The issue of capital punishment has been a subject of considerable controversy both regarding its effectiveness as a deterrent and the ethics of its use. The participation of medical doctors in capital punishment is not new and psychiatrists may play a role in several ways.
Doctors may be participating in executions in all steps of the process by e.g. determining fitness for execution, providing technical advice in relation to injection, prescribing drugs, and administering or supervising the injection of drugs. Further, doctors may be asked to treat any occurring illness and during the executive process monitor the prisoner’s condition. And finally, a doctor may be required to certify death.
What about the role of psychiatrists?
Psychiatrists are reported to take place in the executive process during all phases of a death penalty case (1). The functions of a psychiatrist may be to carry out a diagnostic evaluation of the prisoner prior to the trial and provide the court with a medical answer whether the prisoner suffers from a significant psychiatric disorder or mental deficiency. Many countries have a Mental Health Law comprising a variety of legal issues that pertain to people with a diagnosis or possible diagnosis of mental illness and the verdict “guilty but insane,” that is not responsible. A psychiatric assessment evaluating a defendant’s competence to stand trial is generally not an ethical problem and the defendant should not be threatened or put to death while suffering serious mental illness.
Banning death penalty for offenders suffering from severe mental illness at the time of the offense is still debated in legal systems despite the fact that several professional organizations such as psychiatric or bar associations advocate for a ban. The American Psychiatric Association and the American Bar Association, among others, have called for a ban on the death penalty for those with severe mental illness.
Assessment of competence
As mentioned, it is legally stated in some countries that prisoners suffering from severe mental illness should not be executed. One concern is to examine a defendant who may not have a full understanding of the significance of the examination, that eventually may lead to an execution. Another serious concern is that in several countries it may be questioned whether an adequate cross examination of psychiatric testimony has been presented in court prior to a capital trial or whether any psychiatric assessment has taken place at all. A further concern is that defendants suffering from mental illness may have lesser access or fewer resources to competent legal help that might have identified a need for psychiatric assessment and thus be faced with insufficient safeguards to protect their fundamental rights. As a result, they may run a higher risk of receiving a death sentence. The legal system may also fail to do justice e.g. due to stigma or lack of knowledge about mental illness.
Freedman and Halpern (2) - who have strongly spoken against psychiatric involvement - emphasize that it is important not to confuse a psychiatrist’s testimony regarding a defendant's competence to stand trial, that is a defendant who has not yet been found guilty, with the ethically unacceptable testimony regarding the competence of a condemned prisoner to be executed. This question of competence to be executed arises when a court sentences a person to death and a forensic psychiatrist is invited to engage in the participation in a legally authorized execution.
Here you may find some psychiatrists claiming that the psychiatric assessment of a death row inmate’s competence to be executed does not differ from a pre-trial forensic assessment of a capital defendant’s competence to stand trial.
Treatment of psychiatric illness
In many states with capital punishment, it is required that the prisoner should be competent at the time of execution. Thus, psychiatrists may be asked to treat the mentally ill prisoners on death row, or to assess whether the prisoners are found fit for execution. This places the treating psychiatrist in a dilemma. If you as a psychiatrist retore the mental health of the prisoner, you may consequently allow execution. If you refuse to treat you may leave a prisoner with untreated mental illness. In this way the doctor may find himself/herself in a position where the psychiatric evaluation is the decisive factor determining the execution.
Death row
Severe mental illness is quite prevalent on death row. There are two kinds of mental health issues here. An important problem concerns the psychiatric disorders found in convicted prisoners. In several states, it is estimated that a large proportion of persons on death row have a serious mental illness, e.g. in India approx. 62% and a further 11% intellectual disability; in the US about 20%have a psychiatric condition. In most countries, the current system of fact-finding in capital cases fails to identify who among those facing a possible death penalty has a mitigating mental health condition. Another factor is that sitting on death row anticipating your execution is extremely traumatic and may result in the emergence of psychiatric symptoms requiring intervention.
Where to go from here?
Let me emphasize that it is a violation of professional ethics for psychiatrists to participate in any action connected to executions. Doctors should never use their skills or knowledge for the purpose of facilitating punishment. It is my hope that psychiatrists and other medical professionals will condemn any medical participation in capital punishment unconditionally. There is no doubt about the position of the World Psychiatric Association when it comes to the participation of psychiatrists in capital punishment. At the World Psychiatric Congress in Madrid, in August 1996, the General Assembly unanimously passed the Declaration of Madrid that included the statement: `Under no circumstances should psychiatrists participate in legally authorized executions nor participate in assessments of competence to be executed'. We as psychiatrists should be the guardians of the ethical standards and integrity of our profession and ensure that certain values are not at the disposal of whim, or political pressure. □
References by request
Kastrup M. Psychiatry and death penalty. J Med Ethics 1988;14: 179-83.
Freedman AM, Halpern AL. The erosion of ethics and morality in medicine: physician participation in legal executions in the United States. NY Law School Law Rev 1996; 41:169-88.