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Psychiatry and the Death Penalty
Psychiatr Clin N Am 29 (2006) 791–804
PSYCHIATRIC CLINICS OF NORTH AMERICA
Psychiatry and the Death Penalty Charles L. Scott, MD University of California, Davis Medical Center, 2230 Stockton Boulevard, 2nd Floor, Sacramento, CA 95817, USA
T
he first laws establishing the death penalty can be traced to the eighteenth century BC. At that time, the Code of King Hammurabi of Babylon established the death penalty for 25 separate crimes. In the tenth century AD Britain, hanging was the most usual method of execution, and by the 1700s, 222 crimes were punishable by death. Crimes eligible for the death penalty in Britain during this period included cutting down a tree and robbing a rabbit warren. American colonists adopted the practice of capital punishment from their British and European counterparts, though laws defining which crimes were punishable by death varied between colonies. Thomas Jefferson unsuccessfully led one of the first attempted reforms to the use of capital punishment when he introduced a bill to the Virginia legislature proposing that the death penalty could be imposed only if individuals were convicted of murder or treason. Dr. Benjamin Rush, one of America’s most famous early physicians and signer of the Declaration of Independence, opined that having the death penalty had no deterrent effect and actually increased criminal conduct. Although an interest in abolishing the death penalty in America began during the 1700s, the abolitionist movement increased during the 1800s, and as a result, many states in the northeast reduced the number of crimes eligible for the death penalty. Despite an increasing restriction of capital punishment in various states, scientific knowledge was used to develop new means of execution, including the first use of the electric chair in 1888, cyanide gas in 1924, and lethal injection in 1977. After executions increased to an average of 167 per year during the 1930s, public sentiment supporting the death penalty began to wane, and an increasing number of constitutional challenges to the legality of the death penalty developed. In the late 1950s and early 1960s, abolitionists challenged the constitutionality of the death penalty, arguing that capital punishment represented cruel and unusual punishment in violation of the Eighth Amendment [1]. The Eighth Amendment to the US Constitution, made applicable to the states through the Fourteenth Amendment, prohibits cruel and unusual punishment. The US Supreme Court has interpreted cruel and unusual punishment E-mail address: [email protected]. 0193-953X/06/$ – see front matter doi:10.1016/j.psc.2006.04.002
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to include those penalties that are excessive and not graduated and proportioned to the offense [2] and those that do not consider the defendant’s degree of criminal culpability [3]. In determining which punishments are so disproportionate as to be cruel and unusual, the US Supreme Court established in Trop v. Dulles [4] the importance of analyzing ‘‘the evolving standards of decency that mark the progress of a maturing society’’ [4]. In essence, whether or not a punishment is considered cruel and unusual is related significantly to the acceptance by society that the punishment is one that is just and appropriate. EVALUATIONS OF DEFENDANTS FACING CAPITAL PUNISHMENT The mental health evaluator may be requested to evaluate a defendant at various phases in their passage through the criminal justice system before their date with death. As with all forensic evaluations, the examiner must have a clear understanding of the exact nature, purpose, intended audience, and party requesting the evaluation and the sources of information necessary to answer the referral question. Although the nature of the examination depends on the specific question posed, the examiner should evaluate for a wide variety of mental disorders to include affective disorders, thought disorders, anxiety disorders, cognitive disorders, substance use disorders, personality disorders, mental retardation and borderline intellectual functioning, pervasive developmental disorders, head injury or trauma, and seizure disorders. When approaching the numerous types of evaluations that may be requested, the examiner should understand that capital trials typically are bifurcated. The first phase involves a determination of guilt. If the defendant is found guilty, he or she moves to the sentencing phase in which a decision regarding punishment is made. Commonly requested pre-sentence evaluations include competency to waive Miranda rights, competency to stand trial (CTST), criminal responsibility (‘‘insanity’’), and competency to be sentenced. This article focuses primarily on those psychiatric evaluations that are requested after a defendant has been found guilty of a capital sentence and determined competent to proceed to the sentencing phase. Evaluating Aggravating Versus Mitigating Factors The psychiatrist may be requested to review aggravating or mitigating factors for the jury to consider when deciding whether or not to impose the death penalty. Aggravating factors are defined by statute and typically involve descriptions of the defendant’s past criminal history, degree or premeditation or cruelness of the crime, motive for committing the offense, victim characteristics, and a prediction of future dangerousness [5]. The question regarding the appropriateness of a jury imposing a death sentence based on their prediction of future violence was presented to the US Supreme Court in the case of Jurek v. Texas. In this case, Jerry Lee Jurek was convicted of the rape, strangling, and drowning death of a 10-year-old girl. Under Texas law, one of the questions presented to the jury was ‘‘whether the evidence established beyond
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a reasonable doubt that there was a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society’’ [6,7]. Jurek was sentenced to death. He appealed his sentence, contending that because this particular statutory question required the prediction of human behavior, an impossible feat, it was unconstitutional. The Supreme Court rejected this argument, noting that assessment of future risk was a task routinely performed by various participants in the criminal justice system, ranging from probation officers to judges. The Court emphasized that the jury should consider all possible relevant information and an assessment of future dangerousness was relevant [6]. This ruling opened the door for the introduction of psychiatric expert witness testimony to assist the jury in evaluating a person’s risk for future dangerousness. The ability of clinicians to predict violence has been challenged and is an area of controversy and debate [8–12]. Testimony that a defendant represents a continuing threat to society or will commit a violent act in the future has significant implications for the defendant in death penalty sentencing evaluations. Edens and colleagues [8] challenge the accuracy of such predictions. In their review, they note that serious institutional violence committed by capital defendants occurs infrequently, predictive accuracy of clinical judgment in community settings is modest, serious concerns exist regarding the generalizability of risk assessments to capital defendants, and the use of more structured risk assessment measures have not demonstrated the ability to improve substantially violence risk assessment in this population. Psychiatrists who are prepared to testify at a capital sentencing hearing must be familiar with important legal cases that outline a capital defendant’s rights. Whenever a psychiatrist is conducting a forensic evaluation of a defendant facing capital charges, he must inform the defendant and the defendant’s attorney regarding the nature and intended use of the evaluation, particularly if the risk for future dangerousness is being assessed. Failure to do so violates the defendant’s constitutional rights as highlighted in the case of Estelle v. Smith [13]. In this Texas case, Ernest Smith was accused of murdering a store clerk. Before his trial, psychiatrist James Grigson, MD evaluated him for competency to stand trial without the defense counsel’s awareness. Mr. Smith was found competent to stand trial and subsequently found guilty. At his sentencing phase, Dr. Grigson was called by the prosecution to provide an expert psychiatric opinion regarding Mr. Smith’s risk for future violence, an important question before the sentencing jury. Dr. Grigson testified that based on his competency to stand trial examination, Mr. Smith was a ‘‘very severe sociopath’’ and was ‘‘going to go ahead and commit other similar or same criminal acts if given the opportunity to do so.’’ The jury subsequently imposed the death penalty [13]. Mr. Smith appealed his death sentence, arguing that Dr. Grigson violated the Fifth Amendment by failing to advise him that he had a right to remain silent and if he chose to talk, the information obtained could be used against him at the sentencing phase. Mr. Smith also alleged that Dr. Grigson’s failure to notify his attorney of the evaluation violated the Sixth Amendment, because he was
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not allowed effective assistance of counsel. The US Supreme Court agreed and held that the admission of Dr. Grigson’s testimony at the penalty phase violated Mr. Smith’s Fifth Amendment and Sixth Amendment constitutional rights [13]. This ruling emphasizes the importance of educating the defendant regarding the nonconfidential nature of the forensic examination after the defense attorney has agreed to the evaluation. Is a psychiatrist allowed to provide expert testimony on future dangerousness if he or she has never even examined the defendant? Another famous Texas case, also involving psychiatrist Dr. James Grigson, raised this very issue. In Barefoot v. Estelle, Thomas Barefoot was convicted of murdering a police officer in Bell County, Texas. Although Dr. Grigson had never evaluated Mr. Barefoot, the state prosecutor called Dr. Grigson to the sentencing phase in which a series of hypothetical questions, similar to Mr. Barefoot’s case, were presented to Dr. Grigson. Based on this series of hypothetical questions, Dr. Grigson testified that there was a ‘‘one hundred and absolute’’ chance that Mr. Barefoot would ‘‘constitute a continuing threat to society,’’ and the jury then imposed the death penalty. Mr. Barefoot challenged his death sentence, arguing that psychiatrists could not predict dangerousness with sufficient accuracy and therefore should not be allowed to testify. The American Psychiatric Association (APA) agreed and submitted an amicus curiae brief highlighting that psychiatrists were unable to predict accurately future dangerousness in two out of three cases. The Supreme Court rejected these arguments, noting that ‘‘neither the prisoner nor the American Psychiatric Association suggest that psychiatrist are always wrong with respect to future dangerousness, only most of the time.’’ The Court upheld the use of hypothetical questions and allowed the psychiatrist to provide an opinion regarding the risk for future dangerousness based on such questions [14]. Evaluation of Mitigating Factors Mitigating factors are those aspects of a defendant’s life that shed light on why the convicted defendant committed the crime without attempting to excuse or diminish their criminal behavior [15]. In the case of Lockett v. Ohio, the US Supreme Court emphasized that a broad range of factors could be introduced at the sentencing phase as potentially mitigating. In particular, the Supreme Court held that the sentencer could ‘‘not be precluded from considering as a mitigating factor, any aspect of a defendant’s character or record and any of the circumstances of the offense’’ [16]. Factors often considered potentially mitigating include a person acting under duress or the control of another, absence of a prior criminal history, age, personal character and social background, presence of a mental disorder or intoxication that impaired the person’s judgment and reasoning, and moral justification of the crime [17–20]. Does the research support these factors as mitigating when viewed by jurors? Although there is a paucity of research on this important topic, at least two studies suggest that some factors traditionally viewed as mitigating may be viewed as aggravating by some jurors. In their study of mock jurors, Ellsworth
