Legal News
APA Calls for Halt to Executions Of Mentally Incompetent Convicts
Psychiatric News
Volume 41 Number 2 page 13-44

Mentally impaired defendants and prisoners convicted of capital crimes but later found to be mentally incompetent should not be executed or sentenced to death, according to two position statements approved by the APA Board of Trustees at its December 2005 meeting.

Death row prisoners who lack the capacity to make rational decisions about pursuit of postconviction appeals, to assist legal counsel during those proceedings, or to appreciate the meaning or purpose of their impending execution should not be executed, said the first statement.

Just how many prisoners meet any of the above criteria is unknown, said Paul Appelbaum, M.D., chair of APA's Council on Psychiatry and Law and a former APA president. A defendant in a capital case would have to have been competent to stand trial, convicted but not found not guilty by reason of insanity, and found mentally incompetent only after being sentenced to death. However, that is not as unlikely as it sounds, said Appelbaum, a professor of psychiatry at Columbia University and a leading forensic psychiatrist.

"Many people pass through all those screens and have the death penalty imposed and only then are recognized as having serious mental illnesses," he said in an interview. "Formal findings of incompetence at some point in the process are not all that common, especially with regard to competence to be executed. But a larger percentage of persons on death row appear to have significant mental disorders. It may be a failing of the current system that findings of incompetence are as uncommon as they are."


The Supreme Court has said that mentally competent prisoners may choose to forego appeals of the death penalty and that action is not in itself evidence of incompetence (Gilmore v. Utah, 429 U.S. 1012[1977]). Since a prisoner's full participation is needed to assure fair resolution of postconviction claims, he or she must be competent to assist counsel in those proceedings. Current procedure allows a third party, a "next friend," to pursue appeals or other proceedings on behalf of an incompetent prisoner. The new statement advocates that such a person step in when the prisoner has a mental disability or disorder "that significantly impairs his or her capacity to make a rational decision."

"Any impediment to thorough collateral review undermines the integrity of the review process and therefore of the death penalty itself," according to the American Bar Association (ABA). "The possibility, however slim, that incompetent individuals may not be able to assist counsel in reconstructing a viable factual or legal claim requires that executions be barred under these circumstances."

Current ABA standards say that court proceedings must stop and no execution take place if prisoners lack the capacity to assist their lawyers. Such cessation would become permanent if a judge finds that the prisoner is unlikely to return to competence in the "foreseeable" future. In those cases, according to the APA statement, the death sentence should be automatically reduced to a lesser punishment.

The third point in the APA statement requires that a prisoner must not only understand the nature and purpose of the punishment but also why it is being imposed: "Offenders should have more than a shallow understanding of why they are being executed."

APA's position advocates commuting to life imprisonment the death sentences of persons found incompetent to be executed. That step would obviate the ethical dilemma arising when courts order such prisoners to be treated to restore competence and permit execution.

"Treatment for the purpose of restoring competence to be executed is unethical," said Appelbaum, although the Supreme Court has not found a constitutional obstacle to treatment in such circumstances. APA has not formally endorsed commutation to a life sentence in such cases, but both APA and the AMA in amicus briefs have sought to avoid an ethically impossible choice between execution and untreated psychosis. Commutation would permit treatment of a severely psychotic prisoner without raising this ethical conflict, said Appelbaum.


The Board also authorized a second statement urging courts to reject the death penalty for additional categories of defendants with significantly impaired mental capacity.

"Defendants should not be executed or sentenced to death if, at the time of the offense, they had significant limitations in both their intellectual functioning and adaptive behavior, as expressed in conceptual, social, and practical adaptive skills, resulting from mental retardation, dementia, or a traumatic brain injury," said the statement.

If adopted by the judicial system, the statement would extend the Supreme Court's 2002 judgment in Atkins v. Virginia, ruling out the death penalty for mentally retarded individuals, to two other disorders involving equivalent levels of impairment.

Adopting the current statements marks another step in coordinating APA views on death penalty issues with other mental health and legal organizations. APA cooperates with the ABA, American Psychological Association, and National Alliance on Mental Illness in finding common ground on application of the death penalty to people with mental illness.

"Our hope is that if four of the major groups in the U.S. that are concerned with law and mental health align their views, it will carry substantial weight, not so much with the courts, but with legislatures who can enact these policies into law," said Appelbaum.

The position statements will be accessible shortly at<www.psych.org/public_info/libr_publ/position.cfm>.▪

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