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Healing-killing conflicts: medical ethics and the death penalty.

Moral opposition by medical professionals to participation in the process of sentencing for capital crimes, including refusals to provide medical treatment, may compromise the integrity of the legal process.

The most aggravated forms of homicide are now punishable by death in thirty-seven states, and more than 2,000 condemned prisoners currently await execution. Many mental health professionals have participated in the process by which these sentences have been imposed and carried out while others have refused to participate.

Mental health professionals who are morally opposed to the death penalty may decline, for that reason alone, to conduct forensic assessments of capital defendants or condemned prisoners, or to treat prisoners who are deemed "incompetent for execution." To participate in this process, they argue, would be to legitimize a morally objectionable social policy or to become an accomplice in its administration. I will refer to this line of argument, which is rooted in the individual practitioner's own moral views, as "conscientious abstention."

Arguments for abstention have also been formulated in terms of professional ethics. For example, it is often said that fundamental ethical precepts of the health professions, such as primum non nocere, are violated when the skills of the physician or psychologist are used in a manner that could aid the state's quest for a death sentence or facilitate an execution.

The ethical argument against professional participation in capital cases should be carefully scrutinized. Accepting the view that abstention is ethically required would bind all practitioners, not only those who have moral doubts about the death penalty. If, as a consequence, testimony by physicians and psychologists were unavailable in capital cases, the legal system would be deprived of clinical evidence that is often essential to fair and reliable administration of the law. This would be especially problematic when capital defendants or condemned prisoners would rely on such evidence as grounds for leniency.

Moreover, if the abstaining physician or psychologist is employed by the state, his or her legal fights may turn on whether the refusal to participate is rooted in a recognized ethical proscription or instead in personal scruples against the death penalty. Although the state probably is not permitted to require unethical conduct as a condition for continued professional employment, an employee who declines to carry out assigned responsibilities on grounds of personal conscience probably may be lawfully discharged. Pre-Sentence Evaluations

We should first consider the view that participation in any aspect of a capital case, including the capital sentencing process, is ethically objectionable. It is sometimes argued that the principle of nonmaleficence, the duty not to inflict harm, is fundamentally contravened by any professional interaction with a client that might elicit information or opinion that could be used to support a death sentence. (1) However, this same premise could be deployed against professional participation in any criminal case, when information elicited during an evaluation (and opinion based on this information) could support a criminal conviction and imprisonment. If the death penalty is regarded as different from other punishments only in degree, it would seem that clinical participation in capital cases is, in principle, no more (or less) problematic than forensic participation in any criminal cases.(2)

Assuming that the principle of nonmaleficence has some weight in the forensic setting, (3) the special sensitivity to participation in capital cases, when registered by a person who has no qualms about participation in noncapital cases, rests on the belief that the death penalty is qualitatively different from other forms of punishment (The Supreme Court's death penalty jurisprudence, which has erected safeguards in capital cases that have no application to noncapital cases, rests on this same widely shared belief.) (4) The question, then, is whether the distinction between death and other harms has a categorical force in ethical terms. Contemporary discussion of ethical issues in the withholding or withdrawal of life-sustaining treatment suggests that it does not, and that the preservation of life is not always the paramount ethical value, even in the context of the physician-patient relationship. As a matter of principle, it would seem difficult to sustain the argument that forensic testimony that might lead to execution violates nonmaleficence even though the presentation of testimony that might lead to profoundly debilitating imprisonment does not.

For clinicians who ordinarily have no ethical qualms about forensic participation in criminal cases, then, a categorical refusal to participate in capital cases must be rooted in personal conscience, not in the ethical injunction to avoid inflicting harm. This is not to say, however, that these moral qualms are undeserving of respect, nor that they are without potential ethical significance. The paramount ethical obligation in forensic assessment is to strive for objectivity. The stronger one's moral opposition to the death penalty, the greater the likelihood that one will distort the evaluation, either consciously or unconsciously, to reduce the likelihood of producing damaging disclosures or opinions. (5) (Conversely, of course, strong support of the death penalty may equally bias evaluation.) A mental health professional who believes that clinical objectivity is not possible should undoubtedly decline, on ethical grounds, to conduct these evaluations.

