Brodsky, S.L., Neal, T.M.S., & Jones, M.A. (2013). A reasoned argument against banning
psychologists’ involvement in death penalty cases. Ethics & Behavior, 23, 62-66.

© 2013 Taylor & Francis.

This article may not exactly replicate the final version published in the journal. It is not the
copy of record. Link to the copy of record: doi:10.1080/10508422.2013.757954

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A Reasoned Argument against Banning Psychologists’
Involvement in Death Penalty Cases
Stanley L. Brodsky, Tess M.S. Neal, and Michelle A. Jones
Prompted by the involvement of psychologists in torturous interrogations at
Guantanamo and Abu Ghraib, the American Psychological Association (APA) revised its
Ethics Code Standard 1.02 to prohibit psychologists from engaging in activities that would
“justify or defend violating human rights.” The revision to Standard 1.02 followed APA
policy statements condemning torture and prohibiting psychologists’ involvement in such
activities that constitute a violation of human rights (APA, 2010). Cogent questions have
subsequently been raised about the involvement of psychologists in other activities that
could arguably lead to human rights violations, even if the activity in question is legal.
While this language was designed to be expansive in defining psychologists’ ethical
responsibilities, it remains difficult to determine whether and how Standard 1.02 might
apply to a particular situation. In the present analysis, we focus on the question of whether
psychologists should be involved in death penalty cases.
We assert that the APA should not take an ethical stand against psychologists’
participation in death penalty cases. Our position is not intended necessarily to reflect
approval or disapproval of the death penalty although we recognize that there are serious
flaws in the American legal system with regard to capital punishment. Our perspective is
that psychologists have an important role in the administration of due process in capital
cases. We oppose a bright-line rule prohibiting psychologists’ involvement in death
penalty cases for several reasons. We begin by considering whether the death penalty per
se constitutes a human rights violation, move on to describe the basic functioning of the

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legal system, analyze how the involvement of psychologists actually affects the capital trial
process, and end with providing practical advice for psychologists’ provision of ethical
services in capital trials.
Does Capital Punishment Constitute a Human Rights Violation?
Many argue that capital punishment violates the human rights of the person
sentenced to death. Others argue that from a societal perspective the offender violated the
human rights of the victim(s) and therefore must be held accountable. The American legal
system, reflecting public opinion, holds that the death penalty per se is not a human rights
violation. The U.S. Supreme Court has held that the death penalty is not cruel and unusual
punishment (Gregg v. Georgia, 1976), even while narrowing the applicability of the death
penalty in certain situations (Atkins v. Virginia, 2002; Roper v. Simmons, 2005). We point
this out simply to note that there does not appear to be a consensus, at least in the United
States, regarding whether capital punishment should be considered a human rights
violation.
The Legal System is an Evolving Institution and has Built-in Procedural Safeguards
“Human rights” is an evolving rather than a static concept. This mirrors the
evolving nature of the legal system itself, which changes over the course of time reflecting
changes in public opinion. Accordingly, ethical proscriptions need to acknowledge and
account for this fluidity. And to the extent there are flaws with the theory, procedures, or
application of the death penalty (see APA, 2001), those are flaws that the legal field is in a
better position than the field of psychology to address.
For example, the law has instituted a number of mechanisms by which certain
errors in a death penalty case can be rectified, such as by direct appellate review (Poland v.

