Essay: Ethical Dilemmas: Forensic Psychologists Assessing the Competency

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Ethical Dilemmas: Forensic Psychologists Assessing the Competency of Inmates to Be Executed

For most psychologists, working with patients in order to improve their mental health is a goal that presents no ethical conflicts; it is seen as an unmitigated positive to improve a patient's mental health. However, there is one area where a psychologist improving a patient's mental health is not in that patient's best interest: helping make a mentally ill patient competent so that the inmate can be executed. The current state of U.S. law prohibits the execution of the mentally ill. However, in the context of this prohibition, mental illness is narrowly defined. Rather than prohibiting the execution of any person diagnosed with a mental illness, the prohibition only applies to those people who are unable to understand that they are to be executed and the reason for that execution as a result of a mental illness. People who are so impacted by a mental illness that they cannot appreciate that they are to be executed are deemed not competent for execution. Obviously, this creates an area where a highly functioning person with a mental illness might choose to forego treatment, particularly medication, in order to reduce competency and become ineligible for the death penalty. In those instances, a forensic psychologist might be asked to work with these individuals in order to make them competent. However, the real issue is not about competency, but about the sentence that will follow competency. In fact, the state is very aware that competency is only an intermediate step in the process, with the ultimate goal being execution. Forensic psychologists asked to work in this regard have to wrestle with the ethical issue of being asked to help prepare an inmate for execution.

For many psychologists, this is a violation of their personal ethical principles, even if it is not found to violate the overall ethical principles of the profession. Psychologists generally enter into the helping professions in order to assist the individual, and cannot justify any behaviors that would help increase the likelihood of death for a patient. However, other psychologists take a far more pragmatic view of the dilemma. They believe that defendants who are insane at the time of the commission of a crime should not be penalized as a result of that mental illness, but also that mental illness should not be a fallback for people to escape punishment. In fact, many psychologists may believe that allowing mental illness to be an excuse to escape punishment for defendants who did not commit their crimes because of the underlying mental illness helps increase the stigma against mental illness that continues to exist in the United States. Therefore, while the forensic psychologist may never be asked to help certify a defendant as death-eligible, all forensic psychologists must understand the ethical dilemma posed by this problem.

Methodology

This paper utilizes the literature review to explore the evolution of the death penalty in the United States. It examines how the death penalty has become narrowed over time. Then, it examines how the death penalty may be imposed, and the amount of discretion that the sentence must have. Then, the literature examines the issue of mitigation and the role of the forensic psychologist in establishing mitigation. Two areas of concern are mental retardation and mental illness. Therefore, the literature review examines whether it is constitutional to execute defendants who are either mentally ill or mentally retarded. Finally, it examines the issue of incompetent defendants being made competent solely for the purposes of rendering them death-eligible.

Literature Review

The history of capital punishment in the United States is a long and sordid one. Death was once an acceptable punishment for a wide variety of offenses. However, the death penalty became narrowed and tailored over time, so that only certain offenses could result in the death penalty. "The U.S. Supreme Court has determined that a penalty must be proportional to the crime; otherwise, the punishment violates the Eighth Amendment's prohibition against cruel and unusual punishments" (Legal Information Institute, 2010). Therefore, it has prohibited the death penalty in all cases and all crimes, except those crimes where the victim has died as a result of the crime. Therefore, the death penalty has been ruled inapplicable in non-murder cases including in Coker v. Georgia, the rape of an adult woman (433 U.S. 584 (1977)), and in Kennedy v. Louisiana, the rape of a child (128 S. Ct. 2641 (2008)). "In performing its proportionality analysis, the Supreme Court looks to the following three factors: a consideration of the offense's gravity and the stringency of the penalty; a consideration of how the jurisdiction punishes its other criminals; and a consideration of how other jurisdictions punish the same crime" (Legal Information Institute, 2010).

Moreover, the Supreme Court balanced discretion and regulation in the application of the death penalty to develop rules regarding when the imposition of the death penalty is appropriate in a particular case. The death penalty cannot be mandatory, but it can also not be arbitrary. Striking a balance between mandatoriness and arbitrariness actually proved to be exceptionally difficult, with a number of different Supreme Court decisions helping shape current laws. Though all death penalty states apply these rules in their own specialized manner, the modern imposition of the death penalty comes down to an examination of three special issues: the risk of future dangerousness; the defendant's culpability in the crime; and whether there are mitigating circumstances that argue against the imposition of the death penalty (Cunningham, 2006, p.207, para.1).

One area where forensic psychologists interact with death-eligible defendant is in death-mitigation cases, where the role of the psychologist is to help humanize the defendant and explain why he committed the crime. "The objective is not to con done the offense, but rather to understand how it could have occurred in light of the defendant's background" (Fabian, 2003, p.2, para.3). In other words, the forensic psychologist might work with a defendant to help explain why a dysfunctional childhood helped contribute to a crime. It is critical to understand that a defendant need not be mentally ill in order to utilize psychology as a mitigating explanation of a crime; there is a wide range of maladaptive behaviors that do not fall under the heading of mental illness but which might still significantly impair a defendant's judgment. A forensic psychologist could testify as to those factors and how they may have impacted a defendant's behavior at the time of the murder and how they influence a defendant's future dangerousness.

It is also critical to realize that considering mitigating evidence is not only permitted under the Constitution, but actually required under it. This is change from prior law, where the only thing considered was what crime was committed. The amount of discretion for jurors hearing death-eligible cases is an issue that has long plagued the Supreme Court. For example, in Furman v. Georgia, the Supreme Court struck down a statute that gave the jury unguided discretion in determining which capital defendants would be sentenced to death. The Court believed that this unlimited discretion allowed for too much inconsistency in who was sentenced to death (408 U.S. 238 (1972)).

The response of some states was to transition to a mandatory death penalty for offenders convicted of specific crimes, which removed all discretion from the jury. However, this solution was no more permissible than allowing unfettered discretion. In Woodson v. North Carolina, the defendant was sentenced to death under a mandatory sentencing statute. Not only did the Court find that the defendant's sentence was unconstitutional, but it outlined its reasoning for doing so. The Court focused on the idea of mitigating circumstances and the very human idea that otherwise good people could sometimes do horrible things (428 U.S. 280 at 304 (1976)). This was further highlighted in Lockett v. Ohio, in which the Court determined that it was not enough for the sentencing judge or jury to be able to consider a fixed set of possibly mitigating circumstances; instead, a defendant had a right to have the sentencing party consider basically any evidence that a defendant wished to offer in mitigation of the crime (438 U.S. 586 at 604(1978)). This did not mean that a judge or jury was required to find mitigation, but simply that a defendant had the right to offer them into evidence for consideration in sentencing. However, in Eddings v. Oklahoma, the Supreme Court took the mitigation issue a step further and determined that the sentence must consider any mitigating factors when considering the death penalty, including: youth, maturity, family history, a history of child abuse, and emotional disturbance that might not reach the level of criminal insanity (455 U.S. 104 at 110-113(1982)).

A forensic psychologist needs to understand what mitigating evidence is if looking for that evidence. The reality is that almost any factor can be mitigating evidence if it helps explain the crime or reduces the likelihood that the defendant will reoffend. In fact, "mitigating evidence does… [END OF PREVIEW]

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