Psychiatr Clin N Am 29 (2006) 791804

PSYCHIATRIC CLINICS
OF NORTH AMERICA

Psychiatry and the Death Penalty

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

he first laws establishing the death penalty can be traced to the eighteenth
century BC. At that time, the Code of King Hammurabi of Babylon established the death penalty for 25 separate crimes. In the tenth century AD
Britain, hanging was the most usual method of execution, and by the 1700s,
222 crimes were punishable by death. Crimes eligible for the death penalty
in Britain during this period included cutting down a tree and robbing a rabbit
warren. American colonists adopted the practice of capital punishment from
their British and European counterparts, though laws defining which crimes
were punishable by death varied between colonies. Thomas Jefferson unsuccessfully led one of the first attempted reforms to the use of capital punishment
when he introduced a bill to the Virginia legislature proposing that the death
penalty could be imposed only if individuals were convicted of murder or treason. Dr. Benjamin Rush, one of Americas most famous early physicians and
signer of the Declaration of Independence, opined that having the death penalty had no deterrent effect and actually increased criminal conduct. Although
an interest in abolishing the death penalty in America began during the 1700s,
the abolitionist movement increased during the 1800s, and as a result, many
states in the northeast reduced the number of crimes eligible for the death penalty. Despite an increasing restriction of capital punishment in various states,
scientific knowledge was used to develop new means of execution, including
the first use of the electric chair in 1888, cyanide gas in 1924, and lethal injection in 1977. After executions increased to an average of 167 per year during
the 1930s, public sentiment supporting the death penalty began to wane, and
an increasing number of constitutional challenges to the legality of the death
penalty developed. In the late 1950s and early 1960s, abolitionists challenged
the constitutionality of the death penalty, arguing that capital punishment represented cruel and unusual punishment in violation of the Eighth Amendment
[1].
The Eighth Amendment to the US Constitution, made applicable to the
states through the Fourteenth Amendment, prohibits cruel and unusual punishment. The US Supreme Court has interpreted cruel and unusual punishment
E-mail address: charles.scott@ucdmc.ucdavis.edu.
0193-953X/06/$ see front matter
doi:10.1016/j.psc.2006.04.002

2006 Elsevier Inc. All rights reserved.

psych.theclinics.com

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to include those penalties that are excessive and not graduated and proportioned to the offense [2] and those that do not consider the defendants degree
of criminal culpability [3]. In determining which punishments are so disproportionate as to be cruel and unusual, the US Supreme Court established in Trop v.
Dulles [4] the importance of analyzing the evolving standards of decency that
mark the progress of a maturing society [4]. In essence, whether or not a punishment is considered cruel and unusual is related significantly to the acceptance by society that the punishment is one that is just and appropriate.
EVALUATIONS OF DEFENDANTS FACING CAPITAL
PUNISHMENT
The mental health evaluator may be requested to evaluate a defendant at various phases in their passage through the criminal justice system before their
date with death. As with all forensic evaluations, the examiner must have a clear
understanding of the exact nature, purpose, intended audience, and party requesting the evaluation and the sources of information necessary to answer
the referral question. Although the nature of the examination depends on
the specific question posed, the examiner should evaluate for a wide variety
of mental disorders to include affective disorders, thought disorders, anxiety
disorders, cognitive disorders, substance use disorders, personality disorders,
mental retardation and borderline intellectual functioning, pervasive developmental disorders, head injury or trauma, and seizure disorders. When approaching the numerous types of evaluations that may be requested, the
examiner should understand that capital trials typically are bifurcated. The first
phase involves a determination of guilt. If the defendant is found guilty, he or
she moves to the sentencing phase in which a decision regarding punishment is
made. Commonly requested pre-sentence evaluations include competency to
waive Miranda rights, competency to stand trial (CTST), criminal responsibility (insanity), and competency to be sentenced. This article focuses primarily
on those psychiatric evaluations that are requested after a defendant has been
found guilty of a capital sentence and determined competent to proceed to the
sentencing phase.
Evaluating Aggravating Versus Mitigating Factors
The psychiatrist may be requested to review aggravating or mitigating factors
for the jury to consider when deciding whether or not to impose the death penalty. Aggravating factors are defined by statute and typically involve descriptions of the defendants past criminal history, degree or premeditation or
cruelness of the crime, motive for committing the offense, victim characteristics,
and a prediction of future dangerousness [5]. The question regarding the appropriateness of a jury imposing a death sentence based on their prediction of future violence was presented to the US Supreme Court in the case of Jurek v.
Texas. In this case, Jerry Lee Jurek was convicted of the rape, strangling, and
drowning death of a 10-year-old girl. Under Texas law, one of the questions
presented to the jury was whether the evidence established beyond