A mental health professional who has conscientious scruples against assisting the state in its quest for a death sentence or who believes that it is unethical to do so might alleviate the dilemma by conducting evaluations only on behalf of the defense, and by agreeing to testify only if his or her testimony would not increase the likelihood of a death sentence. However, this position is not entirely free of difficulty. In some jurisdictions, if the defense chooses to introduce mental health testimony in mitigation (or exculpation), it thereby opens the door not only to testimony by experts who evaluated the defendant at the behest of the prosecution, but also to other mental health evidence that the defense has obtained. In these jurisdictions, the expert troubled by the possibility that his or her testimony could increase the likelihood of a death sentence may find him or herself obligated to present highly damaging evidence even though the evaluation was performed for the defense. This prospect may lead scrupled experts to eschew capital sentencing evaluations altogether on the ground that the risk is too high, especially if the evaluation is conducted thoroughly and objectively.

Moreover, even when the defense has effective control over the results of the evaluation, the risk of contributing to a death sentence cannot be altogether eliminated, for testimony offered in mitigation is often a double-edged sword and can be used by the prosecution to demonstrate the defendant's dangerousness, depravity, or cruelty. (6) Defense attorneys and forensic experts are thus sometimes faced with difficult strategic judgments regarding whether the potential benefits of experts' testimony outweigh its risks. At times the ex ante judgment may turn out to be wrong.

In sum, a variety of reasons, all ultimately traceable to moral scruples against the death penalty, might lead forensic specialists to decline to do capital sentencing evaluations. Although courts and forensic services administrators should respect the moral sensitivity of clinicians who refuse, as a matter of conscience, to conduct these evaluations, widespread abstention by forensic specialists would create serious difficulties for the administration of justice in capital cases.

The problem does not lie in the prosecution's need for mental health evidence; affirmative use of such evidence by the state to prove the defendant's future dangerousness could be precluded altogether without any cost to the administration of justice. However, for the defense, clinical evidence is useful in many cases, and indispensable in some. A capital defendant is constitutionally entitled to an individualized determination of the suitability of the death penalty. (7) If a large portion of trained forensic clinicians were to refuse to conduct these evaluations, the pool of available experts could be skewed in the direction of those least likely to provide mitigating testimony. Thus, one possible consequence of widespread professional unwillingness to participate in capital sentencing evaluations would be to deny capital defendants a fair opportunity to develop and present their pleas for leniency.

Abstention from pre-sentencing evaluations is a problem the legal system can solve by precluding prosecutorial use of any evaluation conducted for the defense in capital cases. Mental health professionals would then be free to conduct thorough, objective evaluations without fear that their inquiry would increase the likelihood of a death sentence unless they (and the defendant's attorney) were willing to take that risk by presenting testimony in the case. They would retain complete control over the uses of the information and opinions derived from the evaluation. (8) Execution Competency Evaluations

Evaluations of a condemned prisoner's competency to be executed are more problematic. (9) Many mental health professionals who are milling to participate in pre-trial or pre-sentencing evaluations of capital defendants are nonetheless unwilling to evaluate a condemned prisoner's competency for execution. Again, this abstention is understandable as an expression of conscience; the important question, however, is whether it is grounded in a professional ethical proscription.

A Punitive Role? One argument is that execution competency evaluations cross a boundary between participation in the administration of justice, which is ethically permissible, and participation in the administration of punishment, which is ethically objectionable. (10)

Direct involvement in the administration of the death penalty itself, such as by injecting a lethal dose of barbiturates, or in an earlier era by measuring the prisoner's head and neck for the noose, is undoubtedly forbidden in medical ethics. (11) In these contexts, the underlying ethical difficulty is clear--the professional skills of the physician are being exploited for the sole and immediate purpose of killing the prisoner, in blatant contradiction of the supreme aspirations of the profession.