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Arizona, 1986), state collateral review (e.g., Fla. R. Crim. Proc. 3.850-3.851), and federal
habeas corpus petitions (28 U.S.C. § 2241). Likewise, the law provides for the
consideration of mitigating factors during the sentencing phase of a death penalty case
(Woodson v. North Carolina, 1976; Lockett v. Ohio, 1978). While these procedural
safeguards are imperfect mechanisms, they do allow for death penalty cases to be reviewed
by a variety of legal authorities. In this sense, death penalty cases present a stark contrast
to the torture situation that was the impetus for the revisions to Standard 1.02.
Accordingly, we feel a complete ban on psychologists’ involvement in death penalty cases
regardless of the particular circumstances is an ill-advised way to rectify problems in the
legal process. Such a ban also does not fully recognize the role (more fully discussed
below) that psychologists actually play in capital cases.
How do Psychologists affect Capital Trial Processes?
Psychologists are involved in capital cases as fact or expert witnesses who provide
relevant and useful information to juries and judges – the ultimate legal decision-makers in
capital trials. Clinical psychologists are often involved as forensic evaluators and expert
witnesses in capital trials, and may be asked to provide information about the mental state
of the defendant at various times (i.e., at the time of the alleged crime, at interrogation, at
trial, at sentencing, at execution). In addition, psychologists sometimes are asked to
provide scientific research findings that are not necessarily related to the mental state of the
defendant. For instance, psychologists sometimes provide information about the fallibility
of eyewitness testimony so jurors and judges may evaluate the credibility of eyewitness
evidence with appropriate skepticism.
It also may be useful to remember that when clinical psychologists evaluate

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defendants, they are either retained by a neutral court or act in a neutral role while retained
by one of the adversarial parties. In fact, forensic practitioners are advised to “manage
their professional conduct in a manner that does not threaten or impair the rights of affected
individuals” (APA, in press, Guideline 2.04). They observe the boundary between legal
fact-finder and expert witness by providing useful information about the defendant’s
mental state without answering the ultimate legal issue (Melton et al., 2007). In other
words, psychologists in a death penalty case should not proffer an opinion on whether the
death penalty should be imposed. Rather, they assist the triers-of-fact by providing data
about the defendant to help them make informed legal decisions.
Even if one believes that the death penalty is a human rights violation, it does not
necessarily follow that a psychologist involved in a capital case is defending or justifying
that end result. A psychological assessment in which substantial psychopathology is found
may divert defendants from the criminal justice process to a mental health system or may
identify treatment needs in correctional settings. In addition, clinical psychologists who
evaluate convicted defendants for mitigation in sentencing as well as sentenced defendants
who may not be competent for execution may be seen as helping to prevent human rights
violations. One may think of the aims of mitigation and Competence for Execution (CFE)
assessments as potentially derailing the progress of a convicted person towards execution.
Whether the individual ultimately is executed depends on the results of the evaluation as
well as the decision by the final legal authority. However, these assessments represent
instances in which findings of minimal psychological mitigating factors or CFE make no
difference in an ongoing process and substantial mitigating factors or a not-CFE opinion
slow or stop the process.

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CFE may be the nexus of the most controversy about whether mental health
professionals should be involved with the death penalty. There are two distinct options for
psychological practice regarding CFE, each of which lead to markedly different
conclusions: (1) psychologists who assist in restoration of incompetent condemned
prisoners to become competent for execution and (2) psychologists who participate in
competency assessments. Psychotherapeutic efforts to restore condemned prisoners to be
competent for execution may be the only instance in which psychological efforts may lead
directly and causally to execution of convicted persons. Note that it is almost impossible –
perhaps actually impossible – to find psychologists who would be willing to undertake this
task. Assessments are another matter. Our position is: treatment, no; assessment, perhaps
yes.
How Psychologists can Provide Ethical Services in Capital Cases
Given that the death penalty is a controversial issue over which reasonable people
can disagree, it would be improper to create objective, clearly defined rules for or against
psychologists’ involvement in these assessments. The best way to address involvement in
death penalty cases is to place the decision on the individual psychologist. Each
psychologist needs to “recognize that their own cultures, attitudes, values, beliefs, opinions,
or biases may affect their ability to practice in a competent and impartial manner” and
when that occurs he/she must “take steps to correct or limit such effects, decline
participation in the matter, or limit their participation in a manner that is consistent with
professional obligations” (APA, in press, Guideline 2.07; see Neal, 2010).
Once a psychologist does decide to become involved in a capital case, methodology
should drive the evaluations and not the attitudes of the examiner toward the issue of

