Are Psychologists Violating their Ethics Code by Conducting Death Penalty Evaluations for Defendants with Mental Disabilities?

By: Celia B. Fisher, Ph.D.

In light of the recent botched execution in Oklahoma, the nation’s attention has turned once again to the ethics of the death penalty. While this particular case highlights the role of criminal justice administrators in upholding laws against cruel and unusual punishment, we must also focus on the role of mental health professionals in the continuing inequity underlying the entire issue of capital punishment: the sentencing of defendants with mental disabilities.

Imagine you are a forensic psychologist asked during the sentencing phase of a capital punishment case to assess the mental status of a homeless, African American defendant convicted of murder.  Your evaluation report states that the defendant has an IQ and adaptive living score bordering on a diagnosis of intellectual disability, but the absence of educational and health records from childhood prevents you from definitively stating he fits the Supreme Court’s definition of “mental retardation” which would preclude the jury from recommending the death penalty.  Subsequently the defendant is sentenced for execution.

Would you be surprised to learn that your report may have placed you in violation of the American Psychological Association’s (APA) Code of Ethics that prohibits psychological activities that justify or defend violating human rights?

Forensic psychologists—those with specialty training in psychological evaluation, treatment or consultation relevant to legal proceedings—have been increasingly involved in death penalty cases since Gregg v. Georgia 1976 decreed that capital sentencing must be tailored to the individual offense and the person who committed it. In practice this has meant that following a guilty verdict, the sentencing phase of a capital case requires courts to consider psychological factors that might influence a jury’s recommendation for execution or life imprisonment, such as whether the defendant is capable of understanding the State’s reason for execution or is likely to engage in future violent behavior.

In 2002, the Supreme Court ruled in Atkins v. Virginia that use of the death penalty for defendants with mental retardation is unconstitutional.  Consequently, prosecutors cannot bring a capital case against a defendant accused of murder if a forensic psychologist or other mental health expert gives the defendant a diagnosis of mental retardation. Thus in capital cases, psychologists’ expertise plays an essential role in determining the legal grounding on which a defendant may be tried for a capital offense and sentenced to death.

Within the profession, psychologists’ involvement in capital cases has drawn ethical debate as new evidence of the flaws in the death-penalty process has come to light. At least 102 innocent people in the U.S. have been released from death row since 1973. Still unknown is the number of innocent persons that have been on death row for years or executed.  Consistent findings that racial minorities and defendants from lower socioeconomic levels are more likely to receive a death sentence than white, middle class defendants, also point to inequities and unfairness of capital punishment procedures. Additionally, the fallibility of eyewitness testimony, long documented by research psychologists, is increasingly recognized by law-enforcement agencies and the courts as a serious threat to fair conviction procedures. That innocent people in the U.S. are being put to death or waiting on death row is indisputable.

The inherent fallibility of psychological tests may also contribute to arbitrariness and inequities in death penalty proceedings. Test scores indicating psychological disorders are based on probabilities—the likelihood someone has a mental disorder is determined by the degree to which his score is similar to the scores of others diagnosed with the disorder.  By contrast, the ultimate decisions before a court are absolute: A defendant has or does not have mental retardation; is or is not likely to be violent in the future; is or is not guilty; should or should not be sentenced to death.

For example, a diagnosis of mental retardation requires that prior to age 18 an individual has demonstrated a combination of below-average general intellectual ability (IQ) and lack of skills necessary for independent daily living.  However, psychologists and other mental health practitioners disagree on whether an IQ score of 70 should be an absolute cut-off point for mental retardation and the relative weight that should be given to IQ versus adaptive functioning in reaching a diagnosis. In addition, many defendants raised in economically and educationally disadvantaged neighborhoods were never evaluated for mental retardation prior to age 18 and their childhood school and medical records may be sparse. Lack of childhood evidence can lead to the default position that a defendant does not meet mental retardation criteria and can therefore be charged with a capital offense.

During the death penalty sentencing, forensic psychologists are often asked provide expert testimony on whether the defendant is likely to engage in future violent acts. Psychological tests for violence risk are also probabilistic. Research consistently shows that psychologists and other forensic practitioners cannot predict future dangerousness with any certainty; and that jury predictions are just as unreliable. Of additional concern is that juries are more likely to arrive at a death sentence when defendants have a diagnosed mental illness, based on the unfounded belief that individuals with psychological disorders are inherently more prone to future violence.

Finally, cultural bias of psychological tests used in death penalty cases continues to be a source of concern within the profession. Many tests available to evaluate overall intelligence, adaptive behavior, and psychological disorders related to aggression, are based on test scores of white, English speaking, U.S. born, and middle class populations. Accordingly, in capital cases, mental retardation and violence risk may be systematically over or under-diagnosed in poorly educated, racial minority and immigrant persons lacking proficiency in English.

Given these flaws, psychologists’ participation in capital cases is ethically troubling. This question has taken on added urgency in a report from the New York Times describing a bill passed by the Florida Legislature which would require the governor to sign a death warrant within 30 days of a capital conviction and an execution within 180 days of the warrant.

Some would argue that despite the inexactitude of current diagnostic techniques, participation of well-trained forensic psychologists enhances the accuracy of mental health-based legal decisions and that to prohibit their services in capital proceedings will only lead to capricious and unprofessional assessments conducted by those without appropriate training. To be sure, the probabilistic nature of forensic assessments does not over-ride their importance and usefulness in the criminal justice system. The U.S. justice system affords defendants and prisoners basic protections that can rectify flawed evaluations or jury decisions including the right to appeal, to receive psychological treatment and on-going psychological evaluations, and the possibility of entering new evidence into consideration following conviction However, in capital cases, the usual human rights protections for continued evaluation and appeals may be cut short by death.

Conclusion Some have argued that psychological assessment is neutral and does not determine whether a judge or jury will sentence a prisoner like to death. However, given the current flaws, psychologists’ contribution to legal decisions concerning competency and predictions of future violence hearings places the defendant at the mercy of an imperfect and unjust system.

Even as Americans continue to disagree on whether the death penalty in itself violates human rights, the unwarranted and inequitable killing of innocent persons by their government is a flagrant violation of the basic rights of individuals to life and liberty.   It is time for psychologists to consider whether the APA Ethics Code prohibition against activities that justify or defend violating human rights applies to forensic psychologists conducting evaluations that contribute to an inequitable correctional system whose inconsistencies lethally violates the human rights of innocent persons.

Celia B. Fisher, Ph.D. is the Marie Ward Doty University Chair, Professor of Psychology, and Director of Fordham University’s Center for Ethics Education. She chaired the 2002 revision of the American Psychological Association’s Ethics Code and is author of Decoding the Ethics Code: A Practical Guide for Psychologist, 3^rd edition, Sage Publications.

A previous version of this post appeared in the Fordham University Center for Ethics Education’s Ethics and Society blog.

This post is based on the following article:
Celia B. Fisher, (2013). Human Rights and Psychologists’ Involvement in Death Penalty Cases. Ethics & Behavior, 23(1), 58-61.