An execution competency evaluation does not implicate the clinician directly in the infliction of suffering. However, by analogy it may nonetheless be objectionable because its sole purpose is to help the state decide how severely to punish the offender. Involvement in such a process may identify clinicians in the public mind with the punitive ann of the correctional system and thereby compromise their primary healing role.

This argument seems unpersuasive to me. It seems to condemn other forms of clinical participation in the post-sentence phase of the criminal justice system that have never been thought to be problematic by those who accept the legitimacy of forensic involvement in criminal justice; and it fails to offer a convincing distinction between execution competency evaluations and pre-sentence evaluations.

An execution competency evaluation is not obviously distinguishable from other modes of clinical participation in the correctional process, including, for example, the classification of prisoners for institutional assignment, the evaluation of a prisoner's suitability for placement in a mental health facility, or the evaluation of a prisoner's fitness for parole. Like execution competency assessments, these are evaluative tasks, sought for the purpose of helping the relevant decision-makers decide how to administer the punishment prescribed by the court. They therefore seem more analogous to evaluations conducted during the trial process than to administration of a lethal injection.

A clinician's role as an evaluator (for the legal system or any third party) is independent of, and not inherently incompatible with, his or her healing or therapeutic role as long as the roles are kept distinct. (12) There is no qualitative difference, in this regard, between sentencing evaluations sought in capital and noncapital cases, or between capital sentencing evaluations and execution competency evaluations. If the problem is that participation in the execution competency adjudication could be interpreted as legitimating the death penalty, this is no less true of participation in a capital sentencing evaluation. Both types of evaluation provide information and opinion relevant to a decision, to be made by someone else, that could condemn or spare the prisoner. Execution competency evaluations do not, then, run afoul of the postulated distinction between participation in the administration of justice and participation in the administration of punishment.

A Decision-Making Role? What does seem to differentiate pre-sentencing and execution competency evaluations is the immediacy of the link between the evaluator's opinion and the decision whether the person being evaluated will live or die. If an expert testifies that a defendant was not mentally ill at the time of the offense, but has an antisocial personality disorder strongly resistant to therapeutic intervention, this opinion is merely part of the evidence considered by the sentencing authority. Even if a death sentence is imposed, it will be reviewed by many courts, over many years, and may never be carried out. In contrast, if an expert concludes that a condemned prisoner understands the nature and purpose of the death penalty, the execution is nearly certain to be carried out, within weeks or even days.

The emotional impact of this difference cannot be doubted, but I do not see its ethical significance. Indeed, if one focuses on the effect of the clinician's opinion rather than on its timing, the case against participating in a capital sentencing evaluation actually would seem to be stronger than the case against participating in a routine execution competency evaluation. In the context of a sentencing proceeding, the expert does not have effective decision-making authority; but the expert's opinion may very well increase the likelihood that the defendant will be sentenced to death. In the context of a competency evaluation of a prisoner whose appeals have already been exhausted and whose execution date has been set, the prospect that the prisoner will die is now nearly certain, and the expert can alter the prisoner's situation only by extending his life. By saying "yes, he is competent," the expert does not have any greater contributory role in effecting the prisoner's death than does an attorney who decides that she does not have sufficient doubt about her client's competency to raise the issue at all.

Of course, the examining expert can have a powerful and immediate impact on the prisoner's fate by saying "no, he is not competent." Although none of the legislated procedures governing execution competency evaluations give binding force to expert opinion, a judicial practice of deferring to clinical opinion would give experts unconstrained power to countermand, or at least to delay, death sentences. In this respect, the expert who declines to exercise this power, finding the prisoner competent, might be thought to have greater control over the prisoner's fate than at first appears.

But even if the clinical opinion were outcome determinative, why would this be ethically significant? There are many contexts in forensic practice where expert opinion is outcome determinative as a practical matter, and some where it has binding legal force. Although forensic specialists often complain about the tendency of the legal system to abdicate decision-making authority to experts, the objection is grounded in considerations of social policy, not professional ethics. It is not unethical to participate in a process in which one's opinions have determinative force, as long as the opinions are confined to the scope of one's expertise.

