The use of neurobiological evidence in sentencing mitigation.

Neurobiological evidence has grown increasingly relevant in U.S. criminal proceedings, particularly during sentencing. Neuroimaging, such as functional Magnetic Resonance Imaging and Positron Emission Tomography scans, may be introduced by defense counsel to demonstrate brain abnormalities to argue for more lenient sentencing. This practice is common for penalty mitigation in cases eligible for capital punishment. This article reviews the history of the use of neuroscience in criminal cases from the early 20th Century to present, noting pertinent legal and ethical considerations for the use of such evidence. The authors review important empirical research conducted in recent years regarding the use of neurobiological evidence in legal proceedings (such as mock-juror studies) and guidance from the federal sentencing guidelines and the American Bar Association. The discussion also notes relevant case law in which neuroimaging, behavioral genetics, or other neurobiological data were introduced in criminal proceedings, particularly precedent-setting U.S. Supreme Court cases.

Capital sentencing and neuropsychiatry.

The neuropsychiatric contribution to capital sentencing proceedings has grown substantially in recent decades as the consideration of neurological and psychiatric factors in criminal behavior has been increasingly accepted as relevant to the quest for justice. This review article will focus on the legal theories underlying neuropsychiatric input into capital sentencing decisions, as well as some of the investigative techniques and resulting data which may be offered by forensic neuropsychiatrists in this context. The death penalty is unique in its severity and irreversibility, as the courts, including the U.S. Supreme Court, have noted repeatedly. "Death is different," and the recognition of this has generated a set of court decisions and statutes pertinent specifically to capital proceedings, both procedural and substantive.

Life or death: A qualitative examination of mitigating and aggravating evidence presented in capital trials.

The US Supreme Court has required that death penalty procedures narrow the class of persons eligible for a death sentence. Through the selection requirement, juries must use mitigating and aggravating evidence jointly to determine if a defendant is one of the worst of the worst, resulting in a sentence of life without parole or death. This study analyzed capital trial transcripts from the punishment phase to assess the type and amount of mitigating and aggravating evidence presented to jurors in cases resulting in life without parole and death. The main assumption of the research was that cases resulting in life without the possibility of parole (LWOP) would reveal patterns in the types of evidence presented and differing patterns in cases where the jury handed down a sentence of death. The study qualitatively examined the trial transcripts from the punishment phase of 18 capital murders (nine resulting in LWOP and nine in death). The extra-legal factors from each LWOP case were matched to a death case to eliminate sentencing discrepancies based on jurisdiction, race of defendant or victim, aggravator, age etc. The results found no consistent patterns of evidence presented in cases resulting life without parole and some relevant patterns in sentences resulting in death.

Palliating in Avoidable Death: Reconciling Psychiatrists' Roles as Treaters on Death Row With Participation in a System of Overt Harm.

ABSTRACT: Although nations across the globe have eliminated capital punishment, the United States remains one of the few countries in the Americas and Europe that still uses execution. There has been little discussion around the implications of psychiatry's involvement in providing care to incarcerated individuals awaiting death. The following perspective examines the United States as an example of a democratic and highly developed country where the death penalty remains an undeniable reality; the piece provides a brief discussion on psychiatry's relationship with end-of-life care to provide context for subsequent discussion on the role of the psychiatrist on death row in the United States. Medicolegal and ethical considerations are further outlined to identify specific concessions that might be made by the US criminal justice system to truly allow death row psychiatrists to practice to the highest standard of compassionate care.

Health-Care Professionals and Lethal Injection: An Ethical Inquiry.

The practice of health-care professional involvement in capital punishment has come under scrutiny since the implementation of lethal injection as a method of execution, raising questions of the goals of medicine and the ethics of medicalized procedures. The American Medical Association and other professional associations have issued statements prohibiting physician involvement in capital punishment because medicine is dedicated to preserving life. I address the three primary arguments against health-care professionals being involved in lethal injection (healing, trust, and nonmaleficence) and argue that they are not strong enough to prohibit physician involvement in the lethal injection process.