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capital punishment. The transparency of evaluation procedures serves as a partial
safeguard against bias infecting professional conclusions and opinions. Evaluations should
be based on standardized and known procedures accessible to viewing and critiquing by
attorneys for both sides and by other psychologists. No matter what the attitudes of the
examiners, their work should be known, visible, and accountable. Vigorous crossexaminations help hold psychologists accountable.
Finally, psychologists who conduct evaluations in capital cases should limit their
reports and testimony to the functional abilities of defendants related to the legal standard
(Neal, 2010; Small & Otto, 1991). For example, in the case of CFE, the legal standard
addresses the prisoner’s understanding of the nature of the sentence and penalty and his/her
ability to assist and work with counsel (Ford v. Wainwright, 1986). This recommendation
is consistent with forensic psychological evaluations of other legal competencies. As
Packer and Grisso (2011) note, “Laws typically focus on narrow conceptualizations of
functional abilities relevant to specific areas of competency. The same clinical status may
have different implications for different legal competencies, such as competency to stand
trial, criminal responsibility, competency to make treatment decisions, or competency to
manage one’s affairs” (p.28).
Conclusion
It remains difficult to determine whether and how Standard 1.02 might apply,
except in one circumstance: torture. The 2010 revision of this Standard was a direct
response to the extreme situation of psychologists participating in torture associated with
interrogations (APA, 2010). However, the APA has not identified any other situations that
should be prohibited by the new language of Standard 1.02. Although the APA previously

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has called for a halt of the death penalty until certain deficiencies in the legal process could
be corrected (APA, 2001), it never suggested that the death penalty per se is a human rights
violation, nor has it equated involvement in a death penalty case with involvement in
torture.
We hold that the unequivocal banning of psychologists from participating in the
capital legal process is not justified at the present time. Until a more universal view on
capital punishment can be reached, a nuanced and psychologically responsible approach is
arguably a better way to protect the human rights and dignity of defendants facing capital
trials and punishment. It is important to remember that the defendant is in the hands of an
imperfect system whether or not psychologists are involved in the process.

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References
28 U.S.C. § 2241
American Psychological Association. (2001). The death penalty in the United States.
Retrieved from http://www.apa.org/about/policy/death-penalty.aspx
American Psychological Association (in press). Specialty guidelines for forensic
psychology. Retrieved from http://www.apa.org/practice/guidelines/forensicpsychology.aspx
American Psychological Association, Ethics Committee. (2010). Report of the ethics
committee, 2009. American Psychologist, 65, 483-492. doi: 10.1037/a0019515
Atkins v. Virginia, 536 U.S. 304 (2002)
Fla. R. Crim. Proc. 3.850-3.851
Ford v. Wainwright, 477 U.S. 399 (1986)
Gregg v. Georgia, 428 U.S. 153 (1976)
Lockett v. Ohio, 438 U.S. 586 (1978)
Melton, G. B., Petrila, J., Poythress, N. G., & Slobogin, C. (2007). Psychological
evaluations for the courts: A handbook for mental health professionals and lawyers
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Neal, T. M. S. (2010). Choosing the lesser of two evils: A framework for considering the
ethics of competence for execution evaluations. Journal of Forensic Psychology
Practice,10, 145-157.
Packer, I. K., & Grisso, T. (2011). Specialty competencies in forensic psychology. New
York: Oxford University Press.
Poland v. Arizona, 476 U.S. 147 (1986)

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Roper v. Simmons, 543 U.S. 551 (2005)
Small, M. A., & Otto, R. K. (1991). Evaluations of competency to be executed: Legal
contours and implications for assessment. Criminal Justice and Behavior, 18, 146–
158.
Woodson v. North Carolina, 428 U.S. 280 (1976)

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