Do No Harm: The Role of Psychologists in Death-Penalty Sentencing

By Sana Sheikh, Jacobin

07 June 16

Psychologists should reject their growing role in death-penalty sentencing.

ast year’s Hoffman Report, which came out of an independent review of the world’s largest organization of psychologists, the American Psychological Association (APA), made waves in the field of psychology. The reviewers found that the APA’s leadership had colluded with national intelligence agencies and the Department of Defense to allow psychologists to take part in and facilitate the torture of detainees as part of the state’s counter-terrorism efforts.

This wasn’t news to the dissident psychologists from organizations like the Coalition for Ethical Psychology and Psychologists for Social Responsibility who had been trying to spotlight this practice for over a decade. Nonetheless, soon after its release, numerous APA leaders resigned or were fired, and some have publicly apologized.

The organization also implemented policy reforms, banning psychologists from conducting, supervising, attending, or assisting in any national security interrogations for military or other intelligence agencies, including private contractors working on their behalf. The APA now has one of the strongest anti-torture policies of any health care profession.

The Hoffman Report was a big victory, but psychology isn’t in the clear. Psychologists continue to operate, largely unnoticed, in other spaces — most notably the legal system — that promote immediate harm.

Here, psychologists routinely provide expert testimony to help courts render decisions. These decisions are often directly detrimental to defendants, resulting in a range of negative outcomes including the loss of benefits, the categorization of juvenile defendants as adults, and even death.

Passing Judgment

Psychologists’ testimony has long played a role in death-penalty sentencing. But since 2002, when the Supreme Court ruled in Atkins v. Virginia that executing defendants with “mental retardation” — now called “intellectual disability” after the 2010 passage of Rosa’s Law — is unconstitutional, this role has increased significantly.

Granted, barring defendants with intellectual disabilities from receiving the death penalty lessens the number of executions. But because psychologists now routinely provide judgments on defendants’ intellectual ability, they have been drawn deeper into the practice of state-sanctioned execution than ever before.

This effectively means that psychologists — despite being members of a healing profession — play an active role in determining who lives and who dies.

A psychologist’s testimony that a defendant does not have an intellectual disability can lead to that person’s death. Even with the best intentions, psychologists are once again systematically violating their ethical code to “do no harm.”

The Fine Line

The way intellectual ability is determined in the United States highlights how psychology and criminal justice intersect on a landscape shaped by persistent inequality. The term “intellectual disability” itself is a catch-all that, like many other recognized psychiatric disorders, lumps together individuals who have varying abilities in terms of judgment, reasoning, and maturity.

On top of this, the Atkins v. Virginia ruling left it to individual states to define intellectual disability. In effect, there is no standard criteria in either the mental health or the legal field that determines intellectual disability. Different states have different rules for who is deemed disabled — and thereby spared from death.

Many states rely on the defendant’s IQ score and designate a single-score cut-off (e.g., a defendant’s IQ score has to be 70 or less) to determine whether the defendant has an intellectual disability.

The “tyranny of the single score,” as psychologists have called it, is highly problematic because it averages a person’s performance across multiple verbal and nonverbal sections of the test, vastly oversimplifying the overall picture of the defendant’s abilities. Indeed, psychologists rarely use the single score to determine ability outside of the legal system.

Moreover, IQ scores are plotted on a continuous scale, which makes any cut-off score arbitrary. An IQ score of 70 or less only indicates that one tested lower than 97.5 percent of the population.

In other words, there is no “natural” delineation between “disability” and “ability.”  The difference between an IQ of 70 and 71 doesn’t reflect a meaningful difference in cognitive ability, yet a one-point difference can mean life or death for a prisoner.

IQ tests also bring their notorious history of racial bias into the courtroom. Psychologists have long been aware that black, Latino, and Native American test-takers score on average lower than white test-takers, attributing the gap to broader disparities in household income and educational resources and the tests’ preference for certain forms of (Western, white, middle-class) knowledge.

