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Mental Illness and Capital Punishment: Potential Complications

Mental Illness and Capital Punishment: Potential Complications

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The US Supreme Court has been slowly but steadily “chipping away” at the death penalty. Lee and Hall’s well-written article gives a prescient window of insight into the process. After the more easily confirmed disqualifiers of age and intellectual disorder have been decided, is not serious mental illness now a predictable consideration? If so, how will a dividing line be drawn between serious mental illness and “any” type of mental illness? In both Roper and Atkins, the Supreme Court also considered the risk of false convictions and unfair sentences.1

These concerns flowed from the notion that juveniles and persons with intellectual disabilities may be inordinately impressionable, and thus unduly prone to outside influence in committing the crime, as well as at risk for false confessions. Can these same concerns now be applied to persons with mental illness? The likelihood does seem strong for a future prohibition of the death penalty for persons with mental illness.

What is of interest now are the long-term ramifications and challenges that may be forthcoming. In this article, we discuss some potential complications arising from a constitutional ban on executing persons with mental illness.

CTBE evaluations

To be sure, complications are encountered in other areas of forensic psychiatric criminal evaluations. For example, competence to be executed (CTBE) evaluations (evaluations for death penalty eligibility) take the evaluator much closer to the moral and ethical fire of an execution than other types of evaluations. The American Medical Association’s Council on Ethical and Judicial Affairs concluded that conducting CTBE evaluations is permissible because the forensic psychiatrist is acting as an advocate of the justice system—not as part of the process of punishment.2 There are 2 critical factors to keep in mind:

1. There is no doctor-patient relationship between the forensic psychiatrist and inmate

2. The evaluating forensic psychiatrist is not “directly participating” in an execution


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