Psychiatry, capital punishment, and the purposes of medicine

international Journal of Law and Psychiatry, Printed in the U.S.A. All rights reserved.

Vol. 16, pp. 301-357,

1993

Psychiatry, Capital Punishment, Purposes of Medicine

0160.2527/93 $6.00 + .OU Copyright 0 1993 Pergamon Press Ltd.

and the

M. Gregg Bloche” I. Introduction

When, if at all, should psychiatrists abstain from clinical work with people who face the prospect of being put to death as punishment for their crimes? This question has engendered discussion since the 197Os,’ but during the last few years the controversy has come to a head. In the near future, the American Medical Association (AMA) is expected to issue guidelines governing the permissible scope of psychiatric involvement when a sentence of death is impending.2 For American psychiatrists, these guidelines will be authoritative.3 Two recent developments have coincided to bring the problem of psychiatric involvement in capital punishment into greater focus. In 1990, the disclosure that three physicians had assisted in the execution of an Illinois convict by *Associate Professor of Law, Georgetown University, and Adjunct Associate Professor, Johns Hopkins School of Hygiene and Public Health, Division of Health Policy. I thank Richard Bonnie, Margarita Cereijido, Drew Days III, Steven Goldberg, Milton Regan, David Rothman, Michael Seidman, Susannah Sirkin, Kim Thorburn, Carlos Vazquez, Heathcote Wales, Jim Welsh, and participants in Georgetown University Law Center’s faculty research workshop for their comments and suggestions. I am grateful to Michelle Cameron, Eric Gorovitz, and Joseph McNabb for their research assistance. Some of the ideas in this paper were first presented at a symposium on medical complicity in human rights abuses sponsored by the Schell Center for International Human Rights at Yale Law School. ‘For an early, oft-cited argument to the effect that psychiatrists should abstain from performing services that could facilitate capital punishment, see Louis Jolyon West, Psychiatric Reflections on the Death Penalty, 45 AM. J. ORTHOPSYCHIATRY 689 (1975) (advocating “doctor’s boycott of executions” as a means for achieving abolition of the death penalty). Other advocates of an ethical duty to abstain have built their arguments on the more limited claim that, quite apart from the moral propriety of capital punishmentperse, physician involvement in its administration is ethically incompatible with the medical profession’s traditional commitment to patient welfare. E.g., David Katz, Perry v. Louisiana: Medical Ethics on Death Row-Is Judicial Intervention Warranted?, 4 GEO. J. LEGAL ETHICS 707 (1991); Douglas Sargent, Treating the Condemned to Death, HASTINGS CTR. REP., Dec. 1986, at 5. Critics of abstention have chided West and like-minded thinkers for their willingness to employ professional authority in pursuit of a political aim-abolition of the death penaltybeyond the ken of clinical medicine. They have argued, moreover, that psychiatric evaluation in capital proceedings is not conceptually different from forensic examination of defendants in other criminal cases, see infra text accompanying notes 144-148, and that psychiatric treatment benefits patients in a medical sense even when it removes legal obstacles to execution, see infru text accompanying notes 240-242. “The AMA’s Council on Ethical and Judicial Affairs is currently developing guidelines on the ethics of psychiatric evaluation concerning an inmate’s competence to be executed and psychiatric treatment to restore such competence. 3The AMA’s positions on ethical matters are binding upon members of the American Psychiatric Association (APA). APA members who violate AMA ethics guidelines can be subjected to APA disciplinary proceedings. In addition, the AMA’s ethical positions carry varying degrees of persuasiveness with state medical disciplinary authorities. 301

M. GREGG BLOCHE

302

lethal injection sparked widespread protest from medical organizations in the U.S. and abroad.4 The AMA formally advised state medical licensure authorities that it viewed physician participation in executions as unethical and, by implication, a basis for professional discipline.5 Attempts to bring disciplinary action against the three physicians were stymied by a court decision that permitted the prison warden to keep their identities secret.6 But the episode inspired scholars and professional leaders to call for disciplinary measures against future physician participants in capital punishment.’ In turn, the prospect of such disciplinary proceedings led to calls for clarification of the AMA’s ill- defined, lo-year-old proscription against such participation.* Almost simultaneously, the U.S. Supreme Court heard arguments in the case of Perry v. Louisiana,’ which involved a psychotic death row inmate whom the state sought to restore to competence to clear the way for his execution. The condemned man, Michael Owen Perry, sought relief from a trial court order that he be medicated by prison physicians, forcibly if necessary, to render him competent for execution.” In a joint amici curiae brief filed on 4American College of Physicians, Background Material Related to AMA House of Delegates Resolutions #5 and #6 and Supporting Hospital Medical Staff Section Resolution #39 (Dec. 1991) (unpublished memorandum on file with the American College of Physicians, Subcommittee on Human Rights) [hereinafter ACP, Background Material]. According to the prison warden at the Stateville Correctional Center in Joliet, Illinois, where the execution took place, the duties of attending physicians included the establishment of an intravenous access site for the lethal injection and the administration of medication prior to the injection. In addition, the Illinois State Criminal Code mandated that an attending physician witness and pronounce the death of the condemned. The Stateville Correctional Center’s staff physicians refused to perform these functions, and it was rumored that prison officials obtained three doctors-in-training to attend the execution. Id. ‘See AMA House of Delegates Resolution No. 109 (Dec. 1990) (restating AMA position that “it is unethical for physicians, regardless of their personal views on capital punishment, to participate in legally authorized executions” and instructing the AMA to “notify all state medical licensure authorities of this position”).

‘ACP,

Background

Material,

supra note 4.

‘In written testimony submitted to the AMA’s Committee on Amendments to the Constitution and Bylaws, William Curran contended that physician participation in executions contravened the ethics of the medical profession, thereby violated state medical practice laws, and thus merited disciplinary sanctions. Other prominent commentators, including Edmund Pellegrino and Eliot Freidson, expressed similar views. id. ‘In 1980, after four states passed laws providing for the administration of death sentences by lethal injection, the AMA’s House of Delegates approved a report by the association’s Judicial Council that concluded: “An individual’s opinion on capital punishment is a personal moral decision of the individual. A physician as a member of a profession dedicated to preserving life when there is hope of doing so should not be a participant in a legally authorized execution.” AMERICAN MEDICAL ASSOCIATION; PROCEEDINGS OF THE AMA

HOUSE OF DELEGATES, REPORT OF THE JUDICIAL COUNCIL: CAPITAL PUNISHMENT 85-86

(1980). However,

executions,

over the next 10 years, the AMA failed to delineate what it meant leaving state disciplinary authorities without authoritative guidance.

‘494 U.S. 1015 (1990) (granting

by participation

in

certiorari).

“Perry’s attorneys contended that the trial court’s order required that he be medicated for a non-treatment purpose-criminal punishment-in violation of both the Eighth Amendment prohibition against cruel and unusual punishment and the Due Process Clause of the Fourteenth Amendment. Brief for Petitioner, Perry v. Louisiana, 498 U.S. 38 (1990). The state countered by arguing, in the alternative, (1) that forcible medication in this context could not constitute cruel and unusual punishment since it would benefit the condemned by relieving suffering caused by his illness, and (2) that medicating the condemned in order to execute him violated neither the Eighth nor Fourteenth Amendments since it served the state’s interest in executing a validly-imposed death sentence. Brief for Respondent, Perry v. Louisiana, 498 U.S. 38 (1990).

PSYCHIATRY,

CAPITAL

PUNISHMENT,

AND THE PURPOSES

OF MEDICINE

303

Perry’s behalf, the AMA and the American Psychiatric Association (APA) asserted that administration of medication to restore the competence of the condemned “stretches medical ethics to, if not beyond, the breaking point.“” The brief warned that medication of prisoners under such circumstances would make physicians into “instrument[s] of punishment,” resulting in the “corruption of their treatment function.“” Some influential psychiatrists, however, took a sharply different view. So long as treating physicians acted for the purpose of relieving psychiatric symptoms, treatment was ethical, they contended, and the looming prospect that the patient would be put to death was beside the point.13 This position accommodated the concern of penal authorities that refusal to treat would allow incompetent inmates to make end runs around their death warrants. To the dismay of those who hoped that the U.S. Supreme Court would speak to the question in Perry, the justices vacated the forcible medication order without issuing an opinion and remanded the case to the trial court for reconsideration.14 But the Perry case focused professional and public attention on the ethics of psychiatric involvement in capital cases,15 prompting calls for clarification of mental health professionals’ ethical constraints on death row. A year later, in December 1991, the AMA directed its Council on Ethical and Judicial Affairs to specify the behaviors that ought to count as physician participation in executions. l6 The AMA’s directive identified 10 activities to be proscribed, at a minimum. Included were the provision of “psychiatric treatment to establish competence to be executed” and “psychiatric information to certify competence to be executed.“17 Convinced that their service to the legal “Brief for the APA and the AMA as Amici Curiae in Support of Petitioner at 18, Perry v. Louisiana, 498 U.S. 38 (1990). The APA/AMA brief urged the Court to preserve “the ethical integrity and proper functioning of the medical profession” by holding that the Due Process Clause of the Fourteenth Amendment bars the state from ordering the administration of psychotropic medication “when it is not on/y contrary to the patient’s medical interests but also unnecessary to treat a condition that poses a danger to others.” Id. at 5 (emphasis in original). The brief rejected Louisiana’s argument, see supru note 10, that treating Perry would benefit him by ameliorating his psychiatric symptoms and that the fatal consequences of a return to competency were irrelevant to an assessment of his medical interests. Id. at 12-18.

“Id. at 18. ‘“See infra text accompanying

notes 240-242.

14Perry v. Louisiana, 498 U.S. 38 (1990). The Court rather cryptically instructed the trial judge to proceed in light of Washington v. Harper, 494 U.S. 210 (1990), which involved the right of a jailed convict not on death row to refuse antipsychotic medication. In Washington v. Harper, the Court held that the Due Process Clause of the Fourteenth Amendment allows a state to medicate a mentally ill inmate against his will provided that the prisoner “is dangerous to himself or others and the treatment is in the inmate’s medical interest.” 494 U.S. at 227. This ruling did not address the question, central to the dilemma posed by Perry v. Louisiana, of whether pharmacologic relief of a condemned inmate’s psychiatric symptoms should be understood to serve his “medical interest” when it removes the last legal barrier to his execution. “The ethical dilemma raised by Perry’s situation received considerable news media attention in the U.S. and abroad in late 1990. E.g., Don Colburn, Catch 22 on Death Row: The Case of Michael Owen Perry, WASH. POST, Dec. 11, 1990, Q 6 (Health), at 15. ‘“AMA House of Delegates

Resolution

No. 5 (Dec. 1991).

“Id. Most of the other activities on the list concerned

the actual killing of the condemned. These included the selection of lethal injection sites and the starting of intravenous lines, the inspection or maintenance of lethal injection devices, the supervision of lethal injection personnel, and the monitoring of vital signs during an execution. Id.

M. GREGG BLOCHE

304

system was being unfairly maligned, some forensic psychiatrists objected vigorously to the presence of these activities on the AMA’s prohibited list. For psychiatrists working on death row, the stakes were not merely symbolic, since the AMA’s ethics pronouncements have authoritative weight in professional disciplinary proceedings.18 The issue of psychiatric participation in executions remains before the AMA’s Council on Ethical and Judicial Affairs, which last year deferred action on the problem to allow time for APA input.” Meanwhile, other authorities have weighed in with their views, to the dismay of American forensic psychiatrists. Early last year, a British Medical Association (BMA) panel on medical complicity in human rights abuses advised that physicians neither testify as to competence for execution nor treat condemned inmates to restore their competence.20 Some months later, in October 1992, Louisiana’s high court brought Michael Owen Perry’s appellate saga to an end by ruling that forcible medication to render an inmate competent to be executed constitutes punishment, not therapy, and thereby violates the state’s constitutional proscription against “cruel, excessive, or unusual punishment.“2’ In so holding, the court concluded that the physician’s ethic of commitment to patient well-being does not permit psychiatrists on death row to disregard the prospect of execution when considering whether treatment of an incompetent serves his or her medical interest.22 Moreover, the court suggested that medical assessments of competence to be executed are problematic “because of the incompatibility of the interests of the state and the prisoner, both of which the physician is required to further.“23 This article considers psychiatric involvement in capital cases as a window onto the larger, insufficiently-acknowledged problem of conflict between the patient-oriented and public purposes of medicine. My subtext is the link between the failure of clinical ethics to confront the reality that medicine serves “See supra note 3. “See AMA Council on Ethical and Judicial Affairs, Physician Participation in Capital Punishment 9 (1992) (unpublished draft report, on file with the AMA Office of Legal Counsel) (deferring guidelines concerning evaluation of competence to be executed and treatment to restore such competence pending consultation between the Council and the APA’s Ethics Committee). *‘BRITISH MEDICAL AWN, MEDICINE BETRAYED: THE PARTICIPATION OF DOCTORS IN HUMAN RIGHTS ABUSES 201 (1992) [hereinafter MEDICINE BETRAYED]. “Louisiana v. Perry, 610 So.Zd 746 (1992). On remand from the U.S. Supreme Court, see supra note 14, the trial judge had reinstated his earlier order that Perry be medicated, by force if necessary, to render him competent for execution. Perry appealed to the Louisiana Supreme Court, which struck down the order, stayed Perry’s execution, and announced that the stay would not be modified unless the state could “demonstrate to this court that Perry has achieved or regained his sanity and competence for execution independently of the effects or influence of antipsychotic drugs.” 610 So.2d at 771. This ruling constituted a de facto commutation of Perry’s death sentence to life in prison, since, (1) strong evidence in the record indicates that he has never been competent without medication and (2) absent an impending death sentence, the state’s refusal to treat his psychosis would surely violate his federal constitutional right to medical care under the Eighth Amendment and the Due Process Clause. See Estelle v. Gamble, 429 U.S. 97, 104 (1976) (holding that “deliberate indifference to [a prisoner’s] serious medical needs” is a violation of the Eighth Amendment). “Louisiana

v. Perry,

610 So.Zd at 751-53.

23id. at 752. The court warned that this incompatibility is itself an obstacle to “well-informed sionate medical judgment” regarding the condemned’s mental capacity. Id. at 753.

and dispas-

PSYCHIATRY,

CAPITAL

PUNISHMENT,

AND THE PURPOSES

OF MEDICINE

305

myriad social purposes and the inadequacy of the medical profession’s responses to the dilemma of extra-clinical harm. I begin by identifying some underlying factors that brought the issue of psychiatric participation in capital cases to the surface in recent years and by reviewing the roles psychiatrists play when the death penalty looms. Next, I assess the strength of the now-conventional justification for clinical abstention when capital punishment looms-the oft-quoted maxim, “first do no harm.” This maxim fails as an argument for abstention, I contend, because it disregards society’s pervasive acceptance of causal ties between clinical work and extra-clinical harm. Given this acceptance, it is incumbent upon advocates of abstention to explain why state executions should be treated differently than other extraclinical harms. Critics of the abstentionist perspective deny that such an explanation can be given. In this article, I offer one, in an effort to point the way toward a context-based approach to the making of distinctions between ethically allowable and impermissible extra-clinical harms. I draw upon current thinking about physicians’ duties to patients, the contributions of emotional experience and connotative meaning to ethical reasoning, and the problematic status of the death penalty in international law. I conclude that these grounds support a psychiatric duty to abstain: (1) from providing treatment, in most circumstances, that has the effect of restoring an inmate’s competence to be executed, and (2) from opining on such competence. II. Background: Psychiatrists of Capital Punishment

and The Administration

A. The Emergence of a Contested Question Although controversy over psychiatric complicity in capital punishment is a recent phenomenon, the legal significance of mental illness in the administration of death sentences has a long history. The common law’s proscription against executing the insane dates back at least to the time of Henry VIII and was a subject of Sir Edward Coke’s writings.24 Why, then, has psychiatric involvement emerged today as a hotly-contested question of medical ethics? The answer lies, I suspect, in the low visibility of psychiatric discretion with respect to the sanity of the condemned prior to the 1980s. To begin with, the question of competence for execution did not often arise, in bygone years, as a matter distinct from competence to stand trial. Until recent decades, executions commonly occurred very soon after trial; thus competence for execution tended to follow automatically, as a practical matter, from competence to stand trial.25 Moreover, before the advent of antipsychotic 243 EDWARD COKE, INSTITUTES 6 (6th ed. 1680). The execution of a “mad man,” Coke held, is “a miserable spectacle, both against Law, and of extream inhumanity and cruelty, and can be no example to others.” Id. Blackstone distinguished between the onset of “lunacy” before arraignment for a capital crime, between arraignment and trial, between trial and sentencing, and between sentencing and execution. At each stage, Blackstone said, a prisoner’s becoming “mad” merited the suspension of legal proceedings. 4 WILLIAM BLACKSTONE,COMMENTARIES *24-*25. *‘Ford v. Wainwright,

477 U.S. 399,420-21

(1986) (Powell,

_I., concurring).

306

M. GREGG BLOCHE

agents in the 195Os, change in the psychological status of condemned inmates with severe mental illness was a function of the progression of unmedicated disease. By comparison with the rapid deterioration in mental status that today often follows the stoppage of antipsychotic medication, unmedicated illness typically evolves more slowly. During the time between trial (or sentencing) and scheduled execution, deterioration in mental capacity was therefore less likely prior to the introduction of antipsychotic drugs. The advent of these agents created a new possibility: defendants rendered rational for trial by pharmacologic means could refuse medication after capital sentencing, resulting in rapid deterioration between trial and execution. Antipsychotic medication thus contributed to the decoupling, as a practical matter, of competence to stand trial and competence to be executed. Separation of the two set the stage for independent scrutiny of the state’s methods for assessing the latter. On the other hand, the opacity of these methods limited the opportunities for such scrutiny. Decisionmaking about the competence of the condemned was notably informal in comparison with adjudication of competence to stand trial and sanity at the time of an offense. Prior to 1986, when the U.S. Supreme Court constitutionalized the bar on executing the insane by holding that to do so constituted cruel and unusual punishment,26 determinations of competence for execution were commonly the province of penal authorities.*’ The input they sought from physicians was often provided on an ex parte basis, without an evidentiary hearing.** Indeed, in 1950 the Supreme Court took the position that reprieve from a death sentence by reason of insanity bore a close relation to the power of executive clemency. As such, the Court held, such reprieves were a matter of executive discretion, not constitutionally subject either to judicial review or to the requirement that an adversary hearing be held.29 261d. at 405-10. “See 477 U.S. at 432, n.1 (Rehnquist, J., dissenting) (citing statutes in 17 states, current in 1986, providing for determination of post-sentencing insanity by penal or other executive officials). Of the 41 states with active death penalty laws on their books in 1986, 11 had not even formally proscribed execution of the incompetent, either by statute or judicial decision. In these states, the suspension of death sentences in the event of post-sentencing incompetence was a matter of discretion for penal authorities. See 477 U.S. at 408, n.2 (reporting that 26 states proscribed execution of the incompetent by statute and four did so by judicial decision, while seven had discretionary statutory procedures for the suspension of sentences upon the onset of mental illness and four had no statutory or judge-made law on the subject). **The competency determination process at issue in Ford v. Wainwright was representative in this regard. A Florida statute charged the state’s governor with the task of deciding upon a condemned inmate’s competence for execution based on input from a commission of three examining psychiatrists (all appointed by the governor). The statute made no provisions for cross-examination or other input by counsel for the condemned, and the governor held to a policy of “excluding all advocacy on the part of the condemned” from this ex parte process. Id. at 412-13 (quoting Goode v. Wainwright, 448 So.Zd 999, 1001 (Fla. 1984)). %olesbee v. Balkcom, 339 U.S. 9, 11-12 (1950). In holding that the Due Process Clause of the Fourteenth Amendment did not require that a condemned convict’s claim of incompetence be weighed via trial-type proceedings or considered on appellate review, the Court characterized such claims as “appeal[s] to . . . conscience,” justifying “broad discretion in deciding whether evidence shall be heard.” Id. at 13. The Court quoted, without a critical word, from the opinion below (affirmed in Solesbee), which characterized the granting of a reprieve by reason of insanity as an “act of grace” that could be “bestowed or withheld by the State at will.” Id. at 11. Whether or not one accepts, as a normative matter, this characterization of decisionmaking about the competence of the condemned, the Solesbee majority’s portrayal evinces a prevailing sense that the executive was entitled to great discretion in making such judgments.

PSYCHIATRY,

CAPITAL

PUNISHMENT,

AND THE PURPOSES

OF MEDICINE

307

This approach to decisionmaking on incompetency claims shielded psychiatric involvement from scrutiny in two ways. First, the inability of advocates for the condemned to question medical conclusions in trial-type hearings restricted the visibility of psychiatric discretion. Second, the executive clemency model of post-sentencing competency assessment emphasized the discretion of governors and other executive officials. This model conveyed the sense, whether accurate or not, that these authorities, not hired experts, were the vital agents of decision.30 As a corollary, psychiatrists seemed less significant: they were mere advisors whose opinions were not decisive. The visibility of psychiatric discretion in determinations of competence for execution was further obscured by the tendency of well-meaning professionals to exercise their discretion covertly in order to save condemned prisoners’ lives. Psychiatrists charged with the care of mentally disturbed death row inmates commonly refrained from telling prison officials about clinical improvement.31 A warden’s order to transfer such an inmate to a psychiatric unit thereby often became a ticket to indefinite suspension of his or her death sentence.32 So long as the warden or the governor did not obtain an outside competency evaluation, the prison psychiatrist’s covertly-granted dispensation remained protected from public view. The covert use of clinical authority to grant dispensation from the hangman was part of a larger phenomenon-the unexamined exercise of medical discretion in service of myriad social gatekeeping functions. During the years before the onset of the bioethics revolution, physicians took on an expanding array of gatekeeping roles that raised unacknowledged questions about the legitimate scope of medical authority. Some of these roles also probed the permissible limits of professional deviation from the fiduciary ethic of undivided loyalty to patients. In particular, psychiatrists determined whether women could obtain abortions33 and whether young men would be required by law to risk death in an unpopular war.34 Other physicians determined who would have access to “To my knowledge, no empirical research has been done on the frequency with which executive officials followed psychiatric recommendations regarding the competency of the condemned before Ford v. Wainwright, 477 U.S. 399 (1986), mandated an adversary decisionmaking process. Such research would shed useful light on the degree to which psychiatric opinion played a decisive role in the years before the emergence of ethical controversy about the profession’s involvement. “Writing in 1975, psychiatrist Louis Jolyon West reported that prison wardens often transferred death row inmates with behavioral aberrations to psychiatric facilities, confronting clinicians with difficult situations that they typically resolved in a less-than-candid manner: “What is the psychiatrist to do with such a patient if and when he improves? Specify him as ready for death? In practice this almost never happens. The psychiatrist is not likely to choose to serve as the executioner’s assistant.” West, supra note 1, at 694. “Id. at 694-95 (reporting that it was “not unlikely” for such inmates to spend the rest of their lives in facilities for the criminally insane). This benevolent exercise of psychiatric discretion had its darker side. Clinical staff retained the option of returning such prisoners to the penitentiary for execution. This life-ordeath threat gave psychiatric unit personnel extraordinary power over these inmates’ behavior. Id. “See M. Gregg Bloche, The “Gag Rule” Revisited: Physicians as Abortion Gatekeepers, 20 L., MED. & HEALTH CARE 392, 395-98 (1992) (discussing normative content of clinical discretion exercised in the 1960s by psychiatrists and other physicians under statutes that permitted abortion for health reasons) [hereinafter Bloche, Abortion Gatekeepers]. r4J A Moskowitz, On Drafting the Psychiatric “Draft”Letter, 128 AM. J. PSYCHIATRY 69 (1971); R. H. Ollendorff & P. L. Adams, Psychiatry and the Draft, 41 AM. J. ORTHOPSYCHIATRY 85 (1971).