Ineffective Counsel in Death Penalty Cases and the Promise of Therapeutic Jurisprudence.

It is absolutely essential to consider the abject ineffectiveness of counsel in a significant number of death penalty cases involving defendants with serious mental disabilities and how such ineffectiveness is often (scandalously) accepted by reviewing courts. We must also assess all of the concerns raised in this excellent paper by Hiromoto and colleagues through the filter of therapeutic jurisprudence as a way to guide counsel to thoroughly investigate all aspects of such cases (especially those involving defendants with PTSD) and to present substantial mitigating evidence to the fact finders in the sorts of cases the authors are discussing.

PTSD and Trauma as Mitigating Factors in Sentencing in Capital Cases.

Posttraumatic stress disorder (PTSD) is commonly used as a mitigating sentencing factor, although how successfully it is used varies. In cases involving the death penalty, use of a PTSD diagnosis as a sentencing mitigating factor has been considered in the postconviction appeals process. This article analyzes a decade of American federal appellate case law regarding postconviction claims of ineffective assistance of counsel by capital defendants in regard to investigating and litigating trauma and PTSD. We found a high tolerance by the courts for deficient investigating, ruling against the petitioner in 20 of 23 (87%) of identified cases. The article discusses how these situations might be avoided and explores the critical role of forensic psychiatrists and mitigation specialists in investigating and presenting trauma to the court.

The Legacy of Atkins v. Virginia and Its Impact on Fuston v. State.

In Atkins v. Virginia, the U.S. Supreme Court ruled that the execution of defendants with an intellectual disability is "cruel and unusual punishment" prohibited by the Eighth Amendment. In a 6 to 3 decision, the Court noted the increasing number of states that blocked the executions of persons with an intellectual disability, reflecting the country's growing consensus that defendants with an intellectual disability are less culpable for their crimes than those without such a disability. Since this milestone decision, several subsequent cases have referenced this opinion. This article reviews other cases in which the execution of persons with an intellectual disability has been called into question, concluding with the Atkins-related appeal in Fuston v. State In that case, the Oklahoma Court of Criminal Appeals considered Oklahoma statutes regarding the bright-line cutoff by which defendants meet criteria for intellectual disability, as applied to the multiple intelligence measures that were administered to Mr. Fuston. The Oklahoma Court of Criminal Appeals determined that Mr. Fuston did not meet the criteria for intellectual disability because of his performance on a single IQ measure administered when he was 12 years old, instead of the totality of his performance on subsequent intelligence measures. Mr. Fuston was also denied 14 other, unrelated propositions on appeal, and the state reaffirmed his death sentence. Implications and recommendations for forensic practice are discussed.

'Alternative facts': Public opinion surveys on the death penalty for drug offences in selected Asian countries.

BACKGROUND: in recent years, many Asian countries have witnessed an intensification in populist discourses identifying the death penalty as a central tool of drug control, with public opinion surveys referred to as invaluable evidence of public support for the death penalty. This paper will address the claim that the public supports capital punishment, and the role of surveys in shaping this discourse. METHODS: review of thirty-nine public opinion surveys on the death penalty carried out in five Asian countries which retain the death penalty for drugs or are considering re-introducing it. The review was conducted by analysing and comparing design, methodology, findings, and the relationship between these elements. RESULTS: all but two surveys recorded a majoritarian support for the death penalty, driven by beliefs in (a) deterrent effect of the death penalty, and (b) perfect justice - both disproven. Complex surveys found a low intensity of support, and a limited interest and knowledge by the public in capital punishment. Support for capital punishment is lower for drug offences specifically, and it decreases significantly when expressed with reference to real-life cases. Limited data suggest that the public in the focus countries has reservations on the effectiveness of the death penalty to reduce drug offences, and prefers a discretionary system of punishment. The analysis also revealed correlations between the framing of survey questions and their findings. CONCLUSION: Public opinion surveys conducted in China, Malaysia, the Philippines, Singapore, and Thailand suggest that the public knows little and has little interest in the death penalty. Although majoritarian, its support is based on a faulty understanding of key facts related to capital punishment, and an increase in knowledge is correlated to a decrease in support. More rigorous polling exercises demonstrate that public support for capital punishment - both in general and for drug offences specifically - is instinctive, abstract, elastic, and contextual.

