In its 1986 decision in Ford v. Wainwright, the U.S. Supreme Court found that death row prisoners had a constitutional right not to be executed if they were incompetent (477 U.S. 399 [1986]). Competence for execution-an odd concept, but one whose roots go back to biblical times-usually requires that a prisoner understand the nature of the punishment about to be imposed and why it is being imposed.
Dr. Lawrence Hartmann and I differ on whether it is ethical for a psychiatrist to evaluate a prisoner whose competence has been questioned. In my view, such an evaluation-which may result in saving the prisoner's life-is an ethical act. Indeed, failure to conduct the evaluation, which may be tantamount to condemning the prisoner to execution, may be unethical.
Psychiatrists and other physicians, of course, have been involved for centuries in performing evaluations for the courts and offering testimony. These activities encompass civil issues (e.g., disability, emotional harms, parental fitness), as well as criminal issues (e.g., competence to stand trial, criminal responsibility, aid in sentencing). This involvement with the courts is generally recognized as advancing the pursuit of justice and, as such, an entirely praiseworthy function. Competence for execution evaluations would appear to implicate the same goals-providing expertise to help the courts with critical determinations.
In fact, both the American Medical Association's Council on Ethical and Judicial Affairs and the American Psychiatric Association's Committee on Ethics have agreed with this conclusion. As the AMA put it, "without physician participation, individuals might be punished unjustifiably." To conclude otherwise would not only be unfair to prisoners on death row, but would place the psychiatrists who treat them in impossible ethical dilemmas. Knowing that a prisoner was severely psychotic or demented and likely to be found incompetent, a psychiatrist whose profession decided that testimony on such matters was unacceptable would be forced to stand by silently while the prisoner was put to death. Does this make sense?
Why, then, would anyone suggest that assessing a condemned prisoner's competence to be executed is unethical? Groups in this country and abroad who oppose the death penalty have decided that psychiatrists are a useful tool in their battle. If they can exclude psychiatric participation in these cases as unethical, they believe, the system would grind to a halt, not knowing what to do with potentially incompetent prisoners. This is an extremely naive view, both because it is rare for prisoners' competence to be challenged, and because psychologists or other mental health professionals with lesser training would undoubtedly be pleased to perform the evaluations in our place.
Note that this is not a debate about the legitimacy of treating incompetent prisoners to restore their capacity to face execution. Both Hartmann and I would agree that this represents a misuse of psychiatric treatment. Indeed, the situation would be less problematic if more states followed Maryland's lead in automatically commuting the sentence of incompetent prisoners to life in prison, so treatment can proceed outside the shadow of the death row. But as long as we have a death penalty, as 38 of our states now do, psychiatrists should be available to ensure that prisoners who are so ill that they do not understand what is happening to them are spared the ultimate indignity of death.