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and colleagues [21] found that mock jurors who did not oppose the death penalty (ie, death-qualified jurors) were more likely to render a guilty verdict for a schizophrenic defendant than mock jurors who opposed the death penalty. In White’s investigation of 232 death-qualified mock jurors, presentation of a mental illness defense rendered a harsher punishment when compared with an anti-capital punishment argument or no defense at all [22,23]. In a study involving South Carolina jurors who actually sat on a capital trial, researchers found that when information was presented that the defendant was an alcoholic or drug addict, jurors viewed these factors as aggravating rather than mitigating [24]. To further investigate perceptions of potentially mitigating evidence by jurors, Barnett and colleagues [22] examined attitudes of 260 death-qualified mock jurors. The results of their study found that mitigating evidence did make a difference. In particular, mock jurors were less likely to sentence a defendant to death when mitigating evidence was presented. Particular evidence viewed as mitigating included scenarios in which the defendant was
Schizophrenic, not medicated, and suffering from severe delusions and hallucinations Drug addicted and high at the time of the murder Diagnosed as borderline mentally retarded during childhood Severely physically and verbally abused by parents during childhood
During the last decade, the mitigating factors of young age (younger than 18 years) and mental retardation have been considered by the US Supreme Court to be of such significance that if either factor is present, the death penalty cannot be imposed. In the 2005 case of Roper v. Simmons, the US Supreme Court held that the Eighth and Fourteenth Amendments of the US Constitution forbid the imposition of the death penalty on a juvenile offender who was younger than 18 years of age when he or she committed a capital crime [25]. The Court cited three general differences between offenders younger than age 18 years and adults, which suggested juveniles should not be considered among the worst offenders: (1) juveniles are less mature and responsible than adults and therefore more likely to have impetuous and poorly thought out actions, (2) juveniles are more vulnerable and susceptible to negative influences, such as peer pressure, and (3) a juvenile’s character is not as well formed as that of an adult and therefore not a result of an irretrievably depraved character. The Court reasoned that because of these three differences, juveniles were less culpable than adults and could not be considered to be among the worst group of offenders for whom the death penalty was intended [25,26]. In Atkins v. Virginia, the Supreme Court held that execution of persons with mental retardation violates the Eighth Amendment’s ban on cruel and unusual punishment, thereby requiring careful consideration of possible mental retardation in these cases. This decision highlights the importance of mental health clinicians’ being skilled in understanding, identifying, and diagnosing mental retardation. Evaluators must be familiar with commonly accepted medical
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definitions of mental retardation. Generally, mental retardation encompasses individuals with a score of 70 or below on accepted standardized intelligence testing. Although intelligence can be measured by standardized testing, the margin of error of one or two points is substantial under these circumstances [27]. In addition to an IQ of 70 or below, the DSM-IV requires concurrent deficits or impairments in present adaptive functioning in at least two areas (such as communication, self care, home living) and the onset of such deficits before age 18 years [28]. The 2002 definition provided by the American Association of Mental Retardation reads, ‘‘Mental retardation is a disability characterized by significant limitations in intellectual functioning and in adaptive behavior as expressed in conceptual, social, and practical adaptive skills. This disability originates before age 18’’ [29]. Competency to Waive Right to Appeal Although capital sentences usually are challenged legally, inmates sentenced to die have the right to waive appeals on their behalf, a decision sometimes referred to as volunteering for the death penalty. In 2005, approximately 12% of inmates who were executed gave up their legal right to appeal their sentence [1]. Some scholars argue that volunteering allows an inmate to maintain their personal autonomy and integrity and should be respected [30,31], whereas others emphasize the inability of inmates to make a truly voluntary and rational choice considering the extreme living circumstances they face while living on death row [30,32–35]. In an article highlighting the living conditions of 14 inmates on death row, Dr. Stuart Grassian coined the term death row syndrome to describe psychiatric reactions to these living conditions [36]. Haney [37] also reported that the severe conditions of solitary and supermax confinement can lead to severe psychopathology, though noted it was unclear how many of such individuals had pre-existing mental disorders. Concerns regarding the use of the phrase ‘‘death row syndrome’’ as a diagnosis include the broad range and type of symptoms that could be included, the lack of research supporting this as a new diagnostic syndrome, the lack of reliability and validity of such a syndrome, and the potential misuse of this phrase as a psychiatric diagnosis to achieve the social goal of preventing the death penalty from being imposed [38]. What is the standard that evaluators should consider when assessing a convicted inmate’s competency to waive their appeals after they have been sentenced to death? The US Supreme Court has provided guidance on this issue in at least three separate cases. In the first case, Melvin Rees was convicted of murder and sentenced to death by a state court in Virginia. One month after his attorneys filed a petition to the US Supreme Court to review his habeas corpus challenge, Rees directed his counsel to withdraw the petition and forgo any further legal proceedings. Rees’ counsel advised the Court that he believed his client was mentally incompetent to make this decision and therefore could not withdraw his certiorari petition. The US Supreme Court
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directed the District Court to make a determination of Rees’ mental competency to waive his right to appeal his sentence by considering ‘‘whether he has capacity to appreciate his position and make a rational choice with respect to continuing or abandoning further litigation or on the other hand whether he is suffering from a mental disease, disorder, or defect which may substantially affect his capacity in the premises’’ [39]. This standard, known as the Rees Standard, involves an assessment of whether the person has a mental disorder, whether such a disorder if present substantially affects his capacity to waive his right to an appeal, and whether he has the capacity to make a rational choice to appreciate the consequences of abandoning his appeals. In the subsequent case of Gilmore v. Utah, the US Supreme Court seems to have narrowed the standard for competency to waive an appeal [40]. Gilmore v. Utah is a particularly noteworthy volunteering case, because Mr. Gilmore was the first person legally executed in the United States after the death penalty was reinstated in 1976 following the US Supreme Court’s decision in Gregg v. Georgia [41] that lifted a 4-year moratorium enacted by the case of Furman v. Georgia [42]. Mr. Gilmore was a career criminal who while on parole killed a motel manager in Provo, Utah. After being sentenced to death and given a choice between lethal injection and a firing squad, Mr. Gilmore replied, ‘‘I’d prefer to be shot’’ [43]. Gilmore instructed his attorneys to drop any appeals on his behalf, and during the 3 months that he was awaiting his execution, he twice attempted suicide. When reviewing a petition submitted by his mother to halt his execution, the US Supreme Court held that a person could waive their right to appeal as long as the waiver was ‘‘knowing and intelligent’’ [43]. Unlike the previous Rees standard, the resulting Gilmore Standard did not require specifically a consideration that the inmate is making a rational choice, only that he or she is making a knowing and intelligent decision. In the third and final case, the US Supreme Court provided a standard nearly identical to that established in Gilmore v. Utah. The case of Whitmore v. Arkansas involved Ronald Gene Simmons, a man convicted of shooting and killing two people and wounding three others in the course of a rampage through the town of Russellville, Arkansas. After his arrest, police discovered 14 bodies of Simmons’ family in his home in Dover, Arkansas, all of whom had been murdered. After being convicted and sentenced for the Russellville murders, Mr. Simmons made the following statement under oath: I, Ronald Gene Simmons, Sr., want it to be known that it is my wish and my desire that absolutely no action by anybody be taken to appeal or in any way change this sentence. It is further respectfully requested that this sentence be performed expeditiously [44].