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a reasonable doubt that there was a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society [6,7]. Jurek was sentenced to death. He appealed his sentence, contending
that because this particular statutory question required the prediction of human
behavior, an impossible feat, it was unconstitutional. The Supreme Court rejected this argument, noting that assessment of future risk was a task routinely
performed by various participants in the criminal justice system, ranging from
probation officers to judges. The Court emphasized that the jury should consider all possible relevant information and an assessment of future dangerousness was relevant [6]. This ruling opened the door for the introduction of
psychiatric expert witness testimony to assist the jury in evaluating a persons
risk for future dangerousness.
The ability of clinicians to predict violence has been challenged and is an
area of controversy and debate [812]. Testimony that a defendant represents
a continuing threat to society or will commit a violent act in the future has significant implications for the defendant in death penalty sentencing evaluations.
Edens and colleagues [8] challenge the accuracy of such predictions. In their
review, they note that serious institutional violence committed by capital defendants occurs infrequently, predictive accuracy of clinical judgment in
community settings is modest, serious concerns exist regarding the generalizability of risk assessments to capital defendants, and the use of more structured
risk assessment measures have not demonstrated the ability to improve substantially violence risk assessment in this population.
Psychiatrists who are prepared to testify at a capital sentencing hearing must
be familiar with important legal cases that outline a capital defendants rights.
Whenever a psychiatrist is conducting a forensic evaluation of a defendant facing capital charges, he must inform the defendant and the defendants attorney
regarding the nature and intended use of the evaluation, particularly if the risk
for future dangerousness is being assessed. Failure to do so violates the defendants constitutional rights as highlighted in the case of Estelle v. Smith [13]. In
this Texas case, Ernest Smith was accused of murdering a store clerk. Before
his trial, psychiatrist James Grigson, MD evaluated him for competency to
stand trial without the defense counsels awareness. Mr. Smith was found competent to stand trial and subsequently found guilty. At his sentencing phase,
Dr. Grigson was called by the prosecution to provide an expert psychiatric
opinion regarding Mr. Smiths risk for future violence, an important question
before the sentencing jury. Dr. Grigson testified that based on his competency
to stand trial examination, Mr. Smith was a very severe sociopath and was
going to go ahead and commit other similar or same criminal acts if given the
opportunity to do so. The jury subsequently imposed the death penalty [13].
Mr. Smith appealed his death sentence, arguing that Dr. Grigson violated the
Fifth Amendment by failing to advise him that he had a right to remain silent
and if he chose to talk, the information obtained could be used against him at
the sentencing phase. Mr. Smith also alleged that Dr. Grigsons failure to notify
his attorney of the evaluation violated the Sixth Amendment, because he was

