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HOT TOPIC Chapter 4

Human Rights and Psychologists’

Involvement in Assessments Related to

Death Penalty Cases

In 2010, following intense controversy over the involvement of psychologists in military interrogations at U.S.

detention centers such as Guantanamo Bay and Abu Ghraib, the APA amended its Ethics Code Standard 1.02,

Conflicts Between Ethics and Law, Regulations, or Other Governing Legal Authority. The amended language

made clear that psychologists were prohibited from engaging in activities, however lawful, that would “justify

or defend violating human rights.” The broad language of this modified standard raises new questions for ethical

analysis of psychologists’ participation in another kind of controversial legal proceeding: death penalty cases.

Court Rulings

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 the Supreme

Court in Gregg v. Georgia (1976) ruled that capital sentencing must be tailored to the individual offense and

the person who committed it. In practice, this has meant that during the sentencing phase of a capital case,

courts must 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 (DeMatteo, Murrie, Anumba, & Kessler, 2011).

The need for psychological assessment in capital cases intensified in 2002 when the Supreme Court decided

that use of the death penalty for defendants with mental retardation is unconstitutional (Atkins v. Virginia,

2002). 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.

Similarly, the more recent Panetti v. Quarterman (2007) decision prohibits execution of criminal defendants

sentenced to death if assessments indicate they do not understand the reason for their imminent execution.

􀀵 An assistant professor accused of student sexual harassment had a documented

history of poor student teaching evaluations, which, independent of the sexual

harassment accusation, was sufficient to support a denial of promotion to associate

professor.

􀀵 A psychologist who accused a colleague of insurance fraud was found to have fabricated

the evidence used against the colleague. The psychologist was fired from the

group practice (Standard 1.07, Improper Complaints).

The use of the term solely in the first sentence of Standard 1.08 permits complainants

or respondents to be denied employment, professional or academic

advancement, or program admission for reasons unrelated to the complaint or for

reasons based on the outcome of the complaint.

.

Chapter 4 Standards for Resolving Ethical Issues——65

As a result of these decisions, 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.

Legal Flaws in Death Penalty Cases

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 (Birgden & Perlin, 2009). At least 102 innocent people

in the United States have been released from death row since 1973. Moreover, still unknown is the number of

innocent persons who 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 and

middle-class defendants further underscore the inequities and unfairness of capital punishment procedures

(Jacobs, Qian, Carmichael, & Kent, 2007). 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 (Liptak, 2011). That innocent people in the United States are being put to

death or waiting on death row is indisputable.

Responding to these inequities, in 2001, the APA issued a statement calling upon U.S. jurisdictions not to

carry out the death penalty until localities develop policies and procedures that can be shown through psychological

and other social science research to ameliorate capital case procedural flaws associated with incompetent

counsel, inadequate investigative services, police and prosecutors withholding exculpatory evidence, and

selection of conviction-prone jurors (APA, 2001). Only a few states thus far have instituted such a moratorium.

Fallibility of Psychological Tests in Capital Cases

The inherent fallibility of psychological tests may also contribute to arbitrariness and inequities in death penalty

proceedings. Most test scores indicating cognitive disability and other psychological disorders are based on

probabilities—the likelihood someone has a mental disorder is determined by the degree to which his or her

score is similar to the scores of others diagnosed with the disorder.

In Atkins, the Supreme Court did not define mental retardation, charging states to identify their own

definitions. This has created potential inequities in diagnosis. First, although there is general agreement that a

diagnosis of mental retardation requires that prior to age 18 an individual has demonstrated a combination of

below-average general intellectual ability and lack of adaptive skills necessary for independent daily living

(American Psychiatric Association, 2000), in law and forensic psychology there is variability across states on the

specific legal definition of mental retardation (see for an excellent review, DeMatteo et al., 2011). Second, mental

health practitioners disagree on whether an IQ (intelligence quotient) score of 70 should be an absolute cutoff

point for mental retardation, the relative weight that should be given to IQ scores versus adaptive functioning in

reaching a diagnosis, and the validity and reliability of IQ scores over time (Cunningham & Tassé, 2010; Everington &

Olley, 2008).

Socioeconomic and cultural inequities. Socioeconomic disadvantage constitutes a third factor contributing

to diagnostic fallibility; 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 psychological assessment can lead to the default position that these

defendants do not meet mental retardation criteria and can therefore be charged with a capital offense.

Fourth, cultural bias of psychological tests used in death penalty cases continues to be a source of concern

within the profession (Perlin & McClain, 2009). Many tests available to evaluate overall intelligence, adaptive

behavior, and psychological disorders related to aggression are based on test scores of white, Englishspeaking,

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 or language minority persons

lacking proficiency in English.

66——PART II ENFORCEABLE STANDARDS

Predicting future acts of violence. Finally, during the death penalty sentencing, forensic psychologists are often

asked to provide expert testimony on whether the defendant is likely to engage in future violent acts.

Psychological tests for violence risk are also probabilistic, and research consistently shows that psychologists and

other forensic practitioners cannot predict future dangerousness with any certainty, particularly because contextappropriate

base-rate data are only beginning to be developed (Bersoff, DeMatteo, & Foster, 2012; DeMatteo et al.,

2011; Sorensen & Cunningham, 2010). Jury predictions are similarly unreliable. 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 (Cunningham & Reidy, 2002).

In summary, a diagnosis of mental retardation and predictions of future violence are probabilistic at best

and subject to test bias and state and practitioner idiosyncrasies at worst. 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, and should or should not be sentenced to death.

Does Forensic Psychologists’ Involvement in Capital Cases

“Justify or Defend Violating Human Rights”?

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 (Dieter, 2011).

As in the debate over psychologists’ involvement in military interrogations, some might argue that the psychological

assessment is neutral and does not determine whether a judge or jury will sentence a prisoner to death.

However, given the current documented flaws in death penalty procedures, psychologists’ contribution to legal

decisions concerning competency and predictions of future violence places the defendant at the mercy of an

imperfect and unjust system. Others might 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 override their importance and usefulness to the courts. The U.S. legal system affords defendants and

prisoners basic protections that can rectify flawed evaluations or jury decisions, including the right to appeal, the

right to receive psychological treatment and ongoing 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 can be cut short by death.

Moral questions about forensic psychologists’ participation in capital punishment cases bears striking similarity

to issues that drove the heated controversy over psychologists’ participation in harsh military interrogations.

The APA has taken a moral stance against psychologists’ participation in military activities that justify

human rights violations. It may be time to do the same for the death penalty, an inequitable legal process whose

inconsistencies lethally violate the human rights of defendants in capital cases.

Fisher, C. B. (in press). Human rights and psychologists’ involvement in assessments related to death penalty cases. Ethics

& Behavior, 23.