Psychiatr Clin N Am 29 (2006) 791–804

PSYCHIATRIC CLINICSOF NORTH AMERICA

Psychiatry and the Death Penalty

Charles L. Scott, MDUniversity of California, Davis Medical Center, 2230 Stockton Boulevard,2nd Floor, Sacramento, CA 95817, USA

The first laws establishing the death penalty can be traced to the eighteenthcentury BC. At that time, the Code of King Hammurabi of Babylon estab-lished the death penalty for 25 separate crimes. In the tenth century AD

Britain, hanging was the most usual method of execution, and by the 1700s,222 crimes were punishable by death. Crimes eligible for the death penaltyin Britain during this period included cutting down a tree and robbing a rabbitwarren. American colonists adopted the practice of capital punishment fromtheir British and European counterparts, though laws defining which crimeswere punishable by death varied between colonies. Thomas Jefferson unsuc-cessfully led one of the first attempted reforms to the use of capital punishmentwhen he introduced a bill to the Virginia legislature proposing that the deathpenalty could be imposed only if individuals were convicted of murder or trea-son. Dr. Benjamin Rush, one of America’s most famous early physicians andsigner of the Declaration of Independence, opined that having the death pen-alty had no deterrent effect and actually increased criminal conduct. Althoughan interest in abolishing the death penalty in America began during the 1700s,the abolitionist movement increased during the 1800s, and as a result, manystates in the northeast reduced the number of crimes eligible for the death pen-alty. Despite an increasing restriction of capital punishment in various states,scientific knowledge was used to develop new means of execution, includingthe first use of the electric chair in 1888, cyanide gas in 1924, and lethal injec-tion in 1977. After executions increased to an average of 167 per year duringthe 1930s, public sentiment supporting the death penalty began to wane, andan increasing number of constitutional challenges to the legality of the deathpenalty developed. In the late 1950s and early 1960s, abolitionists challengedthe constitutionality of the death penalty, arguing that capital punishment rep-resented cruel and unusual punishment in violation of the Eighth Amendment[1].

The Eighth Amendment to the US Constitution, made applicable to thestates through the Fourteenth Amendment, prohibits cruel and unusual punish-ment. The US Supreme Court has interpreted cruel and unusual punishment

E-mail address: charles.scott@ucdmc.ucdavis.edu.

0193-953X/06/$ – see front matter ª 2006 Elsevier Inc. All rights reserved.doi:10.1016/j.psc.2006.04.002 psych.theclinics.com

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to include those penalties that are excessive and not graduated and propor-tioned to the offense [2] and those that do not consider the defendant’s degreeof criminal culpability [3]. In determining which punishments are so dispropor-tionate as to be cruel and unusual, the US Supreme Court established in Trop v.Dulles [4] the importance of analyzing ‘‘the evolving standards of decency thatmark the progress of a maturing society’’ [4]. In essence, whether or not a pun-ishment is considered cruel and unusual is related significantly to the accep-tance by society that the punishment is one that is just and appropriate.

EVALUATIONS OF DEFENDANTS FACING CAPITALPUNISHMENTThe mental health evaluator may be requested to evaluate a defendant at var-ious phases in their passage through the criminal justice system before theirdate with death. As with all forensic evaluations, the examiner must have a clearunderstanding of the exact nature, purpose, intended audience, and party re-questing the evaluation and the sources of information necessary to answerthe referral question. Although the nature of the examination depends onthe specific question posed, the examiner should evaluate for a wide varietyof mental disorders to include affective disorders, thought disorders, anxietydisorders, cognitive disorders, substance use disorders, personality disorders,mental retardation and borderline intellectual functioning, pervasive develop-mental disorders, head injury or trauma, and seizure disorders. When ap-proaching the numerous types of evaluations that may be requested, theexaminer should understand that capital trials typically are bifurcated. The firstphase involves a determination of guilt. If the defendant is found guilty, he orshe moves to the sentencing phase in which a decision regarding punishment ismade. Commonly requested pre-sentence evaluations include competency towaive Miranda rights, competency to stand trial (CTST), criminal responsibil-ity (‘‘insanity’’), and competency to be sentenced. This article focuses primarilyon those psychiatric evaluations that are requested after a defendant has beenfound guilty of a capital sentence and determined competent to proceed to thesentencing phase.

