200505a
Mentally Ill Prisoners on Death Row
SUPPLEMENT
Background to the Position Statement
Preface
Like their fellow citizens, psychiatrists are not of one mind about the moral legitimacy and social utility of the death penalty. However, psychiatrists are uniformly troubled by the prospect of executing people whose offenses were linked to serious mental disorders or whose mental disorders prevent a fair adjudication. In a previous position statement, the American Psychiatric Association identified circumstances under which severe mental disorder at the time of the offense should preclude a death sentence.1 The following position statement addresses three different circumstances under which concerns about a prisoner's mental competence and suitability for execution arise after the prisoner has been sentenced to death. The first paragraph states that execution should be precluded when a prisoner lacks the capacity (i) to make a rational decision regarding whether to pursue post-conviction proceedings, (ii) to assist counsel in post-conviction adjudication, or (iii) to appreciate the meaning or purpose of an impending execution. The succeeding paragraphs elaborate on these three situations.
Commentary
This commentary addresses each of the three situations covered by the position statement.
Prisoners Seeking to Forego or Terminate Post-Conviction Proceedings. Reportedly, 13% of the prisoners executed since 1976 (when the Supreme Court permitted states to reinstitute the death penalty) have been so-called "volunteers"2 for execution, in the sense that they have not taken full advantage of the opportunity to challenge the validity of the death sentence. The Supreme Court has ruled that a competent prisoner is entitled to forego available appeals.3 If the prisoner is not competent, the standard procedure is to allow a so-called "next friend" (including the attorney) to pursue direct appeal and collateral proceedings aiming to set aside the conviction or sentence. Paragraph (b) addresses the definition of competence in such cases, providing that a next friend petition should be allowed when the prisoner has a mental disorder or disability "that significantly impairs his or her capacity to make a rational decision."
Prisoners Unable to Assist Counsel in Post-Conviction Proceedings. Paragraph (c) provides that courts should suspend post-conviction proceedings upon proof that a prisoner is incompetent to assist counsel in such proceedings and that the prisoner's participation is necessary for fair resolution of a specific claim. Thorough post-conviction review of the legality of death sentences has become an integral component of modern death penalty law, analogous in some respects to direct review. Any impediment to thorough collateral review undermines the integrity of the review process and therefore of the death sentence itself. Many issues raised in collateral proceedings can be adjudicated without the prisoner's participation, and these matters should be litigated according to customary practice. However, collateral proceedings should be suspended if the prisoner's counsel makes a substantial and particularized showing that the prisoner's impairment would prevent a fair and accurate resolution of specific claims,4 and subpart 3(c) so provides.
Where the prisoner's incapacity to assist counsel warrants suspension of the collateral proceedings, it should bar execution as well, as recommended by the American Bar Association in its Standards for Criminal Justice. ABA Standard 7-5.6 provides that prisoners should not be executed if they cannot understand the nature of the pending proceedings or if they "[lack] sufficient capacity to recognize or understand any fact which might exist which would make the punishment unjust or unlawful, or [lack] the ability to convey such information to counsel or to the court."5 As the commentary to Standard 7-5.6 indicates, this rule "rests less on sympathy for the sentenced convict than on concern for the integrity of the criminal justice system." 6 Scores of people on death row have been exonerated based on claims of factual innocence, and many more offenders have been removed from death row and given sentences less than death because of subsequent discovery of mitigating evidence. The possibility, however slim, that incompetent individuals may not be able to assist counsel in reconstructing a viable factual or legal claim requires that executions be barred under these circumstances.
Once the post-conviction proceedings have been suspended on grounds of the prisoner's incompetence to assist counsel, should the death sentence remain under an indefinite stay? The situation is analogous to the suspension of criminal proceedings before trial; in that context, the proceedings are typically terminated (and charges are dismissed) after a specified period if a court has found that competence for adjudication is not likely to be restored in the foreseeable future. In the present context, it would be unfair to hold the death sentence in perpetual suspension. A judicial finding that the prisoner's competence to assist counsel is not likely to be restored in the foreseeable future should trigger an automatic reduction of the sentence to a lesser punishment.