At his subsequent trial for the murder of his 14 family members, Simmons again was convicted and sentenced to death. Once again he notified the trial court of his desire to waive his right to direct appeal, and after a hearing on this matter, the court found Simmons competent to do so. Although Simmons
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had refused to submit a petition challenging his sentence, Whitmore, a fellow death row inmate, intervened on Simmons’ behalf as a next friend. The US Supreme Court determined that Whitmore had no standing in the case and reiterated that a defendant sentenced to death can waive his right to appeal when ‘‘an evidentiary hearing shows that the defendant has given a knowing, intelligent, and voluntary waiver of his right to proceed, and his access to court is otherwise unimpeded’’ [45]. Mental health evaluators who evaluate a defendant’s competency to waive their right to appeal should be familiar with their jurisdiction’s specific language and legal standards governing this issue. As described in the three standards articulated previously, common components include an evaluation of a mental disorder or defect, an assessment if the person’s waiver is made knowingly, intelligently, and voluntarily, and, in some jurisdictions, if the person’s decision represents a ‘‘rational choice.’’ Important components to consider when conducting this evaluation include the following:
Does the inmate have a mental disorder, disease, or defect? Is the inmate clinically depressed? Is the inmate’s decision to waive his appeal a form of suicide as a result of depression? Is the inmate unrealistically hopeless regarding his situation? Is the inmate waiving his right to an appeal because of an irrational understanding of the consequences of doing so? Does the inmate report rational reasons for requesting the death penalty, such as accepting responsibility for his or her actions? Is the inmate’s waiver voluntary?
Competence to be Executed Unlike the standard for competence to stand trial set by the US Supreme Court in Dusky v. United States [46], the US Supreme Court has never articulated a specific standard to determine competence to be executed. In the case of Ford v. Wainwright, however, Justice Powell provided some guidance in his concurring opinion. In this Florida case, Alvin Ford was convicted in 1974 of murdering a police officer and subsequently was sentenced to death. While awaiting his death sentence, he exhibited changes in behavior and thinking that strongly suggested a psychotic thought disorder. Two defense psychiatrists found him incompetent to be executed, and three psychiatrists appointed by the governor found him competent to be executed in their 30-minute joint interview. The governor signed Mr. Ford’s death warrant after deciding to exclude the defense psychiatrists’ report alleging that Mr. Ford was incompetent. The case was appealed to the US Supreme Court, which ultimately held that the Eighth Amendment’s ban on cruel and unusual punishment prohibits the execution of an ‘‘insane’’ person. Although the Court did not provide a specific standard for evaluating competence to be executed, in his concurring opinion Justice Powell provided some guidance. He wrote that the Eighth amendment ‘‘forbids the execution only of those who are unaware of the punishment they are about
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to suffer and why they are to suffer it’’ [47]. The examiner conducting a competency to be executed evaluation should become familiar with the exact standard used in their jurisdiction before conducting their assessment. TREATMENT OF INMATES FOUND INCOMPETENT TO BE EXECUTED Once an inmate is found incompetent to be executed, two important questions arise: 1. Does the clinician continue to provide mental health treatment when doing so potentially could result in the inmate’s return to competency and subsequent execution? 2. If an inmate refuses treatment, can they be forced to receive the very treatment that may render them ready for death?
Two cases highlight two different courts’ answers to these vexing questions. In the Louisiana case of State v. Perry, Michael Perry had been convicted and sentenced to death for murdering five family members with firearms in 1983. At age 16 years, he was diagnosed with schizophrenia. Before committing his crimes, he had been committed on several occasions to mental institutions by his parents. While awaiting his execution, he began hallucinating and was described by others as delusional with incoherent speech. Experts testified that he could be made competent for execution only if treated with his antipsychotic medication haloperidol. After finding him incompetent to be executed, the trial court ordered the medical staff of the Louisiana Department of Corrections to forcibly medicate Perry to restore his competency. The case eventually was appealed to the US Supreme Court to decide if involuntary medications could be administered for the purposes of making someone competent to be executed [48]. Rather than provide a direct answer to this question, the US Supreme Court chose instead to remand the case back to the trial court for reconsideration in light of the Court’s 1990 ruling in Washington v. Harper. In Harper, the US Supreme Court was asked to determine whether a procedure used in the Washington state penal system to override treatment refusals of prisoners was constitutional. Unlike the facts in Perry, Washington v. Harper involved a man convicted of robbery who was not facing a pending execution. The Harper Court held that the Washington state’s procedure to institute involuntary medications was constitutional because it required the state to show that such treatment rationally seeks to further the best medical interest of the prisoner and the state’s own interest in prison safety [49]. The Louisiana Supreme Court distinguished Michael Perry’s case from the facts in Washington v. Harper. In particular, they noted that involuntary medications were being requested to forward Perry’s execution rather than to assist in prison safety or Perry’s treatment. The Louisiana Supreme Court affirmed Perry’s incompetency to be executed and reversed the trial court’s order to medicate Perry against his will, finding that to involuntary medicate Perry
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violated the cruel and unusual punishment clause and right to privacy established by the Louisiana Constitution [48]. In the subsequent case of Singleton v. Norris, the Eighth Circuit Court of Appeals also was asked to evaluate if involuntary psychiatric medications could be administered to a defendant when there was a likelihood that such administration would render him competent to be executed. Charles Singleton was convicted in 1979 of capital felony murder and aggravated robbery. While in prison, Mr. Singleton’s mental health clearly deteriorated and he was diagnosed with paranoid schizophrenia. At times he believed his cell was possessed by demons and had ‘‘demon blood’’ in it. He also believed that a prison doctor had planted some type of device in his right ear and that his thoughts were being stolen from him when he read the Bible. Between 1987 and 1997, his medication compliance fluctuated and involuntary medications were sometimes administered. When taking his medications, records indicated that he had significant clinical improvement and his psychotic symptoms diminished, indicating that such treatment was in his best medical interest. When Mr. Singleton’s execution date was announced, he argued that the state could no longer forcibly medicate him, because medications were essentially now rendering him competent to be executed and execution was not in his best medical interest. The Eighth Circuit Court of Appeals held that involuntarily medicating Mr. Singleton, even if such treatment renders him competent to be executed, did not violate the Eighth Amendment’s ban on cruel and unusual punishment. The Court reasoned that Mr. Singleton was receiving appropriate medical care for his mental illness, and the best medical interest of the prisoner must be determined without regard to whether there is a pending date of execution [50]. The clinical and ethical problems related to treating a death row inmate incompetent to be executed are considerable. On one hand, failure to treat may result in severe suffering from psychotic symptoms, whereas forcing treatment may result in clinical improvement sufficient to render the inmate psychiatrically stable for execution. Some states have chosen to solve this dilemma by commuting the inmate’s death penalty once they have been found incompetent to be executed [51]. PROFESSIONAL ETHICAL GUIDELINES AND THE DEATH PENALTY Psychiatric evaluations and treatment of defendants facing capital punishment involve the interface of legal and medical standards, personal and medical ethics, and professional guidelines. A longstanding principal governing the practice of medicine is reflected by the Latin phrase primum non nocere, translated as ‘‘first, do no harm.’’ The American Medical Association’s (AMA) ethical guidelines emphasize that the practice of medicine is dedicated to preserving life [52]. The AMA and the American Psychiatric Association’s (APA) ethical guidelines state that physicians (and psychiatrists by extension) should not be a participant in a legally authorized execution [52].
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The American Medical Association defines physician participation in an execution as one or more of the following categories [52]: (1) an action which would directly cause the death of the condemned (2) an action which would assist, supervise, or contribute to the ability of another individual to directly cause the death of the condemned (3) an action which could automatically cause an execution to be performed on a condemned prisoner
The AMA guidelines specifically note that psychiatric testimony regarding a defendant’s medical history, mental state as related to competence to stand trial, relevant medical evidence during trial, medical aspects of aggravating or mitigating circumstances during the sentencing phase, and testifying regarding medical diagnoses as they relate to the legal assessment of execution does not constitute physician participation in an execution, nor does a physician’s relieving the acute suffering of a condemned person while awaiting execution, including providing tranquilizers at the specific voluntary request of the condemned person to help relieve pain or anxiety in anticipation of the execution. Key points from the AMA guidelines regarding physician’s involvement in competency to be executed evaluations include the following [52]:
Physician’s should not determine legal competence to be executed though may offer a medical opinion that the trier of fact can consider when making this determination. Physicians should not treat a prisoner declared incompetent to be executed for the purpose of restoring competence unless a commutation order is issued before treatment begins. Reevaluation of a prisoner’s competency to be executed should be performed by an independent physician examiner rather than the treating physician. Physicians may ethically treat an incompetent prisoner undergoing extreme suffering as a result of psychosis or any other illness if the medical intervention is intended to mitigate the level of suffering. A physician cannot be compelled to evaluate a prisoner’s competence to be executed or treat an incompetent condemned prisoner if such activity is contrary to the physician’s personal beliefs.