In sum, execution competency assessments differ from capital sentencing evaluations only in the immediacy of the link between the evaluator's opinions and the prisoner's e. This difference has patent psychological consequences, especially for clinicians who have moral scruples against the death penalty, and it may lead clinicians otherwise inclined to participate in the capital sentencing process to eschew execution competency assessments. Although pleas of conscience (and thus likely bias) should be respected, I see no categorical objection to execution competency assessments.

Indeed, since a significant proportion of death sentences are eventually set aside, enhanced sensitivity to this issue by correctional authorities actually could be beneficial to the interests of condemned prisoners as a class. Prisoners living for prolonged periods under the shadow of execution are at high risk for developing emotional and behavioral problems, especially in light of their often tortured emotional histories. To the extent that prospective concern about execution competency provides an incentive for correctional authorities to assure that adequate clinical resources are available for ongoing monitoring and treatment, it might enhance the opportunities for healing. Are Restoration Assessments Different?

But what if the question being evaluated is whether a prisoner previously found incompetent has become sufficiently competent to allow the execution to go forward? The link between the prisoner's fate and the evaluator's opinion, however phrased, is now both direct and explicit. Although the ultimate decision will be made by a court, a clinical judgment that the prisoner's condition has improved opens the door to an execution that was previously barred. Indeed, that is its only possible significance in relation to the prisoner's legal status. As a practical matter, if not as a matter of law, a clinical opinion supporting a finding of competence is an essential prerequisite to the prisoner's execution.

Is this change in legal context ethically significant? The evaluator's interaction with the subject previously declared incompetent-and presumed to remain so-cannot produce beneficial consequences. Unless the condemned prisoner is known to have expressed, while competent, an unequivocal preference for execution, the evaluation can affect the prisoner's fate only by making him worse off by removing a legal barrier to his execution.

Competency assessments of prisoners scheduled for execution and restoration assessments of prisoners previously declared incompetent are not ethically distinguishable, however. As Appelbaum has observed: "In either circumstance, if the evaluator believes the prisoner is competent, the execution will in all likelihood proceed; if not, it will be delayed. The ethics of the two situations cannot differ. The error lies in attempting to justify participation in these assessments within the framework of the traditional adherence to therapeutic ethics." (13)

The same can be said about other situations in which the prisoner's legal status can be altered, to his detriment, only if a decisionmaker makes a finding that must be predicated upon clinical opinion. Determinations that a defendant has become competent to stand trial or that a conditionally discharged patient should be rehospitalized are illustrative.

Even if competency restoration assessments are ethically permissible, they are nonetheless likely to be avoided by any clinician who has moral scruples against the death penalty and by many others who believe that conducting these assessments would align them too closely with the state's punitive aims. For this reason, the only clinicians willing to conduct competency restoration evaluations are likely to be those who are supporters of the death penalty and anxious to be agents of its administration. This would present a grave danger to the legal system as well as to the institutional integrity of the mental health professions. Commutation of the death sentences of prisoners found incompetent would erase this problem as well as others. Treatment of the Incompetent Prisoner

The most difficult ethical questions regarding mental health professionals' involvement with the condemned prisoner arise after a prisoner has been declared incompetent to be executed. Is it ethically permissible to treat the incompetent prisoner when the direct consequence of efficacious treatment will be to enable the slate to execute him? Three positions can be taken on this problem-for convenience of reference, they can be characterized as sometimes," "never," and "always."

Sometimes. The intermediate position seems to fit most comfortably with traditional clinical perspectives and, for this reason, seems the most widely accepted of the three. On this view, the permissibility of treatment turns on whether its immediate effects can be seen as beneficial to the patient. This principle can be elaborated in a variety of ways. The clearest application arises in cases in which a psychotic prisoner is suffering emotional distress that can be alleviated by customary treatment. However, even for patients who are not in acute distress, it can be said that treatment is beneficial if it restores the patient's capacity to function as a rational, autonomous person. If the clinical mission is seen from this frame of reference, it can be said that the therapeutic intervention should be designed, at least, to enable the patient to decide whether he should be treated further.

