is no justification for failing to call into service the assistance of mental health professionals, despite the difficulties involved in making effective use of their input. What does the experience reviewed here have to say about the way in which the penalty process should be structured to gain maximum advantage from mental health professionals? First, in light of the constitutionally mandated objective o f maximum individualization, there seems little reason to frame the mitigating considerations in terms that suggest some arbitrary limitation. The inclusion of the phrases "psychosis" and "mental deficiency" in the Ohio statute is unfortunate. There is reasonable evidence that use of such phrases encourages emphasis to be shifted from the significance to be given mental health factual information to the question of whether the testimony meets certain definitions used in mental health communication that have no real significance for the underlying question in capital prosecutions. The effort to maintain a relationship between the criteria for criminal responsibility and that for mitigation of penalty in a capital case, such as appears in the Arizona structure, is equally unfortunate. Attention tends to be deflected from the important individualization task at hand to whether the testimony meets requirements established in inapplicable precedents dealing with the insanity defense. Lockett, of course, may mean that it is constitutionally impermissible to limit sentencing judges and juries to consideration of psychological abnormalitites that meet either mental health standards such as those for diagnosing psychosis or mental deficiency or legal standards applied in other contexts such as those for determining criminal responsibility. This study suggests that the constitutional objective o f individualization would be furthered by so reading the Eighth Amendment. But it also suggests that even if formal limitations upon the consideration o f mental health testimony are removed, sentencing authorities are likely to nevertheless be reluctant to give mitigating significance to much mental health testimony likely to be offered under such " o p e n " procedures. But these problems are minor compared with the emphasis in the Texas procedure upon defendants' "dangerousness." This appears to have had the effect of discouraging efforts to elicit from mental health professionals information they may have relevant to blameworthiness that does not bear upon dangerousness. There is substantial question whether the Eighth A m e n d m e n t permits this sort of emphasis upon the question of dangerousness. 81 But apart from the legal sl The issue was not directly reached in J u r e k v. Texas, 428 U.S. 262 (1976), because a majority of the Court could not agree on the nature of the Texas procedure. Three members of the court regarded the

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issue, the Texas experience suggests that limiting mental health professional input to the question o f dangerousness is totally inconsistent with the realization of whatever potential mental health professionals have for assisting in the making o f the life-death decision by providing as complete an understanding of defendants and their behavior as possible. The Texas procedure not only discourages realization o f this potential but it also results in mental health professional testimony being abused. Much of the testimony given and apparently relied u p o n in sentencing defendants to death has presented a misleading picture of the current state of clinical prediction of assaultive behavior. Witnesses have asserted an ability to predict future assaultive conduct with great accuracy and Texas juries and courts have been amazingly willing to accept these unsupportable assertions of predictive skill. Again, this creates a real danger o f attention being diverted from the basic issue. A trier of fact offered the opportunity to base a decision on the affirmative assertion by an apparently well-qualified professional that a defendant's execution is essential to saving the lives o f others is likely to take that opportunity rather than face the difficult task o f evaluating the offender's ethical culpability as well as his future dangerousness. The Texas procedure and the involvement o f mental health professionals in it clearly tends to discourage the sort of individualization that the Supreme Court has demanded o f death penalty procedures. The danger of such abuse of mental health professional testimony is obviously greatest in procedures like the Texas scheme in which special emphasis is placed on "dangerousness." But the Arizona Doss case makes clear that mental health testimony concerning capital defendants' dangerous proclivities may be offered and accepted under other procedures. Whether or not the legal framework formally focuses the sentencing authority's attention upon defendants' "dangerousness," the danger that mental health professional testimony will cause the life or death decision to be influenced b y an erroneous impression as to the predictability o f serious assaultive conduct is a serious one. Perhaps the difficulty o f using mental health testimony in death penalty proceedings merely reflects the inherent difficulty of making these decisions. Despite widespread agreement on the need to individualize life-or-death decisions, there is little consensus on the way in which to make these decisions. There is no accord, for example, as to the comparative significance to be given an offender's reduced intelligence, deprived background, apparent future dangerousness, or domination or influence by others. The problem is especially great when some of these characteristics of the defendant suggest mitigation of penalty and others tend to suggest aggravation. 82Given the difficulty of structuring procedure as a flexible one permitting consideration of sufficient factors. Id. (Stevens, J., announcing the j u d g m e n t of the Court). Three other justices voted to uphold the statute on the basis that the Texas procedure was a narrow nondiscretionary one b u t was valid nevertheless. Id. at 277 (White, J., concurring). A majority of the Court appears to have rejected the position of these concurring justices; see text at notes

3-6, supra. s2 In 1966, Kalven and Zeisel examined 111 death penalty cases in an effort to identify the considerations influential in the penalty decision. They also n o t e d possible procedural changes intended to improve administration of the death penalty, including efforts to assure access to the "broadest possible evidence about the d e f e n d a n t " by holding a separate penalty hearing. On the basis of their study and despite the promises of reform efforts, the authors concluded: " I n the end the task is one of deciding who, a m o n g those convicted o f capital crimes, is to

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an analysis that considers all relevant factors and somehow balances competing considerations against each other, there is a powerful tendency to abandon individualization and base a decision primarily or exclusively upon the offensiveness of the crime committed. It is not unreasonable to hypothesize that juries and judges are finding the task mandated by the Supreme Court an impossible one. The tendency to reject mental health testimony offered in mitigation of penalty in a capital case may simply be one indication of a general tendency to deemphasize everything but the apparent reprehensibility of the crime for which the offender has just been convicted. If this is accurate, the most important task is not structuring the process so as to permit maximum use to be made of mental health testimony. Rather, it is either making the individualization process one that juries and judges can be expected to undertake, or abandoning it as an unrealistic objective.

die. Whatever the differences on which this decision hinges, they remain demeaningly trivial compared to the stakes. The discretionary use of the death penalty requires a decision which no h u m a n should be called upon to m a k e . " Harry Kalven, Jr. and Hans Zeisel, The American Jury (Boston: Little, Brown and C o m p a n y , 1966) at 448--49.