Psychiatry & The Death Penalty

Topics of relevance as identified by the
 American Board of Psychiatry & Neurology Board Certification Examination Content Outline.

Learn Forensic Psychiatry is not affiliated with nor endorsed by ABPN.

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Epidemiology

The Death Penalty Information Center provides relevant demographics & statistics.

Use of the death penalty has been declining over recent years following a peak in the 1990s.

The death penalty disproportionately impacts certain groups.

  • Racial Disparities

    • African Americans are disproportionately represented on death row.

    • Those whose victim is white are more likely to receive the death penalty than those whose victim is black.

  • Socioeconomic Disparities

    • Those of lower SES are disproportionately impacted.

  • Gender Disparities

    • Males represent the overwhelming majority of executions.

  • Geographic Disparities

    • More common in the South, as well as in rural areas.

Ethics

Physician Participation

  • The APA has adopted the AMA Statements on Capital Punishment.

  • The AMA prohibits physician participation in a legally authorized execution

  • The following do not constitute participation in a legally authorized execution, and may be considered ethically permissible:

    • Testifying to medical history, diagnosed, and mental state as related to competency to stand trial

    • Testifying to medical aspects of aggravating & mitigating factors during capital sentencing

    • Testifying to medical diagnoses as related to assessment of competency to be executed

    • Certifying death

    • Treating an individual awaiting death, at their voluntary request, to relieve acute suffering

  • The AMA prohibits treating someone for the purpose of restoring competency to be executed, however, treatment with the intent of relieving suffering or maintaining prison security is permissible even if it also results in competency restoration.

Professional Organization Position Statements

Competency to be Executed

  • Competency to be executed requires both factual awareness and rational understanding of the reasons for execution. (Panetti v. Quarterman, 2007)

    • Madison v. Alabama, 2019 clarified that the Panetti standard for competency to be executed focuses on effect, not cause. While Panetti was unable to understand the reasons for his execution due to psychotic delusions, Madison explains that other conditions, such as dementia, may also lead to an inability to understand the reasons for execution.

    • Judges must look “beyond any given diagnosis to a downstream consequence.”

Restoration Issues

  • Forcing antipsychotic medications over objection to restore/maintain competency to be executed is antithetical to medical principles and in violation of the Right to Privacy and protection from Cruel & Unusual Punishment. (State v. Perry, 1992)

Exceptions

Certain individuals are exempt from the death penalty under the 8th Amendment (right to protection from Cruel & Unusual Punishment)

Intellectual Disability (Atkins v. Virginia, 2002)

  • Execution of individuals with intellectual disabilities:

    • Violates evolving standards of decency.

    • Doesn’t serve as a deterrent.

    • Doesn’t provide retribution appropriate to the lower degree of culpability.

  • For the purposes of determining exemption from execution on the grounds of intellectual disability, rigid IQ score “bright-line” cutoffs, which provide no flexibility to consider additional evidence, are unconstitutional. (Hall v. Florida, 2014)

    • If a score is within the margin of error, the defendant must be permitted to present additional evidence of intellectual disability.

Juveniles

  • Execution for crimes committed under the age of 18 is unconstitutional. (Roper v. Simmons, 2005)

  • Scientific evidence about brain development demonstrates that adolescents are developmentally immature, limited in their ability to appreciate the consequences of actions, susceptible to peer pressure, and prone to poor decision-making, all of which reduces culpability.

Mental Illness

  • Execution of an insane prisoner is unconstitutional. (Ford v. Wainwright, 1986)

    • “8th Amendment forbids the execution only of those who are unaware of the punishment they are about to suffer and why they are to suffer it” (concurring opinion, generally accepted standard)

Aggravating & Mitigating Circumstances

In the United States, the death penalty is permissible for certain first-degree murder cases. After conviction on a capital charge, defendants undergo sentencing to determine whether a death sentence is warranted. During sentencing, aggravating & mitigating factors are considered.

A death sentence may only be recommended if the jury unanimously finds at least one aggravating factor and no mitigating factors, or at least one aggravating factor that outweighs mitigating factors to the extent that execution is warranted..

Aggravating Factors: that which makes the crime more “worthy” of the death sentence. Examples include:

  • Victim characteristics (vulnerable populations or public officials, multiple victims)

  • Nature of offense (heinous, cruel, or depraved)

  • Planning or Premeditation

  • Murder for hire

  • History of violent offenses

  • Future dangerousness

Mitigating Factors: that which reduces culpability and supports a lesser penalty. Examples include:

  • Mental illness, intellectual disability, or cognitive impairment (diminished capacity)

  • Youth

  • History of abuse or trauma

  • Duress

  • Remorse

  • Lack of a criminal record

Future Dangerousness

  • Psychiatric testimony about future dangerous is admissible during capital sentencing, including responses to hypothetical questions. (Barefoot v. Estelle, 1983)

  • Admission of psychiatric testimony related to future dangerousness requires constitutional safeguards to ensure adequate 5th and 6th Amendment protections. (Estelle v. Smith, 1981)

    • Prior to psychiatric examination, the defendant must be warned of the rights to:

      • Remain silent

      • Terminate the examination at will

      • Assistance of counsel in determining whether to submit to the examination

  • The introduction of race as a predictor of future dangerousness during sentencing is unconstitutional (Buck v. Davis, 2017)

Access to Psychiatric Experts

  • Indigent defendants have the right to a state-appointed independent psychiatric expert when the issue of insanity is raised. (Ake v. Oklahoma, 1985)

    • They do not necessarily have the right to choose a specific psychiatrist.

  • Indigent defendants whose mental health is relevant and in question have the right to a state-appointed independent psychiatric expert during sentencing. (McWilliams v. Dunn, 2017)

Test Your Knowledge

Test Your Knowledge - Death Penalty

1. Which group is disproportionately impacted by the death penalty?



2. True or False: The AMA prohibits physician participation in a legally authorized execution.

3. Which is correct with respect to the AMA’s position on providing treatment to death row inmates?


4. Which landmark case defined the standard for competency to be executed?



5. Competency to be executed requires:


6. Forcing antipsychotic medication over objection for the purpose of restoring competency to be executed is unconstitutional, as established by:



7. Which of the following is not considered to be an exemption from the death penalty?



8. True or False: Psychiatric testimony about future dangerousness is admissible during capital sentencing, including responses to hypothetical questions.

9. In Buck v. Davis, the introduction of ____ as a predictor of future dangerousness was ruled to be unconstitutional.



10. True or False: Indigent defendants have the right to a state-appointed psychiatrist during sentencing.