308

M. GREGG BLOCHE

costly, life-extending technologies35 or to government benefits conditioned on medical disability.36 Together, such gatekeeping activities created an ethical netherworld of professional authority, resting upon an ill-defined theoretical basis.37 Beginning in the 197Os, the bioethics movement forced this netherworld into view. Inspired in large measure by compelling examples of the abuse of medical authority in the laboratory and at the bedside, bioethics scholars challenged the traditional premise that patients could rely on the trustworthiness of their doctors for protection.38 The bioethics focus on some medical researchers’ disregard for the welfare of their human subjects quickly developed into a more generalized critique of ungoverned physician discretion. Bioethics commentators pursued two overarching strategies for constraining medical authority-enhanced protection for patient autonomy39 and the development of mechanisms for the oversight and regulation of professional discretion.4o They

j5See, e.g., Raymond Duff & Alexander Campbell, Moral and Ethical Dilemmas in the Special-Care Nursery, 289 NEW ENC. J. MED. 890 (1973) (reporting on decisions by neonatal intensive care unit physicians to withhold life-sustaining treatment for “severely defective” newborns). ‘“Persons applying to the Social Security Administration for disability benefits must have a physician or psychologist certify that the disability is of a magnitude and type that satisfies the requirements of 20 C.F.R. 0 404.1525. Medical testimony can come from the applicant’s personal physician or from one hired by the Social Security Administration. Id. 5 404.1527. “The paucity of published acknowledgment or discussion of this authority prior to the emergence of the bioethics movement in the 1970s reflects the discomfort that often surrounded its exercise. For a rare, contemporaneous account of the moral awkwardness experienced by psychiatrists who passed judgment on men who sought draft deferments and women who wanted abortions, see generally SEYMOUR HALLECK, THE POLITICS OF THERAPY (1971). A recent historical review offers an uncommon look at the discomfort of Vietnam-era military psychiatrists torn between their Hippocratic commitment to patient well-being and their commanders’ expectations that soldiers with combat stress syndromes be returned to duty as soon as possible. The failure of medical ethics authorities to even acknowledge, let alone propose answers to, this contradiction imposed a “burden of conscience” on psychiatrists who served. Norman M. Camp, The Vietnam War and the Ethics of Combat Psychiatry, 150 AM. J. PSYCHIATRY 1000, 1007-09 (1993). ‘8See DAVID J. ROTHMAN, STRANGERS AT THE BEDSIDE: A HISTORY OF How LAW AND BIOETHICS TRANSFORMED MEDICAL DECI.QONMAKING 85-221 (1991) (interpreting rise of the bioethics movement as a response to the breakdown of mutual familiarity and trust in doctor-patient relations and to the consequent impact of reporting on the misuse of medical discretion in clinical research) [hereinafter ROTHMAN]. “The bioethics movement’s emphasis on patient autonomy resonated powerfully during the 1970s with widening cultural and legal conceptions of privacy. This resonance was an important element in the movement’s influence. Its most conspicuous legal triumph was the spread of the doctrine of informed consent, accompanied in many states by the requirement that clinicians proposing an intervention disclose risks and alternatives that the “reasonable” patient, as opposed to the average practitioner, would find material to a decision. E.g., Cobbs v. Grant, 502 P.2d 1 (1972). 4oSee ROTHMAN, supra note 38, at 85-126 (recounting efforts to formalize medical decisionmaking and to channel discretion via the implementation of general rules). This emphasis on procedural remedies for the problem of abuse of discretion was part of a larger trend-the focus on formalized process as a safeguard against arbitrary authority in post-World War 11 American jurisprudence and political thought. See William N. Eskridge, Jr. & Gary Peller, The New Public Law Movement: Moderation as a Postmodern Cultural Form, 89 MICH. L. REV. 707, 738-43 (1991). This trend was late in affecting the governance of medicine, probably because of the extraordinary reservoir of perceived trustworthiness accumulated by American physicians during the first half of the 20th century. See PAUL STARR, THE SOCIAL TRANSFORMATION OF AMERICAN MEDICINE 235-36 (1982) (describing growth of popular faith in altruism of physicians).

PSYCHIATRY,

CAPITAL PUNISHMENT,

AND THE PURPOSES

309

OF MEDICINE

did so in an atmosphere of growing public skepticism about the benevolence of physician authority.41 By opening previously protected realms of physician discretion to outside scrutiny, bioethics scholars brought about wholesale changes in the ethics of clinical work. Pushed by the courts and by the consciences of pioneering physicians, the medical profession stopped sanctioning such practices as exclusion of family members from decisions to withdraw life-sustaining treatment and refusal to discuss risks with patients contemplating proposed surgery.42 The scrutiny of bioethics commentators extended to the social gatekeeping functions served by physicians. The “double agency” of many psychiatrists was defined as an ethical problem and subjected to close examination.43 Gatekeeping authority that had previously persisted largely by virtue of its invisibility was increasingly seen as problematic. Skepticism about the ethical basis for such authority took two distinct but mutually-reinforcing forms - doubt about the “medicalization” of hard moral choices and concern over divided clinical loyalties. Psychiatric determinations that played important roles in the disposition of criminal cases were vulnerable to both.4 In this climate, psychiatric involvement in the policing of the requirement that condemned convicts be competent for execution was bound to come under intense scrutiny. The U.S. Supreme Court’s opinion in Ford v. Wainwright, the 1986 case that constitutionalized the common law ban on executing the insane, set the stage for the current debate over the ethics of psychiatric involvement. By insisting on trial-type safeguards when competency is in question, the Court spotlighted the role of psychiatrists in its determination.45 As a corollary, the

4’As Rothman has observed, the medical paternalism that predated the bioethics revolution rested on patients’ faith that their doctors could intuit their wishes and fears. In an age when physicians knew patients and their families intimately and shared their social backgrounds, this faith seemed credible. ROTHMAN, supru note 38, at 109-26. But by the 197Os, physicians had become strangers to their patients, distanced by specialization, time pressures, hospital bureaucracy, and disparities in social background. With increasing relational distance came a diminution in patient trust, setting the stage for the successful critique of medical paternalism. Id. at 127-47. 42See id. at 222-46 (discussing influence sions, in turn, upon clinical practice). “E.g.,

of bioethics

commentators

on judges

and impact

of court

deci-

HASTINGS CENTER REPORT: IN THE SERVICE OF THE STATE: THE PSYCHIATRIST AS DOUBLE

AGENT (1978) (symposium

sponsored

by the Hastings

Institute

of Society,

Ethics,

and the Life Sciences).

““During the late 1970s and 198Os, this vulnerability was most visible in the bitter controversy over the insanity defense, which was abolished in three states and narrowed in others to discourage jurors from inferring that psychiatric accounts of criminal action sufficed for exculpation. See JOHN Q. LA FOND & MARY L. DURHAM, BACK TO THE ASYLUM: THE FUTURE OF MENTAL HEALTH LAW AND POLICY IN THE UNITED STATES 58-81

(1992) (describing movement toward elimination of the defense and/or

return to

restrictive versions of the M’Naghten

test, requiring successful defendants to prove that they were unable to appreciate the wrongfulness of their actions). Growing doubts about the “medicalization” of criminal responsibility drove the movement for insanity defense reform. But these doubts also highlighted the longstanding tension between forensic service to the state and the Hippocratic ideal of undivided loyalty. 45See Ford v. Wainwright, 477 U.S. at 413-16 (holding that the due process clause requires that a prisoner be permitted to offer evidence, question the state’s experts, and seek judicial review of fact-finding proceedings when competence for execution is at issue).

310

M. GREGG BLOCHE

possibility of medical treatment to restore competence for execution also emerged into broad view. Just as the scrutiny of other forms of medical authority brought about the reformulation of rules governing their exercise, the spotlight on psychiatric gatekeeping in the context of capital punishment has prompted new reflection on its propriety. B. The Forms of Psychiatric Involvement Advocacy against physician involvement in capital punishment has tended to draw upon the maxim, “First do no harm”46 and on injunctions against medical killing and other maleficence in the Hippocratic 0ath4’ and modern pronouncements on medical ethics. A variety of recent pronouncements proscribe physician “participation” in capital punishment4’ and physician complicity in “cruel, inhuman, or degrading” treatment.49 Injunctions against physician participation in executions clearly prohibit such hands-on involvement as the injection of deadly drugs and the medical monitoring of the condemned to determine when the executioner has accomplished his task.” But these pro46The origins the Hippocratic

of this maxim are obscure. Although it is often cited as the fundamental ethical principle of tradition, it is not part of the known Hippocratic writings. TOM L. BEAUCHAMP & JAMES

F. CHILDRESS, PRINCIPLESOF BIOMEDICAL ETHICS 120 (3d ed. 1989).

47The oath states, in relevant

part:

I will prescribe regimen for the good of my patients according to my ability and my judgment and never do harm to anyone. To please no one will I prescribe a deadly drug nor give advice which may cause his death. . In every house where I come I will enter only for the good of my patients. STEDMAN’S MEDICAL DICTIONARY 647 (23d ed. 1976).

48E.g., World Medical Ass’n, Resolution on Physician Participation in Capital Punishment, reprinted in WORLD MEDICAL ASS’N, HANDBOOK OF DECLARATIONS 22 (1985) (commonly referred to as the Lisbon Resolution); World Psychiatric Ass’n,

Declaration on the Participation of Psychiatrists in the Death Penalty

(1989). As of 1989, national

medical associations in at least 19 countries had formally stated their opposition to physician “participation” in capital punishment. These included the AMA and the medical associations of Japan, France, the Netherlands, Ireland, Denmark, Finland, Iceland, Norway, Sweden, Portugal, Poland, Switzerland, Turkey, New Zealand, Singapore, Peru, and Chile. AMNESTY INT’L, HEALTH PROFESSIONALS ANDTHE DEATH PENALTY 12-14 (1989) (AI Index No. ACT 51/03/89).

49E.g., World Medical Ass%, Declaration of Tokyo, reprinted in

WORLD MEDICAL ASS’N, HANDBOOK

OF DECLARATIONS 5 (1985) (declaring that physicians should not “countenance, condone, or participate in

.

cruel,

inhuman,

or degrading

procedures”);

UNITED NATIONS, DEP’T OF PUBLIC INFORMATION;

PRINCIPLESOF MEDICAL ETHICS RELEVANT TO THE ROLE OF HEALTH PERSONNEL, PARTICULARLY PHYSICIANS, IN THE PROTECTION OF PRISONERSAND DETAINEES AGAINST TORTURE AND OTHER CRUEL, INHUMAN, OR DEGRADING TREATMENT OR PUNISHMENT, U.N.

Dot. [ST/]DPI/801

(1982) (declaring that

in, incitement to or attempts to commit . cruel, inhuman, or degrading treatment or punishment” are “a gross contravention of medical ethics”) [hereinafter U.N. PRINCIPLES]. For those who claim that the death penalty per se violates the proscription against “cruel, inhuman or degrading treatment or punishment” contained in the Universal Declaration of Human Rights and other international instruments, the Declaration of Tokyo and the U.N. Principles of Medical Ethics address physician involvement in capital punishment. Although some human rights organizations, including Amnesty International, have taken this position, it finds little support in current international law. See infra text accompanying notes 182-185. “acts which constitute participation in, complicity

50William J. Curran & Ward Casscells, The Ethics of Medical Participation in Capital Punishment by Intravenous Drug Injection, 302 NEW ENC. J. MED. 226 (1980).

PSYCHIATRY,

CAPITAL

PUNISHMENT,

AND THE PURPOSES

OF MEDICINE

311

scriptions do not so obviously cover the psychiatrist’s potential involvement in the administration of capital punishment. Psychiatric involvement in the process leading up to capital sentencing and execution takes many forms. I briefly describe them below, in rough order of increasing proximity to the death of the condemned5’:

1. Evaluation and Testimony Bearing on a Defendant’s Competency to Stand Trial: Forensic psychiatrists routinely evaluate criminal defendants when their mental competency to stand trial is in question. Such evaluations, which focus on a defendant’s comprehension of the charges against him or her and ability to participate in his or her defense, typically culminate in psychiatric testimony that forms the basis for a judicial determination of the defendant’s competency to stand trial. These evaluations are a staple of criminal justice systems throughout the world. Although some commentators argue that courtroom use of clinical data fits awkwardly with physicians’ ethical commitment to the well-being of individual patients,52 no widely-promulgated principles of medical ethics have cast this practice into question.53

2. Treatment to Restore or Maintain a Defendant’s Competency to Stand Trial: Should a judge determine that a criminal defendant is not competent to stand trial, restoration of his or her competency becomes a pressing criminal justice concern. Psychiatrists may be called upon to treat such a person with or without consent. The U.S. Supreme Court recently stated that “medically to restore or maintain competence appropriate, involuntary treatment” “might” survive due process scrutiny upon a showing by the state that “it could not obtain an adjudication of . . . guilt or innocence by using less intrusive means .“54 5’By “proximity,” I refer not to closeness that culminates in an execution. “E.g.,

ALAN STONE, LAW, PSYCHIATRY,

in time but to schematic AND

place in the sequence

of legal stages

MORALITY 57-15 (1984).

%deed, some pronouncements on medical ethics appear to sanction clinical evaluation in forensic settings even when it is not done to benefit the examinee’s health. See, e.g., U.N. PRINCIPLES, supra note 49, at 4 (declaring that “health personnel, particularly physicians” should avoid “any professional relationship with prisoners or detainees the purpose of which is not solely to evaluate, protect or improve their physical and mental health” (emphasis added)). 54Riggins v. Nevada, 112 S.Ct. 1810, 1815 (1992) (reversing conviction of defendant medicated against his will to maintain his competence to stand trial). More decisively, the Court stated that involuntary medication “would” satisfy due process requirements upon a demonstration that such treatment “was medically appropriate and, considering less intrusive alternatives, essential” for the “safety” of the defendant or others. Id. The Court thereby evinced more comfort with involuntary medication to reduce dangerousness than to restore or maintain competence for trial. The import of the Court’s tentative and limited acceptance of medication to achieve competence is further clouded by Justice Kennedy’s concurrence. “I file this separate opinion,” Kennedy wrote, “to express my view that absent an extraordinary showing by the State, the Due Process Clause prohibits prosecuting officials from administering involuntary doses of antipsychotic medicines for purposes of rendering the accused competent for trial in most cases, and to express doubt that the showing can be made. . . . ” Id. at 1817. Kennedy’s “doubt,” it should be noted, was unrelated to the propriety of physician involvement: it centered on the potential of antipsychotic drug side effects to prejudice a defendant during trial. Id. at 1818-20.

312

M. GREGG BLOCHE

3. Evaluation and Testimony Bearing on a Defendant’s Criminal Responsibility: At the trial stage, psychiatric evaluation and testimony play a central role when criminal defendants plead insanity or diminished capacity. Psychiatrists may be asked by the defense, the prosecution, or the court to evaluate the defendant and to testify at trial regarding the relationship between the alleged crime and the defendant’s mental state at the time. During the 198Os, many U.S. jurisdictions tightened their insanity defense statute? and/or rules of evidence56 in an effort to limit the influence of medical opinion on jurors’ moral decisions about criminal responsibility. But psychiatric testimony, most typically focused on the defendant’s understanding of the nature and wrongfulness of his or her actions,57 remains central when jurors consider whether mental illness merits exculpation. 4. Evaluation and Testimony at the Sentencing Stage: In 1976, the U.S. Supreme Court held that capital punishment cannot be imposed without an individualized evaluation of aggravating and mitigating factors stemming from the defendant’s character and the circumstances of the offense.58 On the same day, the court upheld several death penalty statutes that provide for a postconviction sentencing hearing during which proof of aggravating and mitigating circumstances is presented to the trier of fact.59 Other states quickly enacted such statutes. Psychiatric testimony regarding a convicted defendant’s life history, character, and future dangerousness now plays a large role in capital sentencing hearings.60 5. Evaluation and Testimony Bearing on a Defendant’s Competency to Waive Appeals: On some occasions, defendants sentenced to death have told “The once-popular calling for exculpation [A] person

American Law Institute (ALI) model statute issued psychiatrists if mental illness rendered a defendant unable to obey the law:

is not responsible

for criminal

conduct

if at the time of such conduct

a wide mandate

as n

by

result of

mental disease or defect he lacks substantial capacity either to appreciate the criminality (wrongfulness) of his conduct or to conform his conduct to the requirements of law. MODEL PENAL CODE $4.01 (1962) (emphasis added). American law’s retreat from this broad invitation to psychiatrists to render moral judgments in court has been chronicled elsewhere. E.g., LA FOND & DURHAM, supru note 44, at 58-65. Today, numerous jurisdictions (including the federal courts) adhere to variations of the 150-year-old M’Naghten rule, which excuses the mentally ill only if their disease precluded them, at the time of their criminal behavior, from knowing its wrongfulness or “nature and quality.” 101 Cl. & F. 200, 8 Eng. Rep. 718 (H.L. 1843). By returning to M’Naghten, these jurisdictions put the value-laden question of volitional impairment off-limits for psychiatrists. 56See, e.g., FED. R. EVID. 704 (amended by Congress in 1984 to proscribe expert testimony as to whether a criminal defendant “did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto”). “See supra note 55. ‘*Woodson

v. North Carolina,

428 U.S. 280, 305 (1976).

59.F.g., Jurek v. Texas, 428 U.S. 262 (1976); Gregg v. Georgia,

428 U.S. 153 (1976).

Robert Showalter, Psychiatric Participation in Capital Sentencing Procedures: Ethical Considerations, 13 INT'LJ. L. & PSYCHIATRY 261 (1990); Charles P. Ewing, “Dr. Death”and the Casefor an Ethical “C.

Ban on Psychiatric and Psychological Predictions of Dangerousness in Capital Sentencing Proceedings, 8 AM. J. L. & MED. 407,410

(1982).

PSYCHIATRY,

CAPITAL

PUNISHMENT,

AND THE PURPOSES

OF MEDICINE

313

their attorneys that they wanted to be executed and did not wish to appeal.6’ Doubts about a loved one’s competence to make this decision have sometimes prompted family members to intervene at this point.62 Psychiatric evaluation and testimony can play a central role in judicial determinations of competence at this stage.63 6. Evaluation and Testimony Bearing on a Defendant’s Competency to be Executed: As noted earlier, in 1986 the U.S. Supreme Court constitutionalized the common law bar against executing the incompetent and mandated the use of trial-type procedures when competence for execution is in question.@ The role of psychiatrists in this newly-formalized adjudicative process remains to be defined. If courts approach competence for execution as a question akin to competence to proceed through earlier phases of the criminal justice process, then psychiatric testimony will play a central role, as it does today in judicial determinations of fitness to stand trial. On the other hand, Justice Powell’s concurring opinion in Ford v. Wainwright raises the possibility of a less medicalized model. Powell’s concurrence addressed an important question to which the Ford majority did not speakthe understanding that a condemned inmate must possess to be considered competent for execution. Powell declined to equate competence to be executed with competence to assist in one’s own criminal defense.65 Instead, he proposed a much lower standard of mental capacity for the former, requiring only that the condemned be “aware that his death is approaching” and “perceiv[e] the connection between his crime and his punishment.“66 This lower standard, 6’The best-known such case is that of Gary Gilmore, who was sentenced to death in Utah for the murder of a motel clerk. Gilmore refused to appeal his conviction and the resulting death sentence. After the U.S. Supreme Court refused to permit Gilmore’s mother and the American Civil Liberties Union to bring an appeal on his behalf, Gilmore was executed on January 17, 1977. Jon Nordheimer, Gilmore Executed by Firing Squad, N.Y. Times, Jan. 18, 1977, 8 1, at 1. 62A recent example is the case of John George Brewer, who killed his girlfriend, pled guilty against the advice of counsel, sought the death penalty for himself over the prosecution’s objection, claimed during his sentencing hearing to have had sex with his victim’s corpse, and on the basis of this uncorroborated testimony was sentenced to die. Brewer’s mother filed petitions in the Arizona and federal courts challenging his competence to forego appeals. Despite strong documentary evidence that Brewer was psychotic, all were summarily denied, and Brewer was executed on March 3, 1993. Brewer v. Lewis, 1993 U.S. App. L~xrs 14979 (9th Cir. 1993) (Reinhardt, J., dissenting from failure to grant en bum review). The Brewer saga illustrates an additional point-that the question of competence to forego appeals can present, as a practical matter, simultaneously with the question of competence for execution. %rch a determination was made by an Illinois judge in 1992, based on psychiatric testimony, in the case of Lloyd Wayne Hampton. After Hampton’s conviction for first degree murder, he stated his intention to forego all appeals aside from the review required by state law. The trial court ordered a hearing to determine Hampton’s competence to do so. Testimony was taken from two psychiatrists. One, testifying by telephone, reported clinical findings inconsistent with incompetence, while the other, appearing in person, found otherwise. The court found Hampton competent and set an execution date. Hours before the scheduled execution, Hampton changed his mind and decided to appeal. The Illinois Supreme Court granted a stay. Rob Karwath & William Grady, Hampton Asks, Gets Delay in His Execution, CHICAGO TRIBUNE, Nov. 11, 1992, §D, at 1. %ee supra text accompanying 65477 U.S. at 421-22

“Id. at 422.

notes 44-45.

and note 3.

