In 2011, there were 676 executions worldwide in the context of capital punishment, an increase from the 527 reported in 2010. These numbers do not include those executed in China, which are not revealed by the Chinese government but which Amnesty International estimates to be in the “thousands”.¹  The US is the only G8 country that still performs executions. There is strong evidence that prisoners awaiting execution in the US have increased rates of neurological impairment, psychological problems and mental illness.^2,3 In the US, the suicide rate for men on death row is up to five times higher than that of the general male population.⁴

In Texas, death row prisoners have opportunity to make a last statement immediately prior to execution and the statement is made public soon afterward. Research performed by our group at UCD demonstrated that, between April 2002 and November 2006, the most common themes in last statements in Texas were love (in 70% of last statements) and spirituality (56%).^5,6 The most common psychological factors were identification-egression (ie. identification with a lost or rejecting person or with any lost ideal, such as freedom; 62%), unbearable psychological pain (53%) and rejection-aggression (ie. anger; 42%). Our more recent work examines similar factors between 2006 and 2011 in Texas.⁷

Last statements may demonstrate evidence of both love and spirituality, in stark contrast to the crimes committed. Other statements present direct expressions of anger, often in combination with other themes. Johnny Johnson, for example, was executed in February, 2009, for sexually assaulting and murdering a woman in 1995. Mr Johnson’s last statement demonstrates a range of themes, including deep anger and despair: “Death row is full of isolated hearts and suppressed minds. We are filled with love looking for affection and a way to understand. I am a death row resident of the Polunsky dungeon. Why does my heart ache. We want pleasure, love and satisfaction. It. The walls of darkness crushed in on me. Life without meaning is life without purpose. But the solace within the Polunsky dungeon, the unforgiveness within society, the church pastors and Christians. It is terrifying.”

Competence to be executed

One of the intriguing concepts which this field of research highlights is the idea of “competence to be executed”. In 1986, the US Supreme Court ruled that an individual should not be executed if he or she is deemed incompetent.⁸ The court did not, however, define incompetence or competence. As a result, there is substantial variation in practice across US states.^9,10

The idea is that a prisoner can only be executed if deemed mentally or legally competent, but the absence of definitions of either mental or legal competence creates a real ethical dilemma for mental health workers on death row: if treating a prisoner’s mental illness restores their mental or legal competence and, as a consequence, the prisoner is executed, are the positive consequences of treatment (improved mental health) outweighed by the negative (death)? Does this place the mental health worker in the position of de facto gate-keeper for execution of these prisoners?

Guidance is, perhaps, provided by the UN’s Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care, which state that “all persons have the right to the best available mental healthcare” (principle 1, article 1; italics added).¹¹ As a result, and notwithstanding the possibility that treatment may restore competency and result in execution, this suggests it is a violation of the right to mental healthcare to deny treatment to prisoners on death row or, indeed, anyone else.

For a death row prisoner who is deemed incompetent as a result of mental illness, however, there is still, at very least, a tension between the right to mental healthcare and the arguably more fundamental right to life, as outlined in the UN’s Universal Declaration of Human Rights, which states that “everyone has the right to life, liberty and security of person” (article 3).¹²

Societal expectations of psychiatrists

Treating people for mental disorder with the result, unintended or not, of expediting their execution does not rest easily with the societal expectation that psychiatrists will behave in a therapeutic fashion towards individuals with suicidal ideation, depression, or other signs and symptoms of mental disorder. In most circumstances, the aims of such psychiatric and psychological interventions include reduction of symptoms, resolution of psychological problems and preservation of life. 

Not all of these goals may be fully attainable on death row, but some are undoubtedly achievable at least in part though psychological and psychiatric treatment. When such treatment may also result in increased likelihood of execution, however, therapeutic decisions become distinctly more difficult. This is an important and substantial issue not only because of the human rights issues and ethical dimensions, but also because of the extremely high prevalence of psychiatric and psychological problems on death row.

There is a strong need for more research into this ethical dilemma.  In the US, for example, the Code of Ethics of the Society of Correctional Physicians states that “the health professional shall… not be involved in any aspect of execution of the death penalty”.¹³ Notwithstanding this position, 17 US states still require physician participation in executions.¹⁴ In Ireland, at least, the position is clearer because national law does not permit capital punishment. In any case, the Medical Council’s Guide to Professional Conduct and Ethics for Registered Medical Practitioners states very directly that “you must not assist with executions”.¹⁵ The situation in the US and elsewhere, however, is much less clear, and needs clarification.

References

1. Amnesty International: Death Sentences and Executions 2011. London: Amnesty International Publications, 2012 (p. 7)
2. Cunningham MD, Vigen MP: Without appointed counsel in capital postconviction proceedings: The self-representation competency of Mississippi death row inmates. Crim Justice Behav 26: 293-321, 1999
3. Cunningham MD, Vigen MP: Death row inmate characteristics, adjustment, and confinement: a critical review of the literature. Behav Sci Law 20: 191-210, 2002
4. Lester D, Tartaro C: Suicide on death row. J Forensic Sci 47: 1108-11, 2002
5. Foley SR, Kelly BD: The psychological concomitants of capital punishment: thematic analysis of last statements from death row. Am J Forensic Psychiatry 28: 7-13, 2007
6. Kelly BD, Foley SR: The Price of Life. BMJ 335: 938, 2007
7. Kelly BD, Foley SR. Love, Spirituality and Regret: Thematic Analysis of Last Statements from Death Row, Texas (2006-2011). J Am Acad Psychiatry Law 2013 (in press).
8. Ford v. Wainright, 477 US 399 (1986)
9. Horstman, LA: Commuting death sentences of the insane: a solution for a better, more compassionate society [comment]. Univ San Francisco Law Rev 36: 823–52, 2002
10. Matthews D, Wendler S: Ethical issues in the evaluation and treatment of death row inmates. Curr Opin Psychiatry 19: 518-21, 2006
11. United Nations: Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care, New York: United Nations, Secretariat Centre For Human Rights, 1991
12. United Nations: Universal Declaration of Human Rights. Geneva: United Nations, 1948
13. Society of Correctional Physicians Board of Directors: Code of Ethics of the Society of Correctional Physicians. Chicago, IL: Society of Correctional Physicians, 1997
14. Gawande A: When law and ethics collide – why physicians participate in executions. N Engl J Med 354: 1221-9, 2006
15. Medical Council: Guide to Professional Conduct and Ethics for Registered Medical Practitioners (7th ed.). Dublin: Medical Council, 2009 (p. 17)