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A new article by Professors Brian D. Shannon (pictured) and Victor R. Scarano examines the ethical implications of mental incompetence among death row inmates, particularly with regards to forcible medication. According to the authors, cases involving incompetence to be executed and forced medication pit "the ethical duties of the medical and legal professions in opposition and [cast] a shadow over the legitimate and appropriate intentions and professional responsibilities of physicians and lawyers." While the U.S. Supreme Court has ruled that mentally incompetent prisoners cannot be executed, only lower courts have ruled on the issue of forcing death row inmates to take medication with the purpose of rendering them competent for execution. The article concludes with a legislative recommendation that would "obviate the ethical dilemma" of forcible medication: "upon a determination by the trial court that the defendant is incompetent to be executed (and following any appeal), the court should vacate the death sentence and substitute a life sentence without the possibility of parole," thus allowing psychiatrists to "proceed to treat the symptoms of the inmate's serious mental illness, without the ethical concern that such treatment could lead to the inmate's execution."
(B. Shannon and V. Scarano, "Incompetency to Be Executed: Continuing Ethical Challenges & Time for a Change in Texas," Texas Tech Law Review, Vol. 45, 2013.)
In the forty year history of the Supreme Court's modern death penalty jurisprudence, two cases — Furman v. Georgia (1972) and McCleskey v. Kemp (1987) — stand out above all others. Both cases turned on the Court's consideration of empirical evidence, but they appear to have reached divergent — even altogether inconsistent — results. In Furman, the Court relied on statistical evidence that the death penalty was infrequently applied to death-eligible defendants to hold that the Georgia death penalty scheme was unconstitutional under the Eighth Amendment. In McCleskey, the Court, despite being presented with statistical evidence that race played a significant role in death-charging and death-sentencing in Georgia, upheld the revised Georgia scheme and McCleskey's death sentence against Equal Protection and Eighth Amendment challenges. The McCleskey decision called into question the use of statistical evidence to challenge the death penalty.
In the present article, we report on a unique empirical study of the administration of the death penalty in Alameda County, California — the largest single-county death penalty study and the only study to examine intra-county geographic disparities in death-charging and death-sentencing. The data set, drawn from 473 first degree murder convictions for murders occurring over a 23-year period, compares death-charging and death-sentencing in the two halves of the county. During the study period, the two halves differed significantly in racial makeup — the population of North County was over 30% African-American, and of South County less than 5% African-American; and the two halves differed in the race of homicide victims — in North County, African-Americans were homicide victims roughly 4.5 times as often as Whites, while, in South County, Whites were homicide victims more than three times as often as African-Americans.
The study reveals that there were statistically significant disparities in death-charging and death-sentencing according to the location of the murder: the Alameda County District Attorney was substantially more likely to seek death, and capital juries, drawn from a county-wide jury pool, were substantially more likely to impose death, for murders that occurred in South County. We argue that, McCleskey notwithstanding, statistical evidence such as the "race of neighborhood" disparities found in the present study should support constitutional challenges to the death penalty under both the Equal Protection Clause and the Eighth Amendment.