314

M. GREGG BLOCHE

Powell argued, reflects the different purposes served by competency requirements in the two contexts. In the latter context the requirement is designed to ensure the accused’s capacity to contribute to his or her defense - e.g. by coming forward with exculpatory evidence or arguments. By contrast, Powell wrote, the requirement of competence for execution derives from concerns that demand less from the defendant. These are (i) the link between the death penalty’s retributive force and the condemned’s “awareness of the penalty’s existence and purpose” and (ii) the cruelty of denying persons “the opportunity to prepare, mentally and spiritually, for their death.“67 The need for psychiatric opinion in applying the Powell standard is hardly obvious. Judges are arguably capable of the basic inquiry this standard requires, into whether the condemned is aware of his or her impending death and its connection to his or her crime.68 That determinations of competence in other legal contexts have come to rest heavily upon psychiatric opinion need not imply a similar role for psychiatrists when competence for execution is at issue. Courts could develop a non-medicalized approach, out of reluctance to defer to expert authority on a question answerable without specialized knowledge or in response to concern about the propriety of physician involvement in the lifting of the final legal barrier to execution.‘j9 7. Treatment to Restore a Defendant’s Competency to be Executed: The finding that a prisoner is incompetent to be executed compels the state to defer execution until competency is restored. In this most perverse of clinical contexts, successful psychiatric treatment results in the death of the condemned.” Nontreatment defers the execution indefinitely (unless the prisoner’s condition improves spontaneously). In the wake of the U.S. Supreme Court’s failure to issue a substantive ruling in Perry v. Louisiana, the constitutionality 671d. at 421. “‘Justice Powell’s retributive rationale for requiring competence at the moment of execution weighs against reliance on psychiatric expertise. To the extent that inquiry into the condemned’s “awareness of the penalty’s existence and purpose” aims to preserve capital punishment’s retributive significance, this inquiry would seem best pursued by persons steeped in the community’s sense of the awareness necessary for retributive meaning. The role of trial judges in criminal sentencing, which is greatly influenced by judgment as to society’s retributive needs, renders courts more qualified than medical experts on this account. @Louisiana’s Supreme Court cautioned last year that “the incompatibility of the interests of the state and the prisoner, both of which the physician is required to further,” raises questions about the reliability of psychiatric assessments of competence to be executed. Louisiana v. Perry, 610 So.2d at 752-53. This ethical conflict, the court said, “does not yield room for well-informed and dispassionate medical judgment” as to the competence of the condemned. Id. at 753. ‘90 proceed with an execution after such a prisoner’s mental status improves, the state must obtain a subsequent adjudicative determination of competence. In such cases, psychiatric testimony regarding competence is more proximate in time to the death of the condemned than is treatment to restore competence, and the subsequent adjudication of competence plays an intervening causal role in the death of the condemned. On the other hand, if an inmate with mental illness is at no point found incompetent for execution, e.g. because he or she remains on medication after sentencing, then clinicians who provide treatment that maintains competence play the most proximate psychiatric role in the prisoner’s death. Moreover, in such circumstances there is no intervening adjudicative link in the causal chain between psychiatric treatment and execution.

PSYCHIATRY,

CAPITAL PUNISHMENT,

AND THE PURPOSES

OF MEDICINE

315

of involuntary medication to restore or maintain competence for execution remains an open question.‘l The legal status of voluntary treatment that might restore or maintain such competence is also uncertain. Death row inmates who are competent to make medical treatment decisions (and therefore probably competent to be executed’*) should arguably be allowed to consent to psychotropic drug treatment even if it has the effect of maintaining their competence for execution. Such a rule, one might contend, respects the autonomy of the condemned. On the other hand, a case can be made that the coerciveness inherent in life on death row should serve to vitiate such consent.73 Although voluntary, maintenance antipsychotic drug treatment on death row is probably a common practice,74 no reported court decision has addressed the lawfulness of consent to such treatment. By contrast, inmates who lack the mental capacity to make treatment decisions cannot give legally valid consent to psychotropic medication. In practice, this restriction may be often honored in the breach. The willingness of severelyimpaired psychiatric patients to consent to prescribed medication is commonly accepted by caregivers, without an inquiry into patient competence to make treatment decisions. However, a recent U.S. Supreme Court decision may make it more difficult for psychiatric caregivers to get away with this practice. In Zinermon v. Burch,” the Court held that a patient admitted to a psychiatric facility on a voluntary basis despite his incapacity to give consent could bring a federal civil rights action against the facility for failure to provide adequate preadmission mechanisms for determining his competence to consent. Should courts extend this holding to the medication of incompetent patients, responsibility for giving consent in such cases is likely to shift to surrogate decisionmakers-e.g. guardians, family members, judges, and physicians. Where con“See supra text accompanying notes lo-14 and notes 10-l 1. Justice Marshall’s recently-released papers reveal that at least five members of the Court initially voted to reverse the involuntary medication order at issue in Perry v. Louisiana, presumably on constitutional grounds. See Justice White, Memorandum to the Conference Re 89-5120, Perry v. Louisiana (Oct. 17, 1990) (reporting “at least five votes to reverse,” absent a decision to remand for consideration in light of Washington v. Harper or to certify the question of whether condemned inmates can be forcibly medicated to restore competency to Louisiana’s Supreme Court for decision according to state law) (on file with Justice Marshall’s papers in the Library of Congress). Following the Court’s decision to remand the case to the trial court for reconsideration in light of Washington, 494 U.S. 210, the Louisiana Supreme Court eventually overturned the trial judge’s (re-issued) forcible medication order on state law grounds. Seesupra text accompanying notes 21-22 and note 21. ‘*Justice Powell’s proposed standard for competency mental functioning, than do current American standards

to be executed demands for competency to consent

much less, in terms to medical treatment.

of

‘jSee infra text accompanying notes 252-259 (suggesting that coercion may arise from a death row inmate’s fear that any actions seen by the authorities as uncooperative could reduce his or her prospects for a pardon or reprieve). “1nmates who have opted to continue taking antipsychotic medication while pursuing appellate remedies have occasionally chosen to discontinue medication shortly before their scheduled execution dates. See, e.g., John Makeig, Lawyer Says He Suggested Convicted Killer Stop Taking Medicine, HOUSTON CHRONICLE, July 17, 1993, §A, p. 27 (reporting on an inmate’s lapse into incompetence after discontinuing his antipsychotic medications just weeks before his scheduled execution). 75494 U.S. 113 (1990).

316

M. GREGG

BLOCHE

demned inmates are concerned, courts could bar surrogate decisionmakers from giving consent, out of concern for the fatal consequences of treatment “success.“76 8. Treatment of Symptoms Not Relevant to the Defendant’s Legal Situation: At all stages of the criminal justice process, from the pre-trial phase through a convict’s wait on death row, psychiatrists treat distress that is not sufficient to cast the defendant’s competency into question. The extraordinary stress associated with prolonged confinement, trial, and multiple appeals takes a profound emotional toll. Anxiety and dysphoria are common at every stage. Psychiatric treatment of such distress does not, in general, affect an inmate’s legal prospects.” However, such care is sometimes provided by the same clinicians who perform the forensic functions described above.78 III. The Pervasive Problem of Harm Except for this last category of involvement, all of those mentioned have the potential to make a difference with respect to whether a capital defendant lives or dies. Yet none engage psychiatrists in the act of killing. At each stage, the psychiatrist is removed in space and time from the termination of life and the physical means by which that termination is effected. The psychiatrist’s interventions at each point are potentially fatal not in themselves but by virtue of their social context-the steps taken by legal actors in response to the outcomes of evaluation or treatment. Ethical proscriptions against medical killing thus do not plainly encompass psychiatric involvement in capital punishment. Ethical injunctions against “participation” in capital punishment or cruel treatment could provide more useful guidance, but only if they are given more specific content for psychiatrists. What about the maxim, “First Do No Harm,” so heavily relied upon by many opponents of physician complicity in capital punishment? As an affirmation of medical commitment to patient well-being, it is powerfully evocative.79 Moreover, in its contemporary incarnation, as the principle of “nonmaleficence” in bioethics theory, it has been applied most pointedly to medical ac%ourts could so act based on legal principles that are traditionally held to guide surrogate decisionmaking-e.g. the patient’s best interest or what he or she would have wanted if competent. Either approach could plausibly yield the conclusion that surrogate decisionmakers cannot consent to treatment that removes the final legal barrier to execution. “On the other hand, there is always evolve into psychiatric illness sufficiently

the possibility that anxiety or dysphoria, if left untreated, disabling to raise doubts about an inmate’s competency.

could

“The frequency with which treating psychiatrists also perform forensic functions in capital cases has not been systematically studied, but anecdotal evidence suggests that this is not unusual. In Perry v. Louisiana, for example, at least two of the defendant’s treating psychiatrists testified at a hearing held to determine his competency to be executed. Brief for Petitioner, supra note 10, at 13, n. 3. Perry v. Louisiana illustrates additional means by which treatment and forensic functions can become blurred-review of treatment records by psychiatrists performing forensic duties and introduction of such records as evidence in competency proceedings. Id. at 20. “See Albert R. Jonsen, Do No Harm: Axiom of Medical Ethics, in PHILOSOPHICAL MEDICAL ETHICS: ITS NATURE AND SIGNIFICANCE 27, 27-41 (Stuart F. Spicker & H. Tristam Engelhardt, Jr., eds. 1977) (interpreting principle of “do no harm” as a general requirement that practitioners remain committed to their patients’ welfare).

PSYCHIATRY,

CAPITAL

PUNISHMENT,

AND THE PURPOSES

OF MEDICINE

317

tions that have a causal connection to a person’s death.80 But by itself, this maxim does little analytic work with respect to the problem of defining physician participation in capital punishment. Most obviously, it begs the question of what constitutes the doing of harm, just as the vacuousness of the term “participation,” undefined, begs the question of the scope of moral complicity. Read broadly, it appears to bar all physician conduct that could result in negative consequences for the subjects of medical services. But the pervasiveness (and wide acceptance) of such consequences makes such a proscription implausible. A. Clinical Harm For starters, physicians routinely inflict clinical harm on their patients in order to benefit them. Most diagnostic and therapeutic interventions carry with them the risk or actuality of harm, from the minimal radiation exposure of a routine chest x-ray to the disfiguring or potentially fatal consequences of cancer surgery. Even psychotherapy is fraught with the possibility of clinical harm-an interpretive comment by a psychodynamically-oriented therapist may cause distress even as it opens a new pathway to psychological growth. So long as the clinical benefits that accrue to the patient from a diagnostic or therapeutic intervention are believed by the patient and his or her physician to outweigh its associated clinical harms, such harms do not pose an ethical problem per se.81 B. Extra-Clinical Harm The maxim “first do no harm” can be read more restrictively to steer around the problem of adverse clinical consequences while proscribing actions that result in other harms to patients. One might phrase this interpretation as follows: “Physicians should not do clinical work that has harmful extra-clinical consequences for patients.” This interpretation retains the maxim’s power as an affirmation of physician commitment to the well-being of patients as persons. So construed, the maxim would prohibit all medical acts that could constitute causal links in the chain of events leading to a subsequent execution.82 This proscription would cover all of the above-discussed forms of psychiatric involvement in capital cases except for treatment of symptoms not relevant to a defendant’s legal situation.83 On the other hand, this reading of the maxim encounters the awkward “BEAUCHAMP & CHILDRESS, supra note 46, at 124. *‘In the language of contemporary bioethics, the force of the principle of nonmaleficence is less than the combined weights of the principles of beneficence and autonomy in such instances. See id. at 122 (citing surgical wound as example of situation in which nonmaleficence is outweighed by beneficence). This is not to say that particdar clinical harms cannot pose ethical problems so long as patient and physician believe that clinical benefits outweigh them. For example, the mutual belief of a psychotherapist and his or her patient that sexual relations between them will yield net therapeutic benefit does not moot all ethical objections to such behavior. *‘I assume here that from an ex ante perspective, the significant possibility of an adverse consequencee.g. an execution-qualifies as “harm” for the purpose of applying the maxim. Without this assumption, the maxim would be meaningless except in cases where the prospect of an adverse consequence is certain. S3Seesupra text accompanying

notes 51-78.

318

M. GREGG BLOCHE

reality that adverse extra-clinical consequences of clinical work are pervasive in contemporary life. Such consequences can result from evaluation, treatment, or both in combination. They occur when doctors act out of undivided loyalty to their patients as well as when physicians act on behalf of the state or other third parties. Physicians concerned exclusively with the well-being of their patients often perform evaluative acts that yield information with damaging extra-clinical consequences. HIV antibody testing is a dramatic example: a positive result can lead to ruinous discrimination in employment, housing, and insurance.84 Other examples include the diagnosis of a cardiac ailment that renders an athlete ineligible to compete and the determination that a woman is pregnant.85 Likewise, treatment provided solely on a patient’s behalf can lead to adverse extra-clinical consequences. As an example, successful therapy for an injured limb may result in a cut-off of disability benefits for a patient with poor employment prospects. Neither evaluation nor treatment occur apart from the impact of a patient’s medical status upon her rights, duties, and opportunities. The connection between clinical work and extra-clinical harm is most explicit when physicians evaluate and treat persons on behalf of third parties. In contemporary industrialized societies, physicians do so in myriad contexts, a reflection of the enormous significance attributed to health status as a basis for determining rights, duties, and opportunities.86 Among the more prosaic examples are clinical evaluations that lead to denials of disability benefits or workman’s compensation. Among the more dramatic, yet still broadly accepted, is evaluation and treatment that returns wounded soldiers to deadly combat duty.” In some situations, e.g., treatment of combat injuries, clinical work serves the interests of both patients and third parties, and confusion abounds as to whom the physician is ultimately devoted.” Clinical work in forensic settings deeply engages psychiatry in activity on behalf of third parties. In most societies, forensic psychiatry is a staple of criminal law administration, not to mention the adjudication of disputes over child custody, the validity of contracts, and many other civil matters. As defenders of psychiatric involvement in capital cases have noted, such involve-

“‘In this and other examples, there are subsequent steps-e.g. disclosure of discrimination-in the causal sequence leading to harm. Nevertheless, “but for” cause of harm.

of medical information and acts the clinician’s evaluative act is a

“As these examples suggest, a particular extra-clinical consequence may be undesirable if the overall impact of the clinical intervention at issue is deemed to be favorable to her.

to a patient

even

86There is probably a crude proportionality between the extent to which a society relies upon health status as a basis for making such determinations and the degree to which it expects its doctors to deviate from the Hippocratic ethic of loyalty to patients in order to serve third parties. *‘See Camp, supra note 37, at 1002, 1008 (discussing ethics of psychiatric treatment strategy for combat stress syndromes that discourages self-protective feelings, reinforces patients’ sense of patriotism and duty, and encourages them to believe that further exposure to combat is in their best interests). “See id. at 1003-08 (describing Vietnam-era combat psychiatrists’ conflicting and unsettled beliefs as to whether they were ultimately obligated to serve the military mission or the well-being of their patients as individuals). See also R. Andrew Schultz-Ross, Theoretical Difficulties in the Treatment of Mentally Ill Prisoners, 38 J. FORENSICSCI. 426, 428-29 (1993) (discussing tension between correctional and medical treatment models as guides for mental health care in prisons and urging correctional psychiatrists to strike a compromise between therapeutic and rehabilitative aims).

PSYCHIATRY,

CAPITAL

PUNISHMENT,

AND THE PURPOSES

319

OF MEDICINE

ment represents but one example of the connection between forensic practice and the possibility of extra-clinical harm. In short, were the maxim “first do no harm” to be construed in the aboveproposed manner, as a proscription against clinical work that could lead to extra-clinical harm, then forensic practice per se would violate it. Along these lines, Alan Stone suggests that forensic psychiatry as a whole is ethically problematic because its potential for extra-clinical harm fits poorly with the physician’s traditional fidelity to her patient’s well-being. “The advancement of Ijustice] is a noble goal,” Stone writes,“‘ but when doctors give it greater weight than helping their patients or doing no harm they lose their ethical boundaries.“” On the other hand, the ubiquity of forensic medicine-and indeed of the harmful extra-clinical consequences of medicine more generally-makes it pollyannish to conclude that forensic practice per se is unethical.” So long as social decisionmakers link rights, duties, and opportunities to physical and mental health status, and so long as doctors retain cultural authority in health matters, legal systems will look to physicians for forensic support.9’ The purity and eloquence of the maxim “first do no harm” thus belies the medical profession’s more complicated role in contemporary life. Indeed, physicians who invoke this maxim as a rationale for abstention whenever the legal system comes calling may leave themselves open to the charge that they wish merely to avoid “dirtying their hands.“92 Medicine has come to serve many social, cultural, and political functions, from which it cannot be simply and radically decoupled. C. Forensic Psychiatry’s Answer to the Problem of Harm This inelegant reality leaves physicians with the problem to which Stone points-a lack of well-marked “ethical boundaries” to guide clinical work that @STONE, sup-a note 52, at 72. Stone voices doubt about prospects for deriving weighing forensic psychiatry’s contributions to our system of justice against its adverse persons:

such boundaries by impact on particular

[Jlustice is a beneficence to a society of unidentified personsthat is, to the general good. In contrast, the doctor’s practical ethical duty is to ease the suffering of particular identified patients. Medicine has not yet solved the problem of how to balance the particular good of the identified patient against the general good of the unidentified masses. We lose our practical ethical guidelines when we try to serve such a greater good in the courtroom.

Id. at 71. “Stone, it should be noted, moorings of forensic practice.

never

flatly

concludes

this, though

“The boundaries of physician authority in health matters, assignment of rights, duties, and opportunities, are complex However, they lie beyond the scope of this article.

he does voice doubt

about

the ethical

as well as the role of health status in the matters deserving of careful consideration.

“My colleague Steven Goldberg has raised this concern in our conversations about the law’s use of medical expertise. Advocates of abstention from forensic involvement in capital cases who emphasize its adverse impact upon the self-image of medicine as a helping profession leave themselves vulnerable to Goldberg’s criticism unless they link this emphasis to a deeper ethical rationale. Cf. Robert Burt, Cruelty, Hypocrisy, and the Rehabilitation Ideul in Corrections, 16 INT'L J. L. & PSYCHIATRY 359, 368-69 (1993) (chiding mental health professionals for maintaining a “social distance” from correctional institutions and criminal offenders) [hereinafter Burt].

M. GREGG BLOCHE

320

serves extra-clinical ends. This problem is not limited to forensic practice: the moral confusion experienced by military doctors uncertain about the priority of their obligations to the military mission and to their patients as persons illustrates its wider incidence.93

1. The Ethic of “Truth”: In response to this dilemma, leading American forensic psychiatrists have formulated an alternative professional identity, tied to a clinical ethic that departs explicitly from the Hippocratic tradition. The centerpiece of this identity is a commitment to “truthful” clinical evaluation and reporting94 as a moral substitute for fidelity to patients. Paul Appelbaum, the most prominent advocate of this alternative ethic, puts the matter bluntly: “[Thee forensic psychiatrist in truth does not act as a physician. . . . [A] different - nonmedical - role with its own ethical values is invo1ved.“95 Forensic evaluators, Appelbaum argues, should pursue truth, in the interest of justice, without regard for the possibility that their actions may cause harm.96 This break with the Hippocratic tradition, it is sometimes claimed, is made legitimate by the examinee’s consent: evaluation must not proceed unless the subject understands and assents to the fact that it is not being done for her clinical benefit.97 To what degree does this alternative ethic resolve the problem of missing moral boundaries? For starters, a conceptual difficulty needs to be addressed. Appelbaum’s account of “truth” as a professional ethic is disappointingly incomplete. To the extent that he sees the “truth”sought and reported by the ethical psychiatric witness as decoupled from normative premises, his account is epistemologically implausible. Ultimately, psychiatric conclusions bearing upon competency or responsibility represent choices between autonomy-affirming and deterministic accounts of human behavior.98 The former accounts prompt our legal system to treat persons as morally responsible for their past actions or mentally competent to act in the present; the latter signal the law to treat people as non-responsible or incompetent.99 But the scientific enterprise aspires toward deterministic accounts of all natural phenomena, including human 93Seesupra note 88. y4Paul Appelbaum, (1984).

Psychiatric Ethics in the Courtroom, 12 BULL. AM.

ACAD. PSYCHIATRY & L. 225

95Paul Appelbaum, The Parable of the Forensic Psychiatrist: Ethics and the Problem of Doing Harm, 13 Int’l. J. L. & Psychiatry 249, 252 (1990) [hereinafter Appelbaum, Parable].

“Id. at 253-54. 97The argument ble of competent evaluations.

from consent encounters an embarrassing problem. Forensic examinees are often incapaconsent; indeed doubts about their competence are a common reason for requesting such

‘*This is plainly the case when psychiatrists opine on the ultimate issue-e.g. competency or criminal responsibility. Less obviously, it remains so even when ultimate-issue testimony is prohibited. As my colleague Heathcote Wales notes, the making of a diagnosis weighs heavily in adjudicative determinations of a person’s past or present capacity for autonomous action. The same is true of testimony as to a person’s past understanding of her actions or present grasp of her options.

“Cf. Meir Dan-Cohen, (1992) (arguing

determinant

Responsibility and the Boundaries of the Seu, 105 HARV.

L. REV. 959, 990-92

that we characterize biologically-determined acts as voluntary when we view the biological as part of the self but involuntary when we see the determinant as distinct from the self).

PSYCHIATRY,

CAPITAL PUNISHMENT,

AND THE PURPOSES

OF MEDICINE

321

behavior. ‘O” Biological and social scientists rely on myriad factors other than mental illness in developing models of human behavior. Psychiatric testimony that identifies only some such accounts (a subset of those related to mental illness) as legally significant is thus an inherently normative endeavor. Appelbaum’s proposed ethic of “truth” can be refined to take account of this. Forensic evaluation can, in principle, yield socially-contingent, morallyinformed “truth” bearing on competence, criminal responsibility, and just desert. But the normative truthfulness of psychiatric testimony about causality, diagnosis, and a person’s ability to understand the choices confronting her depends on how closely professional beliefs about the boundaries of mental illness and impaired cognition track society’s moral intuitions about the lines between autonomous and non-responsible behavior. A forensic psychiatrist’s truthfulness, in other words, is in large measure a function of the compatibility between her theoretical framework and her community’s moral sense.“’ Whether such compatibility can be adequately achieved in practice is a complicated question, beyond my scope here. But as an epistemological matter, the ethic of “truth” can be made plausible. This ethic of “truth,” in the interest of justice, offers a comprehensive answer to the problem of extra-clinical harm in forensic practice. In capital cases, it holds, forensic evaluators ought not to concern themselves with the prospect that their conclusions may bear on whether the defendant lives or dies. Assessment of an inmate’s competency to be executed thus presents no ethical problems per se”*; nor do evaluations at earlier legal stages-e.g. adjudication of a defendant’s fitness to stand trial. Doing harm, Appelbaum writes, is no cause for “anguish,” but “failure” to do one’s best “in the difficult quest for truth” may be.‘03 2. Some Hints of Ambivalence: One might also invoke this ethic to absolve psychiatrists from responsibility for extra-clinical harm flowing from treatment in forensic settings. Treatment can serve the interest of justice: restoration of fitness to stand trial allows the adjudication of guilt, and attainment of ‘%ch accounts themselves are influenced by normative conceptions, as many philosophers of science have noted and as some forensic psychiatrists acknowledge. See, e.g., Showalter, supra note 60, at 276-77 (maintaining that psychiatric theories of “causality, diagnosis, and treatment” are influenced by a priori assumptions and allegiances). “‘The social contingency of psychiatric truth in forensic settings was dramatically illustrated by the use of psychiatric diagnosis to repress political and religious dissenters in the former Soviet Union. The diagnostic scheme employed by Soviet forensic practitioners construed many dissident behaviors as symptoms of mental illness. Quite understandably, this outraged Western psychiatrists and human rights activists, for whom free political and religious expression could not imaginably constitute psychopathology. But until the mid-1980s, such expression in the USSR was an oddity, beyond the personal experience of most psychiatrists and lay people alike. Within this authoritarian setting, Soviet psychiatric nosology carried a measure of persuasiveness, or normative truthfulness, making it harder for dissenters to resist the delegitimizing power of clinical diagnosis. Gregg Bloche, Law, Theory, andPolitics: The Dilemma ofSoviet Psychiatry, 11 YALE J. INT'LL. 297 (1986). “*See Appelbaum, Parable, supra note 95, at 257 (asserting that so long as the evaluator complies with “other applicable ethical standards”“e.g., truthfulness”assessment of competence to be executed “does not raise ethical concerns”). ““Id. at 258.

