Psychiatric participation in sentencing is considered a potential amelioration. Without mitigating factors, the offender’s crime is punishable by death. Absence of aggravating factors can be more mitigating than so-called mitigating factors, if they establish a higher threshold. An aggravating factor or ‘special condition’ in Texas law, for example, is ‘whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society (Texas Code Crim Proc 1988).’ Through an amicus brief the American Psychiatric Association declared in a landmark case that psychiatrists cannot accurately predict future dangerousness and it is unethical for psychiatrists to give a professional opinion without first having personally evaluated the individual. In Barefoot v. Estelle (1982) the United States Supreme Court ruled that psychiatrists may testify in predicting future violence and then may give hypothetical testimony, i.e., without conducting a forensic evaluation, in death penalty cases. Participation in death sentencing in the United States is constitutional. Whether it is ethical is a separate question about which psychiatric opinion is divided (Leong et al. 2000).

Respected psychiatric commentators are also divided on the proper role for psychiatrists in death sentencing. In contrast to participation in the execution itself which is prohibited by the AMA, APA, and AAPL ethical codes, no national professional code prohibits psychiatric participation in death sentencing. Some argue that psychiatrists can participate in death sentencing and in keeping with the ethic of striving for objectivity should be prepared to testify in support of either imposing or not imposing the death penalty (Dekleva 2001). For example, if a psychiatrist is prepared to testify that treatment and rehabilitation would eliminate the probability of violent recidivism, he should also be prepared to testify that the offender is not amenable to rehabilitation if that is his finding. Others argue that because capital punishment itself is immoral, psychiatrists should participate but only in the interest of sparing the offender, not in support of the death penalty (Weinstock et al. 2010). Death sentencing is then unlike other psycholegal issues wherein the examiner should attempt to hold their bias in check and be prepared at least in principle to produce findings for or against the defendant. Even though the death penalty is immoral, psychiatrists should involve themselves in favor of mitigation, it is argued, because without such involvement, unethical or imprudent forensic experts will testify in support of the death penalty and their testimony can be determinative if left unchallenged (Weinstock et al. 2010; Bonnie 1990a, b). For various reasons many forensic psychiatrists avoid participating in death sentencing altogether.

Although not controlled by a professional ethical code, the present author ascribes to noninvolvement for two reasons. First, death is different from other dispositions and psychiatrists should not collaborate with the State in determining whom the State will kill. Even if the forensic psychiatrist violates his ethical striving for objectivity and control of bias by participating only to support mitigation, any involvement helps the State decide who should be put to death. By analogy it made little difference if Nazi concentration camp physicians determined who was too feeble to be productive and therefore subject to gassing or who was healthy enough to be productive and therefore should be spared. In either case the physician who makes either a pro-life or pro-death determination helps the State decide who will be put to death, an ethically untenable position.

Second, because death sentencing procedures are flawed, unfair and misdirected, psychiatrists are ‘incompetent’ to participate (Felthous 2001). A truck driver may be competent to drive a truck under normal circumstances but not a truck with a broken axle, defective breaks, and that is headed downhill and off the run-away lane.

Correctional psychiatrists are unlikely to be called upon to participate in death sentencing, because jail psychiatrists treat detainees without becoming involved in adjudication of guilt and punishment and the offender will have already been sentenced before entering prison. In any case it would be a clear and totally unnecessary violation of the ethical principle of avoiding forensic involvement in an inmate whom the psychiatrist is treating.

The American Medical Association’s Council on Ethical and Judicial Affairs (1992) made recommendations based upon its interpretation of what kind of involvement constitutes ‘physician participation in capital punishment, for the purpose of ethical prohibition of physician participation.’ The Council did not consider ‘testifying as to medical aspects of aggravating or mitigating circumstances during the penalty phase of a capital phase’ (American Medical Association 1992) as constituting ethically prohibited participation. From this author’s perspective the decision to execute is more directly causative of death than the finding of execution competence. The Council found the latter to be more problematic. Although the physician ‘may offer a medical opinion that the trier of fact can consider’ when determining execution competence, the ‘physician should not determine legal competence to be executed,’ according to the Council. A physician who is treating an offender who is execution incompetent, should not re-evaluate the individual for competence, rather this should be done by an independent physician examiner (American Medical Association 1992). Commentators on the ethics of assessment for execution competence are divided with recommendations varying from abstention, to participation in favor of mitigation, to full participation.

Ethical guidelines for treatment of the execution incompetent offender are disturbingly ambiguous. The Council recommended that physicians not treat such a prisoner ‘for the purpose of restoring competence unless a commutation order is issued before treatment begins’. The commutation exception is a non-sequitur because once the death penalty is lifted treatment could no longer serve the purpose of restoring execution competence. The psychiatrist employed at a maximum security hospital which occasionally receives an offender for restoration of competence faces an untenable dilemma. Treatment that restores execution competence is unethical; yet is not deliberate withholding of treatment for a serious mental illness also inhumane and contrary to any rational medical ethics? Drawing on recommendations of the American Medical Association (1992), Bonnie (1990a, b), and Scott (2006), Knoll (2010) proposes the following ethical guidelines for psychiatrists who because of their employment are faced with the question of whether or not to treat an individual who is incompetent to be executed and remanded to a security hospital for treatment and restoration of execution competence:

Perhaps these guidelines are as good as any. The problem of defining and discerning ‘extreme suffering’ in psychotically disturbed individuals is not easily resolved. Ultimately there is no satisfactory ethical solution to the question of treating the execution incompetent prisoner.