Question

Discuss the controversy surrounding restoring a defendant's competence to be executed. Why does this issue present ethical concerns for psychologists? What is your opinion?

Answer 1

There was and continues to be a substantial opposition to the concept from many psychologists, who feel bound by the Code of Ethics to avoid any activity that could reasonably lead harm for another individual. Some psychologists see nothing unethical in what they are doing, since they say it is not they who are executing the individual, but rather they are merely making an objective, empirically based assessment of a person’s competence to understand the proceedings. It is the court and the attorneys that decide how to use the information.

Some argue that they are in fact helping the individual because they may be of the opinion that the person is not competent for execution and therefore will receive some treatment for his or her mental illness. But, if committed as incompetent for execution, the goal is to restore the person to a state of mental competence so the state can then carry out the execution. A further dilemma has to do with exactly what competence for execution entails. Does it require only a basic factual understanding or does it require a more in depth, rational understanding? That is, if the person factually understands the reason for execution, but he or she also has a delusional idea about the significance of the impending execution, what role should the delusional thinking have, if any.

The issue of the constitutionality of executing incompetent individuals was heard by the U.S. Supreme Court in 1986 in Ford v. Wainwright. The Court in Ford held that the Eighth Amendment, which bans cruel and unusual punishment, prohibits the execution of an “insane” (mentally incompetent) person. The Court reasoned that (a) execution of the insane would offend humanity, (b) executing the insane would not serve to set an example and would not reaffirm the deterrence value believed to exist in capital punishment, (c) any individual who is believed to be insane is also believed unable to prepare “spiritually” for death, (d) madness itself is punishment and, therefore, negates the punishment value of execution, and (e) no retributive value is believed to be served by executing the mentally incompetent.

Competency for execution, more than any other area within the field of forensic assessment, has been fraught with controversy and debate regarding whether, and to what extent, mental health professionals should become involved in this type of evaluation. Indeed, the personal outcome for the inmate who serves as the evaluee in this type of evaluation weighs heavily in this debate.

Standards for competency for execution evaluations should parallel those that apply to other types of forensic evaluations. That is, the standardized procedures that are used during the evaluation should be described to the subject of the evaluation as well as in the examiner’s report, assessment measures should be relevant to the referral issue(s), and the examiner should have a sound and sophisticated conceptualization of the relevant criteria for being not competent for execution. In addition, the knowledge base of examiners should cover three domains: general legal competencies, forensic assessment methodologies, and execution-related substantive content. Finally, collateral information should be gathered. This might include (but would not be limited to) information regarding life history, psychological history and disorders, deterioration-related data, previous and current written reports, and interviews with persons who have had extensive opportunities to observe the evaluee.