Evaluating Aggravating Versus Mitigating FactorsThe psychiatrist may be requested to review aggravating or mitigating factorsfor the jury to consider when deciding whether or not to impose the death pen-alty. Aggravating factors are defined by statute and typically involve descrip-tions of the defendant’s past criminal history, degree or premeditation orcruelness of the crime, motive for committing the offense, victim characteristics,and a prediction of future dangerousness [5]. The question regarding the appro-priateness of a jury imposing a death sentence based on their prediction of fu-ture violence was presented to the US Supreme Court in the case of Jurek v.Texas. In this case, Jerry Lee Jurek was convicted of the rape, strangling, anddrowning death of a 10-year-old girl. Under Texas law, one of the questionspresented to the jury was ‘‘whether the evidence established beyond

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a reasonable doubt that there was a probability that the defendant would com-mit criminal acts of violence that would constitute a continuing threat to soci-ety’’ [6,7]. Jurek was sentenced to death. He appealed his sentence, contendingthat because this particular statutory question required the prediction of humanbehavior, an impossible feat, it was unconstitutional. The Supreme Court re-jected this argument, noting that assessment of future risk was a task routinelyperformed by various participants in the criminal justice system, ranging fromprobation officers to judges. The Court emphasized that the jury should con-sider all possible relevant information and an assessment of future dangerous-ness was relevant [6]. This ruling opened the door for the introduction ofpsychiatric expert witness testimony to assist the jury in evaluating a person’srisk for future dangerousness.

The ability of clinicians to predict violence has been challenged and is anarea of controversy and debate [8–12]. Testimony that a defendant representsa continuing threat to society or will commit a violent act in the future has sig-nificant implications for the defendant in death penalty sentencing evaluations.Edens and colleagues [8] challenge the accuracy of such predictions. In theirreview, they note that serious institutional violence committed by capital de-fendants occurs infrequently, predictive accuracy of clinical judgment incommunity settings is modest, serious concerns exist regarding the generaliz-ability of risk assessments to capital defendants, and the use of more structuredrisk assessment measures have not demonstrated the ability to improve sub-stantially violence risk assessment in this population.

Psychiatrists who are prepared to testify at a capital sentencing hearing mustbe familiar with important legal cases that outline a capital defendant’s rights.Whenever a psychiatrist is conducting a forensic evaluation of a defendant fac-ing capital charges, he must inform the defendant and the defendant’s attorneyregarding the nature and intended use of the evaluation, particularly if the riskfor future dangerousness is being assessed. Failure to do so violates the defen-dant’s constitutional rights as highlighted in the case of Estelle v. Smith [13]. Inthis Texas case, Ernest Smith was accused of murdering a store clerk. Beforehis trial, psychiatrist James Grigson, MD evaluated him for competency tostand trial without the defense counsel’s awareness. Mr. Smith was found com-petent to stand trial and subsequently found guilty. At his sentencing phase,Dr. Grigson was called by the prosecution to provide an expert psychiatricopinion regarding Mr. Smith’s risk for future violence, an important questionbefore the sentencing jury. Dr. Grigson testified that based on his competencyto stand trial examination, Mr. Smith was a ‘‘very severe sociopath’’ and was‘‘going to go ahead and commit other similar or same criminal acts if given theopportunity to do so.’’ The jury subsequently imposed the death penalty [13].

Mr. Smith appealed his death sentence, arguing that Dr. Grigson violated theFifth Amendment by failing to advise him that he had a right to remain silentand if he chose to talk, the information obtained could be used against him atthe sentencing phase. Mr. Smith also alleged that Dr. Grigson’s failure to notifyhis attorney of the evaluation violated the Sixth Amendment, because he was

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not allowed effective assistance of counsel. The US Supreme Court agreed andheld that the admission of Dr. Grigson’s testimony at the penalty phase vio-lated Mr. Smith’s Fifth Amendment and Sixth Amendment constitutional rights[13]. This ruling emphasizes the importance of educating the defendant regard-ing the nonconfidential nature of the forensic examination after the defenseattorney has agreed to the evaluation.