322

M. GREGG BLOCHE

competence for execution clears the way for the final act in the drama of justice-punishment as a means of retribution and deterrence. And, if adherence to accepted standards of clinical assessment and diagnosis renders evaluation truthful, then compliance with established therapeutic standards constitutes truthfulness in an analogous sense. Yet Appelbaum expressly declines to apply his ethic of “truth” to psychiatric treatment in service of justice. Instead, he claims an ethical difference between evaluation and therapy in forensic settings, and he holds that psychiatrists should not treat forensic patients “unless the demands of beneficence and nonmaleficence can be satisfied.“lW But as just noted, this distinction does not inhere in Appelbaum’s ethic of truth in the interest of justice. Nor does Appelbaum offer an independent justification for drawing such a line. Moreover, the notion that evaluative and therapeutic interactions with interviewees are clinically distinct is viewed with disfavor by many psychiatrists, for good reason. The success of an evaluative interview, it has been noted, rests heavily on its therapeutic effect. The clinician who establishes a trusting, therapeutic relationship with an evaluee is likely to elicit richer, more accurate diagnostic material.‘05 Conversely, patients experience considerable psychological relief by disclosing their symptoms and other problems to the interviewer.‘% Appelbaum’s selective attachment to the Hippocratic tradition in matters of treatment but not evaluation is thus conceptually puzzling. It raises the possibility that he may be less comfortable than he lets on with the notion that forensic psychiatrists can disregard the prospect of harm and, more generally, need not act morally as doctors. He seems aware that this is a radical idea,“’ and he acknowledges that when competence for execution is at issue, “the immediacy and degree of harm to which the prisoner is subject heighten [forensic evaluators’] ethical concerns.“‘o8 Although he insists that application of the principle of nonmaleficence is “mistaken” even in this context,lW he encourages psychiatrists to aid forensic examinees “in ways that are compatible with the primary purpose of the evaluation”- “e.g., by recommending psychiatric treatment .““O These hints of ambivalence about an ethic that disregards the potential for harm are magnified in organized psychiatry’s pronouncements on the subject. ‘041d. at 251. “‘E.g.,

ROGER A. MACKINNON & STUART C. YUDOFSKY, THE PSYCHIATRIC EVALUATION IN CLINICAL

PRACTICE 4 (1986) [hereinafter MACKINNON & YUDOFSKY].

l”Id. at 5. ‘“‘With commendable candor, Appelbaum notes: “The issue of a qualitatively

different basis for forensic ethics, although approached in some sources, has been largely unaddressed and unjustified in the literature Appelbaum, Parable, supra note on the ethics of psychiatry, and its implications are wholly unexplored.” 95, at 254. On reviewing an earlier draft of the present article, Richard Bonnie objected to my use of the term “radical” to characterize Appelbaum’s break with the Hippocratic tradition. But I believe Appelbaum is right about the lack of support for his position in the literature. I have not been able to locate any support in the writings of medical ethics scholars for the proposition that forensic physicians do not act as doctors and need not concern themselves with the ethical aspirations of the healing professions. Accordingly, I have retained the term “radical.” “‘Zd. at 257. ‘09Zd. “‘Zd. at 252.

PSYCHIATRY,

CAPITAL

PUNISHMENT,

AND THE PURPOSES

323

OF MEDICINE

The APA’s most comprehensive statement, a task force report on the role of psychiatrists in criminal sentencing, urged forensic evaluators to give “primacy” to the legal system’s “need to determine the truth.““’ But the report also advised evaluators to keep their examinees’ interests in mind. “[Dlevotion to the principles of nonmaleficence and beneficence,” the task force said, “best comports with the continued integrity of the profession, in both forensic and therapeutic settings.“‘12 This awkward mix of expectations coincides with the moral self-understanding of many forensic practitioners. They aver an obligation to be of some clinical benefit even as they perform their evaluative function. They hold accuracy to be their highest priority, but they experience some tension between this priority and their commitment, as physicians, to helping people.‘13 Moreover, as a practical matter, forensic psychiatrists function simultaneously as clinical caretakers in some prison settings,‘14 a fact that further complicates their ethical self-understanding. D. Capital Punishment and the ‘Contradictoriness

of Experience”

Appelbaum chides the APA task force on criminal sentencing for failing to “bite the bullet” with respect to the problem of harm and for instead persisting in its deference to the ideal of nonmaleficence.‘” From the standpoint of theoretical simplicity, the task force’s self-contradictory statements on devotion to truth and avoidance of harm make for an easy target. By disavowing the duty to avoid harm, Appelbaum sweeps aside this contradiction. But this simplicity is, in its unrealism, a mirror image of the belief that psychiatrists should eschew all clinical work-on behalf of the state or other third parties that could result in extra-clinical harm. For as the sentencing task force suggested, public faith in the therapeutic potential of psychiatry, and medicine in general, is tied to the profession’s credibility as a compassionate enterprise, committed to the welfare and dignity of individuals.116 I. The Moral Relevance of Consequent Harm: The importance of this commitment has been underscored by commentators from diverse perspectives.1’7 Highly visible breaches can corrode the profession’s therapeutic credibility, as "'AMERICAN

PSYCHIATRIC ASS’N, PSYCHIATRY IN THE SENTENCING PROCESS: A REPORT OF THE TASK

FORCE ON THE ROLE OF PSYCHIATRY IN THE SENTENCING PROCESS 8 (1984)

[hereinafter

APA,

PSYCHIA-

TRY IN SENTENCING].

"21d.at 9. The report argued that “compromise” between devotion to justice and to patient well-being is in forensic work. Id. at 8. Forensic evaluators, the task force averred, have a duty to take note of previously unrecognized psychiatric illness even when it is irrelevant to the legal question at hand, id., and should refrain from recommending punishments. Id. at 23-24.

inevitable

“3R~~~~~

1. SIMON, CLINICAL PSYCHIATRY AND THE LAW 21-37

trists are sometimes “4Sees~pru “‘Appelbaum, ‘16See APA, therapeutic

placed in the role of “double

(2d ed. 1992) (describing

how psychia-

agents”).

note 78.

Parable, sup-a note 95, at 253. PSYCHIATRY IN SENTENCING, supra

benefit

to the profession’s

commitment

note

111, at 8-9 (linking

to nonmaleficence,

public

beneficence,

faith in psychiatry’s

compassion,

and indi-

vidual dignity). “‘See,

e.g., TALCOTT PARSONS, THE SOCIAL SYSTEM (1991) (interpreting

ideal of altruistic commitment

324

M. GREGG BLOCHE

the behavior of some physicians has illustrated. Revelations not only of Nazi medical atrocities,“’ but also of shocking breaches of faith by U.S. physicians during and after World War 11,119catalyzed efforts to limit clinical discretion via informed consent requirements and regulatory oversight.‘*’ More recently, accounts of physician complicity in human rights abuses under authoritarian regimesI*’ have fanned concerns about the profession’s fidelity, under pressure, to patient-centered ends. A forensic ethic that disavows the moral relevance of consequent harm, however severe, seems calculated to contribute to public skepticism about the inclination of doctors to keep faith with persons in need. Appelbaum’s remarkable claim that forensic psychiatrists do not function as physicians is hardly an answer to this problem. It ignores the close link between forensic psychiatrists’ gatekeeping powers and the cultural significance of medical status as a basis for bestowing rights, duties, and opportunities.‘** Society-and the legal system - looks to forensic psychiatrists because of their physicianhood, not merely because they possess technical expertise.‘23 Disavowal of physicianhood is equally problematic at the level of the forensic examinee’s expectations. Even after the psychiatrist has advised the examinee that the evaluation is not confidential and is liable to be put to legal use, other factors operate to confound the examinee’s understanding of the psychiatrist’s role. Culturally-determined expectations of medical fidelity, perhaps encouraged by a skilled clinician’s empathic engagement during interviews, may engender trusting feelings that do not reflect the evaluation’s forensic purpose.‘24 to patients as important in enabling patients to assume dependent, therapeutically beneficial “sick role”); Kenneth Arrow, Uncertainty and the Welfare Economics ofMedical Care, 53 AM. ECON. REV. 941 (1963) (arguing that ethic of commitment to patients’ interests represents welfare-optimizing response to lay ignorance of medicine and consequent patient dependence on physician judgment); LEON KASS, TOWARD A MORE NATURAL SCIENCE 193-95 (1985) (discussing whether the medical profession can retain its integrity if it abandons commitment to individual patients in favor of “statistical compassion”). Cf. PAUL RAMSEY, THE PATIENT AS PERSON xi-10 (1970) (contending that faithfulness is the central moral obligation of physicians, from which other duties can be derived); BEAUCHAMP & CHILDRESS, sup-a note 46, at 341 (interpreting health professionals’ obligation of fidelity as a duty to keep promises and deriving this from other moral principles, with an emphasis on autonomy). The significance of patient faith in professional fidelity is a complex subject, deserving of deeper consideration than I can engage in here. For my present purposes, I take the central importance of such faith as a given. “‘Seegenerally

ROBERT PROCTOR, RACIAL HYGIENE: MEDICINE UNDER THE NAZIS (1988).

“‘Wartime medical experimentation in the U.S. often proceeded without human subjects’ knowledge, especially when vulnerable populations were employed. Examples included the injection of live dysentery bacteria into teenage orphans to test a putative vaccine and the deliberate infection of mental patients with malaria to test proposed antimalarial drugs. ROTHMAN, supra note 38, at 30-50. After the war, such atrocities continued. The most infamous was the Tuskegee syphilis study, in which federal researchers monitored the late effects of untreated syphilis in a population of poor African-Americans from the 1930s until the 197Os, without offering treatment, so as to observe the natural history of the disease. Id. at 183. ‘?Seesupra

text accompanying

notes 38-44.

‘*‘E.g., MEDICINE BETRAYED, supra note 20; AMNESTY INT’L FRENCH MEDICAL COMM’N & VALERIE MARANGE, DOCTORS AND TORTURE: RESISTANCE OR COLLABORATION? (1989); M. Gregg Bloche, Uruguay’s Military Physicians: Cogs in a System of State Terror, 225 J.A.M.A. 2788 (1986). ‘**See supra text accompanying 12’See supra text accompanying tance of the normative preferences

notes 33-37. notes 98-101 (linking “truth” in psychiatric testimony to society’s accepinherent in medical discernment of disease and disability).

%howalter, supra note 60, at 268-70. C$ MACKINNON & YUDOFSKY, supra note 105, at 4 (discussing importance of “therapeutic relationship” for accurate and thorough diagnostic evaluation).

PSYCHIATRY,

CAPITAL PUNISHMENT,

AND THE PURPOSES

OF MEDICINE

325

The consenting subject may be well-informed cognitively but not affectively. This problem is compounded when psychiatrists function simultaneously as forensic and treating clinicians. This invites confusion in both directions. Not only are forensic subjects at risk of incompletely understanding the examiner’s legal purpose; prisoners have reason to fear that anything they tell a treating psychiatrist could be used against them.“’ Outside prison walls, similar confusion abounds. The distinction between Appelbaum’s putative ethic of “truth” and non-forensic physicians’ duty of loyalty is probably not well-appreciated by the public or the courts. The U.S. Supreme Court indicated as much in 1985, in explaining its finding that a capital defendant who can make a “preliminary showing” that her sanity should be an issue at trial has a constitutional right to psychiatric assistance.‘26 Writing for an 8-l majority, Justice Marshall maintained that a psychiatrist was needed to “assist in evaluation, preparation, and presentation of the defense.““’ The Court’s opinion pictured the defendant’s psychiatrist as no less loyal in court than a treating doctor ought to be in clinic.lz8 In short, lay expectations of professional fidelity in the clinical consulting room spill over into the courtroom-and visa versa.lz9 Perceived breaches of faith in forensic settings thus have the potential to affect patient confidence in purely therapeutic contexts. In the U.S., moreover, this potential is magnified by a more general climate of doubt about physician judgment. Among health policymakers, evidence that financial incentives greatly influence clinical decisions’30 has encouraged widespread skepticism about the average practitioner’s ability to appraise medical need.131 Meanwhile, at the bedside, patients in extremis now commonly 12’This fear may be realistic even where clinicians do not serve simultaneously in therapeutic and forensic roles, since forensic psychiatrists can often access examinees’ medical records. See supru note 78. ‘26Ake v. Oklahoma,

470 U.S. 68 (1985).

“‘1cf. at 83. ‘*‘Mindful of the tension between this portrayal and his own model of forensic obligation, Appelbaum has tried gamely to construe the Court’s opinion as consistent with forensic impartiality. Paul S. Appelbaum, In the Wake of Ake: The Ethics of Expert Testimony in an Advocate’s World, 15 BULL. AM. ACAD. PSYCHIATRY & L. 1, 19-24 (1987). But, as he concedes, the lone dissenter, Justice Rehnquist, understood the Court’s opinion differently and chided the majority for failing to recognize that “[a] psychiatrist is not J., dissenting). an attorney, whose job it is to advocate.” Ake, 470 U.S. at 92 (Rehnquist, “%uch spillover is not limited to lay opinion. A prominent forensic psychiatrist, Bernard Diamond, has argued that psychiatric witnesses in criminal proceedings should discard the pretense of impartiality in favor of explicit advocacy, aimed at bringing humanistic and rehabilitative concerns to bear on the fate of defendants. Bernard L. Diamond, The Psychiatrist us Advocate, 1 INT’L J. PSYCHIATRY & L. 5 (1973). Although Diamond’s view is out of fashion among forensic practitioners today, it probably has some sympathizers. “‘See, e.g., M. Gregg Bloche, Corporate Takeover of Teaching Hospitals, 65 S. Cal. L. Rev. 1035, 111416 (1992) (discussing link between high utilization of technology-intensive hospital services and protechnology bias in fee-for-service payment to physicians). “‘Managed competition, the health care reform model that has attracted the strongest political support, rests on the premise that centralized management of medical decision-making by competing health care organizations will yield the most rational utilization of medical resources. Alain C. Enthoven, The History and Principles of Managed Competition, HEALTH AFF., 1993 Supplement, at 24. See also Alan L. Hillman, Managing the Physician: Rules v. Incentives, HEALTH AFF., Winter 1991, at 138 (advocating “balanced” use of practice algorithms and physician financial incentives to manage clinical decisions).

326

M. GREGG BLOCHE

entrust their lives to specialists who were strangers’32 before the moment of dire necessity. Absent the particularity of a prior relationship with his doctor, a patient’s expectations are more likely to be influenced by his confidence in the profession in general. Physicians thus face an incessant tension between public expectations that they assist in ascribing rights, duties, and opportunities and private expectations that they keep faith with individuals in need. Psychiatrists bear a special burden in this regard, given the pervasiveness of public reliance on their forensic and other gatekeeping functions and the vulnerability experienced by their patients. ‘33 The mediation of tension between these expectations is a critical challenge for contemporary medical ethics. To meet this challenge, medical ethics must both acknowledge the reality that physicians function as social arbiters134 and protect against the danger that consequent harm to individuals will undermine confidence in the profession’s therapeutic potential. Appelbaum’s ethic of “truth” cannot accomplish the latter. In denying the relevance of consequent harm, indeed in denying the identity of forensic practitioners as physicians, he disregards the risk that some harms may reach a worrisome level of moral significance for the medical profession. So long as the state can stake a claim for the advancement of justice (or some other public purpose) via distinctions based on health status,‘35 Appelbaum’s ethic frees physicians from a duty to say no when the state seeks their assistance in making them.136 The implications of this ethic are limited only by the scope of government inclinations to act on the basis of health-related distinctions.‘37 2. Public Purposes and Private Duty: Toward a Tolerable Accommodation: The APA task force on criminal sentencing, which Appelbaum criticized for failing to “bite the bullet,” came closer to a realistic ethical account. Its contra‘j2The paradox of intimate dependence on strangers at times of extreme need has been an organizing theme for numerous works on American medicine and has given rise to the titles of at least three. E.g., ROTHMAN, supra note 38; CHARLES E. ROSENBERG, THE CARE OF STRANGERS: THE RISE OF AMERICA’S HOSPITAL SYSTEM (1987); ROBERT A. BURT, TAKING CARE OF STRANGERS: THE ROLE OF LAW IN DocTOR-PATIENT RELATIONS (1979).

13’The charge that psychiatry is a form of social control, an accusation often stated with vehemence by the profession’s radical critics, is an unenlightening-and pointlessly pejorativetruism: the more interesting and difficult problems involve mediation between psychiatry’s social and intimate purposes. ‘j41 do not mean to suggest that medical arbitration of rights, duties, and opportunities need always be accepted; on the contrary, social progress sometimes entails the de-medicalization of disputed questions, and medical authority over particular matters may be fair game for advocates of reform. See, e.g., Bloche, Abortion Gatekeepers, supra note 33, at 395-400 (discussing problems presented by medicalization of abortion access). My limited point is that medical involvement in the ascription of some rights, duties, and opportunities is inevitable, and that any ethical model that rejects this professional role per se is necessarily incomplete. “‘Appelbaum’s writings appear to accept such claims at face value. He makes no mention of the possibility that some may be sufficiently problematic to merit restraint by doctors who are asked to perform clinical evaluations in a supporting role. ‘36A clarification is in order. Appelbaum’s ethic of “truth” does oblige clinicians to decline to perform evaluations when they believe that their personal biases or gaps in technical knowledge may interfere with their objectivity or accuracy. ‘j’The willingness of some states to administer corporal punishment (e.g., amputation of limbs) and torture to persons deemed medically “fit” for it, MEDICINE BETRAYED, supra note 20, at 42-54, 84-96,

PSYCHIATRY,

CAPITAL PUNISHMENT,

AND THE PURPOSES

OF MEDICINE

327

dictory avowals of the “primacy” of “truth” in forensic work and the importance of “devotion” to the welfare of evaluees capture the moral awkwardness of forensic psychiatry and the disjunction inherent in its practitioners’ identity. There is room for concern about the task force’s framing of the conflicting purposes. One might have wished for clarification of the meaning of “truth” in forensic work13*; moreover, the word “devotion” seems strong for a commitment that is typically honored only at the margins of forensic practice. Yet for most of the situations that American forensic psychiatrists encounter, the task force’s variegated ethical blend does tolerable work. It permits practitioners to satisfy, more or less, judicial and public expectations of objectivity while occasionally being of clinical benefit to examinees. The consequent harms that examinees and forensic clinicians must live with typically do not rise to a level that casts the credibility of medicine as a helping profession into question. This is not to say that such harms are inconsequential: plainly criminal conviction or the denial of disability benefits can have a profound impact on a person’s life. Yet society does not seem troubled by physician participation in bringing them about.13’ Society, like forensic psychiatry, gets along, up to a point, with contradictory expectations about the purposes of medicine. This contradiction is problematic but not untenable. As Sheldon Wolin has observed, “wisdom,” in social matters, is “mindful of logic, but more so of the incoherence and contradictoriness of experience.“‘40 The seeming rigor of ethical formulations that categorically permit or proscribe clinical work on the state’s behalf when it can result in harm is rendered illusory by its disconnection from experience. On the other hand, such contradiction is difficult to live with on a daily basis. This may account for Appelbaum’s absolutist insistence on his ethic of “truth,” even as he gives hints of personal discomfort with its full implications. 14’ It also probably accounts for the reluctance of many forensic clinicians to see their service to the state as ethically awkward when the death penalty hangs in the balance. The cognitive dissonance inherent in forensic practice most likely causes many who engage in it to overlook the moral tension implicit in their daily work. To see a large moral problem where capital punishment is concerned would be to recognize the same problem, in attenuated points to the danger of categorical ethical disregard for the consequences of clinical evaluations that assist authorities in making such distinctions. Other, hypothetical scenarios could involve biologically-based discrimination (e.g. based on genetic status) with respect to civil rights. Appelbaum’s ethic of “truth” does not in itself preclude clinical evaluation to assist authorities in such contexts. On the contrary, his categorical stance forecloses him from arguing that medical complicity of this sort poses ethical problems any different than those presented by lay administration of such policies. “*See supru text accompanying

notes 98-101.

“90n the contrary, more typical complaints about forensic psychiatrists picture them as “hired guns,” no less loyal to clients in the courtroom than the idealized doctor is to her patients in the clinic. Public skepticism about forensic psychiatry seems to reach its highest levels after highly publicized insanity acquittals-e.g. that of John Hinckley-and tends to focus on the perceived partiality of psychiatric testimony toward widely-despised defendants who are permitted to elude their just deserts. See LA FOND & DURHAM, supra note 44, at 61 (suggesting that public outrage over Hinckley verdict reflected sense that too many guilty defendants were being excused based on “dubious expertise”). ‘40Sheldon Wolin, Political Theory as a Vocation, in MACHIAVELLI AND THE NATURE OF POLITICAL THOUGHT 44-45 (M. Fleisher ed. 1972). “‘Seesupra

text accompanying

notes 104-110.

M. GREGG BLOCHE

328

form, throughout their professional lives. This, understandably, they are disinclined to do.142 But the tension between the social functions of medicine is enormously magnified when the punitive taking of a life is at stake. I argue in the following section that the moral awkwardness of forensic practice becomes untenable when the death penalty looms closely. Capital punishment, I contend, strains the contradictory ethical framework of forensic psychiatry to the breaking point. By playing a proximate, high-profile role in state decisions to take life for punitive purposes, psychiatrists risk their moral integrity and therapeutic credibility to a degree that merits non-participation in such determinations. I would have preferred at this point to have arrived at a general, abstract principle by which to identify extra-clinical harms that stress the awkward ethical underpinnings of forensic psychiatry to the breaking point. Such a principle would be of immense practical utility, given the pervasiveness of clinical work on behalf of the state and other third parties. But I doubt that an elegant, crystalline solution is within our reach. For it would have to mediate between such elusive, context-linked concerns as the cultural authority of doctors as gatekeepers and the fragility of physicians’ moral and therapeutic credibility. To quote Sheldon Wolin once more, meaningful statements about deeply contextual problems “tend . . . to be suggestive and illuminative rather than explicit and determinate.“‘43 The following discussion of capital punishment aspires to be “illuminative” regarding the broader problem of extraclinical harm arising from clinical work on behalf of third parties. If I am right about the unworkability of a comprehensive solution to this problem, then the approach offered here could serve as a model for context-sensitive resolutions in varying clinical and social circumstances. IV. Should The Death Penalty Be Treated Differently

Than Other Harms?

