Discussion Question 2 Paragraphs

ETHICS & BEHAVIOR, 23(1), 67–70

Copyright © 2013 Taylor & Francis Group, LLC

ISSN: 1050-8422 print / 1532-7019 online

DOI: 10.1080/10508422.2013.757958

Beyond Abu Ghraib: The 2010 APA Ethics Code Standard 1.02 and Competency for Execution Evaluations

Bronwen Lichtenstein Department of Criminal Justice

The University of Alabama

In 2011—a full year after the American Psychological Association (APA) amended its ethics code to prohibit psychologists from engaging in activities that justified or defended violating human rights (APA, Ethics Committee, 2010)—the Texas State Board of Examiners of Psychologists censured forensic psychologist Dr. George Denkowski for artificially inflating the IQ of 14 defen- dants as proof of competency for execution (CFE; Grissom, 2011). Denkowski was also censured for methods that deviated from standard psychological practice; that is, he developed his own methods rather than use scientifically valid measures of life skills and adaptive functioning. The psychologist had manipulated two measures: inmates’ IQ scores (which must be above 70 in order to be mentally competent for execution) and their level of adaptive functioning, tradition- ally evaluated on the basis of collateral information from relatives and close associates rather than the assessor. Denkowski’s testing and methods were held to be a clear violation of standard practice and ethics for psychology. Out of 14 inmates whom Denkowski had evaluated as legally competent for execution, two were executed; the others await execution.

Denkowski was reputed to be the go-to psychologist in producing the desired result for the state (Feltz, 2010). However, he had not started out that way. Early in his career as an evaluator, he was dismissed by the state after finding an inmate’s IQ too low to meet the standard of being too mentally impaired for execution. The state then hired an expert for the case who disagreed with Denkowski, and the inmate was duly executed. This early experience was apparently an object lesson for Denkowski, who began to testify so reliably for legal CFE that he earned a reputation for being “Texas prosecutors’ favorite tester [with] almost Dr. Death status” (Feltz, 2010).

The case raises two essential points in terms of psychology’s ethical role in evaluations for CFE. First, Denkowski was willing to falsify data for the prosecution, purportedly, in part, because the work was both plentiful and lucrative (Feltz, 2010). Second, Texas actively sought mental health experts whose evaluations would lead to execution. The state was exposed as a willful director in obtaining the results it wanted from CFE, and the psychologist was exposed in terms of financial motivation and perhaps a belief system aligned with the prosecution. Deitchman, Kennedy, and Beckham’s (1991) study of forensic psychiatrists and psychologists in Florida found that supporters of the death penalty were more willing than opponents to testify in CFE evaluations, especially if they were male, socially conservative, and in a salaried position.

Correspondence should be addressed to Bronwen Lichtenstein, Department of Criminal Justice, Ph.D., The University of Alabama, Tuscaloosa, AL 35487-0320. E-mail: [email protected]

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The authors concluded that self-selection factors determine who is likely to participate in or avoid conducting such evaluations.

The Denkowski case is not the only instance of unethical professional actions in evaluat- ing competency cases. An earlier example involves Arizona’s nationwide search for a qualified mental health professional who would agree to forcibly treat mentally ill inmate Claude Maturana so that he gained a rational understanding of his crime and why he was being punished (Bright, 2004). The search began with a psychiatrist’s refusal to treat Maturana’s mental illness for the purpose of restoring him to CFE. The psychiatrist cited the Hippocratic Oath in his refusal. After an extensive search, the state was able to hire a medical director from the Georgia Department of Corrections for the task. Maturana was then treated for mental illness but died during a surgical procedure while still awaiting execution.

Although the Maturana case involves physicians rather than psychologists (who cannot prescribe treatments to restore mentally ill people to competency), it raises the question of profes- sional autonomy among mental health professionals who work within the criminal justice system. Psychologists who are state employees do not have the equivalent of a Hippocratic Oath with a “do not harm” principle to legitimize their refusals for participating in treatment such as cogni- tive therapy or evaluations that could lead to execution. Some psychologists could cite the APA’s amended Ethics Code Standard 1.02 as a reason for not participating in therapy or evaluations for CFE, but refusals are more difficult if the psychologist regards participation as a professional duty. There is also a question as to whether the APA ethics code is as powerful as the Hippocratic Oath in preventing injury or harm, particularly if psychologists cannot agree on whether or not execution is a violation of human rights. The APA has not adopted a ban on execution; thus, psychologists may perceive their involvement to be ethical because they oppose the death penalty and see their efforts as subservice to the system, because they believe that killers should pay the ultimate penalty, or simply because they consider neutral, scientifically valid psychometric testing to be prima facie ethical.