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not allowed effective assistance of counsel. The US Supreme Court agreed and
held that the admission of Dr. Grigsons testimony at the penalty phase violated Mr. Smiths Fifth Amendment and Sixth Amendment constitutional rights
[13]. This ruling emphasizes the importance of educating the defendant regarding the nonconfidential nature of the forensic examination after the defense
attorney has agreed to the evaluation.
Is a psychiatrist allowed to provide expert testimony on future dangerousness if he or she has never even examined the defendant? Another famous
Texas case, also involving psychiatrist Dr. James Grigson, raised this very issue. In Barefoot v. Estelle, Thomas Barefoot was convicted of murdering a police
officer in Bell County, Texas. Although Dr. Grigson had never evaluated
Mr. Barefoot, the state prosecutor called Dr. Grigson to the sentencing phase
in which a series of hypothetical questions, similar to Mr. Barefoots case,
were presented to Dr. Grigson. Based on this series of hypothetical questions,
Dr. Grigson testified that there was a one hundred and absolute chance that
Mr. Barefoot would constitute a continuing threat to society, and the jury
then imposed the death penalty. Mr. Barefoot challenged his death sentence,
arguing that psychiatrists could not predict dangerousness with sufficient accuracy and therefore should not be allowed to testify. The American Psychiatric
Association (APA) agreed and submitted an amicus curiae brief highlighting
that psychiatrists were unable to predict accurately future dangerousness in
two out of three cases. The Supreme Court rejected these arguments, noting
that neither the prisoner nor the American Psychiatric Association suggest
that psychiatrist are always wrong with respect to future dangerousness, only
most of the time. The Court upheld the use of hypothetical questions and
allowed the psychiatrist to provide an opinion regarding the risk for future
dangerousness based on such questions [14].
Evaluation of Mitigating Factors
Mitigating factors are those aspects of a defendants life that shed light on why
the convicted defendant committed the crime without attempting to excuse or
diminish their criminal behavior [15]. In the case of Lockett v. Ohio, the US
Supreme Court emphasized that a broad range of factors could be introduced
at the sentencing phase as potentially mitigating. In particular, the Supreme
Court held that the sentencer could not be precluded from considering as
a mitigating factor, any aspect of a defendants character or record and any
of the circumstances of the offense [16]. Factors often considered potentially
mitigating include a person acting under duress or the control of another, absence of a prior criminal history, age, personal character and social background, presence of a mental disorder or intoxication that impaired the
persons judgment and reasoning, and moral justification of the crime [1720].
Does the research support these factors as mitigating when viewed by jurors?
Although there is a paucity of research on this important topic, at least two
studies suggest that some factors traditionally viewed as mitigating may be
viewed as aggravating by some jurors. In their study of mock jurors, Ellsworth

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and colleagues [21] found that mock jurors who did not oppose the death penalty (ie, death-qualified jurors) were more likely to render a guilty verdict for
a schizophrenic defendant than mock jurors who opposed the death penalty.
In Whites investigation of 232 death-qualified mock jurors, presentation of
a mental illness defense rendered a harsher punishment when compared
with an anti-capital punishment argument or no defense at all [22,23]. In a study
involving South Carolina jurors who actually sat on a capital trial, researchers
found that when information was presented that the defendant was an alcoholic
or drug addict, jurors viewed these factors as aggravating rather than mitigating
[24].
To further investigate perceptions of potentially mitigating evidence by jurors, Barnett and colleagues [22] examined attitudes of 260 death-qualified
mock jurors. The results of their study found that mitigating evidence did
make a difference. In particular, mock jurors were less likely to sentence a defendant to death when mitigating evidence was presented. Particular evidence
viewed as mitigating included scenarios in which the defendant was





Schizophrenic, not medicated, and suffering from severe delusions and

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

During the last decade, the mitigating factors of young age (younger than 18
years) and mental retardation have been considered by the US Supreme Court
to be of such significance that if either factor is present, the death penalty cannot be imposed. In the 2005 case of Roper v. Simmons, the US Supreme Court
held that the Eighth and Fourteenth Amendments of the US Constitution forbid the imposition of the death penalty on a juvenile offender who was younger
than 18 years of age when he or she committed a capital crime [25]. The Court
cited three general differences between offenders younger than age 18 years
and adults, which suggested juveniles should not be considered among the
worst offenders: (1) juveniles are less mature and responsible than adults
and therefore more likely to have impetuous and poorly thought out actions,
(2) juveniles are more vulnerable and susceptible to negative influences, such
as peer pressure, and (3) a juveniles character is not as well formed as that
of an adult and therefore not a result of an irretrievably depraved character.
The Court reasoned that because of these three differences, juveniles were
less culpable than adults and could not be considered to be among the worst
group of offenders for whom the death penalty was intended [25,26].
In Atkins v. Virginia, the Supreme Court held that execution of persons with
mental retardation violates the Eighth Amendments ban on cruel and unusual
punishment, thereby requiring careful consideration of possible mental retardation in these cases. This decision highlights the importance of mental health clinicians being skilled in understanding, identifying, and diagnosing mental
retardation. Evaluators must be familiar with commonly accepted medical

