Atkins v. Virginia: A Psychiatric Can of Worms

This article provides a psychiatric perspective on the problems Atkins raises for courts that handle death penalty cases. In contrast to the overarching aim of the majority\u27s opinion in Atkins - making the administration of capital punishment more equitable - the Supreme Court\u27s latest prescription of psychiatric help may only add a new layer of complexity and confusion to the already capricious process through which the U.S. criminal justice system imposes death sentences. The article briefly review\u27s the Supreme Court\u27s 1989 Penry decision, focusing on the role that evidence of mental retardation played in death penalty cases before Atkins was decided. The article then looks at how the Supreme Court majority in Atkins characterized the appellant\u27s mental condition and the diagnostic process. Subsequent sections discuss: the process of diagnosing mental retardation, the ambiguities in that process, and the way that courts and legislatures may distort clinical diagnosis for use in legal proceedings; the contradiction between professional organizations\u27 treatment of, and response to, Atkins and these organizations\u27 customary stance on the use of diagnoses for non-clinical purposes; potential implications for capital defendants with psychiatric problems as incapacitating as, or more disabling than, mental retardation; the potential effect of Atkins on testimony by mental health experts; the effect of such testimony in future death-sentencing determinations

Dangerous Decisions: An Essay on the Mathematics of Clinical Violence Prediction and Involuntary Hospitalization

This Article has two major purposes. First, it provides a mathematicaldescription of an ideal procedure for making clinical decisions about patients\u27future violence, a description that provides a context for evaluating clinicians\u27 dangerousness decisions. For purposes of illustration, the Article uses a specific clinical situation-deciding whether to hospitaize involuntarily a patientbased on his risk of harming another. The Article argues that the decisioninvolves balancing potential risks to third parties (often the patient\u27s familymembers) with the massive deprivation of liberty and other potentialharms to the patient that could result from confinement. The mathematicaldescription of the decision procedure consists of a comprehensive method fordescribing the accuracy of predictions or prediction instruments, a methodfor assigning values to correct and incorrect predictions, a method foradjusting predictions based on those values, and-most importantly-an explicit means for expressing uncertainty in those values. Second, the Article evaluates the actual impact of uncertainty on an idealdecision procedure. When we combine our uncertainty about moral valuationsof right and wrong decisions, our uncertainty about base rates, and ouruncertainty about the relevant time periods over which predictions shouldapply, what results is an uncertainty about the correctness of prediction-baseddecisions that makes most criticism of those decisions untenable. ThisArticle shows that our uncertainty about the factors intrinsic to a hypothetical,best-case prediction procedure usually would preclude valid post hoc criticismof wrong decisions about dangerousness; a fortiori, most real-life predictionerrors also should be beyond criticism

Risky Business versus Overt Acts: What Relevance Do Actuarial, Probabilistic Risk Assessments Have for Judicial Decisions on Involuntary Psychiatric Hospitalization

Recently, several authors have suggested that only by incorporating findings from actuarial risk assessment instruments (ARAIs) can mental health experts provide evidence-based testimony in mental health commitment hearings. Determining eligibility for involuntary hospitalization seems like an appropriate, natural, obvious application of ARAIs. Similar instruments are used frequently in decision-making about sex offender commitments, where (as with mental health commitment) social policy ostensibly aims to protect the public from harmful acts by persons with mental abnormalities. Also, all evidence suggests that actuarial techniques for judging dangerousness are superior to other methods of assessing the risk of future violence. Yet in many jurisdictions, case law or mental health commitment statutes require clear and convincing evidence showing that a respondent actually did something (that is, committed an “overt act”) that did or could have caused harm. Such requirements may preclude using probabilistic considerations about future behavior as the sole ground for a mental health commitment. This article considers whether U.S. jurisdictions might allow mental health experts to use ARAIs as the primary evidence supporting their opinions in favor of involuntary psychiatric hospitalization. Our findings have important implications for the potential relevance of ARAIs in mental health commitment proceedings

Dangerous Decisions: An Essay on the Mathematics of Clinical Violence Prediction and Involuntary Hospitalization

This Article has two major purposes. First, it provides a mathematicaldescription of an ideal procedure for making clinical decisions about patients\u27future violence, a description that provides a context for evaluating clinicians\u27 dangerousness decisions. For purposes of illustration, the Article uses a specific clinical situation-deciding whether to hospitaize involuntarily a patientbased on his risk of harming another. The Article argues that the decisioninvolves balancing potential risks to third parties (often the patient\u27s familymembers) with the massive deprivation of liberty and other potentialharms to the patient that could result from confinement. The mathematicaldescription of the decision procedure consists of a comprehensive method fordescribing the accuracy of predictions or prediction instruments, a methodfor assigning values to correct and incorrect predictions, a method foradjusting predictions based on those values, and-most importantly-an explicit means for expressing uncertainty in those values. Second, the Article evaluates the actual impact of uncertainty on an idealdecision procedure. When we combine our uncertainty about moral valuationsof right and wrong decisions, our uncertainty about base rates, and ouruncertainty about the relevant time periods over which predictions shouldapply, what results is an uncertainty about the correctness of prediction-baseddecisions that makes most criticism of those decisions untenable. ThisArticle shows that our uncertainty about the factors intrinsic to a hypothetical,best-case prediction procedure usually would preclude valid post hoc criticismof wrong decisions about dangerousness; a fortiori, most real-life predictionerrors also should be beyond criticism