Never. Those who find this position unacceptable argue that though the immediate goal of efficacious treatment is to alleviate suffering or restore dignity, its inevitable consequence is to facilitate even greater suffering. They contend that it would be more humane to allow the person to suffer the ravages of psychosis than to administer treatment that will restore competency and, as a direct consequence, enable the state to terminate the prisoner's life. Accordingly, they argue, it is never permissible to treat the incompetent condemned prisoner as long as the direct consequence of efficacious treatment is to ready the patient for execution. (14)

The "never treat" position is predicated on a judgment that death is always the greater harm, and that treatment to restore competency offends the clinician's ethical duty to avoid inflicting harm in all cases. Herein lies its flaw, at least in theory. The question whether treatment is beneficial or harmful to the prisoner should actually turn on the prisoner's own preferences, if known, not on the clinician's values. As a device for exploring this question, consider the possibility of a "living will" in which the condemned prisoner-contemporaneously determined to be competent-states that if he becomes incompetent while awaiting execution, he wishes to be treated. He might do so because he prefers the unknown consequences of death to the known pains of psychosis, or because he prefers death to the lifelong imprisonment that might follow commutation. Whatever his reasons, he has declared his preference for treatment.

A case for paternalism could be made in this context: Conditions on death row might be regarded as so coercive as to vitiate the possibility of a voluntary" preference for death; and even if the prisoner's expressed request for treatment is sufficiently "voluntary" to be regarded as autonomous, a paternalistic refusal to honor the prisoner's preference may be justifiable on the same grounds that sometimes justify prevention of suicide. Although this argument may have justifying force in some individual circumstances, I would reject its categorical application, mainly because it denies the possibility of autonomy for condemned prisoners and thereby erases their human dignity. Moreover, whatever persuasive force paternalism may have as a basis for treating a person over his objection, it seems much weaker as a justification for withholding treatment from a person known to prefer it.

This leads me to conclude that the "never treat" position is ethically flawed. It does seem ethically permissible at least to treat a prisoner known to want to be treated. I readily concede, however, that these theoretically pure conditions are not likely to be met in many cases involving prisoners found to be incompetent. Moreover, I am less certain about the ethical imperative in cases involving prisoners whose preferences are unknown. In theory, it would appear permissible to treat such a prisoner to alleviate suffering and to restore the prisoner's capacity to make a rational decision regarding further treatment. However, it would also appear permissible to assume, in the absence of a definitive indication to the contrary, that the prisoner would not want to be treated under these circumstances. Either course seems ethically permissible and neither ethically required.

A further problem with the "never treat" position is that it could deny mental health services to the most severely disturbed prisoners on death row. This was one of the concerns that led the National Medical Association to reject the "never treat" position in favor of the view that the physician's primary ethical responsibility is to provide treatment, regardless of the prisoner's legal situation. (15) Advocates of the "never treat" position seek to avoid this criticism by arguing that the duty to decline to treat arises only in cases in which condemned prisoners have been declared incompetent and in which a declaration of competency is the only remaining legal condition that must be satisfied to enable the execution to go forward. The flaw in this argument is that a formal adjudication of incompetency may be artifactual.

As legal challenges for death row prisoners proceed through the courts, those who are mentally ill become well known to the mental health professionals responsible for providing services. As a prisoner's likely execution draws near, the potential legal significance of his questionable competency-and the enabling effect of continued treatment-will be apparent, even in the absence of any formal adjudication. Thus, ethical objections to treatment can arise in many cases other than those in which the condemned prisoners have been adjudicated incompetent for execution-indeed, the problem is discernible whenever a death row prisoner becomes psychotic. The slope of the "no treatment" argument is very slippery indeed.