JAAPL Online Table of Contents Alert
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JAAPL Online Table of Contents Alert
- A new issue of Journal of the American Academy of Psychiatry and the Law Online is available online:
- 1 September 2012; Vol. 40, No. 3
- The below Table of Contents is available online at: http://www.jaapl.org/content/vol40/issue3/index.dtl?etoc
- A Case of Insanity: Diagnostic Relevance in the Shadow of Columbine
- Richard Martinez
- J Am Acad Psychiatry Law 2012;40 312-317
- Postpartum Psychosis and the Courts
- Melissa L. Nau, Dale E. McNiel, and Renée L. Binder
- J Am Acad Psychiatry Law 2012;40 318-325
- Commentary: Postpartum Psychosis, Infanticide, and Insanity—Implications for Forensic Psychiatry
- Susan Hatters Friedman and Renée Sorrentino
- J Am Acad Psychiatry Law 2012;40 326-332
- Transferring Juvenile Defendants From Adult to Juvenile Court: How Maryland Forensic Evaluators and Judges Reach Their Decisions
- Ronald F. Means, Lawrence D. Heller, and Jeffrey S. Janofsky
- J Am Acad Psychiatry Law 2012;40 333-340
- Commentary: Nuances of Reverse-Waiver Evaluations of Adolescents in Adult Criminal Court
- Camilla L. Lyons, Adria N. Adams, and Abigail L. Dahan
- J Am Acad Psychiatry Law 2012;40 341-347
- Risk of Death for Veterans on Release From Prison
- Hal S. Wortzel, Patrick Blatchford, Latoya Conner, Lawrence E. Adler, and Ingrid A. Binswanger
- J Am Acad Psychiatry Law 2012;40 348-354
- Firesetting, Arson, Pyromania, and the Forensic Mental Health Expert
- Paul R. S. Burton, Dale E. McNiel, and Renée L. Binder
- J Am Acad Psychiatry Law 2012;40 355-365
- A Training Program for Defendants With Intellectual Disabilities Who Are Found Incompetent to Stand Trial
- Barry W. Wall and Paul P. Christopher
- J Am Acad Psychiatry Law 2012;40 366-373
- Brief Rating of Aggression by Children and Adolescents (BRACHA): A Reliability Study
- Drew Barzman, Douglas Mossman, Loretta Sonnier, and Michael Sorter
- J Am Acad Psychiatry Law 2012;40 374-382
Analysis and Commentary
- CRIPA, Olmstead, and the Transformation of the Oregon Psychiatric Security Review Board
- Joseph D. Bloom
- J Am Acad Psychiatry Law 2012;40 383-389
- Compensation Neurosis: A Too Quickly Forgotten Concept?
- Ryan C. W. Hall and Richard C. W. Hall
- J Am Acad Psychiatry Law 2012;40 390-398
- Firearms Inquiries in Florida: "Medical Privacy" or Medical Neglect?
- Brian K. Cooke, Emily R. Goddard, Almari Ginory, Jason A. Demery, and Tonia L. Werner
- J Am Acad Psychiatry Law 2012;40 399-408
- Sexual Sadism: Avoiding Its Misuse in Sexually Violent Predator Evaluations
- Allen Frances and Richard Wollert
- J Am Acad Psychiatry Law 2012;40 409-416
- A Model Treatment Refusal Procedure for Defendants Found Incompetent to Stand Trial in the Ninth Circuit
- Martin Epson, Liban Rodol, and Joseph D. Bloom
- J Am Acad Psychiatry Law 2012;40 417-421
- Procedures Governing the Involuntary Commitment of a Minor to a Drug and Alcohol Treatment Program
- Lacey Levitt and Debra A. Pinals
- J Am Acad Psychiatry Law 2012;40 422-424
- Treatment Disclosures in Sex Offender Civil Commitment Evaluations
- Derek T. Hess and Ira K. Packer
- J Am Acad Psychiatry Law 2012;40 424-426
- Limitations on the Use of Evidence From Evaluations of Competence to Stand Trial in the Penalty Phase
- Natalie M. Anumba and Kenneth L. Appelbaum
- J Am Acad Psychiatry Law 2012;40 426-429
- Instructions to Jury With Regard to Intoxication and Insanity Defense
- Zoe Selhi and Debra A. Pinals
- J Am Acad Psychiatry Law 2012;40 429-431
- Expert Testimony on Extreme Emotional Disturbance in Criminal Proceedings
- Melissa K. Poole, Raymond K. Molden, and Robert P. Forrest
- J Am Acad Psychiatry Law 2012;40 431-433
- Mandatory Admission of Guilt in Sex Offender Programs
- Leah G. Brar, Hal S. Wortzel, and Richard Martinez
- J Am Acad Psychiatry Law 2012;40 433-435
- Required Sex Offender Treatment and Due Process Rights
- Ashley Wheeler, Hal S. Wortzel, and Richard Martinez
- J Am Acad Psychiatry Law 2012;40 435-437