Is a psychiatrist allowed to provide expert testimony on future dangerous-ness if he or she has never even examined the defendant? Another famousTexas case, also involving psychiatrist Dr. James Grigson, raised this very is-sue. In Barefoot v. Estelle, Thomas Barefoot was convicted of murdering a policeofficer in Bell County, Texas. Although Dr. Grigson had never evaluatedMr. Barefoot, the state prosecutor called Dr. Grigson to the sentencing phasein which a series of hypothetical questions, similar to Mr. Barefoot’s case,were presented to Dr. Grigson. Based on this series of hypothetical questions,Dr. Grigson testified that there was a ‘‘one hundred and absolute’’ chance thatMr. Barefoot would ‘‘constitute a continuing threat to society,’’ and the jurythen imposed the death penalty. Mr. Barefoot challenged his death sentence,arguing that psychiatrists could not predict dangerousness with sufficient accu-racy and therefore should not be allowed to testify. The American PsychiatricAssociation (APA) agreed and submitted an amicus curiae brief highlightingthat psychiatrists were unable to predict accurately future dangerousness intwo out of three cases. The Supreme Court rejected these arguments, notingthat ‘‘neither the prisoner nor the American Psychiatric Association suggestthat psychiatrist are always wrong with respect to future dangerousness, onlymost of the time.’’ The Court upheld the use of hypothetical questions andallowed the psychiatrist to provide an opinion regarding the risk for futuredangerousness based on such questions [14].

Evaluation of Mitigating FactorsMitigating factors are those aspects of a defendant’s life that shed light on whythe convicted defendant committed the crime without attempting to excuse ordiminish their criminal behavior [15]. In the case of Lockett v. Ohio, the USSupreme Court emphasized that a broad range of factors could be introducedat the sentencing phase as potentially mitigating. In particular, the SupremeCourt held that the sentencer could ‘‘not be precluded from considering asa mitigating factor, any aspect of a defendant’s character or record and anyof the circumstances of the offense’’ [16]. Factors often considered potentiallymitigating include a person acting under duress or the control of another, ab-sence of a prior criminal history, age, personal character and social back-ground, presence of a mental disorder or intoxication that impaired theperson’s judgment and reasoning, and moral justification of the crime [17–20].

Does the research support these factors as mitigating when viewed by jurors?Although there is a paucity of research on this important topic, at least twostudies suggest that some factors traditionally viewed as mitigating may beviewed as aggravating by some jurors. In their study of mock jurors, Ellsworth

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and colleagues [21] found that mock jurors who did not oppose the death pen-alty (ie, death-qualified jurors) were more likely to render a guilty verdict fora schizophrenic defendant than mock jurors who opposed the death penalty.In White’s investigation of 232 death-qualified mock jurors, presentation ofa mental illness defense rendered a harsher punishment when comparedwith an anti-capital punishment argument or no defense at all [22,23]. In a studyinvolving South Carolina jurors who actually sat on a capital trial, researchersfound that when information was presented that the defendant was an alcoholicor drug addict, jurors viewed these factors as aggravating rather than mitigating[24].

To further investigate perceptions of potentially mitigating evidence by ju-rors, Barnett and colleagues [22] examined attitudes of 260 death-qualifiedmock jurors. The results of their study found that mitigating evidence didmake a difference. In particular, mock jurors were less likely to sentence a de-fendant to death when mitigating evidence was presented. Particular evidenceviewed as mitigating included scenarios in which the defendant was

� Schizophrenic, not medicated, and suffering from severe delusions andhallucinations

� Drug addicted and high at the time of the murder� Diagnosed as borderline mentally retarded during childhood� Severely physically and verbally abused by parents during childhood