If clinical work in service of forensic ends is not deemed unethical per se, might it nevertheless be morally untenable when capital punishment looms as a consequential harm? Opponents of a psychiatric duty to abstain in capital cases say no, insisting that there are no ethically relevant differences between the death penalty and other consequential harms. In this section, I argue that there are powerful reasons for physicians to treat the punitive taking of life as ethically different from other harms, and that these reasons support a duty to abstain when the prospect of execution looms large. I suggest, moreover, that 14*In the interest of fairness, a clarification is in order about the moral awkwardness of forensic practice. I do not mean to suggest that forensic psychiatrists are categorically and personally tainted by their discipline’s intrinsic ethical contradictions. Some forensic practitioners might be accused of too readily denying these contradictions in order to insulate themselves from personal discomfort. But the contradictions inherent in forensic work reflect society’s discrepant expectations of doctors. The demand for forensic psychiatry is largely the product of society’s propensity, for better or worse, to medicalize the allotment of rights, duties, and opportunities to individuals. Forensic psychiatrists may deserve to be chided for their failure to be forthcoming about the normative content of their work. But so long as society solicits doctors to share the burden of normative choice, the problem of conflict between this role and the pursuit of therapeutic ends cannot fairly be pinned exclusively on the doctors who answer the call. Forensic psychiatrists are, at worst, “guilty” of being society’s collaborators. r4’Wolin, supra

note 140, at 45.

PSYCHIATRY,

CAPITAL

PUNISHMENT,

AND THE PURPOSES

OF MEDICINE

329

these reasons are of sufficient public policy import to justify judicial refusal to rely on psychiatric assistance to clear the last legal obstacles to execution. A. From the Perspective of Medical Ethics, Is Death as Punishment Categorically Different? For an adherent to Appelbaum’s ethic of “truth,” any differences between capital punishment and other consequential harms are beside the point. Since forensic psychiatrists, in Appelbaum’s view, do not act as physicians, the harm that results from their evaluative work is not ethically relevant; thus differences between death and other sanctions are not of professional concern. In pursuit of consistency, one can take Appelbaum’s reasoning further than he would prefer, to the conclusion that psychiatrists who “treat” patients for forensic purposes (e.g. to restore their competency for execution) do not act as doctors and need not weigh the consequent harm. Differences between death and other punishments can only matter if, as I argue above, concern for the well-being of affected persons retains some ethical importance. Richard Bonnie, consultant to the APA Council on Psychiatry and Law and a perspicacious critic of arguments for a duty to abstain, appears willing to grant that the principle of nonmaleficence retains “some weight in the forensic setting.“144 Bonnie acknowledges the appeal of the claim that “death is different” from other sanctionsL4’ but contends that this idea lacks “categorical force in ethical terms”146for physicians. From a medical ethics perspective, he argues, death is “different from other punishments only in degree”; thus “clinical participation in capital cases is, in principle, no more . . . problematic than forensic participation in any criminal case.“14’ To support his claim that the difference between death and other sanctions lacks “categorical force” in medical ethics, Bonnie points to contemporary acceptance of the withdrawal of lifesustaining medical treatment .‘48 I. Professional Tradition and Death as Punishment: The assertion that the death penalty is not relevantly different from a medical ethics perspective invites several responses. First, this claim is contrary to a long professional tradition that has singled out medically-inflicted death as a distinctive concern. Medical killing receives special mention in the Hippocratic oath, alongside a general reference to the avoidance of harm.*49 Indeed, the past reluctance of l”Richard J. Bonnie, Healing-Killing Conflicts: Medical Ethics and the Death Penalty, HASTINGS CTR. REP., May/June 1990, at 12 [hereinafter Bonnie, Confkcts].

‘45SeeRichard J. Bonnie, The Dignity of the Condemned, 74 Va. L. Rev. 1363, 1364-66 (1988) (noting that the U.S. Supreme Court has repeatedly relied on the notion that “death is different” to support more stringent procedural requirements for capital cases) [hereinafter Bonnie, Dignity]. ‘&Bonnie, Conflicts, supra note 144, at 13; Richard J. Bonnie, Dilemmas in Administering the Death Penalty: Conscientious Abstention, Professional Ethics, and the Needs of the Legal System, 14 L. & HUMAN BEHAVIOR 67, 76 (1990) (expanded version of Bonnie, Conflicts) [hereinafter Bonnie, Dilemmas]. 14’Id. ‘481d. ‘@Seesupra note 47 (“To please no one will I prescribe a deadly drug nor give advice which may cause [my patient’s]

death.“).

330

M. GREGG

BLOCHE

physicians to withhold temporarily life-prolonging treatment when asked to do so by dying patients reflected the profession’s special discomfort with any role in causing death. More to the point, medical “participation” in executions has been vigorously denounced in recent years by professional organizations in the U.S. and other countries.15’ Medical “participation” in the imposition of lawful prison terms has not been similarly criticized. Bonnie’s claim that acceptance of the non-provision of life- prolonging treatment in some situations shows that the difference between execution and other harms lacks “categorical force” misreads the ethical significance of this recent development. Withdrawal of life-prolonging measures at a patient’s behest is consonant with the duty most fundamental to the medical ethics tradition, the obligation to keep faith with patients. The implications of this basic duty are continually evolving. In recent decades, patient autonomy has risen greatly in importance relative to regard for patient well-being as judged by doctors. Contemporary acquiescence to the withholding or withdrawal of life-sustaining measures when patients (or their families) do not want them expresses our high regard for personal autonomy, as Bonnie himself has elsewhere recognized.15’ In sharp contrast, death sentences are not executed to keep faith with the condemned. Even in the unusual case of a competent defendant who expresses a persisting preference for death, execution is punishment, first and foremost. Physician deference to patient choice with respect to life-sustaining treatment honors the Hippocratic tradition of fidelity to patients. As such, it cannot plausibly be compared to medical assistance in the state’s punitive termination of life. Is2 2. Killing as a Singularly A wesome Act: The Ethical Relevance of Passionate Knowledge: A second categorical, ethically relevant difference between capital punishment and other harms arises from our feelings about death’s bewildering, incommensurable finality. That death’s incommensurability makes the deliberate taking of life a singularly awesome act is a matter of passionate knowledge- something we intuit but cannot capture as a logical syllogism. Bonnie and others suggest that such sentiment has no ethical import for physicians - that “emotional impact” and “ethical significance” are independent matters.‘53 This view reflects the recent influence, within medical ethics, of “‘See supra notes 48 and 50. “‘See Bonnie, Dignity, supra note 145, at 1389 (observing that “[rlespect for individual dignity is ascendant” when dying patients are permitted to forgo life-prolonging procedures). Bonnie’s analogy to the withholding or withdrawal of life-prolonging medical treatment is more persuasive when he invokes it to support his argument that defense attorneys and judges in capital cases ought to forgo potentially life-saving legal measures when clients who have committed capital offenses express stable preferences for execution. Id. at 1367-68, 1389-90. For attorneys, as Bonnie notes, such forbearance is consonant with their traditional ethical obligation to abide by clients’ wishes concerning the purposes of representation. E.g., MODEL CODE OF PROFESSIONAL CONDUCT RULE 1.2(a) (1983). From a judicial perspective, deference to the defendant’s wishes vindicates his or her dignity interest. “*By contrast, Bonnie’s reference to evolving ethical beliefs about the non-provision of life-prolonging treatment is persuasive as a justification for psychiatric testimony regarding a person’s competence to refuse such treatment. “‘Bonnie, Dilemmas, supra note 146, at 80. Bonnie invokes this distinction in a different context-his argument that the apparent “immediacy” of the causal link between a forensic examiner’s conclusions and a

PSYCHIATRY,

CAPITAL

PUNISHMENT,

AND THE PURPOSES

331

OF MEDICINE

moral perspectives that contrapose passion and disengaged reasoning, then privilege the latter as the metric of what is right.154 But empathic responsiveness to the emotional lives of patients has long been a central theme in clinical ethics.155 Within the Hippocratic tradition, the doctor’s benevolent feelings matter ethically. For better or worse, the Hippocratic tradition has looked to such feelings, more than to abstract principles, as a primary source of ethical guidance. ‘56Efforts by some scholars in the 1970s and 1980s to derive clinical ethics from avowedly non-contextual contractarian and utilitarian moral theories represented a departure from this tradition.15’ In the last several years, the role of empathy and the passions as indices of right conduct has received renewed attention in medical ethics discourse.‘58 The rediscovery of passionate knowledge as an ethical guide in clinical work is part of a larger philosophic shift, toward the recognition of empathy and passion as “intelligent parts of our ethical agency” more generally.‘59 Martha Nussbaum, for example, contends that “the discriminating power of passion” is essential to our understanding of a situation’s “ethically relevant features.“16’ Turning the Kantian suspicion of emotion on its head, Nussbaum argues that in some contexts, “the pursuit of intellectual reasoning apart from emotion will actually prevent a full rational judgment” by blocking “full understanding.“161 Nussbaum traces this insight to Aristotle, who, she says, held that emotions are “frequently . . . more reliable in deliberation than detached intellectual judgments, since emotions embody some of our most deeply rooted views about what has importance.“162 She distinguishes this claim from the notion that emotions are “self-certifying sources of ethical truth”: rather, she argues, they are ethically relevant as raw material for engaged cognition and deliberation.‘63 Nussbaum’s qualified endorsement of the ethical import of empathy death row examinee’s fate has emotional force but no ethical relevance. Id. at 80-81. As to the significance of the intuition that death is qualitatively different from other sanctions, he distinguishes between the realms of medical ethics and public morality. He holds that this intuition lacks “categorical force” in the former realm; yet he states his own opposition to capital punishment, Bonnie, Dignity, supra note 145, at 1364, and argues that “the moral foundation for all abolitionist arguments” is the belief that death “represents a stark discontinuity in the range of criminal punishments.” Id. at 1363, n.2. ‘54See LAWRENCE A. BLUM, FRIENDSHIP,ALTRUISM, AND MORALITY 169-207 (1980) (criticizing view that feelings are not properly part of moral reasoning). “‘LEON KASS, TOWARD A MORE NATURAL SCIENCE: BIOLOGY AND HUMAN AFFAIRS 219-21

Kantian

(1985).

lS”Arguably, what is most lost through the translation of Hippocratic benevolence into contemporary ethical “principles’‘-e.g. beneficence and non-maleficence-is the emotional engagement conveyed by the former. lS7To no small degree, this departure was justified by the failure of medical empathy as physicians increasingly became strangers to their patients. See supra notes 38-43, 130-32 and accompanying text.

“*E.g., Sidney Callahan, July,

The Role of Emotion in Ethical Decisionmaking, HASTINGS CTR.

REP., June/

1988, at 9.

‘S9M~~~~~ c. NUSSBAUM, LOVE’S KNOWLEDGE: ESSAYS ON PHILOSOPHY AND LITERATURE 41 (1990) [hereinafter NUSSBAUM, LOVE’S KNOWLEDGE]. ‘WARTHA

C. NUSSBAUM, THE FRAGILITY OF GOODNESS 308 (1986).

‘6’N~~~~~~~, LOVE’S KNOWLEDGE, supra note 159, at 41. As an example, Nussbaum intelligenza d’umore-“an understanding that is not available to the non-lover.” Id.

offers

Dante’s

16’Id.at 42. 16j1d.Some other commentators

seem more inclined

to derive moral

and ethical

guidance

directly

from

332

M. GREGG BLOCHE

and passion parallels recent developments in legal scholarship’U and reflects the growing influence of the feminist “ethic of care.“‘65 These developments lend support to the proposition that the taking of life is ethically different from other punishments by virtue of our feelings of awe about it. More significantly, from the medical perspective, if Hippocratic loyalty and benevolence have any remaining weight, then these feelings about death have special ethical relevance for the practice of medicine. For surely a person’s visceral sense of death’s finality is intensified when she knows something about an individual who is to die and feels some obligation to attend to his well-being. Such is the plight of the forensic physician with a lingering Hippocratic sensibility when the prospect of execution looms. Bonnie’s response to this situation - his recommendation that the physician take no ethical hint from her feelings-poses the extraordinary risk that incomplete understanding will, in Nussbaum’s words, “prevent a full rational judgment.” 3. Capital Punishment as an International Human Rights Question: A third, ethically relevant basis for distinguishing death from other criminal sanctions is the problematic status of capital punishment in the international law of human rights. There is growing world-wide support for the view that state executions constitute “cruel, inhuman, or degrading treatment or punishment,” as proscribed by the International Covenant on Civil and Political Rights’66 and other trans-national human rights instruments.‘67 There is also growing support for the proposition that capital punishment violates the “right to life” feelings, experienced collectively, without an intermediate stage of rationalistic deliberation. See, e.g., ROBERTO M. UNGER, PASSION: AN ESSAYON PERSONALITY (1984)(arguing for an “ethic of love,” arising from shared identity, as an alternative basis for public morality). ‘64E.g., Robin L. West, Taking Preferences Seriously, 64 TUL. L. REV. 659 (1990) (arguing that sympathy with the experiences and emotions of litigants is part of the moral basis for judicial intervention in disputes); Martha L. Minow & Elizabeth V. Spelman, Passion for Justice, 10 CARDOZO L. REV. 37 (1988) (cited by Nussbaum); Lynne N. Henderson, Legality andEmpathy, 85 MICH. L. REV. I574 (1987). 16’See CAROL GILLIGAN, IN A DIFFERENT VOICE (1982) (reporting experimental evidence of greater propensity of women, compared to men, to make moral choices based on empathy with affected persons). See also Carrie Menkel-Meadow, Excluded Voices: New Voices in the Legal Profession Making New Voices in the Law, 42 U. MIAMI L. REV. 29 (1987) (urging evolution of legal discourse toward higher regard for ethic of care). ‘@‘Dec. 19, 1966, 999 U.N.T.S. 171, 6 I.L.M. 368, Article 7 [hereinafter C&P Covenant]. As of March 31, 1991, 93 nations had become parties to the Covenant. UNITED NATIONS, STATUS OF INTERNATIONAL INSTRUMENTS at 2-11, U.N. Dot. ST/HR/4/Rev.6 (1992) [hereinafter STATUS]. 16'Nrc~~s. RODLEY, THE TREATMENT OF PRISONERS UNDER INT'L LAW 165-173 (1987) [hereinafter RODLEY]. The proscription against “cruel, inhuman, or degrading treatment or punishment” also appears in the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, G.A. Res. 46, U.N. GAOR, 39th Sess., Supp. No. 51, at 197, U.N. Dot. A/39/51 (1984) and the Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, G.A. Res. 3452, U.N. GAOR, 30th Sess., Supp. No. 34, at 91, U.N. Dot. A/10034 (1975). As of March 31, 1991, 55 states had become parties to the former instrument, which has binding status as a treaty. Status, supra note 166, at 2-11. The latter document, a U.N. General Assembly resolution, is non-binding but germane as an interpretive guide to state obligations under customary international law. The European and American Conventions on Human Rights contain similar proscriptions. The former instrument bars “inhuman or degrading treatment or punishment,” European Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, 213 U.N.T.S. 222, Article 3, [hereinafter

PSYCHIATRY,

CAPITAL PUNISHMENT,

AND THE PURPOSES

OF MEDICINE

333

proclaimed by the Covenant”j’ and the Universal Declaration of Human Rights.169 Indeed, the U.N. Human Rights Committee, a body elected by the state parties to the Covenant to monitor compliance with its provisions, declared in 1982 that “all measures of abolition should be considered as progress in the enjoyment of the right to life.“17’ Similar statements concerning the relationship between capital punishment and the “right to life” have come from the U.N. General Assembly,17’ the European Parliament,17’ the Inter-American Commission on Human Rights,173 and non-governmental human rights organizations. 174 European Convention], while the latter prohibits “cruel, inhuman, or degrading punishment or treatment.” American Convention on Human Rights, O.A.S. Off. Rec. OEA/Ser.L/V/II.23, Article 5 (1979). The proposition that state executions constitute “cruel, inhuman, or degrading treatment or punishment” was embraced in 1980 by the U.N. Secretariat, in a Working Paper prepared for the Sixth U.N. Congress on the Prevention of Crime and the Treatment of Offenders. Rodley, supra note 167, at 168. This position has also been endorsed by a number of leading non-governmental human rights organizations, including Amnesty International. AMNESTY INT’L, ABOLISHING THE DEATH PENALTY: MEASURES FOR A WORLD WITHOUT EXECUTIONS (1989) (AI Index No. ACT 51/08/89) (hereinafter AMNESTY INT’L, ABOLISHING). Along similar lines, the European Parliament declared in 1986 that the death penalty is “a cruel and inhuman form of punishment.” RODLEY, supru note 167, at 166, n.9. For some commentators, the proposition that corporal punishments-whipping, amputation, and other acts that batter and maim the body-are “cruel, inhuman or degrading”, id. at 249-253, invites an afortiori argument about the taking of life. In Rodley’s words, “it is bizarre that corporal punishment may well fall foul” of the proscription against “cruel, inhuman or degrading” sanctions while capital punishment “apparently does not.” Id. at 166 (predicting that “it may one day be possible” to argue that the death penalty is “cruel, inhuman, or degrading”). “*C&P Covenant, supra note 166, Article 6. Supporters of this proposition encounter an obvious difficulty. Article 6 of the Covenant explicitly allows capital punishment “for the most serious crimes,” subject to other legal conditions. Adherents to the view that state executions nevertheless violate the Covenant’s “right to life” attempt to work around this difficulty by contending that Article 6 refers to abolition in a manner that indicates its desirability. RODLEY, supra note 167, at 167. ‘“‘International

Bill of Human Rights: Universal Declaration of Human Rights, G.A. Res. 217, U.N. pt. 1, at 72, U.N. Dot. A/810 (1948) (“Everyone has the right to life, liberty and the security of person.“). In contrast to the Covenant, the Universal Declaration makes no reference to the death penalty as an exception to the “right to life.” This has been interpreted as a compromise between advocates of language calling for abolition of capital punishment and supporters of an explicit reference to the death penalty as a permissible exception to the right to life. Landerer, Capital Punishment as o Human Rights Issue Before the United Nations, 4 REVUE DES DROITS DE L’HOMME - HCJMANRIGHTS J. 5 11, 5 1318 (1971). GAOR, 3d Sess.,

“‘Report of the Human Rights Committee, GAOR, 37th Sess., No. Annex comment 6(16), 6 (1982) (arguing that references the Covenant the permissibility that have not the death penalty that “abolition “‘In 1971 and again the General Assembly proclaimed order to life, the main objective to be pursued that of progressively restricting for which capital may be imposed, with a view the desirability . ” RODLEY, supru at 168. ‘?n a resolution, the European Parliament the right to life, even where strict legal procedures

stated are

capital

punishment

the right the this punishconstitutes note 167,

1984 press statement, the Commission called upon American states that death penalty to do so accordance with the the “right American Convention on Human Rights and with “the universal trend favourable to death penalty.” note 167, note 167,

V, general

that death penalty

166, n.9. eliminated

abolition

the the the

334

M. GREGG BLOCHE

In addition, nearly two dozen nations have committed themselves to treaty language that expressly prohibits capital punishment. Almost every member state of the Council of Europe has ratified or signed Protocol No. 6 to the European Convention on Human Rights, which declares: “The death penalty shall be abolished. No one shall be condemned to such penalty or executed.“175 Moreover, in 1989 the U.N. General Assembly adopted an abolitionist optional protocol to the International Covenant on Civil and Political Rights.‘76 Within little more than a year, six nations had ratified or acceded to this agreement and 14 more had signed it.“’ A similar optional protocol to the American Convention on Human Rights was adopted in June 1990 by the General Assembly of the Organization of American States.l” As of November 1990, five nations had signed it but none had yet ratified it.‘79 The abolition of capital punishment by law or de facto in at least 79 countries,“’ including every western industrialized nation except the United States,18’ casts a further cloud over the death penalty’s international legal standing. A comprehensive evaluation of the international human rights law case against the death penalty is beyond my scope here. But plainly, there is much to be said on the other side. The fact that approximately 100 nations retain the penalty in their laws and continue to apply it”’ weighs heavily against the claim “‘Protocol No. 6 to the European Convention on Human Rights Concerning the Abolition of the Death Penalty, Apr. 28, 1983, E.T.S. 114. Art 2 of the Protocol permits exceptions to be made only for crimes “committed in time of war or of imminent threat of war.” For state parties, this Protocol supersedes language in Art. 2 of the Convention making capital punishment a permissible exception to the right to life. ‘?Second Optional Protocol to the Int’l Covenant on Civil and Political Rights, Aiming at the Abolition of the Death Penalty, G.A. Res. 128, U.N. GAOR, 44th Sess., Supp. No. 49, U.N. Dot. A/44/49 (1989). Article 1 of this Protocol declares: 1. No one within the jurisdiction of a State Party to the present Protocol shall be executed. 2. Each State Party shall take all necessary measures to abolish the death penalty within its jurisdiction. Article 2 of the Protocol permits exceptions to be made only “in time of war pursuant a most serious crime of a military nature committed during wartime.”

to a conviction

for

“‘STATUS, supra note 166, at 2-l 1.

“‘Organization of American States: Protocol to the American Convention on Human Rights to Abolish the Death Penalty, June 8, 1990, 29 I.L.M. 1447. The Protocol holds that state parties “shall not apply the Art. 1. It allows exceptions only death penalty in their territory to any person subject to their jurisdiction.” “in wartime in accordance with international law, for extremely serious crimes of a military nature.” Art. 2. ‘79Id. lEoAt the end of 1988, according to Amnesty Int’l, 35 nations were abolitionist by law for all crimes, 18 were abolitionist by law only for “ordinary crimes” (crimes committed by civilians in peacetime), and 26 more were abolitionist defncto-i.e. they retained the death penalty in their laws for “ordinary crimes” but had not executed anyone for ten or more years. ROGER HOOD, THE DEATH PENALTY: A WORLD-WIDE PERSPECTIVE 8, 169-70 (1990).

‘*‘Id. at 169-70. Among the industrialized democracies as of the end of 1988, only the U.S. and Japan retained the death penalty in law and in practice for crimes committed by civilians during peacetime. Id. at 170-71. The intensity of abolitionist commitment within the legal systems of many nations may be illappreciated in the U.S., where popular sentiment strongly favors capital punishment. A dramatic test of abolitionist commitment occurred last year in Peru, when the government of President Albert0 Fujimori (who had assumed plenary powers by coup d’efar) refrained from executing the captured leader of the terrorist group “Shining Path,” out of deference to Peruvian law. Philip Bennet, A Blow to Shining Path, BOSTON GLOBE, Sept. 20, 1992, at 73. ‘“‘As of the end of 1988, 101 nations retained the death penalty in their laws for crimes committed in peacetime by civilians and had applied it during the previous ten years. HOOD, supru note 180, at 8, 170-71.