Psychiatrists are divided in their opinions regarding at what stage, if any, evaluations of defendants facing capital punishment are ethically appropriate. Some believe that psychiatrists should never participate in any type of evaluation of a defendant charged with a capital crime, because such participation provides tacit approval of the death penalty and may assist in moving the defendant forward in the execution process. Others argue that psychiatrists may conduct evaluations only if retained by defense counsel so as to minimize the chance of any adverse testimony to the defendant. One psychiatric group advises that any psychiatric participation after a guilty verdict has been rendered is unethical [53]. A fourth position emphasizes that psychiatric assessments at any stage of the criminal justice process is ethically permissible, because the psychiatrist is striving to answer questions posed by the court rather than
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imposing their personal beliefs on the criminal justice system [54–56]. Whatever moral stance the individual psychiatrist reaches when deciding whether or not to conduct evaluations in this context, the examiner should always strive for honesty and objectivity when providing testimony and should monitor carefully that their personal beliefs do not trump the objective evidence available to answer the question before them. SUMMARY Psychiatrists conducting forensic evaluations of defendants facing a potential death penalty must understand the legal and ethical parameters governing these assessments in addition to the important clinical issues. Important areas to review with each defendant include the role of the evaluator, the party requesting the evaluation, circumstances in which the evaluation is not confidential, the nature, scope, and purpose of the evaluation, and the parties to whom the results of the evaluation are to be forwarded. In those circumstances in which the defense attorney has not retained the psychiatrist, the defendant’s attorney must be aware that an evaluation has been ordered by the court or requested by the prosecution. The psychiatrist also must be prepared for passionate challenges to their findings from the defense or prosecution and in some instances for vigorous attacks on their own personal ethics. To weather such storms, the mental health evaluator must base their opinion on objective evidence rather than letting any personal bias guide their assessment. References [1] History of the death penalty. Available at: http://www.deathpenaltyinfo.org. Accessed January 10, 2006. [2] Weems v United States, US Vol 217; 1909:349. [3] Enmund v Florida, US Vol 458; 1982:789–90. [4] Trop v Dulles, US Vol 356; 1958:86. [5] Acker JR, Lanier CS. ‘‘Parsing this lexicon of death’’: aggravating factors in capital sentencing statues. Crim Law Bull 1994;30:107–53. [6] Jurek v Texas, US Vol 428; 1976:262. [7] Texas Code Criminal Procedure. Vol Article 37.071;2000. [8] Edens JF, Buffington-Vollum JK, Keilen A, et al. Predictions of future dangerousness in capital murder trials: is it time to ‘‘disinvent the wheel’’? Law Hum Behav 2005;29(1):55–86. [9] Edens JF, Otto RK. Release decision making and planning. In: Ashford JB, Sales BD, Reid WH, editors. Treating adult and juvenile offenders with special needs. Washington, DC: American Psychological Association; 2001. p. 335–71. [10] Litwack TR. Actuarial versus clinical assessments of dangerousness. Psychol Public Policy Law 2001;7:409–43. [11] Melton GB, Petrila J, Poythress NG, et al. Psychological evaluations for the court: a handbook for mental health professionals and lawyers. 2nd edition. New York: Guilford Press; 1997. [12] Quinsey VL, Harris GT, Rice ME, et al. Violent offenders: appraising and managing risk. Washington, DC: American Psychological Association; 1998. [13] Estelle v Smith, US Vol 451; 1981:454. [14] Barefoot v Estelle. US Vol 463; 1983:880. [15] Haney C. The social context of capital murder: social histories and the logic of mitigation. Santa Clara Law Rev 1995;35:547–609.
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[16] Lockett v Ohio, US Vol 468; 1978:586. [17] Acker JR, Lanier CS. In fairness and mercy: statutory mitigating factors in capital punishment laws. Crim Law Bull 1994;30:299–345. [18] American Bar Association standards for criminal justice sentencing. 3rd edition. Washington, DC: American Bar Association; 1994. [19] Domozick DD. Fact or fiction: mitigating the death penalty in Ohio. Cleve State Law Rev 1983;32:263–93. [20] McPherson SB. Psychosocial investigation in death penalty mitigation: procedures, pitfalls, and impact. In: Davies G, Lloyd-Bostock S, McMurran M, editors. Psychology, law, and criminal justice: international developments in research and practice. Berlin: De Gruyter; 1995. p. 286–95. [21] Ellsworth PC, Bukaty RM, Cowan CL, et al. The death-qualified jury and the defense of insanity. Law Hum Behav 1984;8:81–93. [22] Barnett ME, Brodsky SL, Davis CM. When mitigation evidence makes a difference: effects of psychological mitigating evidence on sentencing decisions in capital trials. Behav Sci Law 2004;22(6):751–70. [23] White LT. Juror decision making in the capital penalty trial. Law Hum Behav 1987;11: 113–30. [24] Garvey SP. Aggravation and mitigation in capital cases: what do jurors think? Columbia Law Rev 1998;98:1538–76. [25] Roper v Simmons. S. Ct. Vol 125; 2005:1183. [26] Scott CL. Roper v Simmons: can juvenile offenders be executed? J Am Acad Psychiatry Law 2005;33(4):547–52. [27] Scott CL, Gerbasi JB. Atkins v Virginia: execution of mentally retarded defendants revisited. J Am Acad Psychiatry Law 2003;31(1):101–5. [28] American Psychiatric Association. Diagnostic and statistical manual of mental disorders. 4th edition. Washington, DC: American Psychiatric Association; 1994. [29] American Association on Mental Retardation. Mental retardation: definition, classification, and systems of supports. 10th edition. Washington, DC: American Association on Mental Retardation; 2002. [30] Johnson KL. The death row right to die: suicide or intimate decision? South Calif Law Rev 1981;54:575–631. [31] Urofsky MI. A right to die: termination of court appeals for condemned prisoners. J Crim Law Criminol 1984;75:553–82. [32] Cunningham MD, Vigen MP. Without appointed counsel in capital postconviction proceedings: the self-representation competency of Mississippi death row inmates. Crim Justice Behav 1999;26:293–321. [33] Gallemore JL Jr, Panton JH. Inmate responses to lengthy death row confinement. Am J Psychiatry 1972;129(2):167–72. [34] Salguero RG. Medical ethics and competency to be executed. Yale Law J 1986;96: 167–86. [35] Strafer RG. Volunteering for execution: competency, voluntariness, and the propriety of third party intervention. J Crim Law Criminol 1983;74:860–912. [36] Grassian S. Psychopathological effects of solitary confinement. Am J Psychiatry 1983;140(11):1450–4. [37] Haney C. Mental health issues in long-term solitary and ‘‘supermax’’ confinement. Crime Delinq 2003;49:124–56. [38] Schwartz HI. Death row syndrome and demoralization: psychiatric means to social policy ends. J Am Acad Psychiatry Law 2005;33(2):153–5. [39] Reese v Peyton, US Vol 384; 1966:312. [40] Goldbach MC. Like oil and water: medical and legal competency in capital appeal waivers. Boalt J Crim Law. 2000;1. [41] Gregg v Georgia, US Vol 428; 1976:153.