During the last decade, the mitigating factors of young age (younger than 18years) and mental retardation have been considered by the US Supreme Courtto be of such significance that if either factor is present, the death penalty can-not be imposed. In the 2005 case of Roper v. Simmons, the US Supreme Courtheld that the Eighth and Fourteenth Amendments of the US Constitution for-bid the imposition of the death penalty on a juvenile offender who was youngerthan 18 years of age when he or she committed a capital crime [25]. The Courtcited three general differences between offenders younger than age 18 yearsand adults, which suggested juveniles should not be considered among theworst offenders: (1) juveniles are less mature and responsible than adultsand therefore more likely to have impetuous and poorly thought out actions,(2) juveniles are more vulnerable and susceptible to negative influences, suchas peer pressure, and (3) a juvenile’s character is not as well formed as thatof an adult and therefore not a result of an irretrievably depraved character.The Court reasoned that because of these three differences, juveniles wereless culpable than adults and could not be considered to be among the worstgroup of offenders for whom the death penalty was intended [25,26].

In Atkins v. Virginia, the Supreme Court held that execution of persons withmental retardation violates the Eighth Amendment’s ban on cruel and unusualpunishment, thereby requiring careful consideration of possible mental retarda-tion in these cases. This decision highlights the importance of mental health cli-nicians’ being skilled in understanding, identifying, and diagnosing mentalretardation. Evaluators must be familiar with commonly accepted medical

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definitions of mental retardation. Generally, mental retardation encompassesindividuals with a score of 70 or below on accepted standardized intelligencetesting. Although intelligence can be measured by standardized testing, the mar-gin of error of one or two points is substantial under these circumstances [27].

In addition to an IQ of 70 or below, the DSM-IV requires concurrent deficitsor impairments in present adaptive functioning in at least two areas (such ascommunication, self care, home living) and the onset of such deficits beforeage 18 years [28]. The 2002 definition provided by the American Associationof Mental Retardation reads, ‘‘Mental retardation is a disability characterizedby significant limitations in intellectual functioning and in adaptive behavioras expressed in conceptual, social, and practical adaptive skills. This disabilityoriginates before age 18’’ [29].

Competency to Waive Right to AppealAlthough capital sentences usually are challenged legally, inmates sentenced todie have the right to waive appeals on their behalf, a decision sometimes re-ferred to as volunteering for the death penalty. In 2005, approximately 12%of inmates who were executed gave up their legal right to appeal their sentence[1].

Some scholars argue that volunteering allows an inmate to maintain theirpersonal autonomy and integrity and should be respected [30,31], whereasothers emphasize the inability of inmates to make a truly voluntary and ratio-nal choice considering the extreme living circumstances they face while livingon death row [30,32–35]. In an article highlighting the living conditions of 14inmates on death row, Dr. Stuart Grassian coined the term death row syn-drome to describe psychiatric reactions to these living conditions [36]. Haney[37] also reported that the severe conditions of solitary and supermax confine-ment can lead to severe psychopathology, though noted it was unclear howmany of such individuals had pre-existing mental disorders. Concerns regard-ing the use of the phrase ‘‘death row syndrome’’ as a diagnosis include thebroad range and type of symptoms that could be included, the lack of researchsupporting this as a new diagnostic syndrome, the lack of reliability and valid-ity of such a syndrome, and the potential misuse of this phrase as a psychiatricdiagnosis to achieve the social goal of preventing the death penalty from beingimposed [38].

What is the standard that evaluators should consider when assessing a con-victed inmate’s competency to waive their appeals after they have been sen-tenced to death? The US Supreme Court has provided guidance on thisissue in at least three separate cases. In the first case, Melvin Rees was con-victed of murder and sentenced to death by a state court in Virginia. Onemonth after his attorneys filed a petition to the US Supreme Court to reviewhis habeas corpus challenge, Rees directed his counsel to withdraw the petitionand forgo any further legal proceedings. Rees’ counsel advised the Court thathe believed his client was mentally incompetent to make this decision andtherefore could not withdraw his certiorari petition. The US Supreme Court

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directed the District Court to make a determination of Rees’ mental compe-tency to waive his right to appeal his sentence by considering ‘‘whether hehas capacity to appreciate his position and make a rational choice with respectto continuing or abandoning further litigation or on the other hand whether heis suffering from a mental disease, disorder, or defect which may substantiallyaffect his capacity in the premises’’ [39]. This standard, known as the ReesStandard, involves an assessment of whether the person has a mental disorder,whether such a disorder if present substantially affects his capacity to waive hisright to an appeal, and whether he has the capacity to make a rational choice toappreciate the consequences of abandoning his appeals.

