Competence for Execution: The Ethical Binds

By David Shapiro, Ph.D., J.D.
January 6, 2015

Competence for execution: the ethical bindsIn 1986, The United States Supreme Court decided Ford v. Wainwright, which declared that it was unconstitutional, a violation of the 8th Amendment to the Constitution prohibiting cruel and unusual punishment, to execute the “insane.” The court did not precisely define what “insanity” was, but in the opinion one of the justices suggested that it encompassed the idea that a person was too mentally ill to realize the reason that he or she was being put to death.

This was later conceptualized as a form of competence since it involved not understanding what certain proceedings were about. Competence for execution started to be discussed in the psychological and legal literature.

There was and continues to be substantial opposition to the concept from many psychologists, who feel bound by the Code of Ethics to avoid any activity that could reasonably lead to harm for another individual. In the words of Justice Harry Blackmun, some would prefer not to be “tinkering with the machinery of death.”

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.

On the other hand, it is argued that if one finds an individual “competent for execution” that practitioner is in fact part of the “machinery of death” because the finding will hasten an individual’s execution. Is such a finding not in fact the opposite of “taking reasonable steps to avoid harm?”

Some would 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.

This then poses another ethical dilemma: Do we participate in a treatment program designed to make it easier for the state to execute the individual? Another ethically troubling issue here is the circumstance in which the incompetent inmate refuses the medication that may restore him or her to competence for execution. Under these circumstances, a psychologist could conceivably be called upon to “counsel” the individual about the need to take medication, which could pose another troubling ethical dilemma.

Adding to the complexity of these issues is that the U.S. Supreme Court has not yet weighed in on the issue in order to provide some guidance. In fact, different jurisdictions have different case law regarding this matter. Louisiana, for instance, prohibits forced medication of an individual in order to restore them to competency for execution (Perry v. Louisiana, 1990).

But in the 8th Circuit, in Singleton v. Norris (2003) the U.S Court of Appeals ruled that a mentally incompetent inmate could be forcibly medicated if the sole purpose of the medication was not competence for execution, but something else, such as remission from psychotic symptoms or prevention of violent behavior. The medication must also be medically appropriate and not have any serious side effects.

Of course, it does not appear that the court considered death as an unwanted side effect of the medication. It does not take too far a stretch of the imagination to conceive of a situation where the real goal is to execute someone, but the people involved call it something else such as an effort to prevent violent behavior.

A further dilemma has to do with exactly what competence for execution entails. Does it require only a basic factual understanding (“I am about to be executed because I was convicted of murder”) 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.

Competence to stand trial involves three elements: a rational understanding, a factual understanding and an ability to “assist counsel with a reasonable degree of rational understanding” (Dusky v. U.S., 1960). Should there not be at least as much due process protection for an individual facing execution as for an individual going to trial?

This dilemma became the focus of a case heard by the U. S. Supreme Court (Pannetti v. Quarterman, 2007). In this case, the defendant, Scott Pannetti, had been convicted of first degree murder, but also had an extensive psychiatric history.

When examined for competency to be executed, Pannetti realized that he was being executed because he had been convicted of murder, but felt that the “real reason” for his impending execution was that the state wanted to prevent him from preaching the gospel. The state argued that he met the criteria for competency because he knew of the connection between the impending execution and the conviction.

The defense argued that the delusion really brought into play Pannetti’s irrational thinking about the reasons for execution. The court remanded it back to Texas for clarification of the criteria for competency.

What, then, should be the criteria for competency for execution or should it be an issue at all? In 2002, the U.S. Supreme Court ruled that execution of mentally retarded individuals was prohibited by the Eighth Amendment, because such individuals lacked the intellectual and moral development to fully comprehend the blameworthiness of their behavior (Atkins v Virginia).

Should not the same argument be extended to those who are severely mentally ill? In other words, the mere presence of a severe mental illness would ban the possibility of execution of that individual. In fact this is precisely the argument made in a remarkable paper jointly authored by the American Psychological Association, the American Psychiatric Association and the American Bar Association. In the case of someone with severe mental illness, execution would be prohibited, and we would not get into the ethical dilemmas posed by the concept of competency to be executed.

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