Always. A third position is that treatment is permissible even if its sole purpose is to facilitate execution. To put it even more baldly, treatment is ethically permissible even if it is not beneficial to the prisoner, and is administered with the sole intention of allowing the state to carry out the death sentence.

Consider again the possibility of a living will. This time, assume that the condemned prisoner, contemporaneously determined to be competent, executes a document in which he says, in effect, that he would rather be crazy than dead, and in which he states, unequivocally, that he does not want to be treated if he becomes incompetent while awaiting execution. The first question is whether the prisoner's wishes have any legal significance-does the incompetent prisoner have a right to refuse treatment? If presented with this question, I suspect the courts would probably hold that the state has a compelling interest in carrying out its lawful sentences that overrides the prisoner's interests in bodily privacy and self-determination. (In the analogous situation involving defendants who are incompetent to stand trial, most courts have held that they have no right to refuse treatment designed to restore competency.)

Now the ethical dilemma arises. Even if the prisoner has no legal fight to refuse treatment, does the clinician have a professional ethical duty to refuse to treat him? Given the prisoner's unequivocal preference for life, I see no way to justify treating the patient on the grounds that he will benefit. If the prisoner is treated, it will be for the sole purpose of serving the state's interests in carrying out his execution. Is it ethically permissible for members of the "healing professions" to devote their professional skills to such a mission?

I do not see how it can be. Because the clinician's actions no longer have any link to the prisoner's own interests-he would be an object of treatment, not a patient-the clinician would be serving a role that is ethically indistinguishable from the physician who administers the lethal injection of barbiturates. (16)

Compelling ethical objections can thus be raised to the treatment of condemned prisoners who have expressed unequivocal objections, while competent to such treatment, and of those whose preferences are unknown. Although the ethics committees of the relevant professional organizations have not yet codified this view, it seems to predominate in the literature. (17) If this view prevails, clinicians may refuse to provide treatment to those prisoners, even in the face of directives to do so, provoking a crisis for the legal system. Can this dilemma be avoided?

One alternative, mentioned earlier, is automatic commutation of the death sentence of any prisoner found to be incompetent for execution. This could be accomplished by legislation, as in Maryland, (18) or by gubernatorial edict. Declaring such a policy in advance, however, would have clear disadvantages. By increasing the stakes of a finding of incompetency, it would probably increase the proportion of condemned prisoners alleged to be incompetent, and would place experts at the center of a highly visible adversarial process. Because the incompetency determination would become the last line of defense against the death penalty, the ethical dilemmas confronted by evaluators would become more pronounced-thereby exacting an ironic tradeoff for removing the ethical barrier to treatment.

Whether a policy of automatic commutation would be politically acceptable would depend, ultimately, on the number of condemned prisoners found incompetent. The Maryland experience will be instructive. In the meantime, however, it is unlikely that many states will follow Maryland's lead. What can be anticipated, and encouraged, is a case-by-case exercise of gubernatorial discretion in the few cases in which the problem arises. Why Not Execute the Incompetent?

I have not mentioned one possible solution-executing the incompetent prisoner who refuses treatment--because the Supreme Court has foreclosed that option. Ford v. Wainwright holds that the Constitution forbids execution of incompetent prisoners. (19) But perhaps we should ask why. What is the basis for this long-standing practice?

In Ford, justice Marshall observed that the "execution of an insane person quite simply offends humanity," and justice Powell noted that it is "simply cruel" because "most men and women value the opportunity to prepare, mentally and spiritually, for their death[s]." These cryptic assertions reflect a fundamental ambiguity. Whose interests are protected by the bar against executing the incompetent? Do we prohibit this practice because it offends our own collective sensibilities about civilized behavior or do we do so to respect the dignity of the condemned prisoner?

These interests are not necessarily congruent. Consider, by way of analogy, the trend toward supposedly more "humane" methods of execution, such as lethal injection. It is conceivable that a prisoner may find death by this method to be offensive to his own sense of dignity because it treats him as an object, like a dog being put to sleep; he may prefer to die by firing squad or on the gallows. When we sterilize the act of execution, do we do it for ourselves or for the prisoner?