In the subsequent case of Gilmore v. Utah, the US Supreme Court seems tohave narrowed the standard for competency to waive an appeal [40]. Gilmore v.Utah is a particularly noteworthy volunteering case, because Mr. Gilmorewas the first person legally executed in the United States after the death pen-alty was reinstated in 1976 following the US Supreme Court’s decision inGregg v. Georgia [41] that lifted a 4-year moratorium enacted by the case ofFurman v. Georgia [42]. Mr. Gilmore was a career criminal who while on pa-role killed a motel manager in Provo, Utah. After being sentenced to deathand given a choice between lethal injection and a firing squad, Mr. Gilmorereplied, ‘‘I’d prefer to be shot’’ [43].

Gilmore instructed his attorneys to drop any appeals on his behalf, and dur-ing the 3 months that he was awaiting his execution, he twice attemptedsuicide. When reviewing a petition submitted by his mother to halt his execu-tion, the US Supreme Court held that a person could waive their right to ap-peal as long as the waiver was ‘‘knowing and intelligent’’ [43]. Unlike theprevious Rees standard, the resulting Gilmore Standard did not require specif-ically a consideration that the inmate is making a rational choice, only that heor she is making a knowing and intelligent decision.

In the third and final case, the US Supreme Court provided a standardnearly identical to that established in Gilmore v. Utah. The case of Whitmore v.Arkansas involved Ronald Gene Simmons, a man convicted of shooting and kill-ing two people and wounding three others in the course of a rampage throughthe town of Russellville, Arkansas. After his arrest, police discovered 14 bodiesof Simmons’ family in his home in Dover, Arkansas, all of whom had beenmurdered. After being convicted and sentenced for the Russellville murders,Mr. Simmons made the following statement under oath:

I, Ronald Gene Simmons, Sr., want it to be known that it is my wish and mydesire that absolutely no action by anybody be taken to appeal or in anyway change this sentence. It is further respectfully requested that this sen-tence be performed expeditiously [44].

At his subsequent trial for the murder of his 14 family members, Simmonsagain was convicted and sentenced to death. Once again he notified the trialcourt of his desire to waive his right to direct appeal, and after a hearing onthis matter, the court found Simmons competent to do so. Although Simmons

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had refused to submit a petition challenging his sentence, Whitmore, a fellowdeath row inmate, intervened on Simmons’ behalf as a next friend. The US Su-preme Court determined that Whitmore had no standing in the case and reit-erated that a defendant sentenced to death can waive his right to appeal when‘‘an evidentiary hearing shows that the defendant has given a knowing, intelli-gent, and voluntary waiver of his right to proceed, and his access to court isotherwise unimpeded’’ [45].

Mental health evaluators who evaluate a defendant’s competency to waivetheir right to appeal should be familiar with their jurisdiction’s specific languageand legal standards governing this issue. As described in the three standardsarticulated previously, common components include an evaluation of a mentaldisorder or defect, an assessment if the person’s waiver is made knowingly, in-telligently, and voluntarily, and, in some jurisdictions, if the person’s decisionrepresents a ‘‘rational choice.’’ Important components to consider when con-ducting this evaluation include the following:

� Does the inmate have a mental disorder, disease, or defect?� Is the inmate clinically depressed?� Is the inmate’s decision to waive his appeal a form of suicide as a result of

depression?� Is the inmate unrealistically hopeless regarding his situation?� Is the inmate waiving his right to an appeal because of an irrational under-

standing of the consequences of doing so?� Does the inmate report rational reasons for requesting the death penalty, such

as accepting responsibility for his or her actions?� Is the inmate’s waiver voluntary?