An uphill battle: A case example of government policy and activist dissent on the death penalty for drug-related offences in Indonesia.

In 2014, newly-elected President Joko Widodo announced that Indonesia was facing a national 'emergency' due to high levels of drug use that necessitated harsh criminal justice responses, including the ultimate punishment of death. On April 29, 2015 Indonesia executed eight prisoners condemned to death for drug-related offences, including seven foreigners, eliciting widespread international criticism. This commentary explores the strategies employed and obstacles faced by national anti-death penalty advocates that opposed the 2015 executions, primarily focusing on their efforts between 2015 and 2017. We begin by highlighting existing political narratives that make the death penalty an attractive option for the Indonesian government, before discussing key approaches employed as part of anti-death penalty efforts. It is hoped that a better understanding of existing efforts to promote abolition and the challenges associated with these approaches will help inform a more systematic and evidence-based approach to policy, practice, and discourse on the death penalty for drug-related offences in Indonesia.

Aggression, Escalation, and Other Latent Themes in Legal Intervention Deaths of Non-Hispanic Black and White Men: Results From the 2003‒2017 National Violent Death Reporting System.

Objectives. To investigate racial/ethnic differences in legal intervention‒related deaths using state-of-the-art topic modeling of law enforcement and coroner text summaries drawn from the 2003-2017 US National Violent Death Reporting System (NVDRS). Methods. Employing advanced topic modeling, we identified 8 topics consistent with dangerousness in death incidents in the NVDRS death narratives written by public health workers (PHWs). Using logistic regression, we then evaluated racial/ethnic differences in PHW-coded variables and narrative topics among 4981 males killed by legal intervention, while adjusting for age, county-level characteristics, and year. Results. Black, as compared with White, decedents were younger and their deaths were less likely to include PHW-coded mental health or substance use histories, weapon use, or positive toxicology for alcohol or psychoactive drugs, but more likely to include "gangs-as-an-incident-precipitant" coding. Topic modeling revealed less frequent thematic representation of "physical aggression" or "escalation" but more of "gangs or criminal networks" among Black versus White decedents. Conclusions. While Black males were more likely to be victims of legal intervention deaths, PHW-coded variables in the NVDRS and death narratives suggest lower threat profiles among Black versus similar White decedents. The source of this greater risk remains undetermined.

Deadly serious: The United Nations, drugs, and capital punishment in the 1980s.

BACKGROUND: Research into capital punishment has focussed on the length of time it will take to abolish. It will take decades or centuries. A key moment in the movement to abolish the death penalty was the 1980s when the Second Optional Protocol to the ICCPR was developed. This was also the decade that the last significant changes were made to the United Nations drug conventions. At the time, awareness of the issue of capital punishment for drug offences was increasing around the world as more people were getting executed. This article looks at how western countries and the United Nations responded to Malaysia which introduced the mandatory death penalty for drug offences in 1982. METHODS: Over 30,000 pages of documents have been accessed through the National Archives of Australia in Canberra. These have been photographed, scanned and converted to OCR. The most relevant folders have then been analysed through NVivo 12 to look for relevant mentions of the research question: capital punishment and Malaysia. All probative data is then presented in the article. RESULTS: The data from National Archives suggests that the UN, Australia, and other western countries were happy to continue supporting Malaysia's drug policy and to elect it to high positions at UN meetings despite their public proclamations that they were opposed to the death penalty. CONCLUSION: Applying a critical juncture approach, the article concludes that the 1980s was a critical juncture in the movement to abolish the death penalty but abolitionist countries allowed capital punishment to continue for drug offences. This may have set back the abolition movement by decades.