Ethical Dilemmas: Forensic Psychologists Assessing

Ethical Dilemmas: Forensic Psychologists Assessing the Competency of Inmates to Be Executed

For most psychologists, working with patients in order to improve their mental health is a goal that presents no ethical conflicts; it is seen as an unmitigated positive to improve a patient's mental health. However, there is one area where a psychologist improving a patient's mental health is not in that patient's best interest: helping make a mentally ill patient competent so that the inmate can be executed. The current state of U.S. law prohibits the execution of the mentally ill. However, in the context of this prohibition, mental illness is narrowly defined. Rather than prohibiting the execution of any person diagnosed with a mental illness, the prohibition only applies to those people who are unable to understand that they are to be executed and the reason for that execution as a result of a mental illness. People who are so impacted by a mental illness that they cannot appreciate that they are to be executed are deemed not competent for execution. Obviously, this creates an area where a highly functioning person with a mental illness might choose to forego treatment, particularly medication, in order to reduce competency and become ineligible for the death penalty. In those instances, a forensic psychologist might be asked to work with these individuals in order to make them competent. However, the real issue is not about competency, but about the sentence that will follow competency. In fact, the state is very aware that competency is only an intermediate step in the process, with the ultimate goal being execution. Forensic psychologists asked to work in this regard have to wrestle with the ethical issue of being asked to help prepare an inmate for execution.

For many psychologists, this is a violation of their personal ethical principles, even if it is not found to violate the overall ethical principles of the profession. Psychologists generally enter into the helping professions in order to assist the individual, and cannot justify any behaviors that would help increase the likelihood of death for a patient. However, other psychologists take a far more pragmatic view of the dilemma. They believe that defendants who are insane at the time of the commission of a crime should not be penalized as a result of that mental illness, but also that mental illness should not be a fallback for people to escape punishment. In fact, many psychologists may believe that allowing mental illness to be an excuse to escape punishment for defendants who did not commit their crimes because of the underlying mental illness helps increase the stigma against mental illness that continues to exist in the United States. Therefore, while the forensic psychologist may never be asked to help certify a defendant as death-eligible, all forensic psychologists must understand the ethical dilemma posed by this problem.

Methodology

This paper utilizes the literature review to explore the evolution of the death penalty in the United States. It examines how the death penalty has become narrowed over time. Then, it examines how the death penalty may be imposed, and the amount of discretion that the sentence must have. Then, the literature examines the issue of mitigation and the role of the forensic psychologist in establishing mitigation. Two areas of concern are mental retardation and mental illness. Therefore, the literature review examines whether it is constitutional to execute defendants who are either mentally ill or mentally retarded. Finally, it examines the issue of incompetent defendants being made competent solely for the purposes of rendering them death-eligible.

Literature Review

The history of capital punishment in the United States is a long and sordid one. Death was once an acceptable punishment for a wide variety of offenses. However, the death penalty became narrowed and tailored over time, so that only certain offenses could result in the death penalty. "The U.S. Supreme Court has determined that a penalty must be proportional to the crime; otherwise, the punishment violates the Eighth Amendment's prohibition against cruel and unusual punishments" (Legal Information Institute, 2010). Therefore, it has prohibited the death penalty in all cases and all crimes, except those crimes where the victim has died as a result of the crime. Therefore, the death penalty has been ruled inapplicable in non-murder cases including in Coker v. Georgia, the rape of an adult woman (433 U.S. 584 (1977)), and in Kennedy v. Louisiana, the rape of a child (128 S. Ct. 2641 (2008)). "In performing its proportionality analysis, the Supreme Court looks to the following three factors: a consideration of the offense's gravity and the stringency of the penalty; a consideration of how the jurisdiction punishes its other criminals; and a consideration of how other jurisdictions punish the same crime" (Legal Information Institute, 2010).

Moreover, the Supreme Court balanced discretion and regulation in the application of the death penalty to develop rules regarding when the imposition of the death penalty is appropriate in a particular case. The death penalty cannot be mandatory, but it can also not be arbitrary. Striking a balance between mandatoriness and arbitrariness actually proved to be exceptionally difficult, with a number of different Supreme Court decisions helping shape current laws. Though all death penalty states apply these rules in their own specialized manner, the modern imposition of the death penalty comes down to an examination of three special issues: the risk of future dangerousness; the defendant's culpability in the crime; and whether there are mitigating circumstances that argue against the imposition of the death penalty (Cunningham, 2006, p.207, para.1).