PSYCHIATRY,

CAPITAL

PUNISHMENT,

AND THE PURPOSES

OF MEDICINE

335

that it violates contemporary international norms. Moreover, the negotiating history behind the Universal Declaration of Human Rightsla3 and the plain language of the International Covenant on Civil and Political RightsIs argue powerfully against the conclusion that the drafters of these instruments intended them to proscribe capital punishment. Except with respect to those states that have bound themselves to abolitionist treaty terms, it is premature to conclude, as do Amnesty International and some other human rights organizations,“’ that the death penalty currently violates the “right to life” or constitutes “cruel, inhuman, or degrading” punishment. Nevertheless, the status of capital punishment under international law is, to say the least, problematic by comparison with imprisonment’s6 and other sanctions. Although state executions cannot now be characterized as contrary to universally binding international law,ls7 there is considerable authority for the conclusion that abolition has emerged, since the 197Os, as a goal of international law. “’ This development has received little notice in the U.S., where capital punishment came into increasing use during the same period. But for American physicians who do clinical work that can result in execution, this development has ethical significance, since the ethical standing of medical work that serves social purposes is linked to the legitimacy of these purposes.“’ When such purposes implicate an internationally prescribed right, their legitimacy is not a purely domestic question: it must be judged with regard for the weight of transnational legal authority.“’ On a worldwide basis, the medical profession has acceded to the ethical relevance of such authority in human rights matters. International legal pro‘*jSee Landerer, supru note 169, at 513-18 (reporting that absence of qualifications to “right to life” in the final draft derived from failure to resolve disagreement over whether the Declaration should explicitly countenance or reject capital punishment as an exception). ls4See supru note 168.

‘8SSeesupra notes 167 and 174. ‘%rternational

legal acceptance

of imprisonment

UNITED NATIONS, STANDARD MINIMUM

as a sanction

is subject

to humane

limits.

RULES FOR THE TREATMENT OF PRISONERS, U.N.

See, e.g., Dot.

[ST]/

DPI/832 (1984) (setting

based on “the general systems of today”).

forth rules for “the treatment of prisoners and the management of institutions” consensus of contemporary thought and the essential elements of the most adequate

‘*‘By contrast, the almost universal accedence of members of the Council of Europe to Protocol No. 6 to the European Convention on Human Rights, see text accompanying notes 175, lends strong support to the proposition that capital punishment violates customary as well as treaty-based human rights law within the European system. “‘See notes 170-74 and accompanying text (assertions by the U.N. Human Rights Committee, the U.N. General Assembly, the European Parliament, the Inter-American Commission on Human Rights, and non-governmental human rights organizations that abolition of the death penalty would represent progress toward realization of the right to life). ‘*This linkage is recognized even by Appelbaum and like-minded forensic psychiatrists, who tie the validity of their proposed ethic of “truth” to the legitimacy of the quest for “justice.” See supra text accompanying notes 94-103. See also J. L. Thomsen et al., Amnesty International and the Forensic Sciences, 5 AM. J. FORENSIC MED. PATHOLOGY 4, 5 (1984) (arguing that “[tlhe concept of legitimate authority is central to the practice . . of forensic medicine,” and that “[wlithout legitimate authority applying the law in accordance with international norms, the very concept of forensic medicine is undermined”). ‘?See LOUIS HENKIN, THE AGE OF RIGHTS 11-29 (1990) (discussing post-World War II emergence of idea that respect for human rights should be judged by international standards and persistence of contrary “myth” that regard for such rights “in any country is its own affair”).

336

M. GREGG BLOCHE

scriptions against torture and “cruel, inhuman, or degrading treatment or punishment” are perhaps the most prominent examples of this authority’s growing influence upon medical ethics. The World Medical Association’s Declaration of Tokyo”’ and the United Nations’ Principles of Medical Ethics19’ each incorporate these proscriptions. Both documents condemn medical participation in such abuses,‘93 and both have won broad approval from national medical associations.‘94 Moreover, medical ethics commentators have increasingly invoked international human rights instruments and ideals in their advocacy against physician complicity in the ill-treatment of detainees.19’ The problematic international human rights status of capital punishment therefore translates into questionable ethical standing for medical conduct that facilitates it. Because the death penalty is not at present a clear violation of international law (at least outside of Europe),196 the human rights law argument “‘See sup-a note 49. “‘Id. Declaration of supra note instructs physicians to “countenance, in” such and the Principles, supra 49, inveigh “participation” ity.” Both have been for their indeed vacuousness, participation. E.g. supra note at 293-97; Gregg Bloche, Cogs a System State Terror, J.A.M.A. 2788, (1986). ‘94The of Tokyo adopted in by the associations. The Principles were in 1982 note 167, 292, but drafted by Council for (another of national societies), with World Health Zbigniew Bankowski, Jan. 23, at 229.

or particiand the meaning Physicians:

itself an of national the U.N. Assembly, RODLEY, Organizations of Sciences from national societies and Torture, and United Nations,

advocacy against involvement in and other made little to internahuman rights as a for ethical See, e.g., A. Sagan Albert Jonsen, Ethics and 294 NEW J. MED. (1976) (resting against medical in torture on professional of commitment “humane healing,” mention of human rights). in the commentators on subject increasingly note of legal instruments cast their arguments in rights terms. e.g., J.R.I. Torture in 143 MED. AUSTRALIA 131 (citing proscription torture and inhuman, or treatment in Covenant on and Political ratified by as authority wrongfulness of physicians’ conduct); Cook-Deegan, The Profession and Prevention of 314 NEW ENC. J. MED. 587 (1986) (urging health professionals to oppose medical complicity in torture by participating in human rights activities within their professional organizations); Anne Gilmore, Doctors and Torture: A Tortuous Issue, 135 CANADIAN MED. ASS’N J. 1305, 1306, 1308 (1986) (encouraging Canadian physicians to view professional complicity in human rights violations as an ethical problem); Raj Jandoo, Human Rights Abuses and the Medical Profession, 35 FORENSIC SCI. INT’L 237 (1987) (noting increasing professional interest in human rights abuse as a medical ethics problem and basing ethical arguments on the U.N. Declaration against Torture and other international legal sources); Ole Vedel Rasmussen et al., Doctors Involved with Torture, LANCET, May 14, 1988, at 1112 (advocating the development, teaching, and enforcement of medical ethics principles that incorporate international human rights concerns); Marie B. Tobin, Docrors and Torture, LANCET, June 1 I, 1988, at 1340 (urging the teaching of medical ethics “in relation to” human rights); Donald Payne, The Medical Network: Saying “No” to Human Rights Abuses, 141 CANADIAN MED. ASS’N J. 234, 238 (1989) (advocating professional discipline for physicians who participate in human rights abuse); John D.J. Havard, The Responsibility of the Doctor, 299 BRIT. MED. J. 503, 505 (1989) (invoking U.N. Declaration against Torture as basis for analysis of ethics of physician involvement in the administration of corporal punishment under Islamic law). ‘%See supra text accompanying

notes 182-85.

PSYCHIATRY,

CAPITAL PUNISHMENT,

AND THE PURPOSES

OF MEDICINE

337

against it is not by itself determinative with respect to the ethics of such conduct. But the emerging non-neutrality of international law toward the death penalty-the developing view that its elimination is a long-term human rights aim19’-puts such medical conduct into a suspect ethical category by comparison with clinical work that facilitates the imposition of lesser sanctions. For physicians, in short, the international human rights law argument against capital punishment is not ethically decisive, but it is ethically relevant, since it casts doubt on the death penalty’s legitimacy from the perspective of transnational legal authority. Despite widespread popular support for capital punishment in the United States, this doubt is ethically germane in the American context by virtue of the moral authority of international law. This authority commands a measure of ethical attention from physicians quite apart from the substantive persuasiveness of international law-based conclusions within American society. B. Psychiatric Responsibility and the Difference between Death and other Sanctions: Connotative Meaning as an Ethical Guide To what extent do the above-discussed ethical differences between death and other sanctions bear on the question of when, if at all, psychiatrists ought to abstain from involvement in capital cases? The uniqueness of the death penalty from a medical ethics perspective has engendered a near-universal consensus that hands-on physician involvement in its execution is ethically beyond the pale.19’ But psychiatric involvement is not literally hands-on with respect to killing, and it can be argued that the distance between such involvement and the physical termination of life attenuates the ethical import, for psychiatrists, of death as a punishment. Richard Bonnie suggests an argument along these lines. In discussing execution competency evaluations, Bonnie asserts that the psychiatrist’s role “does not implicate the clinician directly in the infliction of suffering.“‘99 The same could be said of psychiatric involvement at earlier legal stages -e.g. capital sentencing proceedings-and even of treatment that restores or maintains competency for execution. In all of these contexts, the actions of the judge and the hangman stand between the doctor and the death of the condemned. ‘9’Seesupra text accompanying

notes 166-81, 186-88.

‘98Seesupra text accompanying notes 48-50. One might interpret this consensus as merely one expression of the general proposition that physicians should not inflict punishment. But this ignores the pervasiveness of references to the wrongfulness of medical killing in professional denunciations of such hands-on physician involvement as the administration of lethal injections. It also disregards the uncommon intensity of these denunciations-an intensity tied, I suspect, to singular professional feelings about death as a punishment. ‘99Bonnie, Dilemmas >supru note 146, at 79. The function of this assertion within Bonnie’s broader analytic framework is less than clear. Since he (1) accepts the ethical legitimacy of post-sentencing forensic evaluation in general and (2) denies the medical ethics significance of differences between death and other punishments, he has no need to argue that execution competency evaluations, in particular, are too far removed from the act of killing to be ethically objectionable. His assertion that these evaluations do not “implicate the clinician directly” in the infliction of harm makes greater sense, within his analytic scheme, as a particular expression of the general proposition that forensic evaluation per se is too remote from punishment to raise ethical objections. Alternatively, however, this assertion could reflect a measure of discomfort on Bonnie’s part with the proposition that, from the perspective of medical ethics, death does not differ categorically from other sanctions.

338

M. GREGG BLOCHE

Two distinct propositions can be discerned in this line of argument. One, akin to the legal argument that causation-in-fact is unproven, disputes the validity of the oft-presumed causal relation between psychiatric involvement and the state’s decision to execute.200 The other, a proximate cause argument, holds that forensic and prison psychiatrists should not be cast as ethically responsible even if their work is causally connected to the execution of the condemned. This latter proposition underlies Bonnie’s contention that forensic practice “does not implicate the clinician directly” in the prisoner’s fate. The first proposition can be readily dismissed. As Bonnie suggests”’ and as others have noted, psychiatric testimony has a strong influence on adjudicative decisions in capital cases.‘02 The causal link between successful treatment to restore competency and subsequent execution of the “patient” is even more apparent. The second proposition poses a greater challenge for advocates of an ethical duty to abstain. A causal connection between an action and a consequence cannot by itself suffice to establish the actor’s ethical responsibility for the consequence. Something additional is needed to ascribe ethical responsibility to one or more of the participants in the causal sequence ending in the death of the condemned. As between judges, jurors, executioners, and others, why should doctors be singled out, even from a medical ethics perspective? Having posed this question by distinguishing the ethics of psychiatric involvement from its effect on adjudicative outcomes,203 Bonnie proceeds to beg it. With regard to competency for execution, he writes that “the ultimate decision maker in any contested case will be a judge, not a doctor.” “[Tlhe doctor’s role,” he concludes, “is not to give medical permission for the execution but rather to contribute to a judicial determination regarding the prisoner’s competence to be executed.“204 The problem with this narrative is that it can be placed side-by-side with alternative versions - e.g. an account of judicial determinations as so influenced by expert opinion that psychiatrists in practice often render “the ultimate decision.” The choice between these accounts is not a morally neutral, strictly empirical matter, no more than proximate cause is, as was once infamously claimed, “a rule of physics.“205 The identity of “the ZWBonnie does not make this argument; on the contrary, he seems willing to presume that psychiatric opinion is likely to be “outcome-determinative,” at least with regard to competency. Id. at 8 1. *“‘In discussing execution competency, Bonnie concedes that “the examining expert can have a powerful and immediate impact on the prisoner’s fate by saying ‘no, he is not competent”’ and that “a judicial practice of deferring to clinical opinion would give the experts unconstrained power” to “countermand” or “delay” death sentences. Id. (emphasis in original). However, he stops short of the outright conclusion that judicial deference to psychiatric opinion prevails in practice. “‘See, e.g., Michael L. Radelet and George W. Barnard, Ethics and the Psychiatric Determination of Competency to be Executed, 14 BULL. AM. ACAD. PSYCH & L. 37, 48 (1986) (contending that psychiatric recommendations regarding competency to be executed “will be followed routinely”); Barefoot v. Estelle, 463 U.S. 880, 916 (1983) (Blackmun, J., dissenting) (arguing that psychiatric testimony at the sentencing stage has a powerful impact on jurors). Warns Blackmun: “In a capita1 case, the specious testimony of a psychiatrist, colored in the eyes of an impressionable jury by the inevitable untouchability of a medical specialist’s words, equates with death itself.” Id. *O’Bonnie, Dilemmas, supra note 146, at 81. ‘04Richard Bonnie, (emphasis added).

The Death Penalty: When Doctors Must Say No, 305 BRIT. MED. J. 381, 382 (1992)

205Collier v. Citizens Coach

Co., 231 Ark. 489, 330 S.W. 2d 74, 76 (1959).

PSYCHIATRY,

CAPITAL

PUNISHMENT,

AND THE PURPOSES

OF MEDICINE

339

ultimate decision maker” is a normative question, depending for an answer on when more than one human agent participates in a causal chain. Bonnie fails to state a rationale for his prior conclusion that forensic psychiatrists are not ethically implicated in “the infliction of suffering.” His abovenoted formulation-that forensic work “does not implicate the clinician directly” (emphasis added) -does no further analytic work. Like the designation of an “ultimate decision maker” when human agents constitute multiple links in a causal chain, the distinction between direct and indirect involvement is a matter of prior normative choice. Intervening causal factors can almost always be discerned between a human action and the particular consequence at issue.*06The drawing of lines between direct and indirect involvement requires the making of moral, ethical, or policy judgments as to which intervening circumstances can be disregarded as irrelevant .*07 To again take competency to be executed as an example, Bonnie’s conclusion that forensic evaluation does not involve psychiatrists “directly” in executions presumes that the intervening role of judges is decisive from a medical ethics perspective. The alternative presumption-that the judicial role can be disregarded as an intervening circumstance for the purpose of figuring the ethical duties of physicians-would yield the conclusion that forensic examiners are “directly” implicated.*‘* Bonnie articulates no independent normative basis for choosing between the two. Bonnie nevertheless deserves credit for drawing attention to the task of ethical line-drawing as a project apart from the identification of causal links between psychiatric involvement and the fate of the condemned. How, then, might this project be pursued without issuing conclusions that beg the question? An answer is suggested by the symbolic nature of the ethical hazard that physician involvement poses. As I argued earlier, the medical profession is beset by tension between private expectations that it keep faith with individuals in need and public expectations that it assist in ascribing rights, duties, and opportunities.2W Public reliance on the profession to perform this latter function belies the Hippocratic ethic of undivided loyalty to patients. Indeed the pervasiveness of such reliance suggests that Hippocratic individualism is in-

prior conclusions about the ascription of ethical and moral responsibility

206A famous example, drawn from the debate over the virtues of “direct causation” as a measure of proximate cause, involves the belief that physiological disturbances resulting from a wound were directly caused by the defendant’s force. This belief rests on the unstated premise that the biological events resulting in these disturbances can be neglected for the purpose of determining liability. W. PAGE KEETON, DAN B. DOBBS, ROBERT E. KEETON, & DAVID G. OWEN, PROSSERAND KEETON ON THE LAW OF TORTS 295, n. 21 (1984) [hereinafter PROSSER AND KEETON], citing McLaughlin, Proximate Cause, 39 Harv. L. Rev. 149, 165 (1925). This unstated premise would seem a matter of common sense in a tort action against the striker of the blow. But in an action against a surgeon for failure to provide adequate treatment, biological events and human action (or inaction) after the blow would become central to the question of liability. The blow itself could thus be plausibly redescribed as an indirect cause of the ensuing physiological disturbances. 207CJ PROSSER AND KEETON, supru note 206, at 295 (observing causation it is necessary to ignore as unimportant a number of external the result”). *‘*This assumes, of course, grant executive clemency-are ?See

supra text accompanying

that “in nearly all cases of ‘direct’ factors which have intervened before

that other intervening actors - e.g. the executioner or officials empowered not deemed to play decisive roles from a medical ethics perspective. notes 115-142.

to

M. GREGG BLOCHE

340

complete as an account of the ethical purposes of medicine.‘*’ On the other hand, visible departures from Hippocratic fidelity put the therapeutic credibility of the medical profession at risk. For the most part, tension between the private and social purposes of medical practice remains within tolerable limits. The harms suffered by individuals as a result of clinical work that serves public ends rarely reach a level of dramatic significance sufficient to tarnish the credibility of medicine as a helping profession.21’ Society thus abides by contradictory ideals about the ends of medicine. Clinicians who work in penal and forensic settings live intimately with this contradiction, though many are reluctant to acknowledge it. This contradictory ethical arrangement is perpetually at risk of coming apart. Physician complicity in the punitive taking of life strains this arrangement to a singular degree. It vividly illuminates a reality that usually goes unacknowledged-that when clinical work pursues public ends, private breaches of faith inevitably result. The punitive taking of life represents the ultimate abandonment of benevolent commitment. The uniqueness of killing as a criminal sanction, from a medical ethics perspective, reflects its singular potency as an expression of abandonment -of final, awesome interpersonal disconnection.212 The image of the doctor as executioner shocks. Like accounts of Nazi medical killing or the Tuskegee syphilis study,2’3 it is too powerful a representation of clinical breach of faith for society to process without damaging fallout for professional credibility. Organized medicine’s quickness to condemn physician administration of fatal drugs following enactment of the nation’s first lethal injection laws reflected this concern. Today, despite broad popular support for capital punishment in the U.S., the principle that physicians should not deliver such injections stands established beyond serious dispute among medical ethics commentators. The evocative power of the image of the doctor as executioner points the way toward a test of the tolerable limits of psychiatric involvement in capital cases. To what degree, we can ask, does clinical work at a particular stage in capital proceedings evoke the impression that the doctor is working primarily for the executioner?2’4 This question of perception reflects the proposition that what is primarily at risk when psychiatrists participate in capital cases is public confidence in the capacity of the profession to keep faith. This question does not invoke a crystalline principle; rather it calls for the drawing of an ethical line based on what is connoted by a particular form of involvement. The connotative significance of the various forms of involvement has special relevance for the derivation of ethical limits from the ideal of public trust in professional fidelity. Connotative meaning is “diffuse”2’5 and affectively “‘See supra text accompanying

note 134.

*“Seesupra

note 139.

text accompanying

*12Seesupra text accompanying notes 149-165 (linking capital punishment’s ethical significance cians to the importance of fidelity and empathic engagement in clinical ethics).

for physi-

*“See supra notes 118 and 119. ‘14This inquiry is akin to the British Medical Association’s ethical approach to psychiatric evaluation of the condemned’s competency to be executed: does the doctor’s testimony in this context “metaphorically . provide the state with the syringe filled with lethal chemicals”? MEDICINE BETRAYED, supa note 20, at 109. 2’5R~~~~~ BARTHES, ELEMENTS OF SEMIOLOGY 91 (1968) [hereinafter BARTHES].

PSYCHIATRY,

CAPITAL PUNISHMENT,

AND THE PURPOSES

OF MEDICINE

341

charged. It connects to the hopes and fears of members of a community in a general and evocative way. It is lacking in detached, analytic precision but rich as a source of passionate knowledge.216 As such, it ought to play a central role in ethical judgment regarding matters of passionate concern.2’7 And surely it is hard to imagine a more affectively-laden ethical concern than the fidelity of physicians to their patients. The image of the doctor as hangman’s assistant shocks by assaulting public expectations that physicians can be relied upon to keep faith, particularly at moments of great vulnerability and need. Efforts to draw more detached and precise ethical distinctions between the forms of psychiatric involvement in capital punishment are unlikely to succeed. To the extent that such efforts neglect affective experience, they lack analytic rigor in the sense invoked by Martha Nussbaum- that is, they forgo “the discriminating power of passion” and thereby fall short of “full rational judgment.“218 In particular, once we postulate that fidelity, in reality and appearance, is an ethical virtue, inattention to the emotional determinants of trust constitutes ethical blindness. Rules of conduct derived without regard for these determinants are not likely to do adequate work on behalf of this virtue. Inquiry into the connotative significance of particular forms of psychiatric involvement poses its own difficulties. Connotative meaning is open to contention among persons with different perspectives and sensitivities. Among clinicians, commentators, and the general public, attitudes about the importance of medical fidelity and the dangers posed by professional activities that appear to violate it vary considerably.2’9 Moreover, the symbolic meaning of clinical work that facilitates executions probably varies with social and institutional perspective. For example, persons in need of mental health care but worried about whether psychiatrists can be trusted would seem likely to attach more ominous import to such work than would forensic practitioners or prison authorities. In keeping with the notion that ethical lines should be derived from the precept that people should be able to trust their doctors to keep faith, such variation can be handled by privileging the perspectives of actual and potential patients, especially those in prison and other institutional settings. Even so, there remains ample room for argument over the connotative meaning of the various forms of psychiatric involvement in capital cases. On the other hand, such debate has the virtue of coming closer to the truth of our experience- our affective prerequisites for trust-than can competing assertions of dispassionate principle. To a limited degree, empirical methods may shed light on these prerequisites and their connections to the connotative significance of psychiatric involvement for actual and potential patients. In-depth study techniques - e.g. focus group discussions and loosely-structured, one-on*16By contrast with denotative significance, which is precise and dispassionate, connotative meaning is “global, ” “general,” and closely connected to “culture, knowledge, history.” Id. In semiotic theory, a word or other sign signifies one or more meanings on the plane of denotation. Use of a sign to denote a meaning signifies additional, more diffuse content on the separate plane of connotation. Id. at 89-94. Z1’Seesupru

text accompanying

notes 155-165

‘i8.See supra text accompanying

notes 159-161.

(discussing

ethical relevance

of affective

experience).

‘19This variation underlies a variety of ethical controversies that involve the problem of conflicting loyalties-e.g. the debates over physician ownership of clinical laboratories and managed care organizations’ use of financial incentives to discourage doctors from ordering costly tests and treatments.

342

M. GREGG EILOCHE

one interviews-are likely to be more informative than mass survey instruments in this regard. In Section V, I offer some suggestions as to which psychiatric roles in capital cases convey the strong impression that the doctor is acting primarily as the executioner’s aide. These roles, I recommend, should be placed ethically off limits by professional authorities; moreover courts, legislators, and penal officials should respect these limits. On the other hand, medical ethics authorities should remain open to the reality that connotations and perceptions evolve. Ethical boundaries tied to the goal of preserving trust -and the need to mediate between the private and public purposes of medicine**‘-may need to change accordingly. C. Ethics and Abandonment Before making my own recommendations as to which forms of psychiatric involvement should be deemed ethically inappropriate, I pause to consider an objection that strikes to the core of the case for a duty to abstain. The argument for abstention rests heavily on the premise that involvement in the punitive taking of life represents a singular, shocking abandonment of benevolent commitment.**’ But some critics of abstention point to another kind of abandonment - the neglect of the mentally ill in America’s growing prison population. These critics argue that ethical proscriptions against clinical work when capital punishment looms will diminish access to psychiatric care on death row222and encourage psychiatrists to abandon prison work more generally. In support of the first argument, the critics can point to published evidence that neuropsychiatric pathology is severe and widespread among death row inmates223 and that prolonged anticipation of execution is a harsh and damagParticularly where therapeutic and forensic evaluations are pering stressor. formed by the same psychiatrists, ethical proscription of the latter could discourage the commitment of resources to the diagnosis of mental illness on death row. More clearly, proscription of treatment that overcomes legal barriers to execution will mean the withholding of clinically effective intervention in some instances. The latter effect is unavoidable-a cost that must be incurred if treating doctors on death row are to keep faith with their patients as whole persons instead of limiting their focus to the technical task of relieving symptoms. To represent acceptance of this cost as an act of abandonment is to portray pa‘?Seesupra text accompanying 221Seesupratext accompanying

notes 133-135. note 212.

