Capital punishment in the United States is a perennial matter of public debate. As measured by opinion polls, the proportion of retention! sts (those favoring maintaining the death penalty) and abolitionists (those advocating proscription of capital punishment; has varied over the years depending on a variety of social factors.1 Recent polls show substantial public support in the United States for the death penalty despite the fact that no other Western democracy has this ultimate punishment. Moreover, political candidates have used the death penalty as a wedge issue; and an unprecedented recall election of several California State Supreme Court justices was fueled by the Court's opinions in death penalty cases.
In the early 1970s, for technical legal reasons, the death penalty was prohibited throughout the United States, only to be permitted again under certain conditions by the Supreme Court.2·3 The Supreme Court has always ruled that capital punishment per se does not violate the Eighth Amendment prohibition against "cruel and unusual punishment." However, federal law sets only a minimum standard for capital punishment, i.e., individual states may proscribe or restrict capital punishment. Thirty-seven states presently allow the imposition of the death penalty.4
Psychiatrists have historically participated in capital cases as expert witnesses. In this capacity, they have provided consultation during the guilt phase of the trial to both the defense and prosecution, generally assessing the issues of competence to stand trial and criminal responsibility. If convicted of having committed a capital crime in the guilt phase, the jury then weighs mitigating and aggravating factors in deciding whether to recommend that the defendant be sentenced to death or life imprisonment in the subsequent penalty phase of the trial. Psychiatric expert witnesses are often called upon to present such factors in a capital trial's sentencing phase.
The professional issue for psychiatrists is not whether the personal morals of an individual psychiatrist favor capital punishment, but whether the psychiatric profession ought to participate in capital cases by providing psychiatric consultation. The professional (or organizational) ethical rules governing medicine in the United States only explicitly prohibit participating in the actual act of execution.5 Therefore, providing psychiatric consultation in a capital case does not currently violate American medical ethics. However, at least one state medical society has so far deemed it unethical to offer psychiatric consultation during a certain phase of the death penalty process.6 The boundary between what is ethical and what is legal for psychiatric participation in the death penalty process has become increasingly indistinct in the last decade as a result of several legal decisions.
THE LIMITS OF PSYCHIATRY TESTIMONY
The 1983 Supreme Court ruling in Barefoot v Estelle7 legitimized the use of psychiatric opinion to "predict" dangerousness in the sentencing phase of a death penalty trial. One of the expert witnesses in the Barefoot case, without the benefit of a direct psychiatric examination of defendant Barefoot, offered his opinion in the trial's penalty phase with "100 percent and absolute" certainty that Barefoot would be dangerous in the future. The psychiatrist further stated that he was unaware of studies showing the unreliability of predictions of dangerousness.
Despite an amicus curiae brief submitted to the Supreme Court by the American Psychiatric Association indicating the inherent unreliability of long-term predictions of future dangerousness, the Court let stand the trial court's acceptance of the psychiatrist's testimony regarding dangerousness. Three of the nine justices, however, expressed concern about these predictions in their dissenting opinion. They stated, "One may accept this in a routine lawsuit for money damages, but when a person's life is at stake - no matter how heinous his offense - a requirement of greater reliability should prevail."7' p916)
While offering an opinion about a defendant's degree of dangerousness is not in itself unethical, to do so without considering the prevailing psychiatric knowledge and with absolute certainty would seem to violate the current forensic psychiatry ethical guideline of honesty and striving for objectivity as adopted by the American Academy of Psychiatry and the Law.8 Moreover, this guideline stresses the need for a personal examination of an evaluee. If a personal examination is not possible, then the psychiatrist can offer an opinion based on the materials reviewed, but must then state the limitations of such an opinion. Finally, such testimony would also appear to violate the ethical guideline of competent medical service promulgated by the American Psychiatric Association (APA).5
The Barefoot decision did less to define limitations of psychiatric expertise than it underscored the lack of limitations of expert witness testimony. This decision appears to permit unethical and incompetent psychiatric practice by allowing into evidence potentially dishonest and inaccurate psychiatric opinions. Despite the majority opinion asserting that the adversarial nature of the legal system could expose this faulty psychiatric testimony, cross-examination may be ineffective. Moreover, the three dissenting justices opined, "In a capital case, the specious testimony of a psychiatrist, colored in the eyes of an impressionable jury by the inevitable untouchability of a medical specialist's words, equates with death itself 7,p916'
In a rare invocation of the Eighth Amendment's prohibition against cruel and unusual punishment in cases involving psychiatric issues, the Supreme Court ruled in Ford ? Wainwright9 that "insane" death row prisoners cannot be executed. The Supreme Court offered several reasons to exempt "insane" condemned persons from execution:
* the questionable retributive value in executing an "insane" person who could not understand the linkage of crime and punishment;
* the lack of deterrent value in executing an "insane" person since it would not serve as an example to others; and
* an execution of an "insane" person would offend humanity.
