A Healer or an Executioner: The Proper Role of a Psychiatrist in a Criminal Justice System

I. INTRODUCTION II. INSANITY AND CRIMINAL JUSTICE: HISTORICAL PERSPECTIVE A. Why Absolve the "Lunatics?" B. Science and the Law C. Various Judicial Tests for Insanity III. PSYCHIATRY AND THE CRIMINAL JUSTICE SYSTEM IN THE MODERN WORLD A. Psychiatric Involvement Today 1. Competency to Stand Trial 2. Testimony at Trial 3. Competency at Execution 4. Medicating the Prisoners 5. Treating the Acquitted C. The Consequences of Being Adjudged Insane IV. INDEPENDENT PANELS-AN UNACCEPTABLE SOLUTION A. Psychiatric Evaluation in the Soviet Criminal Justice System B. The Case of Colonel Yuri Budanov V. ETHICAL PRACTICE OF PSYCHIATRY WITHIN THE CRIMINAL JUSTICE SYSTEM A. Basic Principles 1. The "No Harm" Principle 2. The "Consent" Principle 3. The "Professionalism" Principle B. Application of Principles 1. Competency to Stand Trial or for Execution 2. Testimony at Trial 3. Actions of "Independent Panels" 4. Medicating the Prisoners 5. Treating the Acquitted 6. Competency for Execution.. VI. CONCLUSION "Render therefore unto Caesar the things that are Caesar's, and unto God the things that are God's." (2) I. INTRODUCTION For well over two thousand years, Western civilization has made a judgment that the mentally ill suffer not only from an illness, but also from a social condition. (3) Nor has it been alone in this judgment; indeed, this view is almost uniform throughout the world. (4) The result of this judgment is that the mentally ill have for a long time been held not responsible for their actions, be they of a civil or criminal nature. (5) Certain problems accompany such a decision. Society needs to distinguish the severely mentally ill, from those who may be ill but not severely. A decision needs to be made about what to do with the mentally ill, in lieu of legal liability. Society has grappled with these questions for generations, with each generation purportedly giving a more progressive and humane answer. As the science of medicine in general and of psychiatry (6) in particular has developed, the criminal justice system has attempted to harvest the increased scientific knowledge so that it could help in answering these questions (although it has remained somewhat ambivalent about psychiatric involvement). (7) Psychiatrists are now closely involved in multiple stages of criminal justice administration. (8) Such involvement has quite often been lauded as it is perceived to be scientific, and thus objective, ridding the criminal justice system of arbitrariness and uncertainty in its involvement with the criminally insane. (9) Today psychiatrists are involved in every stage of the criminal process, from the preliminary hearing to long after conviction or acquittal by reason of insanity. (10) Because of their undisputed expertise in mental health, some of the judgments that psychiatrists make go unquestioned by the criminal justice system. (11) When such judgments are questioned however, a "battle of the experts" ensues (12) where the scientific truth gets lost. (13) Psychiatrists are often asked to testify on issues that they have no particular expertise in. A psychiatrist cannot intelligently answer whether the accused poses future danger, yet such questions are routinely asked. A psychiatrist also has no specialized knowledge to answer such questions of morality as "did the person know 'right from wrong' or 'good from evil." However, the courts do tend to allow psychiatrists to offer testimony on such essentially moral questions. Thus, psychiatrists are tempted to justify the judgments of the courts or alternatively to substitute their own morality for that of the rest of the society (as expressed by the jury). …