222National Medical Ass’n, Position Statement on the Role of the Psychiatrist in Evaluation and Treating “Death Row” Inmates (unpublished and undated), cited in Bonnie, Dilemmas, supra note 146, at 84, n. 49.

223E.g. Dorothy 0. Lewis et. al., Psychiatric, Neurological, and Psychoeducational Characteristics of 15 Death Row Inmates in the United States, 143 AM. J. PSYCH. 838 (1986); Dorothy 0. Lewis et. al., Neuropsychiatric, Psychoeducational and Family Characteristics of 14 Juveniles Condemned to Death in the United States, 145 AM. J. PSYCH. 584 (1988). 224E.g.Johnson, Under Sentence of Death: The Psychology of Death Row Confinement, 5 L. & PSYCH. REV. 141 (1979); Gallemore and Panton, Inmate Responses to Lengthy Death Row Confinement, 129 A~vI. J. PSYCH. 167 (1972).

PSYCHIATRY,

CAPITAL PUNISHMENT,

AND THE PURPOSES

OF MEDICINE

343

tients as disembodied constellations of symptoms, unconnected to their human fates in society.225 This technocratic vision of clinical obligation fits poorly with the widespread feeling that contemporary medicine has abandoned the patient as person out of preoccupation with the biology of disease. The former effect-diminished commitment of resources to the evaluation of psychiatric illness for therapeutic purposes on death row- would seem unlikely in penal systems that separate forensic and therapeutic medical functions.226 In facilities that expect psychiatrists to perform forensic functions with respect to those whom they treat, it is more likely that an ethical ban on one or more of these functions could prompt penal administrators to reduce their support for mental health services on death row. On the other hand, the connection between such reductions and these services’ non-therapeutic purposes227 would be plain, making it implausible to characterize such cutbacks as abandonment of patients. The other, related concern raised by critics of psychiatric abstention is that the rendering of clinical work in penal settings as ethically problematic may encourage psychiatrists to abandon prison inmates more generally. This argument draws strength from disheartening evidence that the severely mentally ill are today being shunted into the criminal justice system in unprecedented numbers.228 Particularly for mentally disabled members of minority groups,22g the prison seems to be replacing the asylum as the institution of last resort. Meanwhile, the quality of psychiatric services in America’s prisons has remained very poor.23o It is thus difficult to escape the conclusion that society is abandoning the mentally ill by incarcerating them without adequate access to even basic mental health care. Seen in this context, the tendency of human rights-oriented health profes“‘See infra text accompanying executed).

notes 240-244 (discussing

relief of symptoms

that impair competency

to be

226Where such a separation is in place, it is difficult to imagine how an ethical ban on forensic assessment of competency to be executed, for example, could reduce allocations of prison resources toward therapeutic purposes. On the contrary, diminished spending on forensic clinical services might free up additional resources for treatment. 12’This reference to non-therapeutic purposes assumes the perspective of the penal authorities (or legislators) who might impose such cutbacks. It is quite possible that prison clinicians working in such ethically conflicted circumstances could have different understandings of their purposes. For example, some might see themselves as doing their therapeutic best for patients within the constraints imposed by their dual roles. 22*A recent nationwide study by the National Alliance for the Mentally Ill (NAMI) found that seven percent of U.S. prison inmates suffer from serious psychiatric illness and that more than 20 percent of American prisons provide no access to mental health services. The study, which surveyed prisons holding 61 percent of all American inmates, also found that 29 percent of the facilities it covered detain seriously mentally ill persons with no criminal charges against them and that many psychiatrically disturbed individuals are imprisoned for offenses that represented manifestations of mental illness. Penal Institutions Said to Be This Country’s Newest Asylums, PSYCHIATRIC NEWS, July 2, 1993, at 10 [hereinafter Newest Asylums]. See also Richard Lamb, Keeping theMentally IN Out of Jail, 35 HOSP. & COMM. PSYCH. 529 (1984). lz9Robert T. Phillips, chair of the American Psychiatric Ass’n’s Committee of Black Psychiatrists, observes that the shunting of the severely mentally ill into America’s prisons has had a grossly disproportionate impact on African Americans, who comprise 12 percent of the U.S. population but make up 46 percent of the nation’s inmates. Newest Asylums, supra note 228, at 22. %dwin Kaufman,

V. Valdiserri, Psychiatry Behind Bars, 12 BULL. AM. ACAD. PSYCH. & L. 93 (1984); Edward The Violation of Psychiatric Standards of Care in Prisons, 137 AM. J. PSYCH. 566 (1980).

M. GREGG BLOCHE

344

sionals to decry the ethical climate of clinical work on death row and in prisons generally can itself be criticized as a veiled form of indifference. Indeed, Robert Burt chides American psychiatrists for eschewing prison work, and the opportunity to ameliorate cruelty, and he links this avoidance to the “antagonistic distance” that he discerns between criminal offenders and their communities - and between social groups more generally - in contemporary American life.23’ On the other hand, it is less than clear that the disinclination of many mental health professionals to do prison work can (or should) be blamed on critics of its ethical awkwardness. As an APA task force recently observed, low pay and prestige, conflict with penal authorities, and the decreasing weight accorded to rehabilitation in contemporary penology contribute greatly to the tendency of psychiatrists to spurn prison settings.232 Indeed, it is at least arguable that a ban on psychiatric involvement at the last legal stages before execution will make prisons into more appealing places for clinicians. The impression that prison psychiatrists’ duties include the preparation of inmates to pass as fit for execution is hardly likely to attract dedicated young physicians to prison work.2”3 Insistence that doctors on death row remain at an ethical distance from such preparations would enable young psychiatrists to imagine prison mental health careers unstained by a palpablyclose link to the killing itself. It would also encourage troubled inmates, even on death row, to look to psychiatry as a source of comfort and relief, with less fear of being someday stung by a doctor’s double agenda.234 It thus requires a long imaginative leap to interpret expressions of concern about clinical double agency on death row as professional abandonment. The clarification of ethical obligations toward the condemned in a manner that affirms professional fidelity will not by itself overcome the obstacles to improved psychiatric care in America’s prisons. The tendency of upper-middle class professionals toward indifference to the suffering that prisoners experience is one such obstacle. But criticism of psychiatric involvement in capital cases is probably not a substantial cause of this indifference.235 To the contrary, ethical limits on such involvement could make prison psychiatry more attractive to clinicians who are not indifferent, while making it harder for others to rationalize their unconcern as ethical discomfort. V. Recommendations:

Some Tentative Ethical Lines

How should ethical limits on clinical involvement in capital cases be drawn to reflect the precept that the psychiatrist should not appear to act primarily on the executioner’s behalf? The proposed ethical lines that follow represent a 23’Burt, supra note 92, at 368-69.

232A~~~~~~~PSYCHIATRICASS'N,TASK FORCE REPORT 29: PSYCHIATRICSERVICESIN JAILS AND PRISONS 2 (1989). ““Cf. APA/AMA Amici Brief, supra note 11, at 18, 19 (arguing that the practice of treating condemned inmates to restore their competence for execution will encourage psychiatrists to eschew clinical work on death row and in prisons more generally). ‘j4See id. at 18 (asserting that evaluative “suspicious” of psychiatrists). 235More likely explanations

roles of psychiatrists

for it involve insensitivity

in criminal

and empathic

cases encourage

disconnection

prisoners

to be

that arise from racial

PSYCHIATRY,

CAPITAL PUNISHMENT,

AND THE PURPOSES

OF MEDICINE

345

preliminary effort to answer this question. For the reasons discussed earlier, this question is one of evocative symbolism rather than dispassionate princip1e236:it looks to the connotative meaning of each form of psychiatric involvement as its index of ethical legitimacy. As such, this question cannot be answered with mathematical precision. Rather, it calls for a qualitative inquiryinto the power of a metaphor, the doctor as executioner’s aide, to characterize the kinds of involvement at issue. The answers I propose below are intended as starting points for further discussion. Refinements (or even wholesale changes) could result from use of the empirical methods mentioned above or from further scholarly and public discussion of the symbolic meaning of psychiatric involvement at different stages. Moreover, the connotative significance of types of involvement is likely to evo1ve,237raising the possibility that ethical lines linked to connotative meaning could shift over time. A. Treatment that Restores or Maintains Competency to Be Executed 1. Involuntary Treatment: In their joint amici brief in Perry v. Louisiana, the APA and the AMA characterized involuntary treatment to restore competency for execution as “only a small step away from participating in the execution itself .“238Along similar lines, Bonnie concludes that such treatment is “ethically indistinguishable” from the administration of a lethal injection since it has no “link to the prisoner’s own interests.“23g The psychiatrist who involuntarily medicates an inmate for the stated purpose of enabling an execution to proceed plainly pursues penological ends. This is equally the case whether treatment is administered to restore or to maintain the competence of the condemned. In both contexts, the psychiatrist’s actions are avowedly driven by the state’s punitive purposes. The metaphor of the doctor as executioner’s aide thus seems compelling as a characterization of involuntary treatment in these contexts. Such treatment should therefore be ethically proscribed. The conclusion that involuntary treatment for the avowed purpose of enabling an execution to go forward is unethical comports with prevailing opinion among commentators and penal practitioners.240 This relative harmony of views breaks down, however, where the treating psychiatrist asserts that he or she is acting not for the purpose of clearing the path for execution but rather for the clinical benefit of the condemned. This is the argument that prison and other social differences 68.

between

236See supru text accompanying

inmates

and their clinical

caretakers.

See Burt, supru note 92, at 366-

notes 212-219.

237See BARTHES, supa note 215, at 90-92 (arguing that connotative significance evolving, in “very close communication with culture, knowledge, history”). 238APA/AMA

Amici Brief, supra

of signs is continually

note 11, at 17.

239Bonnie, Dilemmas, supra note 146, at 85.

*40B~tsee D. Mossman, Assessing and Restoring Competency to be Executed: Should Psychiatrists Participate, 5 BEHAVIORAL SCI. & L. 397 (1987) (arguing that treatment for the purpose of restoring competency to be executed is ethical because it benefits the condemned which they are entitled as responsible persons).

by enabling

them to receive the punishment

to

346

M. GREGG BLOCHE

practitioners characteristically offer, sometimes with passion and eloquence, on behalf of the position that involuntary treatment can be ethical even when it results in the death of the condemned. The starkest form of this argument rests on the premise that a prison psychiatrist’s ethical commitment to patient well-being is limited to the treatment of disabling and distressing mental illness. To proponents of this view, the legal consequences of treatment success are ethically irrelevant. Accordingly, they hold, treatment is beneficial-and ethical- if it ameliorates symptoms and their accompanying psychological distress or restores (or maintains) a patient’s ability to act freely and rationally.24’ If, as a result, a condemned inmate is put to death, the treating psychiatrist bears no professional responsibility.242 The conviction that this approach keeps faith with the condemned, in consonance with the Hippocratic tradition, is deeply felt by some prison psychiatrists.243 It fits comfortably with a reality of clinical practice in prison-that unless doctors take the state’s punitive activities as givens - that is, as beyond the boundaries of professional responsibility-they are at risk of coming into conflict with penal authorities. Yet to observers who do not personally endure the paradoxes inherent in ministering to the mental health of the condemned, this ethic is deeply unsatisfying. In its focus on symptoms and its disregard for the fate of prisoners as persons, it caricatures one of contemporary medicine’s least trust-inspiring aspects-a preoccupation with biology and symptoms apart from their human impact. This caricature is singularly dramatic because death lies in the offing, but it has the potential to resonate with the experience of anyone who has ever felt disregarded as a person by a clinical provider with a technocratic focus. As such, this ethic conveys, at a connotative level, a message of professional indifference to patients as persons. This message is compounded by the obviousness of the penal function that involuntary treatment serves - avoidance of the final legal obstacle to execution. However the treating psychiatrist understands his or her purpose, the ultimate, public end furthered by clinical success is the lawful execution of the condemned.244 The obviousness of this 24’In Bonnie’s words, this position holds that “the permissibility of treatment turns on whether its immediate effects can be seen as beneficial to the patient.” From this standpoint, Bonnie writes, it is ethical to treat an incompetent inmate either to alleviate illness-related emotional distress or to restore his or her “capacity to function as a rational, autonomous person.” Bonnie, Di/emmus, supra note 146, at 83. Bonnie asserts that this view is “the most widely accepted” position on the ethics of treating incompetent prisoners. Id. I agree that this position enjoys broad support among American forensic and penal practitioners, but I have my doubts about its standing among medical ethics scholars or psychiatrists in general. *‘?n Perry v. Louisiana, the state took this position, arguing that antipsychotic medication was in Michael Perry’s “best medical interest” and that Louisiana’s parenspatrie power therefore permitted it to treat Perry against his will. Brief for Respondent at 26-32, Perry v. Louisiana, 498 U.S. 38 (1990). Z4’In conversations with psychiatrists who practice in prison settings, I have been struck by the apparent sincerity with which this belief has been expressed. For many clinicians who do prison work, refusal to treat would represent professional abandonment, in violation of the Hippocratic tradition as they comprehend it. *“Proponents of the position that the prison symptoms and their accompanying distress might bility gives these clinical aims the status of public that the mental health of the condemned is the restore mental health is also a means for achieving

clinician’s ethical obligation is confined to the relief of respond by arguing that the state’s parens patrie responsiends. See, e.g., note 242. But one cannot plausibly claim state’s primary or ultimate end, so long as treatment to the death of the condemned.

PSYCHIATRY,

CAPITAL PUNISHMENT,

AND THE PURPOSES

OF MEDICINE

347

purpose, along with the indifference to persons expressed by the proposition that the legal consequences of treatment success are ethically irrelevant, invite the impression that the treating clinician is acting primarily as an aide to the executioner. Prison psychiatrists thus should not be allowed to circumvent the ethical proscription against involuntary treatment to restore or maintain competency for execution by asserting that their responsibility is confined to the relief of symptoms and accompanying distress. On the other hand, rejection of the claim that the legal consequences of treatment success are ethically irrelevant does not require the conclusion that involuntary treatment is wrong whenever its effect may be to restore or maintain the competence of the condemned. One can imagine circumstances in which clinicians might weigh the consequences of therapeutic success for death row inmates as persons and nonetheless decide to treat. For example, a delusional prisoner’s self-mutilating behavior245 could lead a psychiatrist to conclude that the urgency of relieving his or her patient’s agony outweighs the risk of execution. Along slightly different lines, a severely disorganized psychotic inmate’s inability to eat or drink might prompt a prison clinician to order psychotropic medication to avert a slow and miserable death by starvation. Such decisions are plausible outcomes of a calculus of patient well-being that incorporates both the trauma of mental illness and the legal consequences of its treatment. They are, moreover, consistent with the emerging consensus within society and among medical ethics authorities that the preservation of life should not always take priority over the relief of extreme suffering.*& This consensus is consonant with the proposition that involuntary psychiatric treatment to relieve extreme suffering keeps faith with the condemned even though it may restore competence for execution. The metaphor of the physician as executioner’s aide seems less apt when the doctor acts to ameliorate an inmate’s agony. An exception to the proscription against involuntary treatment that might restore a condemned prisoner’s competence thus seems justified in cases of extreme suffering. However, a caveat is in order: the pressure on prison practitioners to conform to penal objectives invites expansion of this exception to cover milder distress, or even symptoms that do not so clearly inflict suffering. Psychiatrists anxious to escape the cognitive dissonance between their therapeutic mission and the state’s penal purposes could come to view an incompetent inmate’s mild anxiety, or even psychotic symptoms per se, as suffering enough to merit treatment that might result in execution.247 Were this to happen, the exception for “suffering” would function as a subterfuge for service to the executioner. To minimize this risk, medical ethics authorities should take care to limit this exception to cases of extreme suffering and to refine the meaning of this term via examples that sharply restrict its application. 245An example occasionally offered row inmates under some circumstances *?See, e.g., Am Med. Ass’n Council

by Appelbaum and others who favor treatment of incompetent is the psychotic prisoner who attempts to enucleate his eyes.

and Judicial Affairs, Withholding or Withdrawing Life470 (1986) (acknowledging that duties to sustain life and that the latter should prevail when it is in accord with a patient’s

on Ethical

Prolonging Medical Treatment, 256 J.A.M.A. relieve suffering can conflict and suggesting preference and/or best interest). ?t

is my impression

death

that this view is common

among

prison psychiatrists

today.

348

M. GREGG BLOCHE

2. The Possibility of a Preference for Treatment: Thus far, I have addressed scenarios in which treatment is refused, either by the prisoner herself or someone else acting on her behalf. But what about the possibility that some death row inmates might want treatment that could have the effect of restoring or maintaining competence for execution? However unsavory this prospect may seem to clinicians who view the preservation of life as their highest duty, the centrality of patient self-determination in contemporary medical ethics demands that it be taken seriously. Professional fealty to patient preferences has in recent years eclipsed more paternalistic conceptions of professional duty as the sine qua non of the physician’s obligation to keep faith with his or her over preservation of patients.248 Once the priority of patient self-determination life is presumed, it becomes ethically desirable in theory to treat condemned inmates who want to be treated. To dismiss this proposition is to break faith with death row inmates by denying them the kind of autonomy in medical matters that physicians accord to others who face life-and-death choices.249 Rather than acting metaphorically as the executioner’s assistant, a doctor who complies with a condemned prisoner’s credibly-expressed desire for treatment signals his or her commitment to patient autonomy.“’ But can a condemned inmate credibly formulate and express a preference for treatment that might restore or maintain his or her competence for execution? Large difficulties confront any effort to ascertain such a preference on death row. Most obviously, a prisoner deemed incompetent to be executed”’ is, a fortiori, not competent to consent to medical treatment. Confronted with such an inmate, a clinician committed to the ideal of patient self-determination must look to evidence of what the inmate would prefer if competent to choose. But such an inquiry is deeply problematic on death row. To see this, consider Richard Bonnie’s suggestion that condemned inmates, while competent, be given an opportunity to consent in advance to be treated of life on if they become incompetent.252 The uniquely coercive circumstances death row cast serious doubt on the validity of such consent as an act of medical self-determination. Once the death penalty has been pronounced, an inmate’s last hopes hang tenuously on appellate judges and the state’s mercy. Often, legal appeals have but a minimal chance for success, and the condemned’s only plausible hope is for the mercy of the governor and his or 248Seegenerally RUTH R. FADEN AND TOM L. BEAUCHAMP, A HISTORY AND THEORY OF INFORMED

CONSENT (1986). 24yCf. Bonnie, Dilemmas, supra note 146, at 83 (arguing that “whether prisoner should actually turn on the prisoner’s own preferences”).

treatment

is beneficial

to the

250Although such compliance may eliminate the last legal barrier to execution, the centrality of patient self-determination in contemporary understandings of the doctor’s duty to keep faith renders this effect less significant (as a connotative indicator of professional trustworthiness) than the fact of adherence to patient wishes. “‘1 refer here both to inmates who have already been adjudicated incompetent for execution and to those who, while not yet found by a court to be incompetent for execution, probably lack the minimal insight necessary for such competence. See text accompanying notes 65-69 (discussing Justice Powell’s proposed standard for competence to be executed). 252See Bonnie, Dilemmas, supra note 146, at 83 (raising possibility of a “living will” by which a competent inmate on death row consents to be treated upon the onset of incompetence).

PSYCHIATRY,

CAPITAL

PUNISHMENT,

AND THE PURPOSES

OF MEDICINE

349

her advisors. In such desperate circumstances, the subjectively-experienced pressure on an inmate to please prison authorities-and the governor -is immense. The condemned is likely to be painfully aware that refusal to “consent” in advance to psychotropic medication could rub these authorities the wrong way. Squeezed between the prospect of alienating prison authorities (and perhaps the governor) by withholding consent and the hope for mercy, however unlikely, from these same authorities, an inmate must act under conditions that hardly promote autonomous choice. The debate over whether non-capital prisoners can consent voluntarily to serve as subjects of medical research is instructive in this regard. Proponents of the position that such inmates cannot do so tend to cite poor prison conditions and perceived vulnerability to the discretion of penal authorities regarding parole and conditions of confinement.253 Advocates of the view that consent can be voluntary in such circumstances argue that participation in medical experiments offers prisoners the opportunity to affirm their self-esteem by doing good for the community.2s4 Outside the U.S., this debate has generally been resolved in favor of the position that the coerciveness of prison life precludes voluntary consent.255 Within the U.S., responses from courts and scholars have varied.256 A thorough review of this controversy is beyond my scope here.2s7 But the problematic status of consent by non-capital prisoners to participation in research is worthy of note for my present purposes because the advance directive Bonnie suggests is even more encumbered by coercive influences. On death row, the incentive to please prison authorities is immeasurably greater than in non-capital cases so long as an inmate even remotely envisions the possibility of commutation or pardon. Moreover, it is less plausible to put much stock in alternative motives for consenting to such an advance directive-motives akin to a non-capital prisoner’s desire to contribute to society by participating in medical research. This is not to say that such motives are of no moment for the condemned. Conceivably, a competent death row inmate 253N~~‘~COMM’N FORTHE PROTECTIONOF HUMAN SUBJECTSOF BIOMEDICALAND BEHAVIORALRESEARCH,REPORTAND RECOMMENDATIONS61-64 (1976) (DHEW Pub. No. (OS) 76-131); Kaimowitz v. Dept. of Mental Health, 2 Prison L. Rptr. 433 (Cir. Court of Wayne Co., Mich., 1973). 2’4Nat’l Comm’n for the Protection of Human Subjects of Biomedical and Behavioral Research, Staff Paper on Prisoners as Research Subjects, reprinted in JUDITHAREEN, PATRICIA A. KING, STEVENGOLDBERG,& ALEXANDERMORGAN CAPRON, LAW, SCIENCE,&MEDICINE 1049, 1051 (1984) (citing arguments to this effect by Paul Ramsey and Paul Freund). Implicit in this argument is the notion that normative premises about the desirability of an option-e.g. the belief that serving as a medical research subject contributes to society-bear on the question of whether an incentive is coercive or consistent with autonomous choice. 25543 Fed. Reg. 53652, 53654 (1975) (justifying biomedical research within the U.S.).

sharp limits on prisoner

participation

in federally

funded

256See, e.g., Kaimowitz, supru note 253 (concluding that prison conditions are inherently so coercive as to preclude voluntary consent to experimental psychosurgery); Bailey v. Lally, 481 F. Supp. 203 (D. Md. 1979) (holding that pressures operating on inmates to participate in research do not constitute coercion so long as those performing and administering experiments are not involved in the institutional release process). “‘1 consider the general problem of distinctions between coerced Gregg Bloche, HIV, Reproductive Choice, and Autonomy-Negating file with the author).

and autonomous clinical choice in M. Influence (unpublished manuscript on

350

M. GREGG BLOCHE

might “prefer the unknown consequences of death to the known pains of psychosis,“258 see retributive virtue in his or her execution, or simply prefer death to prolonged confinement. But the preference for death that these motives entail is probably uncommon. Although capital defendants often vacillate about their preferences as their cases proceed, stable preferences against execution typically emerge.25g This fact weighs heavily against treating a condemned inmate’s advance directive as a reliable indicator of his or her wishes regarding restoration of competency, even assuming that the advance directive was competently given. Such directives stand too large a chance of reflecting fear of alienating penal authorities or transient flirtation with the idea of death by choice. The same difficulties afflict other methods of ascertaining an incompetent death row inmate’s treatment preferences. Reports by family members, friends, and others who knew the prisoner while competent may be influenced by fear of offending the authorities or by overreliance on the inmate’s transient musings. Indeed, such reports lack any informative value for inmates who never shared their feelings about psychotropic medication prior to lapsing into incompetence. Moreover, to the extent that the impressions of friends, family members, and others are shaped by pre-sentencing conversations with the condemned, they are of doubtful relevance to an assessment of his or her treatment preferences when execution looms. One might object that this skeptical view of the prospect for patient selfdetermination when severe mental illness strikes on death row “denies the possibility of autonomy for condemned prisoners and thereby erases their human dignity.“260 I share this objection’s underlying concern about loss of autonomy when a death sentence looms, and I agree that, in theory, deference to patients’ treatment preferences is desirable even when execution hangs in the balance. My skepticism derives from doubt that the preferences of incompetent death row inmates can, as a practical matter, be ascertained reliably and validly. This skepticism leads me reluctantly to the view that when caring for these inmates, psychiatrists should not pursue patient self-determination, either by advance directives or other means. Instead, psychiatrists in this difficult situation should operate on the most plausible assumption about their patients’ preferences absent dependable information-that condemned prisoners do not want to die. The resulting affront to our beliefs about the importance of personal autonomy in medical matters is considerable. But it is less, I believe, than the moral cost of selectively weakening our conception of patient selfdetermination in a futile effort to maintain the fiction that it can survive unscathed on death row. Continued psychiatric treatment of competent prisoners who are sentenced to death while being maintained on medication is a different matter. The clinician who works with such patients has an opportunity to explore their preferences directly and to make sure they understand that execution hinges

15*Bonnie, Dilemmas, supra note 146, at 83. Z59Bonnie, Dignify, supra note 145, at 1388. 260Bonnie, Dilemmas, supra note 146, at 84.