One area where forensic psychologists interact with death-eligible defendant is in death-mitigation cases, where the role of the psychologist is to help humanize the defendant and explain why he committed the crime. "The objective is not to con done the offense, but rather to understand how it could have occurred in light of the defendant's background" (Fabian, 2003, p.2, para.3). In other words, the forensic psychologist might work with a defendant to help explain why a dysfunctional childhood helped contribute to a crime. It is critical to understand that a defendant need not be mentally ill in order to utilize psychology as a mitigating explanation of a crime; there is a wide range of maladaptive behaviors that do not fall under the heading of mental illness but which might still significantly impair a defendant's judgment. A forensic psychologist could testify as to those factors and how they may have impacted a defendant's behavior at the time of the murder and how they influence a defendant's future dangerousness.

It is also critical to realize that considering mitigating evidence is not only permitted under the Constitution, but actually required under it. This is change from prior law, where the only thing considered was what crime was committed. The amount of discretion for jurors hearing death-eligible cases is an issue that has long plagued the Supreme Court. For example, in Furman v. Georgia, the Supreme Court struck down a statute that gave the jury unguided discretion in determining which capital defendants would be sentenced to death. The Court believed that this unlimited discretion allowed for too much inconsistency in who was sentenced to death (408 U.S. 238 (1972)).

The response of some states was to transition to a mandatory death penalty for offenders convicted of specific crimes, which removed all discretion from the jury. However, this solution was no more permissible than allowing unfettered discretion. In Woodson v. North Carolina, the defendant was sentenced to death under a mandatory sentencing statute. Not only did the Court find that the defendant's sentence was unconstitutional, but it outlined its reasoning for doing so. The Court focused on the idea of mitigating circumstances and the very human idea that otherwise good people could sometimes do horrible things (428 U.S. 280 at 304 (1976)). This was further highlighted in Lockett v. Ohio, in which the Court determined that it was not enough for the sentencing judge or jury to be able to consider a fixed set of possibly mitigating circumstances; instead, a defendant had a right to have the sentencing party consider basically any evidence that a defendant wished to offer in mitigation of the crime (438 U.S. 586 at 604(1978)). This did not mean that a judge or jury was required to find mitigation, but simply that a defendant had the right to offer them into evidence for consideration in sentencing. However, in Eddings v. Oklahoma, the Supreme Court took the mitigation issue a step further and determined that the sentence must consider any mitigating factors when considering the death penalty, including: youth, maturity, family history, a history of child abuse, and emotional disturbance that might not reach the level of criminal insanity (455 U.S. 104 at 110-113(1982)).

A forensic psychologist needs to understand what mitigating evidence is if looking for that evidence. The reality is that almost any factor can be mitigating evidence if it helps explain the crime or reduces the likelihood that the defendant will reoffend. In fact, "mitigating evidence does not have to rise to the level of a defense of the crime; rather, it can be any factor the defendant presents as evidence (Fabian, 2009, p.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 issue of forced medication would also apply, though perhaps to lesser degree, in any cases where a mental health professional is attempting to restore competency to a defendant in order to make that person death-eligible.

Discussion

Forensic psychologists have a history of participating in competency assessments for death-eligible defendants in a variety of different contexts. These assessments include examining whether a defendant suffers from either mental retardation or mental illness. Moreover, these assessments are done at various stages in the criminal justice process. For example, defendants with obvious mental retardation and mental illness may not ever face trial for murder because of pre-trial diversion into mental health institutions. Moreover, those defendants who obviously lack competency will probably not be charged with a capital offense because prosecutors anticipate the challenges of obtaining such a conviction and then maintaining that conviction through the appellate process. At trial, defendants have the possibility of putting forward evidence of mental illness and mental retardation, not only through the insanity defense, but also as mitigating evidence in the sentencing phase. All of these improvements have theoretically greatly decreased the possibility that an incompetent defendant will be sentenced to death and then executed.