These flaws haven’t stopped IQ scores from being used to prop up scientific racism (a recent example is Nicholas Wade’s A Troublesome Inheritance). And rather than address the fundamental limitations of the test, psychologists instead make post-test changes to correct for these biases, essentially raising black and Latino test-takers’ scores by using discrete scoring systems for each group.

Psychologists defend this quick fix, arguing that adjusting IQ scores shields the test-taker from the consequences of the current tests’ inherent limitations. But these corrections — called “ethnic adjustments” in the legal field — can turn deadly when brought into the courtroom because they make it easier for courts to give disadvantaged minorities the death penalty.

For example, after being convicted of murder in Texas, Ramiro Hernandez underwent testing to determine whether he would be eligible for the death penalty. His raw IQ score was 62, well in the range of intellectual disability, but after an “ethnic adjustment” — Hernandez was born and raised in Mexico — his score jumped to 70. The court opted to use his ethnic adjustment score, and he was executed soon afterwards.

Hernandez’s case is not isolated. Revising IQ scores based on the defendant’s race or ethnicity is becoming a widespread practice in courts nationwide, making it substantially more difficult to exempt minority defendants from the death penalty.

Many psychologists raise these concerns during their testimony, but not all. In fact there have been cases of psychological assessments’ misuse. In 2011, Texas reprimanded psychologist George Denkowski for using improper methods to assess the intellectual ability of at least twenty-five death row prisoners.

Prior to the reprimand Denkowski’s expert testimony put at least fourteen defendants on death row, two of whom were later executed. Disturbingly, while Denkowski has been barred from assessing criminal defendants, he has escaped censure and retains his license to practice as a psychologist.

The “Greater Good”

Psychologists’ increased role in the judicial sphere makes IQ testing’s limitations more than a mere academic issue as their decisions increasingly have life-or-death consequences. Although psychologists are ethically bound to use the most reliable and valid measures available, there is no such thing as a perfect assessment. Mistakes are unavoidable and are often compounded by the deep inequalities that characterize US society.

As Lily Hughes writes, “the death penalty is but the sharpest edge of a justice system that oppresses the poor and people of color.” Black defendants are three times more likely to receive the death penalty than white defendants, and around 90 percent of all defendants sentenced to death are too poor to afford their own attorney.

Psychologists who participate in death-penalty sentencing are, at the very least, participating in a racist and classist criminal justice system with lethal consequences. To its credit, the APA called for a moratorium on all executions in 2001, citing the vast literature on how the death penalty is disproportionately applied to defendants of color. So why does it still allow psychologists to participate in the death-penalty process?

The answer appears to be ideological. Psychologists often justify actions that have the potential to cause immediate harm by claiming they are in the service of a “greater good.” They warrant their participation in the sentencing process as expert witnesses by concluding that if they refused, courts would replace them with less-qualified individuals or no one at all.

This argument echoes those made by people like Bryce Lefever, a member of the APA Presidential Task Force on Psychological Ethics and National Security, in support of psychologist interventions in “detainee interrogations” as “vital, necessary, good, and for the greater good” and as doing “the most good for the most people.”

This ideological justification for psychologists’ involvement in detainee torture is utilitarian. As Stephen Soldz from Psychologists for Social Responsibility summarizes the position: “if causing pain will reduce the total harm in the world, then it is the only ethical way to go.”

But utilitarian arguments like these do not justify violating the ethical code to do no harm. The medical profession has acknowledged its disturbing history of doing harm for “the greater good.”

Psychology must do the same.  All healing professions, psychology included, are responsible within the limits of their expertise to care and advocate for the person in front of them, whether it be a medical patient, a research participant, or a legal defendant.

As Widney Brown of Physicians for Human Rights aptly states:

That is why [medical] doctors do not engage and monitor to keep torture victims alive, why they do not engage in helping with executions . . . And it is critically important that no one in a health professional engage in that.

Psychologists should not only refuse to participate in death-penalty sentencing but also actively communicate their dissent to the public. In doing so they can help reposition the field’s broader contributions and commitments away from reinforcing social order and toward increasing social justice.

