Executing the Mentally Ill

Horace Kelly is sane enough to be executed, according to nine of 12 jurors who decided on his competency in a Marin County, Calif., superior court last month. Caught in the grasp of an unusual California proceeding that hasn't been invoked in nearly 50 years, it is possible Kelly could face execution this month, barring appeals to higher courts. Convicted of three murders over a decade ago, his previous execution date of April 14 has long passed.

A hearing that was supposed to last five days stretched into a month as 12 jurors and four alternates listened to conflicting forensic testimony calculated to sway their opinions.

Twenty days before Kelly's scheduled execution, two San Quentin psychiatrists determined that he did not satisfy the "competency to be executed" standard, while a third couldn't determine whether he was sane. These conclusions triggered his latest sanity hearing.

Richard Mazer, Kelly's current attorney, expressed his frustration with the lengthy battle to save his client's life, and the years of effort during which the judicial system failed to acknowledge Kelly's incompetence.

In an interview with Psychiatric Times, Mazer said that these types of cases should be presented by "people who recognize what the problems are, who are sensitive to the mental health issues, who know how to conduct investigations and examinations into them, and who know what to do with the information in terms of presenting it in court." What often happens instead, he said, is that unskilled defense lawyers, inadequate resources and improperly prepared experts threaten a defendant's chances of establishing any kind of incompetency defense.

The law and psychiatry are not disciplines that "fit together very easily," said Mazer. "Psychiatry is as much an art as a science, and so you are going to get people who come [to court] with...their own political agendas, and with their own views on the criminal justice system and how mental health relates or does not relate to it," Mazer said.

Mazer's observations capture the essence of the debate that pervades psychiatry in death penalty cases. Ethical and moral issues faced by doctors practicing medicine clash with society's norms for ethical and moral behavior. At the same time, legal standards for insanity shift-often without regard to scientific advances or mental health advocacy.

Paul Appelbaum, M.D., chairman of the department of psychiatry at the University of Massachusetts Medical School in Worcester, Mass., says that the standards for criminal culpability do not necessarily have to reflect growing psychiatric knowledge.

"They are legal tests that...determine culpability," Applebaum told Psychiatric Times. "Culpability is not something that is determined on a scientific basis. It's a moral question...At what point does a person's mental state become sufficiently impaired that it is no longer fair to punish him for his behavior? I'm not sure that the question of fairness needs to keep pace with scientific advances in the understanding of mental illness."

Jurors decide cases on the basis of an "intuitive sense of when it's fair to punish someone for their criminal acts; when it's not they don't," Appelbaum said. "With few exceptions, the existing system, one to which jurors bring a good deal of common sense, works," he added.

In the opinion of Abraham L. Halpern, M.D., professor emeritus at the New York Medical College and past president of the American College of Psychiatry and the Law, social policy has far to go before just treatment of the incompetent mentally ill is assured.

"Two changes need to be made," Halpern told Psychiatric Times. "One is the abolition of the insanity defense, which would give the courts an opportunity to evaluate an individual to determine what he needs based on his mental condition. In addition, eliminating mandatory minimum sentences would give judges more flexibility in handling cases, including those that involve mentally ill individuals who require unique solutions."

Phillip Resnick, M.D., professor of psychiatry at Case-Western Reserve University School of Medicine in Cleveland, told Psychiatric Times that, ultimately, "it's not the law's business to keep up with psychiatry. It's psychiatry's business to communicate effectively in terms of existing law."

Changes in the legal standards for insanity were not based on a rejection of or failure to consider scientific knowledge, he said, but on a conscious effort to limit the insanity defense to a very few people. "It's not a matter of science being behind the science, it's a matter of the law drawing its own line as to who it will excuse."

With the jury's decision, Kelly may have finally reached the end of that line. But the question of whether this is just, ethical or moral will remain open to debate, regardless of whether this inmate lives or dies.