Competence to be ExecutedUnlike the standard for competence to stand trial set by the US Supreme Courtin Dusky v. United States [46], the US Supreme Court has never articulated a spe-cific standard to determine competence to be executed. In the case of Ford v.Wainwright, however, Justice Powell provided some guidance in his concurringopinion. In this Florida case, Alvin Ford was convicted in 1974 of murderinga police officer and subsequently was sentenced to death. While awaiting hisdeath sentence, he exhibited changes in behavior and thinking that stronglysuggested a psychotic thought disorder. Two defense psychiatrists found himincompetent to be executed, and three psychiatrists appointed by the governorfound him competent to be executed in their 30-minute joint interview. Thegovernor signed Mr. Ford’s death warrant after deciding to exclude the defensepsychiatrists’ report alleging that Mr. Ford was incompetent. The case was ap-pealed to the US Supreme Court, which ultimately held that the EighthAmendment’s ban on cruel and unusual punishment prohibits the executionof an ‘‘insane’’ person. Although the Court did not provide a specific standardfor evaluating competence to be executed, in his concurring opinion Justice Po-well provided some guidance. He wrote that the Eighth amendment ‘‘forbidsthe execution only of those who are unaware of the punishment they are about

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to suffer and why they are to suffer it’’ [47]. The examiner conducting a com-petency to be executed evaluation should become familiar with the exact stan-dard used in their jurisdiction before conducting their assessment.

TREATMENT OF INMATES FOUND INCOMPETENT TO BEEXECUTEDOnce an inmate is found incompetent to be executed, two important questionsarise:

1. Does the clinician continue to provide mental health treatment when doingso potentially could result in the inmate’s return to competency and subse-quent execution?

2. If an inmate refuses treatment, can they be forced to receive the very treat-ment that may render them ready for death?

Two cases highlight two different courts’ answers to these vexing questions.In the Louisiana case of State v. Perry, Michael Perry had been convicted andsentenced to death for murdering five family members with firearms in1983. At age 16 years, he was diagnosed with schizophrenia. Before committinghis crimes, he had been committed on several occasions to mental institutionsby his parents. While awaiting his execution, he began hallucinating and wasdescribed by others as delusional with incoherent speech. Experts testifiedthat he could be made competent for execution only if treated with his antipsy-chotic medication haloperidol. After finding him incompetent to be executed,the trial court ordered the medical staff of the Louisiana Department of Correc-tions to forcibly medicate Perry to restore his competency. The case eventuallywas appealed to the US Supreme Court to decide if involuntary medicationscould be administered for the purposes of making someone competent to beexecuted [48].

Rather than provide a direct answer to this question, the US Supreme Courtchose instead to remand the case back to the trial court for reconsideration inlight of the Court’s 1990 ruling in Washington v. Harper. In Harper, the US Su-preme Court was asked to determine whether a procedure used in the Wash-ington state penal system to override treatment refusals of prisoners wasconstitutional. Unlike the facts in Perry, Washington v. Harper involved a manconvicted of robbery who was not facing a pending execution. The HarperCourt held that the Washington state’s procedure to institute involuntary med-ications was constitutional because it required the state to show that such treat-ment rationally seeks to further the best medical interest of the prisoner and thestate’s own interest in prison safety [49].

The Louisiana Supreme Court distinguished Michael Perry’s case from thefacts in Washington v. Harper. In particular, they noted that involuntary medica-tions were being requested to forward Perry’s execution rather than to assist inprison safety or Perry’s treatment. The Louisiana Supreme Court affirmedPerry’s incompetency to be executed and reversed the trial court’s order tomedicate Perry against his will, finding that to involuntary medicate Perry

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violated the cruel and unusual punishment clause and right to privacy estab-lished by the Louisiana Constitution [48].