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definitions of mental retardation. Generally, mental retardation encompasses

individuals with a score of 70 or below on accepted standardized intelligence
testing. Although intelligence can be measured by standardized testing, the margin of error of one or two points is substantial under these circumstances [27].
In addition to an IQ of 70 or below, the DSM-IV requires concurrent deficits
or impairments in present adaptive functioning in at least two areas (such as
communication, self care, home living) and the onset of such deficits before
age 18 years [28]. The 2002 definition provided by the American Association
of Mental Retardation reads, Mental retardation is a disability characterized
by significant limitations in intellectual functioning and in adaptive behavior
as expressed in conceptual, social, and practical adaptive skills. This disability
originates before age 18 [29].
Competency to Waive Right to Appeal
Although capital sentences usually are challenged legally, inmates sentenced to
die have the right to waive appeals on their behalf, a decision sometimes referred to as volunteering for the death penalty. In 2005, approximately 12%
of inmates who were executed gave up their legal right to appeal their sentence
[1].
Some scholars argue that volunteering allows an inmate to maintain their
personal autonomy and integrity and should be respected [30,31], whereas
others emphasize the inability of inmates to make a truly voluntary and rational choice considering the extreme living circumstances they face while living
on death row [30,3235]. In an article highlighting the living conditions of 14
inmates on death row, Dr. Stuart Grassian coined the term death row syndrome to describe psychiatric reactions to these living conditions [36]. Haney
[37] also reported that the severe conditions of solitary and supermax confinement can lead to severe psychopathology, though noted it was unclear how
many of such individuals had pre-existing mental disorders. Concerns regarding the use of the phrase death row syndrome as a diagnosis include the
broad range and type of symptoms that could be included, the lack of research
supporting this as a new diagnostic syndrome, the lack of reliability and validity of such a syndrome, and the potential misuse of this phrase as a psychiatric
diagnosis to achieve the social goal of preventing the death penalty from being
imposed [38].
What is the standard that evaluators should consider when assessing a convicted inmates competency to waive their appeals after they have been sentenced to death? The US Supreme Court has provided guidance on this
issue in at least three separate cases. In the first case, Melvin Rees was convicted of murder and sentenced to death by a state court in Virginia. One
month after his attorneys filed a petition to the US Supreme Court to review
his habeas corpus challenge, Rees directed his counsel to withdraw the petition
and forgo any further legal proceedings. Rees counsel advised the Court that
he believed his client was mentally incompetent to make this decision and
therefore could not withdraw his certiorari petition. The US Supreme Court

PSYCHIATRY AND THE DEATH PENALTY

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directed the District Court to make a determination of Rees mental competency to waive his right to appeal his sentence by considering whether he
has capacity to appreciate his position and make a rational choice with respect
to continuing or abandoning further litigation or on the other hand whether he
is suffering from a mental disease, disorder, or defect which may substantially
affect his capacity in the premises [39]. This standard, known as the Rees
Standard, involves an assessment of whether the person has a mental disorder,
whether such a disorder if present substantially affects his capacity to waive his
right to an appeal, and whether he has the capacity to make a rational choice to
appreciate the consequences of abandoning his appeals.
In the subsequent case of Gilmore v. Utah, the US Supreme Court seems to
have narrowed the standard for competency to waive an appeal [40]. Gilmore v.
Utah is a particularly noteworthy volunteering case, because Mr. Gilmore
was the first person legally executed in the United States after the death penalty was reinstated in 1976 following the US Supreme Courts decision in
Gregg v. Georgia [41] that lifted a 4-year moratorium enacted by the case of
Furman v. Georgia [42]. Mr. Gilmore was a career criminal who while on parole killed a motel manager in Provo, Utah. After being sentenced to death
and given a choice between lethal injection and a firing squad, Mr. Gilmore
replied, Id prefer to be shot [43].
Gilmore instructed his attorneys to drop any appeals on his behalf, and during the 3 months that he was awaiting his execution, he twice attempted
suicide. When reviewing a petition submitted by his mother to halt his execution, the US Supreme Court held that a person could waive their right to appeal as long as the waiver was knowing and intelligent [43]. Unlike the
previous Rees standard, the resulting Gilmore Standard did not require specifically a consideration that the inmate is making a rational choice, only that he
or she is making a knowing and intelligent decision.
In the third and final case, the US Supreme Court provided a standard
nearly identical to that established in Gilmore v. Utah. The case of Whitmore v.
Arkansas involved Ronald Gene Simmons, a man convicted of shooting and killing two people and wounding three others in the course of a rampage through
the town of Russellville, Arkansas. After his arrest, police discovered 14 bodies
of Simmons family in his home in Dover, Arkansas, all of whom had been
murdered. After being convicted and sentenced for the Russellville murders,
Mr. Simmons made the following statement under oath:
I, Ronald Gene Simmons, Sr., want it to be known that it is my wish and my
desire that absolutely no action by anybody be taken to appeal or in any
way change this sentence. It is further respectfully requested that this sentence be performed expeditiously [44].