PSYCHIATRY,

CAPITAL

PUNISHMENT,

AND THE PURPOSES

OF MEDICINE

351

upon the maintenance of competence. The coercive features of life on death row and the tendency of condemned inmates to vacillate over whether to resist their appointed fate make the exploration of their preferences into a problematic enterprise. But the possibility of meaningful conversation with the condemned opens the way for the sensitive clinician to search for coercive influences (e.g. fear of alienating authorities) and to distinguish between transient musings and sustained preferences for treatment. Conditions on death row are hardly favorable for such conversation. The risk remains that a prisoner’s preference for continued treatment will reflect his or her fear of irritating the authorities. But refusal to carry on with therapy for which a condemned inmate states a consistent preference would represent a highly visible affront to the ideal of self-determination-and a dramatic act of clinical abandonment .26’ On balance, I believe, the latter are the greater concerns, given the central place of self-determination in contemporary understandings of the medical profession’s commitment to patients. Accordingly, I would hold, continued treatment of a competent inmate after imposition of a death sentence should be considered ethical under the following conditions: (1) the psychiatrist makes certain that the inmate knows a lapse into incompetence would create a legal obstacle to execution, (2) the psychiatrist ensures that the prisoner understands the role of his or her medication in maintaining competence, and (3) the psychiatrist thoroughly explores the inmate’s preferences with an eye toward coercive influences and concludes that he or she has a sustained desire for treatment.262 The clinician who provides treatment after meeting these conditions primarily serves his or her patient but does lend some incidental aid to the executioner (by maintaining the patient’s competence). B. Evaluation and Testimony Bearing on a Prisoner’s Competence to be Executed Psychiatric assessment of an inmate’s competence for execution poses similar problems of proximity to the executioner’s work. Barring 1lth-hour success by the condemned in the appellate courts, psychiatric findings that become the basis for a determination of competence remove the final legal barrier to execution. Indeed, such assessments have no other, imaginable purpose; their transparent function is to serve the state’s penal interest. Even when the condemned expresses a sustained preference for execution, it cannot plausibly be said that a judicial finding of competence keeps faith with his or her wishes. The adjudication of competence serves the state’s interest by design and the prisoner’s preference for life or death purely by coincidence. The proximity of psychiatric evaluation to the executioner’s work does not differ depending on whether competency is being adjudicated for the first time or is being redetermined after an initial finding of incompetence. In both 26’Such a refusal could also give rise to an Eighth Amendment cause of action against prison authorities. See Estelle v. Gamble, 429 U.S. 97 (1976) (holding that deliberate indifference by prison personnel to an inmate’s serious illness constitutes cruel and unusual punishment). %linicians who object to providing treatment in such circumstances should be able to avail themselves of a right of conscientious objection, unencumbered by any risk of damage to their careers.

M. GREGG BLOCHE

352

situations, a judicial determination of competence for execution clears the way for the sentence to be carried out.263 The immediacy of the prospect of execution, along with the absence of any conceivable patient-oriented purpose, invites the impression that psychiatric assessment of competency to be executed allies the doctor closely with the executioner. If punitive killing differs from other harms, from a medical ethics perspective,264 then this highly visible gatekeeping role is more troubling than psychiatric evaluation in service of other extra-clinical purposes. In my view, this role strains the contradictory ethical framework of forensic psychiatry265 -and the deeper conflict between medicine’s public and private purposes2@ -beyond the breaking point. The threat this role poses to the moral and therapeutic credibility of clinical care is too large. Not surprisingly, psychiatric gatekeeping on death row offends many clinicians who are not engaged in forensic practice.267 These are subjective impressions, but subjectivity is inherent in any attempt to assess the effects of a practice upon such intangibles as trust and credibility. My best judgment is that the use of psychiatric skills in this context so compromises medicine’s therapeutic and compassionate aims that it ought to be regarded as ethically unacceptable. My view is reinforced by the doubtful utility of psychiatric expertise in execution competency proceedings, given the low level of mental capacity needed for this type of competence26s and the retributive purpose of the execution competency requirement .269Indeed, the dubious value of psychiatric testimony on this issue, combined with its destructive effect on the credibility of therapeutic medicine, argue against its admissibility in execution competency proceedings. I acknowledge that others may differ with my assessment of this psychiatric role’s implications for medicine as a therapeutic and compassionate enterprise.270I welcome such disagreement and anticipate the evolution of my views ‘%ome forensic practitioners have urged that clinical assessment in support of the de novo adjudication of competency be ethically distinguished from assessment performed when a previous finding of incompetence is being reconsidered. They argue that in the former context, psychiatric involvement can only aid the condemned (since he or she is presumptively competent-and legally fit for execution-prior to the proceedings) while in the latter context the psychiatrist can only do harm, because the previous judicial finding of incompetence has established a different legal baseline. 264Seesupra text accompanying

notes 144-197.

“‘Seesupra

text accompanying

notes 115-143.

z66Seesupra

text accompanying

notes 82-143.

267See, e.g., Am. Psychiatric Ass’n Assembly Area 4, Action Paper on Physician Participation in Determination of Competency or Incompetency to be Executed and Treatment of a Condemned Individual Who Is Incompetent in Order to Make Execution Possible, May 21-23, 1993 (unpublished document issued by one of the APA’s regional legislative bodies, urging the association to condemn such competence evaluations as unethical and criticizing Paul Appelbaum’s efforts to the contrary). 268Seesupra text accompanying

notes 65-69.

269See srcpra note 68. *“One might argue, for example, that people who enthusiastically support capital punishment cannot plausibly see execution as sufficiently worrisome for psychiatric gatekeeping to threaten physicians’ therapeutic credibility. A possible response to this is that the death penalty’s singular retributive appeal derives from its enormity-its awesome totality and finalitythe same quality that makes physician involvement so troublesome. Even strong advocates of capital punishment, this response goes, tend to have vastly different expectations of doctors and executioners. Thus even those who have no qualms about carrying out a death sentence have reason to be disturbed by medical complicity in doing so.

PSYCHIATRY,

CAPITAL

PUNISHMENT,

AND THE PURPOSES

OF MEDICINE

353

in the course of focused discussion and empirical study of this role’s symbolic import for patient care.271 My larger aim here is to rechannel the discussion. Rather than seeking a crystalline, dispassionate answer, we ought to pursue an understanding that recognizes the centrality of passionate knowledge-and symbolic and connotative meaning-to our ethical agency when trust and credibility are at stake. C. Evaluation and Testimony Bearing on a Prisoner’s Competence to Waive Appeals When a death row inmate wishes to waive the right to appeal, psychiatric evaluation of his or her competence to do so is ethically awkward because of its closeness to the looming threat of execution. The determination that an inmate is competent to forego appeals clears a potential legal barrier to execution; moreover, if it comes shortly before a scheduled execution date, it may be associated with a finding that, a fortiori, the condemned is competent to be executed.272 On the other hand, determinations of competence to forego appeals are, in themselves, less likely to make a life-or-death difference than are decisions as to competence for execution. The finding that the condemned is incompetent to waive appeals may open the way for relatives or others to petition the courts on his or her behalf, but it hardly ensures the success of these last-ditch, often improbable legal efforts. Moreover, the judgment that an inmate is competent to forego appeals empowers the prisoner to exercise one of the few forms of self-determination possible on death row -control over the legal strategy pursued on his or her behalf.273 These factors make the metaphor of the doctor as executioner’s aide less apt as a way to characterize psychiatric assessment of competence to forego appeals than of competence to be executed. At a connotative level, clinical evaluation in the former context seems more closely linked to the integrity of the legal process, and to the defendant’s right to superintend the legal steps taken on his or her behalf, than to execution itself. In my view, this merits the conclusion that such evaluations are ethical. A more difficult problem arises when the issues of competence to forego appeals and to be executed present simultaneously. The minimal understanding required for the latter kind of competence, an awareness that death is impending and that it represents punishment for a crime,274 is also a necessary element for the former. The psychiatrist who testifies on the former question thus cannot avoid addressing the Z7’Seesupru text accompanying

notes 219-220,

236-237.

*‘*When a party attempts to appeal on the condemned’s behalf days or hours before a scheduled execution, the issues of competence to forego appeals and competence for execution can present simultaneously. See supru note 62. Since the mental capacity required for the latter is probably lower than what is needed for the former, see supru text accompanying notes 65-69, a judicial determination, in such circumstances, that a prisoner is competent to forego appeals virtually guarantees a finding of competence for execution. 2730ne might contend by analogy that a finding of competence for execution enables a prisoner who wants to die to have his or her way. But this coincidental satisfaction of a preference for execution does not give the condemned a decision-making role regarding his or her legal options. As such, it smacks less of self-determination than of fortuity. *?See supra text accompanying

note 66 (summarizing

standard

urged by Justice Powell).

354

M. GREGG BLOCHE

latter, if only implicitly. In such cases, I would be inclined to condone psychiatric testimony as problematic but ethical, provided that the courts hold such testimony to be inadmissible on the question of competence for execution. I recognize that this approach is hardly without difficulties. Further consideration of this problem will be necessary as professional authorities and courts struggle with the dilemmas posed by psychiatric gatekeeping on death row.

D. Evaluation and Testimony at the Sentencing Stage Psychiatric testimony during the sentencing phase is further removed from the killing than are the forms of involvement just discussed. It is more remote in time and in terms of the adjudicative sequence that precedes execution. Moreover, although psychiatric testimony can be decisive at this stage,275 it tends not to be as central to the sentencing judge’s or jury’s inquiry into aggravating and mitigating factors as it is to the determination of decisionmaking competence. The sentencing decision represents a more general moral assessment, incorporating such factors as the character and life history of the defendant and the impact of the crime upon victims, family members, and the community.276 Psychiatric explanations of behavior and predictions of dangerousness thus play a more uncertain causal role in capital sentencing than do clinical assessments of mental capacity in competency proceedings.277 The resulting attenuation of the link between psychiatric involvement at this stage and the death of the condemned weakens the metaphor of the doctor as executioner’s aide in this context. Moreover, the force of the perception that this psychiatric role serves an important public purpose must be acknowledged. U.S. law has come to place a high value on individualized assessment of whether the death penalty represents a convict’s just desert. The bifurcation of the trial process with respect to guilt and sentencing requires a separate moral assessment of the defendant at the sentencing stage. But from a psychiatric perspective, moral judgment at the trial and sentencing stages has much in common. Psychiatric testimony as to a defendant’s character, personal history, *“See, e.g., Ewing, supra

note 60, at 412-13

(discussing

psychiatric

predictions

of dangerousness).

%eneralization about the circumstances to be weighed by juries is made difficult by the wide variety of aggravating and mitigating factors listed in different states’ capital sentencing statutes. Among the factors variously mentioned are the defendant’s “character, background, history, mental condition and physical condition”; evidence that “the offense was primarily the product of the offender’s psychosis or mental deficiency”; proof that the defendant’s “capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law was significantly impaired”; the defendant’s future dangerousness; and the likelihood that “duress, coercion, or strong provocation” led to his or her criminal act. George E. Dix, Participation by Mental Health Professionals in Capital Murder Sentencing, 1 INT'LJ. L. & PSYCH. 283, 284-287 (1978). 277See id. at 291-306 (reporting on evidence, from Ohio and Arizona trial transcripts and court opinions, that psychiatric assessments of character and explanations of criminal behavior during sentencing proceedings are viewed skeptically by courts and have little impact on sentencing decisions absent a diagnosis of psychotic illness). Psychiatric predictions of dangerousness can represent an exception in states that require sentencing authorities to decide whether defendants are likely to commit future acts of violence. In Texas, where a jury finding of future dangerousness is a prerequisite for a capital sentence, predictions of dangerousness by prosecution psychiatrists have correlated highly with the issuance of death sentences. Ewing, supra note 60, at 410-413.

PSYCHIATRY,

CAPITAL

PUNISHMENT,

AND THE PURPOSES

OF MEDICINE

355

and mental pathology bears on both, so long as society and the law deem clinical explanations relevant to criminal culpability. Thus the law’s reliance on psychiatric testimony at the sentencing stage is of a piece with the longaccepted use of psychiatric opinion at the trial stage. At each stage, clinical accounts of criminal behavior are admitted into evidence because they are believed to bear on moral assessment of the accused. The proposition that medical explanations of behavior should be privileged over other accounts as mitigating factors when the criminal justice system renders moral judgments is open to question.278 But the widespread belief that medical accounts deserve such treatment is evident. So long as this belief prevails, psychiatric testimony at capital sentencing hearings will serve a widely-approved social purpose. This evaluative function with respect to the question of just desert casts the psychiatrist more as an agent of public moral judgment than as an aide to the executioner. By contrast, psychiatric testimony as to competence for execution occurs after society has issued its punitive judgment. Apart from the hearing of appeals, the sole function of postsentencing adjudication is to administer the carrying-out of this judgment. The connotative significance of psychiatric involvement at this stage differs accordingly. This affords a prudent basis for permitting psychiatric testimony at sentencing hearings while proscribing it when competence for execution is at stake.279 *‘*AS noted earlier, see supru text accompanying notes 98-101, all behavior is susceptible to deterministic explanation by experts of one stripe or another. Myriad biological, psychological, socio-cultural and other accounts of human action compete and coexist in our collective intellectual life. Psychiatric witnesses select from a small subset of these accounts when they offer explanations of problematic behavior. In giving weight to their testimony while disregarding other explanatory models, the legal system lends normative force to psychiatric beliefs about the scope and degree of personal responsibility. Some of forensic psychiatry’s leaders can be fairly chided for insensitivity to the moral import of these beliefs. For example, Appelbaum dismisses Alan Stone’s concern about the law’s privileging of psychopathological explanation over accounts that invoke racism’s embittering effects as an “abstract problem of selecting among conceptual models.” Appelbaum, Parable, supra note 95, at 250 (discussing Stone’s regret over having failed to testify, while an army psychiatrist, as to the influence of racial discrimination upon the behavior of a soldier court-martialed for theft). But given the centrality of the problem of racial discrimination in America’s public moral life, the privileging of mental illness over the impact of racism as a basis for exculpation or leniency in sentencing can hardly be considered “abstract.” Along similar lines, plausible accounts of crime as the product of socio-economic deprivation have been offered in support of a defense based on such deprivation. E.g. Richard Delgado, “Rotten Social Background”: Should the Criminal Law Recognize a Defense of Severe Environmental Deprivation, 3 L. & INEQUAL.: J. THEORY & PRACTICE 9 (1985); David Bazelon, The Morality of the Criminal Law, 49 S. CAL. L. REV. 385 (1976). Whether or not one favors exculpation or leniency in sentencing based on racism or social deprivation, one cannot plausibly deny the moral significance of these questions. By openly addressing the moral content of psychological explanations, forensic psychiatrists could enrich society’s understanding of the normative choices that underlie the law’s selective embrace of some deterministic accounts of behavior. 279Advocates of an ethical duty to abstain at the sentencing stage might argue in response that testimony as to the appropriateness of the death penalty can so shock people by its contrast with expectations of physician benevolence that it undermines the credibility of medicine as a caring and therapeutic enterprise. They can point to suggestive evidence-the media attention attracted by Texas psychiatrist James Grigson, whose testimony as to dangerousness in sentencing hearings has probably been decisive in sending dozens of defendants to death row. E.g. They Call Him Dr. Death, TIME, June 1, 1981, at 64; Taylor, Dallas’Doctor of Doom, NAT’L L. J., Nov. 24, 1980, at 1, col. 2; Jim Atkinson, Witness for the Prosecution, “D” MAGAZINE, June 1980, at 131; John Bloom, Doctorfor the Prosecution, AM. LAWYER, Nov. 1979, at 25.

356

M. GREGG BLOCHE

E. Evaluation, Testimony, and Treatment at the Trial and Pre-Trial Stages Prior to conviction, the extra-clinical purpose most visibly served by psychiatric involvement is adjudication of guilt or innocence. When clinicians assess competence to stand trial, provide treatment that restores such competence, or evaluate the part played by mental illness in the crime alleged, they act at a greater symbolic distance from the executioner than they do when they testify at sentencing hearings. The metaphor of doctor as executioner’s aide fits them even less well at these earlier stages. These forms of involvement thus do not seem ethically objectionable by virtue of their tie to the possibility of capital punishment .280 VI. Conclusion

In his stinging critique of forensic psychiatry, Alan Stone asserts that when physicians turn their attention from treating patients to serving justice, they step beyond the “boundaries of the ethical debate” about the aims of medicine.281These boundaries, Stone holds, define an “ethical dialectic” of contradictory duties: “Do whatever you can to help your patient and primum nil nocere, first of all do no harm.“‘** Within these confines, physicians wrestle with many hard questions. Outside them, suggests Stone, medical ethics has nothing to say, and perhaps, as some believe, physicians have no business straying. A central thesis of this article is that this classic portrayal of the purposes of medicine fails to incorporate a further contradictionthat physicians serve myriad social ends, often at the expense of those whom they evaluate or treat. The ethics of medicine cannot be simply and radically decoupled from these ends. Rather, the profession’s “ethical dialectic” encompasses the tension between medicine’s social purposes and its therapeutic and caring functions. Medical ethics authorities and commentators have been curiously inattentive to conflict situations that reflect this tension. As a result, physicians who encounter such conflicts in their daily work must typically fend for themselves, The attention given to Grigson reflects the dramatic disconnect between expectations of clinical benevolence and medical intervention that reliably results in condemnation to death. Where capital sentencing is made to hinge upon the prediction of dangerousness, itself a dubiously reliable art, the psychiatrist who issues such predictions without hedges or qualifiers is likely to have a decisive impact. The tighter causal link between psychiatric testimony and death in such instances merits consideration of an ethical proscription against predictions of dangerousness when capital sentencing statutes make them determinative of a defendant’s fate. But the Texas statute is unusual in this regard. Most capital sentencing provisions do not make the prediction of dangerousness decisive; nor do they otherwise make psychiatric testimony central. See supru text accompanying notes 275-277. Where the causal tie between medical testimony and death is less clear than in the Grigson scenario, such testimony is less likely to shock popular sensibilities and to link the doctor with the executioner in the public’s eye. 28oThis is not to say that they present no ethical problems. Psychiatric treatment to restore competence to stand trial and clinical evaluation bearing on criminal responsibility or competence to participate in the legal process raise myriad other ethical (and moral and political) questions that lie beyond the scope of this article. ?ST~NE, supra note 52, at 67. 2821d.

PSYCHIATRY,

CAPITAL PUNISHMENT,

AND THE PURPOSES

OF MEDICINE

357

without the sort of guidance that has become commonplace in bioethics matters during recent years. Such conflict arises in many clinical contexts, but it is most apparent when physicians undertake forensic work - and especially dramatic when the prospect of capital punishment looms. I have attempted in this article to employ the controversy over psychiatric involvement in capital cases as a model for the task of ethical line-drawing when medicine’s public and intimate purposes contradict. Such line-drawing needs to begin with the recognition of an incessant tension between public demands that physicians assist in ascribing rights, duties, and opportunities and private expectations that they keep faith with individuals in need. To mediate this tension, medical ethics must both acknowledge the reality that doctors act as social arbiters and protect against the risk that consequent harm to individuals will undermine confidence in medicine’s therapeutic potential. Neither a rigid insistence on the wrongfulness of clinical work that results in harm nor a categorical refusal to admit the ethical relevance of such harm can accomplish this. Rather, a strategy of accommodation is needed that accepts the “contradictoriness of experience” and permits society to get along with its conflicting expectations. Such a strategy cannot be distilled into a crystalline general principle. The need to mediate between such context-linked concerns as the cultural authority of doctors as gatekeepers and the fragility of physicians’ therapeutic credibility requires varying context-sensitive resolutions in different clinical circumstances. My effort to develop ethical boundaries for psychiatry in capital cases represents an example of how one might work toward this kind of accommodation. In the future, the need for such accommodation is likely to grow. More physicians will have to live with contradictory demands as medical practice becomes an increasingly institution-centered and cost-conscious endeavor. The ethical paradigms emerging today for doctors who do forensic and prison work could set the tone for evolving understandings of clinical obligation as physicians come under growing pressure to take social costs into account. We have hardly begun to develop an ethical accommodation between the duty to keep faith with patients and this new social expectation.