Rewilding Our National Parks

By Paula Mackay and John Davis, Earth Island Journal

07 June 16

ocky Wilson and his wife had settled into camp for the evening when they caught sight of a bear emerging from the brush. It was late September 1968 and the Wilsons were hunting in Fisher Basin, one of their favorite places in Washington State’s North Cascades mountains. Avid outdoors people, they were no doubt accustomed to seeing black bears in the surrounding alpine meadows, where huckleberries glowed like beacons signaling the winter to come. But this bear was much bigger than the average black bear—almost seven feet long from nose to tail.

Rocky raised his rifle and a shot echoed through the basin. Did he really think he was shooting at a black bear or were the bear’s three-inch claws enough to register “grizzly” in the waning light? Either way, he couldn’t have known that the pull of his trigger would end a century-long assault on the region’s most formidable predator, whose ancestors had come across the Bering Land Bridge from Asia some 50,000 years before. By the time the Wilsons crawled into their tent that night, grizzlies were gone from one of their last remaining refuges in the Lower 48. Only days later, President Lyndon Johnson transformed that territory into North Cascades National Park with a stroke of his pen. Hunting would never again be allowed in Fisher Basin.

Today, an even more compelling story is unfolding in the North Cascades Ecosystem (NCE), a vast network of wildlands comprising roughly 24,800 square kilometers in Washington and an additional 10,350 square kilometers in British Columbia.

Standing atop one of the scores of high peaks in North Cascades National Park, one feels lost in a world of jagged spires, hanging valleys, wild rivers and unbroken forests. These are the secret haunts of animals we hardly ever see but whose existence is the very essence of wildness—Canada lynx, cougars, wolves, wolverines—rare and elusive carnivores that have been eliminated from most of the U.S., but that can still find a home in the North Cascades.

Without the protection of the national parks and surrounding public lands, such creatures probably wouldn’t survive here, either. This mostly unspoiled wilderness is within easy reach of the more than 3.5 million people living in the greater Seattle area, who can, theoretically, eat breakfast at their neighborhood diner and arrive at the trailhead before lunch. Fortunately for the wildlife, most don’t. The trails are too darn steep.

Until recently, wolves and wolverines, like the grizzlies, were but ghosts of a wilder past—decimated by hunters, trappers and predator control programs in the nineteenth and twentieth centuries. But by the 2000s , a complex combination of social and ecological factors had permitted individual animals from Canada to recolonize some of their former habitats. Today, at least 90 wolves and perhaps two-dozen or more wolverines once again wander Washington’s NCE and both populations continue to expand their range. Even grizzly bears, which persist here in very small numbers, if at all, are now the focus of a long-awaited recovery effort. In 2014, North Cascades National Park and the U.S. Fish and Wildlife Service initiated a three-year process to explore options for restoring grizzlies to the region. With any luck, grizzlies will reclaim their rightful home in the park—and beyond.

Therein lies the challenge. Although America’s national parks include some of the wildest places on Earth, no park in the U.S. (with the possible exception of Alaska’s biggest parks) is large enough to support the full range of native biological diversity over the long-term. In order to accommodate wide-ranging animals like grizzly bears and wolves, our parks must be connected to other protected areas via wildlife corridors and their boundaries should be expanded wherever possible.

This task becomes all the more urgent given growing pressures on wildlife, including the range shifts many species will experience in response to climate change.

The creation of new parks and increased connectivity between parks, is essential, but the restoration of carnivores and other key wildlife—like salmon, bison, beavers, elk and prairie dogs—is also vital to the health of our landscapes. These animals have vanished from some ecosystems due to human activities and human intervention may be required to bring them back. Such rewilding efforts have been successfully undertaken in several parks to date. Future opportunities abound.