- Federal District Court's Ordering of Multiple Competency Examinations
- Patricia Westmoreland, Hal S. Wortzel, and Richard Martinez
- J Am Acad Psychiatry Law 2012;40 437-439
Books and Media
- Handbook of Violence Risk Assessment
- Alec W. Buchanan
- J Am Acad Psychiatry Law 2012;40 440-442
- The Psychology of Female Violence: Crimes Against the Body
- Susan Hatters Friedman
- J Am Acad Psychiatry Law 2012;40 442-444
- Contemporary Issues in Family Law and Mental Health
- Stewart S. Newman
- J Am Acad Psychiatry Law 2012;40 444
- Matthew D. Lerner, Omar S. Haque, Eli C. Northrup, Lindsay Lawer, and Harold J. Bursztajn
- J Am Acad Psychiatry Law 2012;40 445
- Linda J. Gottlieb
- J Am Acad Psychiatry Law 2012;40 445-446
- Judith M. Pilla
- J Am Acad Psychiatry Law 2012;40 446
- Michael H. Stone
- J Am Acad Psychiatry Law 2012;40 447
- Timothy M. Houchin, John Ranseen, Phillip A. K. Hash, and Daniel J. Barnicki
- J Am Acad Psychiatry Law 2012;40 447-448
[The Supreme] court goes to extraordinary lengths to get ready, and its point person is a staff lawyer named Danny Bickell. "Cases where there is an execution date," he said with a sigh, "that's where I come in." Mr. Bickell's formal title is emergency applications clerk, but capital defense lawyers have an informal title for him, too. They call him the death clerk.
In remarks at a conference of lawyers specializing in federal death penalty work..., Mr. Bickell provided a rare inside look at the Supreme Court's oversight of the machinery of death in the United States. It starts with a weekly update.
"Every Monday morning," Mr. Bickell said, "I put out a list to the court of all the executions that are scheduled in the country in the next six or seven weeks, and that gets distributed to all of the justices."
The Supreme Court clerk's office is famously helpful to lawyers who have questions about the court's rules and procedures, but in capital cases it goes further. "As the date approaches," Mr. Bickell said, referring to impending executions, "I will be in touch with the attorney general's office. I will be in touch with you, if you are representing the inmate, and with the lower courts, trying to figure out what is pending below and what is likely to make its way up to the Supreme Court.
"Once we make contact about 10 days or two weeks before the scheduled execution, I will start asking you to forward me everything that you file in the lower courts. Once you forward it to me, I forward it on to the law clerks and to the justices so that they can begin reviewing the case."...
[I]ndividual justices almost never rule by themselves on requests to halt executions. "I would say 99.9 percent of the time the circuit justice is going to refer the application to the full court, and all nine justices are going to act on the application [for a stay]," Mr. Bickell said.
He added that the court always makes sure it can rule on such applications in time for its decision to matter, even in states not inclined to wait for word from the justices. "The court won't always act on it by 7 o'clock," he said. That hour, 7 p.m., is important because it is when Texas executes people, Eastern time. The state has executed seven inmates this year.
"If we're getting to the point where we're short on time — it's 6:30 or 6:15 for a scheduled 7 o'clock execution — I will call my contact" at the state attorney general's office to see "whether they're going to go forward with the execution while the case is pending or if they're going to hold off and wait," Mr. Bickell said.
If the state will not wait, the court will give itself time to think and to vote. That responsibility again falls to the justice in charge of the judicial circuit. "If we're told they're going to go forward with it and they're not going to wait," Mr. Bickell said, "the practice of the court recently — this has happened with Justice Thomas a few times last term — is the justice will issue a temporary interim stay." Justice Clarence Thomas oversees the 11th Circuit, which covers Alabama, Florida and Georgia.