This underlying ambiguity should be confronted as we seek a contemporary justification for the longstanding prohibition against executing the incompetent. If this prohibition has any continuing justification, I believe it must be found in the dignity of the condemned.

The prisoner has a right, even under imminent sentence of death, to be treated as a person, worthy of respect, not as an object of the state's effort to carry out its promises. As justice Powell suggested, a person under the shadow of death should have the opportunity to make the few choices that remain available to him. He should have the opportunity to decide who should be present at his execution, what he will eat for his last meal, what, if anything he will utter for his last words, whether he will repent or go defiantly to his grave. A prisoner who does not understand the nature and purpose of the execution is not able to exercise the choices that remain to him. To execute him in this condition is an affront to his dignity as a person.

This rationale for the bar against executing the incompetent has implications for issues discussed previously. Consider, one final time, the possibility of a "living will." Suppose a condemned prisoner makes all the pertinent decisions in advance and declares, while competent, that if he becomes incompetent at the appointed hour, he would like to be executed in that condition. If this legal doctrine serves to promote the dignity of the condemned, as I have argued, we should carry out the execution in accord with the prisoner's wishes. If we were to refuse to do so, it could only be because the prisoner's execution under these circumstances would offend our own civilized sensibilities. By refusing to honor the prisoner's own preference, we would declare, once again, our profound ambivalence toward the death penalty. Costs and Benefits of Abstention

I have surveyed several ethical problems encountered by mental health professionals who participate in the capital sentencing process or who evaluate or treat condemned prisoners. To the extent that these difficulties lead a significant segment of these professionals to abstain from serving these functions, the integrity of the legal process could be at stake. The societal effort to implement a fair and reliable system of capital punishment requires the participation of mental health professionals in the adjudicative process. However, mental health professionals who are least sympathetic to the death penalty are the ones most likely to abstain from participating in the capital sentencing process or from evaluating the competency of condemned prisoners. Although abstention in these contexts is not required, in my opinion, by precepts of professional ethics, conscientious abstention by individual practitioners is both understandable and worthy of respect.

As an opponent of capital punishment, I am of two minds about the practice of abstention. A systematic pattern of professional abstention would be desirable because it would provide a visible and ongoing expression of abolitionist sentiment. In the meantime, however, the rights of capital defendants and condemned prisoners could be seriously compromised. It was a humane vision of the meaning of the Eighth Amendment that led the Supreme Court to insist that the capital sentencing process be structured to take account of the "diverse frailties of humankind." So, too, is this vision apparent in the Court's ban on the execution of prisoners who are unable to understand the nature and purposes of the punishment. How can this vision be realized if mental health experts decline to make themselves available for evaluation and testimony?

It is not often recognized that one of the "costs" of our system of capital punishment is the emotional burden carried by those who administer the process, including judges, lawyers, and mental health professionals. Although these burdens fall most heavily on those who hold the greatest moral doubts about the death penalty, very few who have played their assigned roles in this process have much enthusiasm for it. One day, perhaps, our society will conclude that the social utility of the death penalty is not worth the price that is exacted by its administration. Until then, however, those who participate in the process should not be expected to surrender their professional dignity, or their conscience, in the service of the law. Acknowledgements