Imagine: Longleaf Pine National Park, comprised in part of existing National Forests in northern Florida and southern Alabama. This new park, if established, could be home to reintroduced red wolves and cougars. These apex carnivores, largely lost from the region, would help to address overgrazing by deer and also to control destructive feral hog populations. Certain reptiles, such as gopher tortoises, eastern indigo snakes and eastern diamondback rattlesnakes, will also need our help to reestablish self-sustaining populations.

Now envision expanding Great Smoky Mountains National Park by upgrading nearby national forest lands in North Carolina and Tennessee to national park status, thereby protecting them from logging. Reintroduced cougars and red wolves would hold in check the previously reintroduced population of elk and unnaturally abundant white-tailed deer—sparing the many wildflowers, salamanders and other small creatures that do best in older, structurally complex forests where herbivore and predator populations are well-balanced.

Moving west to the “Spine of the Continent,” imagine reintroducing gray wolves and wolverines to Rocky Mountain National Park in Colorado, where elk are decimating vegetation. Rewilding southern Utah’s parks with wolves would work wonders for those ecosystems, too. And in Grand Canyon National Park, let’s restore the Mexican wolf, American badger and fish like humpback chubs and razorback suckers—both nearly eliminated by the Glen Canyon Dam.

This is but a small sample of rewilding possibilities in our park regions, biased toward charismatic carnivores—which can help lead the way for the restoration of many other threatened or at-risk species.

As past experience shows, rewilding national parks can bring both triumphs and challenges. The most famous rewilding story in the world is the reintroduction of gray wolves to Yellowstone National Park in the 1990s. Their return brought back an iconic symbol of wildness and helped reestablish riparian areas previously degraded by over-browsing elk. Riparian habitat, in turn, beckoned beavers, butterflies, songbirds, trout and other members of the biotic community that had disappeared or declined due to predator eradication, in a process scientists describe as “trophic cascades.”

But wolf recovery in Yellowstone and elsewhere has also encountered bitter opposition, with the most significant resistance emerging from a vocal minority of ranchers and hunters who ideologically oppose this much-demonized predator. There is, however, overwhelming evidence that the occasional economic losses precipitated by wolf predation on livestock are far outweighed by their ecological benefits and boosts to the tourist economy.

One important lesson from Yellowstone’s wolf reintroduction is that government agencies must work with local people to nurture support for carnivores well in advance of recovery efforts and must also establish compensation programs for ranchers who may suffer losses from wolf predation.

It’s heartening to see that the National Park Service is looking ahead and working to realize the full potential of our parks through its “Scaling Up” program, which aims to advance conservation on a vast landscape scale. This initiative is rooted in the understanding that connectivity brings tremendous benefits to park resilience and wildlife migrations alike and includes a plan to protect continuous wildlife corridors in the country’s five geographic regions—the Northeast, Southwest, West, Southeast and Midwest.

But given that we are in the midst of the Earth’s sixth mass extinction, time is of the essence. Although Scaling Up is a major step in the right direction, this initiative will take time to implement nationwide. Some species can’t afford to wait that long for our help. That is why President Obama—who has employed the Antiquities Act several times to create national monuments and bypass the politically challenging process of establishing new national parks—should proclaim more monuments before he leaves office. The president should also officially anoint, for the first time, a wildlife corridor across multiple public lands: Declaring “The Path of the Pronghorn” a national monument, from Grand Teton National Park south to Upper Green River Valley, would ensure the survival of one the world’s last remaining long-distance land animal migrations.

Rewilding is our chance to restore our relationship with our wild neighbors. National parks, both here in the U.S. and all over the world, are the natural place to begin this crucial work.

Years after Rocky Wilson killed a grizzly bear in the North Cascades, a friend asked him how he would have felt if this had been the last grizzly in the entire country. After giving the question much thought, Rocky responded: “Well, my life will never be the same. These are all things of the past,” presumably referring not only to the bears, but also to his historic hunting forays into what had long since become North Cascades National Park. Thanks to that park and the wildness it embodies, grizzlies aren’t yet a thing of the past. Indeed, the possible return of these magnificent animals offers us wild hope for the future.