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

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had refused to submit a petition challenging his sentence, Whitmore, a fellow

death row inmate, intervened on Simmons behalf as a next friend. The US Supreme Court determined that Whitmore had no standing in the case and reiterated that a defendant sentenced to death can waive his right to appeal when
an evidentiary hearing shows that the defendant has given a knowing, intelligent, and voluntary waiver of his right to proceed, and his access to court is
otherwise unimpeded [45].
Mental health evaluators who evaluate a defendants competency to waive
their right to appeal should be familiar with their jurisdictions specific language
and legal standards governing this issue. As described in the three standards
articulated previously, common components include an evaluation of a mental
disorder or defect, an assessment if the persons waiver is made knowingly, intelligently, and voluntarily, and, in some jurisdictions, if the persons decision
represents a rational choice. Important components to consider when conducting this evaluation include the following:








Does the inmate have a mental disorder, disease, or defect?

Is the inmate clinically depressed?
Is the inmates decision to waive his appeal a form of suicide as a result of
depression?
Is the inmate unrealistically hopeless regarding his situation?
Is the inmate waiving his right to an appeal because of an irrational understanding of the consequences of doing so?
Does the inmate report rational reasons for requesting the death penalty, such
as accepting responsibility for his or her actions?
Is the inmates waiver voluntary?

Competence to be Executed
Unlike the standard for competence to stand trial set by the US Supreme Court
in Dusky v. United States [46], the US Supreme Court has never articulated a specific standard to determine competence to be executed. In the case of Ford v.
Wainwright, however, Justice Powell provided some guidance in his concurring
opinion. In this Florida case, Alvin Ford was convicted in 1974 of murdering
a police officer and subsequently was sentenced to death. While awaiting his
death sentence, he exhibited changes in behavior and thinking that strongly
suggested a psychotic thought disorder. Two defense psychiatrists found him
incompetent to be executed, and three psychiatrists appointed by the governor
found him competent to be executed in their 30-minute joint interview. The
governor signed Mr. Fords death warrant after deciding to exclude the defense
psychiatrists report alleging that Mr. Ford was incompetent. The case was appealed to the US Supreme Court, which ultimately held that the Eighth
Amendments ban on cruel and unusual punishment prohibits the execution
of an insane person. Although the Court did not provide a specific standard
for evaluating competence to be executed, in his concurring opinion Justice Powell provided some guidance. He wrote that the Eighth amendment forbids
the execution only of those who are unaware of the punishment they are about

PSYCHIATRY AND THE DEATH PENALTY

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to suffer and why they are to suffer it [47]. The examiner conducting a competency to be executed evaluation should become familiar with the exact standard used in their jurisdiction before conducting their assessment.
TREATMENT OF INMATES FOUND INCOMPETENT TO BE
EXECUTED
Once an inmate is found incompetent to be executed, two important questions
arise:
1. Does the clinician continue to provide mental health treatment when doing
so potentially could result in the inmates return to competency and subsequent execution?
2. If an inmate refuses treatment, can they be forced to receive the very treatment that may render them ready for death?

