In its recent decision Atkins v Virginia, six justices of the U.S. Supreme Court held that, in light of evolving standards of decency, it is unconstitutional to execute the mentally retarded. The international community of human rights advocates, who oppose capital punishment, welcomed the court's decision as an important step in the direction of abolishing the death penalty. Physicians for Human Rights (PHR), a group whose opposition to capital punishment is grounded in medical ethics, were among those who applauded the decision. But Atkins v Virginia has so transformed the capital punishment landscape that it should also force PHR to reconsider its condemnation of forensic experts who participate in the competency evaluations of death row inmates.
Over the past several years, Psychiatric Times has kept its readers informed of the intense ethical debate over psychiatric participation in capital punishment. Past American Psychiatric Association Presidents Lawrence Hartmann, M.D., and Alfred Freedman, M.D., have argued on these pages that physicians should not participate in capital punishment--that is the American Medical Association and APA position. But they have also argued that the evaluation of a death row inmate's competency to be executed is an unethical form of participation--that has been the PHR position. Current APA President Paul Appelbaum, M.D., has repeatedly rejected their argument, claiming that a psychiatrist in the forensic role is there to tell the truth and is not bound by "Do No Harm" medical ethics. The Supreme Court's new decision on the death penalty, in my opinion, makes this entire debate irrelevant.
Atkins v Virginia means that life and death now hang on the definition of mental retardation and how that clinical diagnosis is applied to the almost 4,000 death row inmates and the many defendants of borderline intelligence who will be charged with capital offenses in the future. Legal opponents of the death penalty estimate that 10% to 25% of those awaiting execution might be mentally retarded. Lawyers who oppose capital punishment will be looking for qualified mental health care professionals to help determine which inmates will be spared execution. Certainly it would be strange if PHR were to continue to insist that it is unethical for forensic psychiatrists to participate in this effort. And if it is permissible to evaluate those who might qualify as mentally retarded, how can it be impermissible to evaluate those who might be incompetent to be executed? Indeed, in some cases, the death row inmate will be both mentally retarded and mentally ill. Atkins v Virginia has created a new reality that requires PHR to rethink its ethical prohibition. I know of no decision by the U.S. Supreme Court that puts more weight on what, when all is said and done, is a clinical diagnosis--mental retardation--and that will also require forensic psychiatrists to reconsider their professional role.
Justice John Paul Stevens, who wrote the majority opinion, conceded, "Not all people who claim to be mentally retarded will be so impaired" as to be within the range of those who must be spared. Atkins is a case in point. The state of Virginia disputed the diagnosis of mental retardation; their forensic psychologist claimed the correct diagnosis was antisocial personality disorder. The court sent the case back to Virginia where Atkins' fate and his diagnosis will be decided. But the court offered no guidance on how the diagnosis of mentally retarded shall be defined for purposes of capital punishment. Justice Antonin Scalia in his scalding dissent underlined the radical significance of the Atkins decision and emphasized his concern, stating, "The symptoms of [mental retardation] can readily be feigned."
It was that very concern which the APA and the American Psychological Association--in a rare show of unity--had sought to put to rest. The associations have frequently filed conflicting briefs in the Supreme Court, particularly when the efficacy and side effects of psychotropic drugs were at issue; this time, however, they filed a jointly co-authored amicus brief. The associations argued, "A blanket prohibition against the execution of individuals with mental retardation is workable" because there are reliable and valid instruments and three required criteria (A, B and C criterion of DSM-IV): significant limitations in intellectual functioning, significant limitations in adaptive functioning and onset before adulthood. The associations assured the court that "qualified professionals" who assess each of the criteria could achieve objective determinations.
There is an important point here about forensic practice that should not be overlooked. Many forensic psychiatrists have emphasized that in their truth-telling role they do not make legal determinations; they distinguish between their "objective scientific testimony" and the court's ultimate legal questions, which are moral and normative. This distinction allows the expert--for example, in a competency to be executed case--to offer expert opinion about the diagnosis, the mental status, and the inmate's cognitive understanding and affective appreciation of their situation, but claim it is the court's responsibility to decide the separate legal question: Whether the defendant is or is not legally competent to be executed. But no such conceptual distinction seems possible given the Supreme Court's decision in the Atkins case. The line between clinical standards and legal standards has seemingly been obliterated. A diagnosis of mental retardation is a constitutional bar to execution. This means that the battle of the forensic experts will be a struggle over the boundaries of a diagnosis that means life or death, a struggle in which scientific objectivity will be sorely tested and where it is difficult to claim that the court bears the burden of responsibility.
If it is now unconstitutional to execute the mentally retarded, it is certainly reasonable for abolitionists to begin to argue that it is equally unconstitutional to execute the mentally ill. From a biopsychosocial perspective, primary mental retardation and significant Axis I disorders have similar etiological characteristics. And the mentally ill suffer from many of the same limitations that, in Justice Stevens' words, "do not warrant an exemption from criminal sanctions, but they do diminish their personal culpability." "Evolving standards of decency" mean many different things to different people. But an important part of our standards of decency derive from our scientific understanding of behavior. I believe the time will come when we recognize that it is equally indecent to execute the mentally ill.
Given the Atkins decision and its possible implications for the mentally ill, it is time to put aside the debate about whether forensic psychiatrists should or should not be evaluating death row inmates. Many forensic psychiatrists in fact favor the abolition of capital punishment, as do the members of PHR, but they have been at loggerheads in a dispute about professional ethics. It may now be possible for forensic experts and PHR members to make common cause against the death penalty by using their professional skills to document mental retardation and mental illness on death row. The Supreme Court has taken a first step on the road to abolition by sparing the mentally retarded. Forensic psychiatrists and psychologists have an opportunity to work with legal advocates to help the state courts carry out that mandate. And perhaps out of good epidemiological documentation and better scientific understanding there will come enough momentum for the court to take a second step on behalf of death row inmates with serious mental illness.