The Supreme Court did not offer specific guidance as to what constitutes an "insane," or more accurately "incompetent to be executed," death row prisoner, but remanded Ford's case to the lower courts for a legally proper hearing on the issue.
Despite the substantial frequency of neuropsychiatrie impairments documented in death row inmates,10,11 the number of condemned persons who have been found incompetent to be executed is extremely small.12 Nonetheless, the discussion of the clinical and ethical issues posed by this group of death row inmates has been intense within both the psychiatric and legal professions, with many issues still unresolved (e.g., see references 12-20). The two principal ethical dilemmas are:
* When evaluating an inmate's competence to be executed, is the finding of the elements of competence tantamount to active participation in the actual death penalty process? and
* If a condemned prisoner is determined to be incompetent to be executed, is treating the mental disorder in an attempt to restore that person's competence actively participating in the death penalty process? If so, this participation may constitute direct involvement in a legally authorized execution, which is ethically prohibited.
In addition to the individual psychiatrists and attorneys who hold that any psychiatric participation in the determination of competence to be executed is unethical, at least one state medical society shares this perspective.6 However, taking this position poses the following dilemma: If no psychiatric expert witness performs the necessary competence examination, an "insane" prisoner could face execution illegally. Other commentators have analyzed this conundrum and reject the premise that such participation is automatically unethical.17,18 There is no ethical consensus in this controversial psychiatric-legal topic.
The issue of the right to refuse treatment has emerged in the question of competence to be executed. The Supreme Court in Perry v Louisiana21 did not decide whether persons who are incompetent to be executed have the right to refuse treatment for the mental disorder that renders them incompetent. Even if the Supreme Court rules that a state can trump an incompetent-to-be-executed prisoners right to refuse treatment, a clinical-ethical problem remains for the psychiatric profession and the individual psychiatrist who may be imposing involuntary treatment that will permit the patient's execution. This situation stands in contrast to the other cases of forcible administration of psychotropic medications to prisoners not sentenced to death,22 where the APA has gone on record in opposing the absolute right to refuse treatment.
State-sanctioned execution of persons who have committed a capital crime while still juvenile-aged has been permitted since the founding of our country.23 Over the years, some states have legislated minimum age requirements for imposition of the death penalty. However, it was not until the past decade that the Supreme Court set a national minimum age for capital punishment. In Thompson ? Oklahoma,24 the Supreme Court ruled that individuals who committed capital crimes when younger than age 16 could not be sentenced to death. However, in Stanford ? Kentucky, Wilkins ? Missouri,2,3 the same court ruled that a minor, who was 16 or older at the time of the commission of the capital crime, could be executed.
In establishing this clear age demarcation, the Supreme Court accepted the concept of "reduced culpability" for those committing capital crimes under age 16 and rejected it for those over age 16. The concept of "reduced culpability" appears to have been largely borrowed from a developmental psychology perspective where adolescents are viewed as significantly less emotionally and cogniti vely mature than adults. However, the Court could not substantiate this clear dichotomy, although rigid age thresholds are commonly accepted in law and society. The age when one can vote, drive, or drink alcohol are examples of this bright line without any specific supporting psychiatric or psychologic data. The Court also begged the question of why a 15-year-old found fit to be tried as an adult could be sentenced to life in prison without parole but is immunized from the death penalty.
In the related case of Penry v Lynaugh,26 the Supreme Court rejected proscription of the death penalty for individuals suffering from mental retardation. The Court permits only low chronological age, not low functional age, to exclude persons from execution. However, for juveniles over 16 with or without mental retardation, a psychiatric consultant may present emotional and cognitive immaturity and/or cognitive impairment as possible mitigating factors during the sentencing phase of a capital trial. In fact, psychiatrists may be the only witnesses to present mitigating factors in such capital cases.
In McCleskey v Kemp21 The United States Supreme Court considered the issue of racial bias in capital trials. In this case, McCleskey, an African-American man, had been convicted in the state of Georgia for killing a policeman and had been sentenced to death. The defendant appealed to the Georgia Supreme Court alleging that Georgia's capital sentencing process was discriminatory on the basis of race. McCleskey relied on the work of David Baldus and his colleagues. Their study of 2,400 Georgia murder cases from 1973 to 1980 found statistically significant biases regarding when the prosecution would seek the death penalty and who would receive the death penalty as a function of the race of the murderer and the race of the victim.