This essay is based on a paper presented as the Keynote Address to the Annual Meeting of the American Psychology-Law Society, Miami, FL, March 11, 1988. The full paper appears in the Journal of Law and Human Behavior 14:7 (1990), 67-90. I am indebted to Paul S. Appelbaum, James F. Childress, Douglas Mossman, and Michael Radelet for their helpful comments and suggestions on earlier drafts. References (1) Remarks by Park Elliot Dietz, "The Death Penalty: Dilemmas for Physicians and Society--A Panel Discussion," The Pharos (Summer 1987), 23-27. (2) Although the predominant view is that the forensic role is ethically permissible, the ethical status of forensic assessment continues to be controversial. See, for example, Alan A. Stone, "The Ethical Boundaries of Forensic Psychiatry: A View from the Ivory Tower," Bulletin of the American Academy of Psychiatry and Law 12 (1984), 209-219; and John Monahan, ed., Who Is the Client? The Ethics of Psychological Intervention in the Criminal Justice System (Washington, DC: American Psychological Association, 1980), 1-17. (3) See Stone, "The Ethical Boundaries of Forensic Psychiatry," American Bar Association, Criminal Justice Mental Health Standards, Std. 7.1-1 (1984); Paul S. Appelbaum, "The Parable of the Forensic Psychiatrist: Ethics and the Problem of Doing Harm" International Journal of Law and Psychiatry (1990), in press. (4) See the unanimous decisions relating to the "individualization" theme of the Court's Eighth Amendment jurisprudence in Skipper V. South Carolina, 476 U.S. 1 (1986) and Hitchcock v. Dugger, 481 U.S. 393 (1987). (5) The risk of producing harmful evidence may be especially high when evaluations are conducted by experts who have a specialized understanding of sexual pathology or who believe that certain traits and behaviors are predictive of future dangerousness. (6) C. Robert Showalter and Richard Bonnie, "Psychiatrists and Capital Sentencing: Risks and Responsibilities in a Unique Legal Setting," Bulletin of the American Academy of Psychiatry and Law 12 (1984), 159-67. (7) Sumner v. Shuman, 483 U.S. 66 (1987). (8) For general discussion of these problems, see Christopher Slobogin, "Smith v. Estelle: The Constitutional Contours of the Forensic Evaluation," Emory Law Journal 31 (1982), 71-138. The prohibition against executing the presently insane," deeply rooted in the common law, became constitutionally mandated in Ford v. Wainwright, 477 U.S. 399 (1986). (10) This distinction is discussed in Paul S. Appelbaum, "Law and Psychiatry: Competence to be Executed-Another Conundrum for Mental Health Professionals," Hospital and Community Psychiatry 37 (1986), 682-84. (11) Judicial Council, American Medical Association, Report A (1980), discussed in William J. Curran and Ward Casscells, "The Ethics of Medical Participation in Capital Punishment by Intravenous Drug Injection," New England Journal of Medicine 302 (1980), 226-30. (12) See American Bar Association, Criminal Justice Mental Health Standards, Std. 7.1-1 (1984). (13) Personal communication. (14) See Charles Ewing, "Diagnosing and Treating `Insanity' on Death Row: Legal and Ethical Petspectives," Behavioral Sciences and the Law 5 (1987), 175-85. (15) National Medical Association, Position Statement on the Role of the Psychiatrist in Evaluating and Treating "Death Row" Inmates (Washington, DC: National Medical Association, undated). (16) It has been argued that the treatment of condemned prisoners for the purpose of restoring their competency for execution is ethically permissible in all cases because the execution "allows them to receive the punishment to which their humanity entitles them" and to which they, as responsible moral beings, have implicitly consented. See Douglas Mossman, "Assessing and Restoring Competency to be Executed: Should Psychiatrists Participate?," Behavioral Sciences and the Law 5 (1987), 397-409. Even if one is willing to accept the Kantian view of retributive justice from which Mossman derives his argument, the analysis is flawed. The ethical norms of the mental health professions do not derive from the Kantian philosophy of punishment To the extent that therapeutic ethics depend on the patient's own assessment of what is beneficial to him or her, only explicit consent will do. (17) For a review of the recent literature, see Michael Radelet and George Barnard, "Treating Those Found Incompetent for Execution: Ethical Chaos with Only One Solution," Bulletin of the American Academy of Psychiatyy and Law 16 (1988), 297-308. (18) Md. Ann. Code Art. 27, 75A (1987). (19) 477 U.S. 399 (1986). Richard J. Bonnie is John S. Battle Professor of Law and director, Institute of Law, Psychiatry and Public Policy at the University of Virginia, Charlottesville, VA
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Author:Bonnie, Richard J.
Publication:The Hastings Center Report
Date:May 1, 1990
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