Two cases highlight two different courts answers to these vexing questions.
In the Louisiana case of State v. Perry, Michael Perry had been convicted and
sentenced to death for murdering five family members with firearms in
1983. At age 16 years, he was diagnosed with schizophrenia. Before committing
his crimes, he had been committed on several occasions to mental institutions
by his parents. While awaiting his execution, he began hallucinating and was
described by others as delusional with incoherent speech. Experts testified
that he could be made competent for execution only if treated with his antipsychotic medication haloperidol. After finding him incompetent to be executed,
the trial court ordered the medical staff of the Louisiana Department of Corrections to forcibly medicate Perry to restore his competency. The case eventually
was appealed to the US Supreme Court to decide if involuntary medications
could be administered for the purposes of making someone competent to be
executed [48].
Rather than provide a direct answer to this question, the US Supreme Court
chose instead to remand the case back to the trial court for reconsideration in
light of the Courts 1990 ruling in Washington v. Harper. In Harper, the US Supreme Court was asked to determine whether a procedure used in the Washington state penal system to override treatment refusals of prisoners was
constitutional. Unlike the facts in Perry, Washington v. Harper involved a man
convicted of robbery who was not facing a pending execution. The Harper
Court held that the Washington states procedure to institute involuntary medications was constitutional because it required the state to show that such treatment rationally seeks to further the best medical interest of the prisoner and the
states own interest in prison safety [49].
The Louisiana Supreme Court distinguished Michael Perrys case from the
facts in Washington v. Harper. In particular, they noted that involuntary medications were being requested to forward Perrys execution rather than to assist in
prison safety or Perrys treatment. The Louisiana Supreme Court affirmed
Perrys incompetency to be executed and reversed the trial courts order to
medicate Perry against his will, finding that to involuntary medicate Perry

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violated the cruel and unusual punishment clause and right to privacy established by the Louisiana Constitution [48].
In the subsequent case of Singleton v. Norris, the Eighth Circuit Court of Appeals also was asked to evaluate if involuntary psychiatric medications could be
administered to a defendant when there was a likelihood that such administration would render him competent to be executed. Charles Singleton was convicted in 1979 of capital felony murder and aggravated robbery. While in
prison, Mr. Singletons mental health clearly deteriorated and he was diagnosed with paranoid schizophrenia. At times he believed his cell was possessed
by demons and had demon blood in it. He also believed that a prison doctor
had planted some type of device in his right ear and that his thoughts were being stolen from him when he read the Bible. Between 1987 and 1997, his medication compliance fluctuated and involuntary medications were sometimes
administered. When taking his medications, records indicated that he had significant clinical improvement and his psychotic symptoms diminished, indicating that such treatment was in his best medical interest. When Mr. Singletons
execution date was announced, he argued that the state could no longer forcibly medicate him, because medications were essentially now rendering him
competent to be executed and execution was not in his best medical interest.
The Eighth Circuit Court of Appeals held that involuntarily medicating
Mr. Singleton, even if such treatment renders him competent to be executed,
did not violate the Eighth Amendments ban on cruel and unusual punishment.
The Court reasoned that Mr. Singleton was receiving appropriate medical
care for his mental illness, and the best medical interest of the prisoner must
be determined without regard to whether there is a pending date of execution
[50].
The clinical and ethical problems related to treating a death row inmate incompetent to be executed are considerable. On one hand, failure to treat may
result in severe suffering from psychotic symptoms, whereas forcing treatment
may result in clinical improvement sufficient to render the inmate psychiatrically stable for execution. Some states have chosen to solve this dilemma by
commuting the inmates death penalty once they have been found incompetent
to be executed [51].
PROFESSIONAL ETHICAL GUIDELINES AND THE DEATH
PENALTY
Psychiatric evaluations and treatment of defendants facing capital punishment
involve the interface of legal and medical standards, personal and medical
ethics, and professional guidelines. A longstanding principal governing the
practice of medicine is reflected by the Latin phrase primum non nocere, translated
as first, do no harm. The American Medical Associations (AMA) ethical
guidelines emphasize that the practice of medicine is dedicated to preserving
life [52]. The AMA and the American Psychiatric Associations (APA) ethical
guidelines state that physicians (and psychiatrists by extension) should not
be a participant in a legally authorized execution [52].