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Furman v Georgia, US Vol 408; 1972:238. Gilmore v Utah, US Vol 429; 1976:1012. Franz v State, S.W. Vol 754; 1988:839. Whitmore v Arkansas, US Vol 495; 1990:149. Dusky v United States, US Vol 363; 1960:402. Ford v Wainwright, US Vol 477; 1986:399. State v Perry, So. 2d. Vol 610; 1992:746. Washington v Harper, US Vol 494; 1990:210. Singleton v Norris, F. 3d. Vol 319; 2003:1018. Leong GB, Arturo Silva J, Weinstock R. Death penalty. In: Rosner R, editor. Principles and practice of forensic psychiatry. London: Arnold; 1998. p. 83–7. American Medical Association Council on Ethical and Judicial Affairs: physician participation in capitol punishment. Chicago: American Medical Association; 1992 [adopted as CEJA Opinion 2.06]. Rosner F, Halpern AL, Kark PR, et al. Physician involvement in capital punishment. NY State J Med 1991;91(1):15–8. Weinstock R, Gold LH. Ethics in forensic psychiatry. In: Simon RI, Gold LH, editors. Textbook of forensic psychiatry. Washington, DC: American Psychiatric Publishing, Inc.; 2004. p. 91–115. Weinstock R. Ethical concerns expressed by forensic psychiatrists. J Forensic Sci 1986;31(2):596–602. Weinstock R. Perceptions of ethical problems by forensic psychiatrists. Bull Am Acad Psychiatry Law 1989;17(2):189–202.
PSYCHIATRIC CLINICS OF NORTH AMERICA
Psychiatry and the Death Penalty Charles L. Scott, MD University of California, Davis Medical Center, 2230 Stockton Boulevard, 2nd Floor, Sacramento, CA 95817, USA
T
he first laws establishing the death penalty can be traced to the eighteenth century BC. At that time, the Code of King Hammurabi of Babylon established the death penalty for 25 separate crimes. In the tenth century AD Britain, hanging was the most usual method of execution, and by the 1700s, 222 crimes were punishable by death. Crimes eligible for the death penalty in Britain during this period included cutting down a tree and robbing a rabbit warren. American colonists adopted the practice of capital punishment from their British and European counterparts, though laws defining which crimes were punishable by death varied between colonies. Thomas Jefferson unsuccessfully led one of the first attempted reforms to the use of capital punishment when he introduced a bill to the Virginia legislature proposing that the death penalty could be imposed only if individuals were convicted of murder or treason. Dr. Benjamin Rush, one of America’s most famous early physicians and signer of the Declaration of Independence, opined that having the death penalty had no deterrent effect and actually increased criminal conduct. Although an interest in abolishing the death penalty in America began during the 1700s, the abolitionist movement increased during the 1800s, and as a result, many states in the northeast reduced the number of crimes eligible for the death penalty. Despite an increasing restriction of capital punishment in various states, scientific knowledge was used to develop new means of execution, including the first use of the electric chair in 1888, cyanide gas in 1924, and lethal injection in 1977. After executions increased to an average of 167 per year during the 1930s, public sentiment supporting the death penalty began to wane, and an increasing number of constitutional challenges to the legality of the death penalty developed. In the late 1950s and early 1960s, abolitionists challenged the constitutionality of the death penalty, arguing that capital punishment represented cruel and unusual punishment in violation of the Eighth Amendment [1]. The Eighth Amendment to the US Constitution, made applicable to the states through the Fourteenth Amendment, prohibits cruel and unusual punishment. The US Supreme Court has interpreted cruel and unusual punishment E-mail address: [email protected]. 0193-953X/06/$ – see front matter doi:10.1016/j.psc.2006.04.002
ª 2006 Elsevier Inc. All rights reserved. psych.theclinics.com
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to include those penalties that are excessive and not graduated and proportioned to the offense [2] and those that do not consider the defendant’s degree of criminal culpability [3]. In determining which punishments are so disproportionate as to be cruel and unusual, the US Supreme Court established in Trop v. Dulles [4] the importance of analyzing ‘‘the evolving standards of decency that mark the progress of a maturing society’’ [4]. In essence, whether or not a punishment is considered cruel and unusual is related significantly to the acceptance by society that the punishment is one that is just and appropriate. EVALUATIONS OF DEFENDANTS FACING CAPITAL PUNISHMENT The mental health evaluator may be requested to evaluate a defendant at various phases in their passage through the criminal justice system before their date with death. As with all forensic evaluations, the examiner must have a clear understanding of the exact nature, purpose, intended audience, and party requesting the evaluation and the sources of information necessary to answer the referral question. Although the nature of the examination depends on the specific question posed, the examiner should evaluate for a wide variety of mental disorders to include affective disorders, thought disorders, anxiety disorders, cognitive disorders, substance use disorders, personality disorders, mental retardation and borderline intellectual functioning, pervasive developmental disorders, head injury or trauma, and seizure disorders. When approaching the numerous types of evaluations that may be requested, the examiner should understand that capital trials typically are bifurcated. The first phase involves a determination of guilt. If the defendant is found guilty, he or she moves to the sentencing phase in which a decision regarding punishment is made. Commonly requested pre-sentence evaluations include competency to waive Miranda rights, competency to stand trial (CTST), criminal responsibility (‘‘insanity’’), and competency to be sentenced. This article focuses primarily on those psychiatric evaluations that are requested after a defendant has been found guilty of a capital sentence and determined competent to proceed to the sentencing phase. Evaluating Aggravating Versus Mitigating Factors The psychiatrist may be requested to review aggravating or mitigating factors for the jury to consider when deciding whether or not to impose the death penalty. Aggravating factors are defined by statute and typically involve descriptions of the defendant’s past criminal history, degree or premeditation or cruelness of the crime, motive for committing the offense, victim characteristics, and a prediction of future dangerousness [5]. The question regarding the appropriateness of a jury imposing a death sentence based on their prediction of future violence was presented to the US Supreme Court in the case of Jurek v. Texas. In this case, Jerry Lee Jurek was convicted of the rape, strangling, and drowning death of a 10-year-old girl. Under Texas law, one of the questions presented to the jury was ‘‘whether the evidence established beyond
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a reasonable doubt that there was a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society’’ [6,7]. Jurek was sentenced to death. He appealed his sentence, contending that because this particular statutory question required the prediction of human behavior, an impossible feat, it was unconstitutional. The Supreme Court rejected this argument, noting that assessment of future risk was a task routinely performed by various participants in the criminal justice system, ranging from probation officers to judges. The Court emphasized that the jury should consider all possible relevant information and an assessment of future dangerousness was relevant [6]. This ruling opened the door for the introduction of psychiatric expert witness testimony to assist the jury in evaluating a person’s risk for future dangerousness. The ability of clinicians to predict violence has been challenged and is an area of controversy and debate [8–12]. Testimony that a defendant represents a continuing threat to society or will commit a violent act in the future has significant implications for the defendant in death penalty sentencing evaluations. Edens and colleagues [8] challenge the accuracy of such predictions. In their review, they note that serious institutional violence committed by capital defendants occurs infrequently, predictive accuracy of clinical judgment in community settings is modest, serious concerns exist regarding the generalizability of risk assessments to capital defendants, and the use of more structured risk assessment measures have not demonstrated the ability to improve substantially violence risk assessment in this population. Psychiatrists who are prepared to testify at a capital sentencing hearing must be familiar with important legal cases that outline a capital defendant’s rights. Whenever a psychiatrist is conducting a forensic evaluation of a defendant facing capital charges, he must inform the defendant and the defendant’s attorney regarding the nature and intended use of the evaluation, particularly if the risk for future dangerousness is being assessed. Failure to do so violates the defendant’s constitutional rights as highlighted in the case of Estelle v. Smith [13]. In this Texas case, Ernest Smith was accused of murdering a store clerk. Before his trial, psychiatrist James Grigson, MD evaluated him for competency to stand trial without the defense counsel’s awareness. Mr. Smith was found competent to stand trial and subsequently found guilty. At his sentencing phase, Dr. Grigson was called by the prosecution to provide an expert psychiatric opinion regarding Mr. Smith’s risk for future violence, an important question before the sentencing jury. Dr. Grigson testified that based on his competency to stand trial examination, Mr. Smith was a ‘‘very severe sociopath’’ and was ‘‘going to go ahead and commit other similar or same criminal acts if given the opportunity to do so.’’ The jury subsequently imposed the death penalty [13]. Mr. Smith appealed his death sentence, arguing that Dr. Grigson violated the Fifth Amendment by failing to advise him that he had a right to remain silent and if he chose to talk, the information obtained could be used against him at the sentencing phase. Mr. Smith also alleged that Dr. Grigson’s failure to notify his attorney of the evaluation violated the Sixth Amendment, because he was