In the subsequent case of Singleton v. Norris, the Eighth Circuit Court of Ap-peals also was asked to evaluate if involuntary psychiatric medications could beadministered to a defendant when there was a likelihood that such administra-tion would render him competent to be executed. Charles Singleton was con-victed in 1979 of capital felony murder and aggravated robbery. While inprison, Mr. Singleton’s mental health clearly deteriorated and he was diag-nosed with paranoid schizophrenia. At times he believed his cell was possessedby demons and had ‘‘demon blood’’ in it. He also believed that a prison doctorhad planted some type of device in his right ear and that his thoughts were be-ing stolen from him when he read the Bible. Between 1987 and 1997, his med-ication compliance fluctuated and involuntary medications were sometimesadministered. When taking his medications, records indicated that he had sig-nificant clinical improvement and his psychotic symptoms diminished, indicat-ing that such treatment was in his best medical interest. When Mr. Singleton’sexecution date was announced, he argued that the state could no longer forc-ibly medicate him, because medications were essentially now rendering himcompetent to be executed and execution was not in his best medical interest.The Eighth Circuit Court of Appeals held that involuntarily medicatingMr. Singleton, even if such treatment renders him competent to be executed,did not violate the Eighth Amendment’s ban on cruel and unusual punishment.The Court reasoned that Mr. Singleton was receiving appropriate medicalcare for his mental illness, and the best medical interest of the prisoner mustbe determined without regard to whether there is a pending date of execution[50].

The clinical and ethical problems related to treating a death row inmate in-competent to be executed are considerable. On one hand, failure to treat mayresult in severe suffering from psychotic symptoms, whereas forcing treatmentmay result in clinical improvement sufficient to render the inmate psychiatri-cally stable for execution. Some states have chosen to solve this dilemma bycommuting the inmate’s death penalty once they have been found incompetentto be executed [51].

PROFESSIONAL ETHICAL GUIDELINES AND THE DEATHPENALTYPsychiatric evaluations and treatment of defendants facing capital punishmentinvolve the interface of legal and medical standards, personal and medicalethics, and professional guidelines. A longstanding principal governing thepractice of medicine is reflected by the Latin phrase primum non nocere, translatedas ‘‘first, do no harm.’’ The American Medical Association’s (AMA) ethicalguidelines emphasize that the practice of medicine is dedicated to preservinglife [52]. The AMA and the American Psychiatric Association’s (APA) ethicalguidelines state that physicians (and psychiatrists by extension) should notbe a participant in a legally authorized execution [52].

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The American Medical Association defines physician participation in an ex-ecution as one or more of the following categories [52]:

(1) an action which would directly cause the death of the condemned(2) an action which would assist, supervise, or contribute to the ability of an-

other individual to directly cause the death of the condemned(3) an action which could automatically cause an execution to be performed on

a condemned prisoner

The AMA guidelines specifically note that psychiatric testimony regardinga defendant’s medical history, mental state as related to competence to standtrial, relevant medical evidence during trial, medical aspects of aggravatingor mitigating circumstances during the sentencing phase, and testifying regard-ing medical diagnoses as they relate to the legal assessment of execution doesnot constitute physician participation in an execution, nor does a physician’srelieving the acute suffering of a condemned person while awaiting execution,including providing tranquilizers at the specific voluntary request of the con-demned person to help relieve pain or anxiety in anticipation of the execution.Key points from the AMA guidelines regarding physician’s involvement incompetency to be executed evaluations include the following [52]:

� Physician’s should not determine legal competence to be executed thoughmay offer a medical opinion that the trier of fact can consider when makingthis determination.

� Physicians should not treat a prisoner declared incompetent to be executed forthe purpose of restoring competence unless a commutation order is issued be-fore treatment begins.

� Reevaluation of a prisoner’s competency to be executed should be performedby an independent physician examiner rather than the treating physician.

� Physicians may ethically treat an incompetent prisoner undergoing extremesuffering as a result of psychosis or any other illness if the medical interventionis intended to mitigate the level of suffering.

� A physician cannot be compelled to evaluate a prisoner’s competence to beexecuted or treat an incompetent condemned prisoner if such activity is con-trary to the physician’s personal beliefs.