PSYCHIATRY AND THE DEATH PENALTY

801

The American Medical Association defines physician participation in an execution as one or more of the following categories [52]:
(1) an action which would directly cause the death of the condemned
(2) an action which would assist, supervise, or contribute to the ability of another individual to directly cause the death of the condemned
(3) an action which could automatically cause an execution to be performed on
a condemned prisoner

The AMA guidelines specifically note that psychiatric testimony regarding

a defendants medical history, mental state as related to competence to stand
trial, relevant medical evidence during trial, medical aspects of aggravating
or mitigating circumstances during the sentencing phase, and testifying regarding medical diagnoses as they relate to the legal assessment of execution does
not constitute physician participation in an execution, nor does a physicians
relieving the acute suffering of a condemned person while awaiting execution,
including providing tranquilizers at the specific voluntary request of the condemned person to help relieve pain or anxiety in anticipation of the execution.
Key points from the AMA guidelines regarding physicians involvement in
competency to be executed evaluations include the following [52]:





Physicians should not determine legal competence to be executed though

may offer a medical opinion that the trier of fact can consider when making
this determination.
Physicians should not treat a prisoner declared incompetent to be executed for
the purpose of restoring competence unless a commutation order is issued before treatment begins.
Reevaluation of a prisoners competency to be executed should be performed
by an independent physician examiner rather than the treating physician.
Physicians may ethically treat an incompetent prisoner undergoing extreme
suffering as a result of psychosis or any other illness if the medical intervention
is intended to mitigate the level of suffering.
A physician cannot be compelled to evaluate a prisoners competence to be
executed or treat an incompetent condemned prisoner if such activity is contrary to the physicians personal beliefs.

Psychiatrists are divided in their opinions regarding at what stage, if any,

evaluations of defendants facing capital punishment are ethically appropriate.
Some believe that psychiatrists should never participate in any type of evaluation of a defendant charged with a capital crime, because such participation
provides tacit approval of the death penalty and may assist in moving the defendant forward in the execution process. Others argue that psychiatrists may
conduct evaluations only if retained by defense counsel so as to minimize the
chance of any adverse testimony to the defendant. One psychiatric group advises that any psychiatric participation after a guilty verdict has been rendered
is unethical [53]. A fourth position emphasizes that psychiatric assessments at
any stage of the criminal justice process is ethically permissible, because the
psychiatrist is striving to answer questions posed by the court rather than

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imposing their personal beliefs on the criminal justice system [5456]. Whatever moral stance the individual psychiatrist reaches when deciding whether
or not to conduct evaluations in this context, the examiner should always strive
for honesty and objectivity when providing testimony and should monitor
carefully that their personal beliefs do not trump the objective evidence available to answer the question before them.
SUMMARY
Psychiatrists conducting forensic evaluations of defendants facing a potential
death penalty must understand the legal and ethical parameters governing
these assessments in addition to the important clinical issues. Important areas
to review with each defendant include the role of the evaluator, the party requesting the evaluation, circumstances in which the evaluation is not confidential, the nature, scope, and purpose of the evaluation, and the parties to whom
the results of the evaluation are to be forwarded. In those circumstances in
which the defense attorney has not retained the psychiatrist, the defendants
attorney must be aware that an evaluation has been ordered by the court or
requested by the prosecution. The psychiatrist also must be prepared for passionate challenges to their findings from the defense or prosecution and in some
instances for vigorous attacks on their own personal ethics. To weather such
storms, the mental health evaluator must base their opinion on objective evidence rather than letting any personal bias guide their assessment.
References
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[2] Weems v United States, US Vol 217; 1909:349.
[3] Enmund v Florida, US Vol 458; 1982:78990.
[4] Trop v Dulles, US Vol 356; 1958:86.
[5] Acker JR, Lanier CS. Parsing this lexicon of death: aggravating factors in capital sentencing statues. Crim Law Bull 1994;30:10753.
[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):5586.
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[14] Barefoot v Estelle. US Vol 463; 1983:880.
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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
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[18] American Bar Association standards for criminal justice sentencing. 3rd edition. Washington, DC: American Bar Association; 1994.
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