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not allowed effective assistance of counsel. The US Supreme Court agreed and held that the admission of Dr. Grigson’s testimony at the penalty phase violated Mr. Smith’s Fifth Amendment and Sixth Amendment constitutional rights [13]. This ruling emphasizes the importance of educating the defendant regarding the nonconfidential nature of the forensic examination after the defense attorney has agreed to the evaluation. Is a psychiatrist allowed to provide expert testimony on future dangerousness if he or she has never even examined the defendant? Another famous Texas case, also involving psychiatrist Dr. James Grigson, raised this very issue. In Barefoot v. Estelle, Thomas Barefoot was convicted of murdering a police officer in Bell County, Texas. Although Dr. Grigson had never evaluated Mr. Barefoot, the state prosecutor called Dr. Grigson to the sentencing phase in which a series of hypothetical questions, similar to Mr. Barefoot’s case, were presented to Dr. Grigson. Based on this series of hypothetical questions, Dr. Grigson testified that there was a ‘‘one hundred and absolute’’ chance that Mr. Barefoot would ‘‘constitute a continuing threat to society,’’ and the jury then imposed the death penalty. Mr. Barefoot challenged his death sentence, arguing that psychiatrists could not predict dangerousness with sufficient accuracy and therefore should not be allowed to testify. The American Psychiatric Association (APA) agreed and submitted an amicus curiae brief highlighting that psychiatrists were unable to predict accurately future dangerousness in two out of three cases. The Supreme Court rejected these arguments, noting that ‘‘neither the prisoner nor the American Psychiatric Association suggest that psychiatrist are always wrong with respect to future dangerousness, only most of the time.’’ The Court upheld the use of hypothetical questions and allowed the psychiatrist to provide an opinion regarding the risk for future dangerousness based on such questions [14]. Evaluation of Mitigating Factors Mitigating factors are those aspects of a defendant’s life that shed light on why the convicted defendant committed the crime without attempting to excuse or diminish their criminal behavior [15]. In the case of Lockett v. Ohio, the US Supreme Court emphasized that a broad range of factors could be introduced at the sentencing phase as potentially mitigating. In particular, the Supreme Court held that the sentencer could ‘‘not be precluded from considering as a mitigating factor, any aspect of a defendant’s character or record and any of the circumstances of the offense’’ [16]. Factors often considered potentially mitigating include a person acting under duress or the control of another, absence of a prior criminal history, age, personal character and social background, presence of a mental disorder or intoxication that impaired the person’s judgment and reasoning, and moral justification of the crime [17–20]. Does the research support these factors as mitigating when viewed by jurors? Although there is a paucity of research on this important topic, at least two studies suggest that some factors traditionally viewed as mitigating may be viewed as aggravating by some jurors. In their study of mock jurors, Ellsworth
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and colleagues [21] found that mock jurors who did not oppose the death penalty (ie, death-qualified jurors) were more likely to render a guilty verdict for a schizophrenic defendant than mock jurors who opposed the death penalty. In White’s investigation of 232 death-qualified mock jurors, presentation of a mental illness defense rendered a harsher punishment when compared with an anti-capital punishment argument or no defense at all [22,23]. In a study involving South Carolina jurors who actually sat on a capital trial, researchers found that when information was presented that the defendant was an alcoholic or drug addict, jurors viewed these factors as aggravating rather than mitigating [24]. To further investigate perceptions of potentially mitigating evidence by jurors, Barnett and colleagues [22] examined attitudes of 260 death-qualified mock jurors. The results of their study found that mitigating evidence did make a difference. In particular, mock jurors were less likely to sentence a defendant to death when mitigating evidence was presented. Particular evidence viewed as mitigating included scenarios in which the defendant was
Schizophrenic, not medicated, and suffering from severe delusions and hallucinations Drug addicted and high at the time of the murder Diagnosed as borderline mentally retarded during childhood Severely physically and verbally abused by parents during childhood
During the last decade, the mitigating factors of young age (younger than 18 years) and mental retardation have been considered by the US Supreme Court to be of such significance that if either factor is present, the death penalty cannot be imposed. In the 2005 case of Roper v. Simmons, the US Supreme Court held that the Eighth and Fourteenth Amendments of the US Constitution forbid the imposition of the death penalty on a juvenile offender who was younger than 18 years of age when he or she committed a capital crime [25]. The Court cited three general differences between offenders younger than age 18 years and adults, which suggested juveniles should not be considered among the worst offenders: (1) juveniles are less mature and responsible than adults and therefore more likely to have impetuous and poorly thought out actions, (2) juveniles are more vulnerable and susceptible to negative influences, such as peer pressure, and (3) a juvenile’s character is not as well formed as that of an adult and therefore not a result of an irretrievably depraved character. The Court reasoned that because of these three differences, juveniles were less culpable than adults and could not be considered to be among the worst group of offenders for whom the death penalty was intended [25,26]. In Atkins v. Virginia, the Supreme Court held that execution of persons with mental retardation violates the Eighth Amendment’s ban on cruel and unusual punishment, thereby requiring careful consideration of possible mental retardation in these cases. This decision highlights the importance of mental health clinicians’ being skilled in understanding, identifying, and diagnosing mental retardation. Evaluators must be familiar with commonly accepted medical
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definitions of mental retardation. Generally, mental retardation encompasses individuals with a score of 70 or below on accepted standardized intelligence testing. Although intelligence can be measured by standardized testing, the margin of error of one or two points is substantial under these circumstances [27]. In addition to an IQ of 70 or below, the DSM-IV requires concurrent deficits or impairments in present adaptive functioning in at least two areas (such as communication, self care, home living) and the onset of such deficits before age 18 years [28]. The 2002 definition provided by the American Association of Mental Retardation reads, ‘‘Mental retardation is a disability characterized by significant limitations in intellectual functioning and in adaptive behavior as expressed in conceptual, social, and practical adaptive skills. This disability originates before age 18’’ [29]. Competency to Waive Right to Appeal Although capital sentences usually are challenged legally, inmates sentenced to die have the right to waive appeals on their behalf, a decision sometimes referred to as volunteering for the death penalty. In 2005, approximately 12% of inmates who were executed gave up their legal right to appeal their sentence [1]. Some scholars argue that volunteering allows an inmate to maintain their personal autonomy and integrity and should be respected [30,31], whereas others emphasize the inability of inmates to make a truly voluntary and rational choice considering the extreme living circumstances they face while living on death row [30,32–35]. In an article highlighting the living conditions of 14 inmates on death row, Dr. Stuart Grassian coined the term death row syndrome to describe psychiatric reactions to these living conditions [36]. Haney [37] also reported that the severe conditions of solitary and supermax confinement can lead to severe psychopathology, though noted it was unclear how many of such individuals had pre-existing mental disorders. Concerns regarding the use of the phrase ‘‘death row syndrome’’ as a diagnosis include the broad range and type of symptoms that could be included, the lack of research supporting this as a new diagnostic syndrome, the lack of reliability and validity of such a syndrome, and the potential misuse of this phrase as a psychiatric diagnosis to achieve the social goal of preventing the death penalty from being imposed [38]. What is the standard that evaluators should consider when assessing a convicted inmate’s competency to waive their appeals after they have been sentenced to death? The US Supreme Court has provided guidance on this issue in at least three separate cases. In the first case, Melvin Rees was convicted of murder and sentenced to death by a state court in Virginia. One month after his attorneys filed a petition to the US Supreme Court to review his habeas corpus challenge, Rees directed his counsel to withdraw the petition and forgo any further legal proceedings. Rees’ counsel advised the Court that he believed his client was mentally incompetent to make this decision and therefore could not withdraw his certiorari petition. The US Supreme Court
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directed the District Court to make a determination of Rees’ mental competency to waive his right to appeal his sentence by considering ‘‘whether he has capacity to appreciate his position and make a rational choice with respect to continuing or abandoning further litigation or on the other hand whether he is suffering from a mental disease, disorder, or defect which may substantially affect his capacity in the premises’’ [39]. This standard, known as the Rees Standard, involves an assessment of whether the person has a mental disorder, whether such a disorder if present substantially affects his capacity to waive his right to an appeal, and whether he has the capacity to make a rational choice to appreciate the consequences of abandoning his appeals. In the subsequent case of Gilmore v. Utah, the US Supreme Court seems to have narrowed the standard for competency to waive an appeal [40]. Gilmore v. Utah is a particularly noteworthy volunteering case, because Mr. Gilmore was the first person legally executed in the United States after the death penalty was reinstated in 1976 following the US Supreme Court’s decision in Gregg v. Georgia [41] that lifted a 4-year moratorium enacted by the case of Furman v. Georgia [42]. Mr. Gilmore was a career criminal who while on parole killed a motel manager in Provo, Utah. After being sentenced to death and given a choice between lethal injection and a firing squad, Mr. Gilmore replied, ‘‘I’d prefer to be shot’’ [43]. Gilmore instructed his attorneys to drop any appeals on his behalf, and during the 3 months that he was awaiting his execution, he twice attempted suicide. When reviewing a petition submitted by his mother to halt his execution, the US Supreme Court held that a person could waive their right to appeal as long as the waiver was ‘‘knowing and intelligent’’ [43]. Unlike the previous Rees standard, the resulting Gilmore Standard did not require specifically a consideration that the inmate is making a rational choice, only that he or she is making a knowing and intelligent decision. In the third and final case, the US Supreme Court provided a standard nearly identical to that established in Gilmore v. Utah. The case of Whitmore v. Arkansas involved Ronald Gene Simmons, a man convicted of shooting and killing two people and wounding three others in the course of a rampage through the town of Russellville, Arkansas. After his arrest, police discovered 14 bodies of Simmons’ family in his home in Dover, Arkansas, all of whom had been murdered. After being convicted and sentenced for the Russellville murders, Mr. Simmons made the following statement under oath: I, Ronald Gene Simmons, Sr., want it to be known that it is my wish and my desire that absolutely no action by anybody be taken to appeal or in any way change this sentence. It is further respectfully requested that this sentence be performed expeditiously [44].
