4, para.2). Therefore, the presence of an underlying mental illness that did not render a defendant unable to appreciate that he was committing a crime or compel him to commit it, may still be sufficient to mitigate the crime. Furthermore, a lack of mental ability that does not rise to the level of mental retardation may be introduced to mitigate the crime. Therefore, the forensic psychologist needs to be able to assess a defendant's mental functioning, from the standpoint of intellectual and emotional functioning in order to assess competency.
In fact, while mental retardation is not a mental illness, the presence of mental retardation is an issue that forensic psychologists may have to determine when looking into the death penalty. For most of the history of the death penalty, mental retardation was not a barrier to the imposition of the death penalty. However, in Atkins v. Virginia, the Court determined that executing the mentally retarded violates the Eighth Amendment (536 U.S. 304 (2002)). However, while the decision theoretically prevented the execution of the mentally retarded, the reality is that the average I.Q. Of one who has been sentenced to death is below average and a number of people on death row almost certainly qualify as mentally retarded. The Atkins decision failed to impose any requirements on a state to test the mental functioning of previously convicted defendants prior to execution, and the very vulnerabilities that underlie the prohibition against executing the mentally retarded also make it less likely that these defendants will seek review of their sentences, even after the Atkins decision.
What complicates the issue of mental retardation as it relates to death eligible defendants is that there is no single definition of mental retardation. For example, different experts disagree on what I.Q. is considered the threshold for mental retardation, and, the stigma associated with mental retardation has actually caused a narrowing of those considered mentally retarded based on I.Q. And adaptive function. However, Ehrenreich and Fellner suggest that "Mental retardation is a lifelong condition of impaired or incomplete mental development" (2001, Sec. II, para.2). Moreover, they suggest that this impairment is measured in three ways: subaverage intellectual functioning, limitations in adaptive functioning, and childhood onset (Ehrenreich & Fellner, 2001, Sec. II, para.2).
The presence of mental retardation in otherwise death-eligible defendants is actually a very hotly debated issue. While experts may argue that a defendant is mentally retarded, the circumstances of the crime may argue against the presence of mental retardation. Therefore, the issue of mental retardation goes beyond whether a defendant has clinical evidence of mental retardation and looks to the "facts surrounding the commission of the offense" (Fabian, 2006, p.2, para. 4). These facts include a "defendant's aforethought, planning and complex execution of purpose" (Fabian, 2006, p.2, para. 4). Therefore, even if there is evidence of mental retardation, if a defendant engaged in complex planning to commit a crime, it is unlikely that otherwise compelling evidence of mental retardation will support a finding that the defendant is mentally retarded and keep him from being death-eligible.
Another area where forensic psychologists may be asked to assess death eligibility is when attempting to determine whether those defendants who do not rise to the level of criminal insanity are still so impaired by mental illness that they should not be eligible for execution. One of the complicating issues is that there has never been a blanket prohibition against executing the mentally ill (Vuotto & Ciccone, 2006, p.253, para. 1). Given the broad range of conditions that can be described as mental illness and different degrees of impairment linked to mental illness, the fact that mentally ill defendants remain death-eligible is somewhat understandable, even if it leaves a tremendously vulnerable population at risk of execution.
One way the Supreme Court has sought to address this problem is by prohibiting the execution of defendants who are suffering from extreme mental illness at the time of a schedule execution. What is interesting is that mental illness may not be a factor at the time of a crime or sentencing, but may develop in the interim between sentencing and execution. This was the case in Ford v. Wainwright, 477 U.S. 399 (1986). The defendant, Alvin Ford, was convicted of a murder of a police officer and sentenced to death; mental illness was not part of his defense and his mental state was not given as a mitigating factor in his sentencing. However, while on death row, Ford developed a paranoid psychotic disorder. Despite evidence that Ford was suffering from a mental illness, Florida intended to execute him. Ford's attorneys challenged the sentence, and the issue went before the Supreme Court. There, the Court held that the Eighth Amendment prohibited the imposition of the death penalty on an insane person whose mental illness was such that he could neither understand the fact that he was to be executed, nor why he had been thus sentenced (477 U.S. 399 at 405-410 (1986)). This case led to the possibility of a defendant requiring a mental health assessment prior to being executed.
These pre-execution mental health assessments may be one of the most ethically challenging areas for forensic psychologists. Another area where forensic psychologists may interact with death-eligible defendants is in assessing which of them are eligible for execution. The laws governing capital punishment prohibit the execution of mentally ill defendants. Many people assume that mentally ill defendants would be found not guilty because of the insanity defense, but the insanity defense is not applicable in a wide variety of cases. The state of American law is such that a person can be considered competent at the time a crime was committed, and yet not be considered competent at the time of a proposed execution. Therefore, a forensic psychologist may be asked to help determine whether a particular inmate is competent for execution. This is a complex issue, and for many psychologists, goes against the very things that helped motivate them to the helping profession. Therefore, "the question of whether to participate in assessment of an individual's competency for execution is one that most mental health professionals will never face. For those who do face it, we cannot be too emphatic: the question should be considered very seriously. The option to refrain from participation should be treated as a viable one" (Heilbrun & McClaren, 1988, p.206, para.1). In other words, while the forensic psychologist may be asked to help make this assessment, no forensic psychologist should feel compelled or forced to make such an assessment.
In fact, while forensic psychologists find themselves in an ethical dilemma when participating in treatment for an inmate in order to make him death eligible, other related professions have clearly defined the ethical principles related to executions. For example, "The AMA has defined participation in an execution as unethical, and in the early 1990s, they clarified the actions that constituted participation" (Zonana, 2003, p.372, para.2). Although the AMA did not prohibit any treatment of an insane inmate with the goal of making that inmate competent for execution as unethical, "The AMA Council on Ethical and Judicial Affairs (CEJA) stated that forcing medication on a condemned inmate solely to restore competence was unethical" (Zonana, 2003, p.372, para.2).
In addition to being unethical, forced medication of inmates with the goal of making them competent so that they may face execution may actually be illegal. Though the issue has not been conclusively determined by the Supreme Court, prior decisions suggest that it would be illegal:
When a state seeks to forcibly medicate and then execute an otherwise incompetent inmate, it exacts an unconstitutional punishment because the process cannot conform to the due process requirements for forcible medication established by the Supreme Court in Sell v. United States. Requiring that medication be both medically appropriate and necessary to further a sufficiently important government interest protects not only an inmate's due process rights, but also an inmate's Eighth Amendment right to be free from disproportionate and unnecessary punishment. As soon as an inmate is scheduled for execution, a forcible medication regimen ceases to be medically appropriate and becomes simply a component of the capital punishment to be inflicted by the state. Furthermore, the government's interest in execution is not strong enough to override both the inmate's significant liberty interest and the state's own interest in preserving the ethics of the medical profession, given that a sentence of execution would be replaced by a sentence of life without the possibility of parole (Sewall, 2010, p.1322, para.1).
Of course, psychologists do not have the responsibility of medicating or failing to medicate patients, and therefore will not be faced with the challenges of whether to order involuntary medications for inmates facing competency determinations. However, while psychologists may not be able to force medication, it is clear that the ethical and legal principles underlying the…