Moral opposition by medical professionals to participation in the process of sentencing for capital crimes, including refusals to provide medical treatment, may compromise the integrity of the legal process.
The most aggravated forms of homicide are now punishable by death in thirty-seven states, and more than 2,000 condemned prisoners currently await execution. Many mental health professionals have participated in the process by which these sentences have been imposed and carried out while others have refused to participate.
Mental health professionals who are morally opposed to the death penalty may decline, for that reason alone, to conduct forensic assessments of capital defendants or condemned prisoners, or to treat prisoners who are deemed "incompetent for execution." To participate in this process, they argue, would be to legitimize a morally objectionable social policy or to become an accomplice in its administration. I will refer to this line of argument, which is rooted in the individual practitioner's own moral views, as "conscientious abstention."
Arguments for abstention have also been formulated in terms of professional ethics. For example, it is often said that fundamental ethical precepts of the health professions, such as primum non nocere, are violated when the skills of the physician or psychologist are used in a manner that could aid the state's quest for a death sentence or facilitate an execution.
The ethical argument against professional participation in capital cases should be carefully scrutinized. Accepting the view that abstention is ethically required would bind all practitioners, not only those who have moral doubts about the death penalty. If, as a consequence, testimony by physicians and psychologists were unavailable in capital cases, the legal system would be deprived of clinical evidence that is often essential to fair and reliable administration of the law. This would be especially problematic when capital defendants or condemned prisoners would rely on such evidence as grounds for leniency.
Moreover, if the abstaining physician or psychologist is employed by the state, his or her legal fights may turn on whether the refusal to participate is rooted in a recognized ethical proscription or instead in personal scruples against the death penalty. Although the state probably is not permitted to require unethical conduct as a condition for continued professional employment, an employee who declines to carry out assigned responsibilities on grounds of personal conscience probably may be lawfully discharged. Pre-Sentence Evaluations
We should first consider the view that participation in any aspect of a capital case, including the capital sentencing process, is ethically objectionable. It is sometimes argued that the principle of nonmaleficence, the duty not to inflict harm, is fundamentally contravened by any professional interaction with a client that might elicit information or opinion that could be used to support a death sentence. (1) However, this same premise could be deployed against professional participation in any criminal case, when information elicited during an evaluation (and opinion based on this information) could support a criminal conviction and imprisonment. If the death penalty is regarded as different from other punishments only in degree, it would seem that clinical participation in capital cases is, in principle, no more (or less) problematic than forensic participation in any criminal cases.(2)
Assuming that the principle of nonmaleficence has some weight in the forensic setting, (3) the special sensitivity to participation in capital cases, when registered by a person who has no qualms about participation in noncapital cases, rests on the belief that the death penalty is qualitatively different from other forms of punishment (The Supreme Court's death penalty jurisprudence, which has erected safeguards in capital cases that have no application to noncapital cases, rests on this same widely shared belief. …