At his subsequent trial for the murder of his 14 family members, Simmons again was convicted and sentenced to death. Once again he notified the trial court of his desire to waive his right to direct appeal, and after a hearing on this matter, the court found Simmons competent to do so. Although Simmons
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had refused to submit a petition challenging his sentence, Whitmore, a fellow death row inmate, intervened on Simmons’ behalf as a next friend. The US Supreme Court determined that Whitmore had no standing in the case and reiterated that a defendant sentenced to death can waive his right to appeal when ‘‘an evidentiary hearing shows that the defendant has given a knowing, intelligent, and voluntary waiver of his right to proceed, and his access to court is otherwise unimpeded’’ [45]. Mental health evaluators who evaluate a defendant’s competency to waive their right to appeal should be familiar with their jurisdiction’s specific language and legal standards governing this issue. As described in the three standards articulated previously, common components include an evaluation of a mental disorder or defect, an assessment if the person’s waiver is made knowingly, intelligently, and voluntarily, and, in some jurisdictions, if the person’s decision represents a ‘‘rational choice.’’ Important components to consider when conducting this evaluation include the following:
Does the inmate have a mental disorder, disease, or defect? Is the inmate clinically depressed? Is the inmate’s decision to waive his appeal a form of suicide as a result of depression? Is the inmate unrealistically hopeless regarding his situation? Is the inmate waiving his right to an appeal because of an irrational understanding of the consequences of doing so? Does the inmate report rational reasons for requesting the death penalty, such as accepting responsibility for his or her actions? Is the inmate’s waiver voluntary?
Competence to be Executed Unlike the standard for competence to stand trial set by the US Supreme Court in Dusky v. United States [46], the US Supreme Court has never articulated a specific standard to determine competence to be executed. In the case of Ford v. Wainwright, however, Justice Powell provided some guidance in his concurring opinion. In this Florida case, Alvin Ford was convicted in 1974 of murdering a police officer and subsequently was sentenced to death. While awaiting his death sentence, he exhibited changes in behavior and thinking that strongly suggested a psychotic thought disorder. Two defense psychiatrists found him incompetent to be executed, and three psychiatrists appointed by the governor found him competent to be executed in their 30-minute joint interview. The governor signed Mr. Ford’s death warrant after deciding to exclude the defense psychiatrists’ report alleging that Mr. Ford was incompetent. The case was appealed to the US Supreme Court, which ultimately held that the Eighth Amendment’s ban on cruel and unusual punishment prohibits the execution of an ‘‘insane’’ person. Although the Court did not provide a specific standard for evaluating competence to be executed, in his concurring opinion Justice Powell provided some guidance. He wrote that the Eighth amendment ‘‘forbids the execution only of those who are unaware of the punishment they are about
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to suffer and why they are to suffer it’’ [47]. The examiner conducting a competency to be executed evaluation should become familiar with the exact standard used in their jurisdiction before conducting their assessment. TREATMENT OF INMATES FOUND INCOMPETENT TO BE EXECUTED Once an inmate is found incompetent to be executed, two important questions arise: 1. Does the clinician continue to provide mental health treatment when doing so potentially could result in the inmate’s return to competency and subsequent execution? 2. If an inmate refuses treatment, can they be forced to receive the very treatment that may render them ready for death?
Two cases highlight two different courts’ answers to these vexing questions. In the Louisiana case of State v. Perry, Michael Perry had been convicted and sentenced to death for murdering five family members with firearms in 1983. At age 16 years, he was diagnosed with schizophrenia. Before committing his crimes, he had been committed on several occasions to mental institutions by his parents. While awaiting his execution, he began hallucinating and was described by others as delusional with incoherent speech. Experts testified that he could be made competent for execution only if treated with his antipsychotic medication haloperidol. After finding him incompetent to be executed, the trial court ordered the medical staff of the Louisiana Department of Corrections to forcibly medicate Perry to restore his competency. The case eventually was appealed to the US Supreme Court to decide if involuntary medications could be administered for the purposes of making someone competent to be executed [48]. Rather than provide a direct answer to this question, the US Supreme Court chose instead to remand the case back to the trial court for reconsideration in light of the Court’s 1990 ruling in Washington v. Harper. In Harper, the US Supreme Court was asked to determine whether a procedure used in the Washington state penal system to override treatment refusals of prisoners was constitutional. Unlike the facts in Perry, Washington v. Harper involved a man convicted of robbery who was not facing a pending execution. The Harper Court held that the Washington state’s procedure to institute involuntary medications was constitutional because it required the state to show that such treatment rationally seeks to further the best medical interest of the prisoner and the state’s own interest in prison safety [49]. The Louisiana Supreme Court distinguished Michael Perry’s case from the facts in Washington v. Harper. In particular, they noted that involuntary medications were being requested to forward Perry’s execution rather than to assist in prison safety or Perry’s treatment. The Louisiana Supreme Court affirmed Perry’s incompetency to be executed and reversed the trial court’s order to medicate Perry against his will, finding that to involuntary medicate Perry
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violated the cruel and unusual punishment clause and right to privacy established by the Louisiana Constitution [48]. In the subsequent case of Singleton v. Norris, the Eighth Circuit Court of Appeals also was asked to evaluate if involuntary psychiatric medications could be administered to a defendant when there was a likelihood that such administration would render him competent to be executed. Charles Singleton was convicted in 1979 of capital felony murder and aggravated robbery. While in prison, Mr. Singleton’s mental health clearly deteriorated and he was diagnosed with paranoid schizophrenia. At times he believed his cell was possessed by demons and had ‘‘demon blood’’ in it. He also believed that a prison doctor had planted some type of device in his right ear and that his thoughts were being stolen from him when he read the Bible. Between 1987 and 1997, his medication compliance fluctuated and involuntary medications were sometimes administered. When taking his medications, records indicated that he had significant clinical improvement and his psychotic symptoms diminished, indicating that such treatment was in his best medical interest. When Mr. Singleton’s execution date was announced, he argued that the state could no longer forcibly medicate him, because medications were essentially now rendering him competent to be executed and execution was not in his best medical interest. The Eighth Circuit Court of Appeals held that involuntarily medicating Mr. Singleton, even if such treatment renders him competent to be executed, did not violate the Eighth Amendment’s ban on cruel and unusual punishment. The Court reasoned that Mr. Singleton was receiving appropriate medical care for his mental illness, and the best medical interest of the prisoner must be determined without regard to whether there is a pending date of execution [50]. The clinical and ethical problems related to treating a death row inmate incompetent to be executed are considerable. On one hand, failure to treat may result in severe suffering from psychotic symptoms, whereas forcing treatment may result in clinical improvement sufficient to render the inmate psychiatrically stable for execution. Some states have chosen to solve this dilemma by commuting the inmate’s death penalty once they have been found incompetent to be executed [51]. PROFESSIONAL ETHICAL GUIDELINES AND THE DEATH PENALTY Psychiatric evaluations and treatment of defendants facing capital punishment involve the interface of legal and medical standards, personal and medical ethics, and professional guidelines. A longstanding principal governing the practice of medicine is reflected by the Latin phrase primum non nocere, translated as ‘‘first, do no harm.’’ The American Medical Association’s (AMA) ethical guidelines emphasize that the practice of medicine is dedicated to preserving life [52]. The AMA and the American Psychiatric Association’s (APA) ethical guidelines state that physicians (and psychiatrists by extension) should not be a participant in a legally authorized execution [52].