Atkins v. Virginia: A Psychiatric Can of Worms

This article provides a psychiatric perspective on the problems Atkins raises for courts that handle death penalty cases. In contrast to the overarching aim of the majority\u27s opinion in Atkins - making the administration of capital punishment more equitable - the Supreme Court\u27s latest prescription of psychiatric help may only add a new layer of complexity and confusion to the already capricious process through which the U.S. criminal justice system imposes death sentences. The article briefly review\u27s the Supreme Court\u27s 1989 Penry decision, focusing on the role that evidence of mental retardation played in death penalty cases before Atkins was decided. The article then looks at how the Supreme Court majority in Atkins characterized the appellant\u27s mental condition and the diagnostic process. Subsequent sections discuss: the process of diagnosing mental retardation, the ambiguities in that process, and the way that courts and legislatures may distort clinical diagnosis for use in legal proceedings; the contradiction between professional organizations\u27 treatment of, and response to, Atkins and these organizations\u27 customary stance on the use of diagnoses for non-clinical purposes; potential implications for capital defendants with psychiatric problems as incapacitating as, or more disabling than, mental retardation; the potential effect of Atkins on testimony by mental health experts; the effect of such testimony in future death-sentencing determinations

The Psychiatrist and Execution Competency: Fording Murky Ethical Waters

The focus of this article is whether it is ethical for physicians to participate in the evaluation or treatment of condemned prisoners who are incompetent. According to Ward, this may be the ultimate question, faced by psychiatrists who are asked to deal with execution competency. This article is not intended to offer an answer to this question. Rather, it seeks to (1) elucidate issues connected to the ultimate question\u27s resolution, (2) articulate a set of premises within which psychiatrists should evaluate their relationship to institutions whose purposes include punishing criminals, and (3) suggest that, if the death penalty itself is just, then there are no coherent ethical objections to psychiatric participation. Part II of this article offers a brief review of the sociopolitical issues that provide the context for Ford and Perry, as well as brief summaries of those cases. Part III summarizes four types of arguments that advance the view that psychiatric participation is unethical and shows how these arguments are internally inconsistent and are contradicted by our intuitions about the right course of action in other situations. Part IV discusses the ethical justification of retributive punishment in a reasonably fair criminal justice system. Particular attention is given to those issues that might trouble psychiatrists contemplating evaluation or treatment of the potentially incompetent condemned. Part V suggests in a reasonably fair criminal justice system, psychiatrists can assume that a condemned criminal has given his hypothetical rational consent to evaluation and treatment, and that this consent provides a moral authorization for psychiatric participation in execution competency proceedings

Is Prosecution Medically Appropriate ?

Each year, U.S. courts send thousands of incompetent defendants to hospitals for treatment, where psychiatrists frequently administer psychotropic medication that can alleviate symptoms and allow the defendants to proceed with criminal adjudication. Although defendants and their attorneys usually do not object to such treatment, treatment refusals in two recent, nationally prominent cases-those of Russell Eugene Weston, Jr., the accused Capitol shooter, and Charles T. Sell, a dentist charged with filing false insurance claims-have focused legal and media attention on whether and under what conditions competence restoration can be forced on an unwilling defendant. In its June 2003 decision in Sell v. United States, the Supreme Court issued guidelines for forcible administration of medication to restore competence to stand trial. Among those guidelines is a requirement that the proposed treatment be medically appropriate. This requirement forces both testifying and treating physicians to consider some under-appreciated ethical issues: How can it be proper, or medically appropriate, for a physician to treat a patient when success makes the patient eligible for prosecution, a guilty verdict, and punishment? Can any meaningful consideration of what is medically appropriate treatment for a patient ignore the consequences of treatment which, in the case of many incompetent criminal defendants, includes the likelihood that they will regain competence, be prosecuted, and be punished? Where defendants are charged with capital crimes, can it ever be medically appropriate for doctors to administer antipsychotic therapy, knowing that if convicted, their patient would face life in prison at the very least, and could possibly be sentenced to death? This Article explains why medicating incompetent defendants is ethical, despite the practical consequences of such treatment. After summarizing the psychiatric backgrounds of Weston and Sell, the Article describes major legal developments in their cases. Next, the Article describes how the Sell ruling frames the question of medical appropriateness for courts and testifying physicians, and examines what occurrences of the phrase medically appropriate in case law and medical literature tell us about what doctors consider when they evaluate a proposed treatment. The Article then returns to the Sell and Weston cases to review the arguments made by their attorneys in opposition to administering antipsychotic medication. The Article then lays out what the author believes is the strongest argument-grounded in medical ethics, as opposed to legal concerns-that one might advance for opposing the treatment of many incompetent defendants. Finally, the Article uses a Kantian conceptualization of punishment\u27s justification to show that the same principles that permit fair, justly administered punishment also provide physicians with an ethical imperative to give defendants competence restoring medical therapy