The United States Supreme Court acknowledged the Baldus study to be statistically valid, but went no further with this set of data.20 Only in individual cases in which constitutional rights are clearly violated because of race are there grounds to reverse a death sentence. While psychiatric consultation in these cases, especially by white expert witnesses in the defense of African-American capital defendants, may be socially and morally gratifying,29 it may also represent a last hope in averting the death penalty.
VICTIM IMPACT STATEMENTS
Payne ? Tennessee30 opens up a potentially new area for psychiatric involvement in death penalty cases. In Payne, the United States Supreme Court reversed its own decisions made only two and four years earlier. As noted by Justice Marshall in his dissent, the only difference since the earlier decision was a change in the personnel of the Court.
The Payne decision permits the use of "victim impact statements" in the penalty phase of capital trials. Victim impact statements afford the prosecution the use of testimony about the psychological effect of the crime on the victim's family in order to counter evidence of mitigation presented by the defense. The prosecution is also allowed to offer a glimpse of the life a defendant chose to extinguish.
The Court rejected arguments that the sentencing phase could shift the focus away from the defendant's character to the victim's character. This could conceivably make prosecution witnesses of psychotherapists who treat family members of crime victims. Even if the treating psychotherapist owes no legal duty to the defendant or the prosecutor, he or she could be subpoenaed by the prosecution seeking the death sentence. In addition, this line of inquiry could encourage psychotherapists who support a victim advocacy position to treat crime victims' relatives and to serve as prosecution witnesses. Of course, where there is one set of advocates, an opposing set could easily appear with an ensuing battle of the experts.31
Stone:31 raised other concerns about the potential misuse of victim impact statements. In particular, it could become a vehicle for racial or ethnic bias in deciding that some lives are more precious than others. Although forensic psychiatrists can decide how and whether to participate in death penalty cases, the treating psychotherapists could be called to testify on behalf of the state regardless of their views on the ethics of helping facilitate a death penalty.
In the case of the only person to be executed in California during the last quarter century, Robert Alton Hairis (Los Angeles nines; April 22, 1992:A1), the Supreme Court did not establish a new interpretation of the law, as it had done in the cases previously highlighted. The psychiatric-legal aspects of the Harris case involve repeated requests for a new penalty phase in order to present additional psychiatric evidence uncovered after his original conviction that was not available when his death penalty was imposed. Because the Harris defense had access to psychiatric consultation for the trial, the courts rejected his request for a new sentencing hearing (e.g., see reference 32).
One of Harris' last contentions was that he had suffered from neuropsychiatrie and neuropsychologic sequelae of fetal alcohol syndrome, and as a result had insufficient control over his thinking and behavior.33 Certain mitigating factors introduced at a capital trial, such as that the capital defendant had been a victim of childhood sexual abuse; the defendant had grown up in extensive poverty; or the defendant was raised in a neighborhood in which physical violence was an acceptable and everyday occurrence, would appear to have less bearing on subsequent behavior than that of organic conditions such as the fetal alcohol syndrome.
Given that neuropsychiatrie and neurologic impairments similar to those associated with fetal alcohol syndrome have been found in many death row inmates,10,11 behavioral neurology, neurology, and pediatrics assume an increasingly important role in future capital trials. Identifying these factors would require an extensive and expensive evaluation of capital defendants, a dubious undertaking in this era of economic restraint. The Supreme Court simply requires access to psychiatric consultation, not a full psychiatric and neuropsychological assessment that psychiatric patients rarely receive.34
In the past decade, the legal rules governing capital punishment have changed and generated ethical quandaries for psychiatry. Psychiatric participation in the death penalty process may become increasingly sought after by the legal system as the number of potential capital cases and executions rises to unprecedented levels (Los Angeles Daily Journal; September 23, 1992:3). Psychiatry and medicine will be under constant criticism by those within and without the healing professions regarding participation in these controversial cases.
Despite the establishment of more rigid requirements for a minimum age limit and for sanity at the time of execution, the overall impact of the legal trends of the past decade increases the importance of psychiatric consultation in capital cases, especial Iy in the area of presenting psychiatric data in the sentencing phase, whether mitigating or aggravating. The Harris, Payne, and McClesky cases raise the specter that any psychiatrist may become enmeshed in a death penalty case.
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34. Ake v Oklahoma, 470 US 68 (1985).