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The American Medical Association defines physician participation in an execution as one or more of the following categories [52]: (1) an action which would directly cause the death of the condemned (2) an action which would assist, supervise, or contribute to the ability of another individual to directly cause the death of the condemned (3) an action which could automatically cause an execution to be performed on a condemned prisoner
The AMA guidelines specifically note that psychiatric testimony regarding a defendant’s medical history, mental state as related to competence to stand trial, relevant medical evidence during trial, medical aspects of aggravating or mitigating circumstances during the sentencing phase, and testifying regarding medical diagnoses as they relate to the legal assessment of execution does not constitute physician participation in an execution, nor does a physician’s relieving the acute suffering of a condemned person while awaiting execution, including providing tranquilizers at the specific voluntary request of the condemned person to help relieve pain or anxiety in anticipation of the execution. Key points from the AMA guidelines regarding physician’s involvement in competency to be executed evaluations include the following [52]:
Physician’s should not determine legal competence to be executed though may offer a medical opinion that the trier of fact can consider when making this determination. Physicians should not treat a prisoner declared incompetent to be executed for the purpose of restoring competence unless a commutation order is issued before treatment begins. Reevaluation of a prisoner’s competency to be executed should be performed by an independent physician examiner rather than the treating physician. Physicians may ethically treat an incompetent prisoner undergoing extreme suffering as a result of psychosis or any other illness if the medical intervention is intended to mitigate the level of suffering. A physician cannot be compelled to evaluate a prisoner’s competence to be executed or treat an incompetent condemned prisoner if such activity is contrary to the physician’s personal beliefs.
Psychiatrists are divided in their opinions regarding at what stage, if any, evaluations of defendants facing capital punishment are ethically appropriate. Some believe that psychiatrists should never participate in any type of evaluation of a defendant charged with a capital crime, because such participation provides tacit approval of the death penalty and may assist in moving the defendant forward in the execution process. Others argue that psychiatrists may conduct evaluations only if retained by defense counsel so as to minimize the chance of any adverse testimony to the defendant. One psychiatric group advises that any psychiatric participation after a guilty verdict has been rendered is unethical [53]. A fourth position emphasizes that psychiatric assessments at any stage of the criminal justice process is ethically permissible, because the psychiatrist is striving to answer questions posed by the court rather than
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imposing their personal beliefs on the criminal justice system [54–56]. Whatever moral stance the individual psychiatrist reaches when deciding whether or not to conduct evaluations in this context, the examiner should always strive for honesty and objectivity when providing testimony and should monitor carefully that their personal beliefs do not trump the objective evidence available to answer the question before them. SUMMARY Psychiatrists conducting forensic evaluations of defendants facing a potential death penalty must understand the legal and ethical parameters governing these assessments in addition to the important clinical issues. Important areas to review with each defendant include the role of the evaluator, the party requesting the evaluation, circumstances in which the evaluation is not confidential, the nature, scope, and purpose of the evaluation, and the parties to whom the results of the evaluation are to be forwarded. In those circumstances in which the defense attorney has not retained the psychiatrist, the defendant’s attorney must be aware that an evaluation has been ordered by the court or requested by the prosecution. The psychiatrist also must be prepared for passionate challenges to their findings from the defense or prosecution and in some instances for vigorous attacks on their own personal ethics. To weather such storms, the mental health evaluator must base their opinion on objective evidence rather than letting any personal bias guide their assessment. References [1] History of the death penalty. Available at: http://www.deathpenaltyinfo.org. Accessed January 10, 2006. [2] Weems v United States, US Vol 217; 1909:349. [3] Enmund v Florida, US Vol 458; 1982:789–90. [4] Trop v Dulles, US Vol 356; 1958:86. [5] Acker JR, Lanier CS. ‘‘Parsing this lexicon of death’’: aggravating factors in capital sentencing statues. Crim Law Bull 1994;30:107–53. [6] Jurek v Texas, US Vol 428; 1976:262. [7] Texas Code Criminal Procedure. Vol Article 37.071;2000. [8] Edens JF, Buffington-Vollum JK, Keilen A, et al. Predictions of future dangerousness in capital murder trials: is it time to ‘‘disinvent the wheel’’? Law Hum Behav 2005;29(1):55–86. [9] Edens JF, Otto RK. Release decision making and planning. In: Ashford JB, Sales BD, Reid WH, editors. Treating adult and juvenile offenders with special needs. Washington, DC: American Psychological Association; 2001. p. 335–71. [10] Litwack TR. Actuarial versus clinical assessments of dangerousness. Psychol Public Policy Law 2001;7:409–43. [11] Melton GB, Petrila J, Poythress NG, et al. Psychological evaluations for the court: a handbook for mental health professionals and lawyers. 2nd edition. New York: Guilford Press; 1997. [12] Quinsey VL, Harris GT, Rice ME, et al. Violent offenders: appraising and managing risk. Washington, DC: American Psychological Association; 1998. [13] Estelle v Smith, US Vol 451; 1981:454. [14] Barefoot v Estelle. US Vol 463; 1983:880. [15] Haney C. The social context of capital murder: social histories and the logic of mitigation. Santa Clara Law Rev 1995;35:547–609.
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[16] Lockett v Ohio, US Vol 468; 1978:586. [17] Acker JR, Lanier CS. In fairness and mercy: statutory mitigating factors in capital punishment laws. Crim Law Bull 1994;30:299–345. [18] American Bar Association standards for criminal justice sentencing. 3rd edition. Washington, DC: American Bar Association; 1994. [19] Domozick DD. Fact or fiction: mitigating the death penalty in Ohio. Cleve State Law Rev 1983;32:263–93. [20] McPherson SB. Psychosocial investigation in death penalty mitigation: procedures, pitfalls, and impact. In: Davies G, Lloyd-Bostock S, McMurran M, editors. Psychology, law, and criminal justice: international developments in research and practice. Berlin: De Gruyter; 1995. p. 286–95. [21] Ellsworth PC, Bukaty RM, Cowan CL, et al. The death-qualified jury and the defense of insanity. Law Hum Behav 1984;8:81–93. [22] Barnett ME, Brodsky SL, Davis CM. When mitigation evidence makes a difference: effects of psychological mitigating evidence on sentencing decisions in capital trials. Behav Sci Law 2004;22(6):751–70. [23] White LT. Juror decision making in the capital penalty trial. Law Hum Behav 1987;11: 113–30. [24] Garvey SP. Aggravation and mitigation in capital cases: what do jurors think? Columbia Law Rev 1998;98:1538–76. [25] Roper v Simmons. S. Ct. Vol 125; 2005:1183. [26] Scott CL. Roper v Simmons: can juvenile offenders be executed? J Am Acad Psychiatry Law 2005;33(4):547–52. [27] Scott CL, Gerbasi JB. Atkins v Virginia: execution of mentally retarded defendants revisited. J Am Acad Psychiatry Law 2003;31(1):101–5. [28] American Psychiatric Association. Diagnostic and statistical manual of mental disorders. 4th edition. Washington, DC: American Psychiatric Association; 1994. [29] American Association on Mental Retardation. Mental retardation: definition, classification, and systems of supports. 10th edition. Washington, DC: American Association on Mental Retardation; 2002. [30] Johnson KL. The death row right to die: suicide or intimate decision? South Calif Law Rev 1981;54:575–631. [31] Urofsky MI. A right to die: termination of court appeals for condemned prisoners. J Crim Law Criminol 1984;75:553–82. [32] Cunningham MD, Vigen MP. Without appointed counsel in capital postconviction proceedings: the self-representation competency of Mississippi death row inmates. Crim Justice Behav 1999;26:293–321. [33] Gallemore JL Jr, Panton JH. Inmate responses to lengthy death row confinement. Am J Psychiatry 1972;129(2):167–72. [34] Salguero RG. Medical ethics and competency to be executed. Yale Law J 1986;96: 167–86. [35] Strafer RG. Volunteering for execution: competency, voluntariness, and the propriety of third party intervention. J Crim Law Criminol 1983;74:860–912. [36] Grassian S. Psychopathological effects of solitary confinement. Am J Psychiatry 1983;140(11):1450–4. [37] Haney C. Mental health issues in long-term solitary and ‘‘supermax’’ confinement. Crime Delinq 2003;49:124–56. [38] Schwartz HI. Death row syndrome and demoralization: psychiatric means to social policy ends. J Am Acad Psychiatry Law 2005;33(2):153–5. [39] Reese v Peyton, US Vol 384; 1966:312. [40] Goldbach MC. Like oil and water: medical and legal competency in capital appeal waivers. Boalt J Crim Law. 2000;1. [41] Gregg v Georgia, US Vol 428; 1976:153.
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