The question of whether it is ethically permissible for forensic psychologists to conduct evaluations of defendants in capital offense cases pertains to standard 1.02 of the APA code of ethics. Standard 1.02, which regulates conflicts between legal authority and professional ethics, obliges psychologists to inform the authorities in question about the conflict, their commitment to the APA code of ethics, and try to resolve the conflict in compliance with the general principles of the ethics code (Fisher, 2017). Furthermore, standard 1.02 prohibits psychologists from participating in any state sanctioned activities that may be used to rationalize human rights violations (2017). This last dictum was added to standard 1.02 in 2010 following the conclusion of an investigation into coordination between some APA staff members and DOD psychologists who provided guidance on torture techniques (Fisher, 2017). This amendment of standard 1.02 has brought other controversial psychologist roles into contention. In particular, some have called into question whether clinical psychologists should be involved in evaluating defendants who could face the death penalty. Fisher argues that the deeply flawed death penalty procedures and the inherent fallibility of psychological tests exacerbates the inequities in capital punishment that sometimes puts innocent people on death row (Fisher, 2013). To the contrary, Brodsky, Neal and Jones (2013) argue that the involvement of forensic psychologists helps prevent human rights violations by reducing the arbitrariness of death penalty proceedings and adding an assessment that ‘may divert defendants from the criminal justice process to the mental health system.
Capital punishment could be considered a human rights violation because the flawed criminal justice processes sometimes puts innocent people on death row. Since 1973, at least 102 inmates sentenced to death have been subsequently exonerated (Fisher, 2013). Furthermore, defendants who are racial minorities and have low socioeconomic status tend to receive the death penalty more frequently than white, middle class defendants who commit the same crime, suggesting that capital punishment procedures are highly skewed by racial and class biases (Fisher, 2013). Both discrimination and punishment of innocent people constitute grave human rights violations that psychologist should not participate in. The psychological evaluation of defendants is undermined by the fact that most test results for cognitive disability and other mental disorders are probabilistic in nature - they only establish the likelihood that the defendant has one or mental disorders that impair competency based on the similarity of their scores to those already diagnosed with the disorder in question (Fisher, 2013). For instance, IQ scores and adaptive skills are used to assess mental retardation, a condition which makes a death sentence constitutionally nonviable. The U.S. Supreme Court prohibited death sentences for defendants with mental retardation in Atkins v. Virginia, but failed to define the term (Fisher, 2013). In psychiatry, it is diagnosed as an intellectual disability and requires, along with current below average intelligence and a lack of adaptive skills necessary for independent living, a documented history of the two deficits prior to 18 years of age (Fisher, 2013). This would generally be difficult if not impossible for defendants from low socioeconomic backgrounds because children raised in poverty are usually never evaluated for intellectual or developmental disabilities and their academic and medical records tend to be sparse compared to children in higher socioeconomic brackets (Fisher, 2013).
Capital punishment in and of itself is not a human rights violation. It could be reasonably argued that defendants forfeit their human rights by violating the human rights of their victims (Brodsky et al., 2013). Furthermore, there are numerous legal mechanisms in place that can be used to correct errors in capital offense cases such as direct appellate review, federal habeas corpus petitions, and the consideration of mitigating factors during the sentencing phase (Brodsky et al., 2013). Clinical psychologists, for their own part as expert witnesses, provide information to judges and jurors that could counteract their prejudices and help save innocent people from being sent to death row. For instance, psychologists can provide information about the unreliability of eyewitness testimony based on how human memory changes over time (Brodsky et al., 2013). This would engender a healthy skepticism towards the credibility of eyewitness testimony (Brodsky et al., 2013). Psychologists also take on a neutral role when they become involved in capital offense cases (Brodsky et al., 2013). They are usually retained by a neutral court, but when they are retained by the prosecution or defendant, they only provide information about the defendant’s mental state without making conclusions about the sentencing (Brodsky et al., 2013). For these reasons, psychologist’s participation in death penalty cases should be seen not as an activity that justifies human rights violations, but as one that protects human rights. For instance, competency assessments can provide evidence of psychopathology or intellectual disability that could save some defendants from execution and get them the proper treatment they need (Brodsky et al., 2013). Brodsky, Neal, and Jones only object to the use of psychotherapy to restore convicted defendants’ competency for execution, but otherwise regard their involvement as something that should not be out right prohibited (2013).
A provision which prohibits psychologists from conducting competency for execution assessments may be objected to on the grounds that it does not directly implicate the psychologist in the execution. One argument for it being unethical is that the only purpose of these assessments is to aid the state in determining whether to kill the convicted (Bonnie, 1990). However, as Bonnie notes, a psychologist’s role in the competency for execution assessment is not clearly distinguishable from their other roles in the criminal justice process such as in evaluating whether prisoners should be placed in a mental health facility or whether they are fit for parole (1990). Furthermore, there is no qualitative difference between their sentencing evaluations in death penalty cases and their sentencing evaluations in non-death penalty cases (Bonnie, 1990).
Rather than outright prohibiting psychologists from participating in capital offense cases, the APA should allow individual psychologists to use their own discretion in deciding whether their involvement would be contrary to the general principles. Yes, the legal proceedings for death penalty cases are deeply flawed and prone to racial and class bias, but there are numerous legal safeguards, such as appellate review and federal habeas corpus petitions, to protect innocent and incompetent defendants, and the psychologist’s role here is to provide an objective framework for evaluating whether defendants are competent to stand trial and/or be executed. Therefore, the psychologist’s role in death penalty cases is one that helps protect human rights not one that justifies their violation
Brodsky, S. L., Neal, T. S., & Jones, M. A. (2013). A reasoned argument against banning psychologists' involvement in death penalty cases. Ethics & Behavior, 23(1), 62-66. doi:10.1080/10508422.2013.757954
Fisher, C. B. (2013). Human rights and psychologists' involvement in assessments related to death penalty cases. Ethics & Behavior, 23(1), 58-61. doi:10.1080/10508422.2013.749761
Fisher, C. B. (2017). Standards for resolving ethical issues. In Decoding the ethics code: A practical guide for psychologists (4th ed., pp. 205-224). Los Angeles: SAGE.