Psychiatrists are divided in their opinions regarding at what stage, if any,evaluations of defendants facing capital punishment are ethically appropriate.Some believe that psychiatrists should never participate in any type of evalua-tion of a defendant charged with a capital crime, because such participationprovides tacit approval of the death penalty and may assist in moving the de-fendant forward in the execution process. Others argue that psychiatrists mayconduct evaluations only if retained by defense counsel so as to minimize thechance of any adverse testimony to the defendant. One psychiatric group ad-vises that any psychiatric participation after a guilty verdict has been renderedis unethical [53]. A fourth position emphasizes that psychiatric assessments atany stage of the criminal justice process is ethically permissible, because thepsychiatrist is striving to answer questions posed by the court rather than

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imposing their personal beliefs on the criminal justice system [54–56]. What-ever moral stance the individual psychiatrist reaches when deciding whetheror not to conduct evaluations in this context, the examiner should always strivefor honesty and objectivity when providing testimony and should monitorcarefully that their personal beliefs do not trump the objective evidence avail-able to answer the question before them.

SUMMARYPsychiatrists conducting forensic evaluations of defendants facing a potentialdeath penalty must understand the legal and ethical parameters governingthese assessments in addition to the important clinical issues. Important areasto review with each defendant include the role of the evaluator, the party re-questing the evaluation, circumstances in which the evaluation is not confiden-tial, the nature, scope, and purpose of the evaluation, and the parties to whomthe results of the evaluation are to be forwarded. In those circumstances inwhich the defense attorney has not retained the psychiatrist, the defendant’sattorney must be aware that an evaluation has been ordered by the court orrequested by the prosecution. The psychiatrist also must be prepared for pas-sionate challenges to their findings from the defense or prosecution and in someinstances for vigorous attacks on their own personal ethics. To weather suchstorms, the mental health evaluator must base their opinion on objective evi-dence rather than letting any personal bias guide their assessment.

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uary 10, 2006.[2] Weems v United States, US Vol 217; 1909:349.[3] Enmund v Florida, US Vol 458; 1982:789–90.[4] Trop v Dulles, US Vol 356; 1958:86.[5] Acker JR, Lanier CS. ‘‘Parsing this lexicon of death’’: aggravating factors in capital sentenc-

ing statues. Crim Law Bull 1994;30:107–53.[6] Jurek v Texas, US Vol 428; 1976:262.[7] Texas Code Criminal Procedure. Vol Article 37.071;2000.[8] Edens JF, Buffington-Vollum JK, Keilen A, et al. Predictions of future dangerousness in capital

murder trials: is it time to ‘‘disinvent the wheel’’? Law Hum Behav 2005;29(1):55–86.[9] Edens JF, Otto RK. Release decision making and planning. In: Ashford JB, Sales BD,

Reid WH, editors. Treating adult and juvenile offenders with special needs. Washington,DC: American Psychological Association; 2001. p. 335–71.

[10] Litwack TR. Actuarial versus clinical assessments of dangerousness. Psychol Public PolicyLaw 2001;7:409–43.

[11] Melton GB, Petrila J, Poythress NG, et al. Psychological evaluations for the court: a hand-book for mental health professionals and lawyers. 2nd edition. New York: Guilford Press;1997.

[12] Quinsey VL, Harris GT, Rice ME, et al. Violent offenders: appraising and managing risk.Washington, DC: American Psychological Association; 1998.

[13] Estelle v Smith, US Vol 451; 1981:454.[14] Barefoot v Estelle. US Vol 463; 1983:880.[15] Haney C. The social context of capital murder: social histories and the logic of mitigation.

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[16] Lockett v Ohio, US Vol 468; 1978:586.[17] Acker JR, Lanier CS. In fairness and mercy: statutory mitigating factors in capital punishment

laws. Crim Law Bull 1994;30:299–345.[18] American Bar Association standards for criminal justice sentencing. 3rd edition. Washing-

ton, DC: American Bar Association; 1994.[19] Domozick DD. Fact or fiction: mitigating the death penalty in Ohio. Cleve State Law Rev

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