A third case concerns Texas inmate Michael W. Hall, who received the death penalty despite evidence that he was mentally impaired according to the standard for execution. The verdict was unsuccessfully appealed, first to the 5th Circuit Court of Appeals and then to the U.S. Supreme Court (Hall v. Thaler, 2010). The case is instructive for what it reveals about expert testimony in an adversarial legal system. Boccaccini, Turner, Murrie, and Rufino (in press); Murrie et al. (2009); and Rufino, Boccaccini, Hawes, and Murrie (2012) found that adversarial allegiance influences evaluators’ test scores in commitment proceedings for sex offenders—an outcome that is likely to apply to competency evaluations as well. In Hall, both experts disagreed about Hall’s level of mental impairment and thus competency for execution. The defense expert, Dr. Mark Cunningham, an experienced evaluator who had testified 335 times for the defense, found the inmate’s IQ too low to meet the standard for CFE. The state then accused him of bias because he had never been retained by the prosecution in a capital case. By contrast, the state’s expert, Dr. J. Randall Price, who had testified 232 times for both prosecution and defense, was considered to be objective and his findings were thus credible. The defense lost the appeal, and Hall was executed on February 15, 2011.

Hall’s case reflects the professional realities of providing expert testimony in CFE hearings in the U.S. legal system. In view of his alleged role as a hired gun for the defense, Cunningham’s evaluation was deemed biased. In the three cases described here, the court’s power to weigh the value of forensic evaluations in support of the case for death is indicative of its ultimate

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jurisdiction and judgments over legal matters. These judgments are outside the APA’s ability to influence professional ethics in forensic psychology. However, the next logical step would be for the APA’s code of ethics to go beyond revised language on human rights violations to make a clear statement about psychology’s role in evaluating inmates for execution. A useful statement could clarify both the foundations of the underlying methodology and science as well as the professional standards for evaluation. It arguably could clarify whether evaluations are ethically desirable or functionally necessary. Despite much debate about psychology’s involvement after the death penalty was reestablished in 1976, and a subsequent call for a moratorium on death penalty cases until procedural flaws and biases were dealt with (APA, 2001), the APA has failed to address the ethics of treating mentally ill inmates who are to be brought to trial for capital murder or evaluated for CFE. This lack of clarity is in direct contrast to the ethical principles of the American Medical Association (AMA), which explicitly bans physicians from taking any role in the execution process, including treating mentally ill inmates with psychiatric drugs and administering legal injections (AMA, 2012).

Let me make the case more clearly in terms of what the 2010 APA Ethics Code Standard 1.02 may mean for forensic psychologists who evaluate prisoners for competency or those who are employed in corrections. The legal system begets winners and losers; regardless of personal ethics or objectivity, psychologists are hired to perform evaluations, usually for one side or the other. The three examples cited here suggest that the legal system is in control and that psycho- logical evaluations are useful mainly when both sides agree or, as happens in most cases, the state does not hire an evaluator for this purpose (see Brodsky 1990; Kan, Boccaccini, McGorty, Noland, & Lawson, 2009). For psychologists who are employed in corrections, their personal or situational allegience is likely to be to the institutions that employ them; hence Denkowski’s ethics violations on behalf of the prosecution, the successful recruitment of a prison employee from elsewhere to treat Maturana so that he could be executed, and—because the state hired its own expert for IQ testing—the failure of Hall’s appeal to prevent execution. Ewing (1987) reminded us that psychologists who refuse to treat a mentally ill inmate could be on shaky ground because all inmates are legally entitled to therapy and refusals could lead to disciplinary action or loss of employment. Forensic evaluators who are state employees might be subjected to similar pressures.

The APA has tightened its ethics code because psychologists were involved in military inter- rogations at Abu Ghraib prison in Iraq. What, if any, effects will the prohibition on human rights violations have on how psychologists are perceived in the U.S. legal system? In the law of unin- tended consequences, the stricter (but still undefined) code could lead prosecutors and judges to have a basis to attack forensic evaluators even more vigorously in order to disqualify test scores that fail to meet the intelligence or adaptive functioning standards for competency. Perhaps this is why the state so often forgoes hiring experts for competency evaluations in capital cases: it is too risky to hire ethical mental health professionals or, alternatively, too easy to undermine evidence from psychologists who testify for the defense. In the absence of clear guidelines from APA about human rights violations and how they should be defined—and whether being involved in the assessment of competency for execution constitutes such a violation—psychologists’ neutral- ity could be viewed with greater skepticism by prosecutors and the courts. The amended APA’s Ethics Code Standard 1.02 could be extrapolated as demeaning any professional activities, how- ever lawful, that might facilitate or inflict bodily harm on defendants or convicted felons as well as prisoners of war. Perhaps it is time for the APA to step up and unravel the dilemmas relating to

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human rights, the public good, and ethical obligations in therapies or evaluations that could lead to execution.

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Feltz, R. (2010, January 5). Cracked: Despite a U.S. Supreme Court ban, Texas has continued to send mentally retarded criminals to death row. Will a Mexican immigrant’s case correct this injustice? Texas Observer. Retrieved from http:// www.texasobserver.org/cover-story/cracked/

Grissom, B. (2011, April 16). Texas psychologist punished in death penalty cases. The Texas Tribune. Retrieved from http://www.texastribune.org/texas-dept-criminal-justice/death-penalty/texas-psychologist-punished- in-death-penalty-cases/

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