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
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). 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
"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>.▪