Prisoners Unable to Understand the Punishment or its Purpose. In Ford v. Wainwright (1986), 7 the U.S. Supreme Court held that execution of an incompetent prisoner constitutes cruel and unusual punishment proscribed by the Eighth Amendment. Unfortunately, the Court failed to specify a constitutional definition of incompetence. Justice Powell, in his concurring opinion in Ford, stated: "I would hold that the Eighth 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." 8 There has been some confusion about the meaning of the idea that the prisoner must be able to understand (or be aware of) the nature and purpose for (reasons for) the execution. In Barnard v. Collins, 9 decided by the Fifth Circuit in 1994, the state habeas court had found that Barnard's "perception of the reason for his conviction and impending execution is at times distorted by a delusional system in which he attributes anything negative that happens to him to a conspiracy of Asians, Jews, Blacks, homosexuals and the Mafia."10 Despite the fact that Barnard's understanding of the reason for his execution was impaired by delusions, the Fifth Circuit concluded that his awareness that "his pending execution was because he had been found guilty of the crime," was sufficient to support the state habeas court's legal conclusion that he was competent to be executed.11
In order to emphasize the need for a deeper understanding of the state's justifying purpose for the execution, paragraph (d) would require that an offender not only must be "aware" of the nature and purpose of punishment but also must "appreciate" its personal application in the offender's own case – that is, why it is being imposed on the offender. This formulation is analogous to the distinction often drawn between a "factual understanding" and a "rational understanding" of the reason for the execution.12 If, as is generally assumed, the primary purpose of the competence-to-be-executed requirement is to vindicate the retributive aim of punishment, then offenders should have more than a shallow understanding of why they are being executed.
Whether a person found incompetent to be executed should be treated to restore competence implicates not only the prisoner's constitutional right to refuse treatment but also the ethical integrity of the mental health professions.13 Some courts have decided that the government may forcibly medicate incompetent individuals if necessary to render them competent to be executed, on the ground that once an individual is fairly convicted and sentenced to death, the state's interest in carrying out the sentence outweighs any individual interest in avoiding medication.14 However, treating a condemned prisoner, especially over his or her objection, for the purpose of enabling the state to execute the prisoner strikes many observers as barbaric and also violates fundamental ethical norms of the mental health professions.
Mental health professionals are nearly unanimous in the view that treatment with the purpose or likely effect of enabling the state to carry out an execution of a person who has been found incompetent for execution is unethical, whether or not the prisoner objects, except in two highly restricted circumstances (an advance directive by the prisoner while competent requesting such treatment or a compelling need to alleviate extreme suffering).15 Because treatment is unethical, it is not "medically appropriate" and is therefore constitutionally impermissible when a prisoner objects under the criteria enunciated by the Supreme Court in Sell v. United States16 and Washington v. Harper.17 As the Louisiana Supreme Court observed in Perry v. Louisiana,18 medical treatment to restore execution competence "is antithetical to the basic principles of the healing arts," fails to "measurably contribute to the social goals of capital punishment," and "is apt to be administered erroneously, arbitrarily or capriciously."19
There is only one sensible policy here: a death sentence should be automatically commuted to a lesser punishment after a prisoner has been found incompetent for execution. This has long been the APA’s view, and Maryland has so prescribed.20 Once an offender is found incompetent to be executed, execution should no longer be a permissible punishment.
Endnotes
1. American Psychiatric Association. Diminished responsibility in capital sentencing: Position Statement. Arlington, VA: The Association, 2004. http://www.psych.org/library (see: Position Statements)
2. John Blume, Killing the Willing: A Volunteers, @ Suicide and Competency 2 (unpublished manuscript).
3. See, e.g., Gilmore v. Utah, 429 U.S.1012 (1977)
4. Council v. Catoe, 359 S.C. 120, 597 S.E.2d 782, 787 Carter v. State, 706 So.2d 873, 875-77 (Fla. 1997); State v. Debra, 523 N.W.2d 727 Wisc, 1994) (non-capital case); People v. Kelly, 822 P.2d 385, 413 (Cal. 1992).
5. ABA Criminal Justice Mental Health Standards 290 (1989).
6. Id., at 291.
7. 477 U.S. 399.
8. Id. at 422 (Powell, J., concurring).
9. 13 F.3d 871 (5th Cir, 1994).
10. Id. at 876.
11. Id.
12. See Martin v. Florida, 515 So. 2d 189, 190 (Fla. 1987).
13. Kirk S. Heilbrun, Michael L. Radelet, Joel A. Dvoskin, The Debate on Treating Individuals Incompetent for Execution, 149 American Journal of Psychiatry 596 (1992); Richard J. Bonnie, Dilemmas in Administering the Death Penalty: Conscientious Abstention, Professional Ethics and the Needs of the Legal System, 14 Law & Human Behavior 67 (1990).
14. Singleton v. Norris, 319 F.3d 1018 (8th Cir. 2003) (en banc), cert denied, 124 S. Ct. 74 (2003).
15. See Council on Ethical and Judicial Affairs, American Medical Association, Physician Participation in Capital Punishment, 270 JAMA365 (1993); American Psychiatric Association and American Medical Association, Amicus Brief in Support of Petitioner in Perry v. Louisiana, 498 U.S. 38 (1990); Richard J. Bonnie, Medical Ethics and the Death Penalty, 20 HASTINGS CENTER REPORT 12-20 (1990)
16. 539 U.S. 166 (2003).
17. 494 U.S. 210 (1990).
18. 610 So.2d 746 (La. 1992).
19. Id. at 751.
20. Md. Code of Correctional Services, 3-904(a)(2), (d)(1).