Ethics Questions Raised by the Neuropsychiatric

REGULAR ARTICLE Ethics Questions Raised by the Neuropsychiatric, Neuropsychological, Educational, Developmental, and Family Characteristics of 18 Juveniles Awaiting Execution in Texas Dorothy Otnow Lewis, MD, Catherine A. Yeager, MA, Pamela Blake, MD, Barbara Bard, PhD, and Maren Strenziok, MS Eighteen males condemned to death in Texas for homicides committed prior to the defendants’ 18th birthdays received systematic psychiatric, neurologic, neuropsychological, and educational assessments, and all available medical, psychological, educational, social, and family data were reviewed. Six subjects began life with potentially compromised central nervous system (CNS) function (e.g., prematurity, respiratory distress syndrome). All but one experienced serious head traumas in childhood and adolescence. All subjects evaluated neurologically and neuropsychologically had signs of prefrontal cortical dysfunction. Neuropsychological testing was more sensitive to executive dysfunction than neurologic examination. Fifteen (83%) had signs, symptoms, and histories consistent with bipolar spectrum, schizoaffective spectrum, or hypomanic disorders. Two subjects were intellectually limited, and one suffered from parasomnias and dissociation. All but one came from extremely violent and/or abusive families in which mental illness was prevalent in multiple generations. Implications regarding the ethics involved in matters of culpability and mitigation are considered. J Am Acad Psychiatry Law 32:408–29, 2004 The first well-documented case in America of execut- principle, the New Jersey Supreme Court, in the case ing a child antedates the American Revolution. In of State v. Aaron,5 overturned the death sentence of 1642, a 16-year-old boy, Thomas Graunger, was an 11-year-old slave convicted of murdering a hanged for the crime of bestiality, having sodomized younger child. The Court held that the presumption a horse and a cow.1 Over the next 200 years, only 18 of innocence had not been refuted by “strong and juveniles in the entire country were executed. How- irrefutable evidence that he had sufficient discern- ever, long after the United States broke from En- ment to distinguish good from evil.” However, de- gland, it continued to base many of its laws on En- spite this developmentally sophisticated ruling, be- glish common law.2,3 In the late 18th century, tween 1850 and 1860, six juveniles were put to death Blackstone argued that if it appeared to the court and in the United States. Among them was an 11-year- the jury that he [the child] was ‘doli capax’ and could old slave who was condemned to die for hacking to discern between good and evil, he could be convicted death a 4-year-old.6 Covered with the blood of his and sentenced to death.4 In accordance with this victim but unable to appreciate the evidence of his act, the child blamed the assault on imaginary Indi- Dr. Lewis is Clinical Professor of Psychiatry, and Ms. Yeager is Re- search Associate, Yale University Child Study Center, New Haven, ans. This implausible explanation was interpreted by CT. Dr. Blake is Assistant Professor, and Ms. Strenziok is Research adults as a lie and thus that the child knew right from Assistant, Department of Neurology, Georgetown University Hospi- tal, Washington, DC. Dr. Bard is Professor Emeritus, Department of wrong. Special Education, Central Connecticut State University, New Over time we have created a paradoxical system of Britain, CT. Address correspondence to: Dorothy Otnow Lewis, MD, 10 St. Ronan Terrace, New Haven, CT 06510. E-mail: dorothy. justice, the juvenile justice component of which rec- [email protected] ognizes the emotional and intellectual immaturity of 408 The Journal of the American Academy of Psychiatry and the Law Lewis, Yeager, Blake, et al. juveniles in contrast to adults. On the other hand, and (4) to raise the question of whether the justice under certain circumstances (i.e., serious violent system will be able or willing to integrate into its crime), emotional and cognitive immaturity are ig- codes the current neuropsychiatric understanding of nored and juveniles can be tried and sentenced as the relationship of brain development and function adults. Over the past two decades, the Supreme to violent behavior. Court of the United States has wrestled with these paradoxes, trying to determine at what developmen- Methods tal age or stage a child’s thinking has matured sufficiently to be considered equivalent to that of an Sample adult. For example, in 1988, in the case of Thompson 7 Our sample consisted of 18 males who had been v. Oklahoma, the Court ruled that Thompson, 15 condemned to death for homicides committed prior years old at the time of his crime, was too young to be to their 18th birthdays. At the time of sentencing, sentenced to death for murder. A year later, however, death could be imposed in Texas on any juvenile 17 in the case of Stanford v. Kentucky, the same Court years of age or older who had committed a murder decided that 16-year-olds were sufficiently mature to classified as a “capital felony.”11 These individuals 8 be tried as adults and sentenced to death. were part of a cohort of 26 condemned juveniles in Today, 15 years after Stanford v. Kentucky, medical the State of Texas in 2004. Attorneys assisting the 18 technology has advanced sufficiently to shed light on inmates and their individual lawyers in their appeals the matter of brain maturation. We know, for exam- requested comprehensive neuropsychiatric, neuro- ple, that certain areas of the brain (e.g., the temporal psychological, and educational evaluations. The lobes and prefrontal cortex), essential for mature rea- evaluations were requested because of the inmates’ soning and self-control, are not fully myelinated dur- youth at the times of their offenses and not because of 9,10 ing late adolescence. Furthermore, a consensus any known or suspected neuropathology or psycho- exists that a mature, well-functioning prefrontal cor- pathology. Only 4 of the 18 juveniles had undergone tex is essential for judgment, for the modulation of pretrial psychiatric evaluations, two of which were strong internal stimuli, and for measured reactions to performed for the court and two for the defense. As internal and external stressors. When the prefrontal far as could be ascertained, none had received pretrial cortex is immature, dysfunctional, or damaged, the neurologic or neuropsychological examinations. To abilities to think ahead, plan, control the expression the best of our knowledge, no presentencing neuro- of emotions, and learn from the consequences of psychiatric evaluations were conducted. Therefore, one’s behavior are compromised. With the advances attorneys wanted to determine the existence, if any, in medical technology has come an increased interest of mitigating factors that had not been introduced at in the neuropsychological assessment of prefrontal trial or sentencing. In Texas, such factors were de- cortical function as it relates to aggression. Can this fined as “any matter that the court deems relevant to knowledge increase our understanding of juveniles sentence, including evidence of the defendant’s back- who commit murder and are condemned to death? ground or character or the circumstances of the of- To this end, our study was directed. fense that mitigate against the imposition of the The purpose of this article is fourfold: (1) to death penalty.” A major aggravator in Texas was the present the biopsychosocial characteristics of 18 likelihood of future dangerousness, the criteria for young men condemned to death as juveniles and which were not stipulated.12 awaiting execution in the State of Texas in 2004; (2) Our services were made available to all 26 con- to clarify the ways in which the immaturity of their demned juveniles. The reasons why eight inmates central nervous systems, traumas to their brains, pre- did not participate could not be determined. How- dispositions to psychiatric illness, and chaotic, vio- ever, in the course of our work at the prison, four of lent, and abusive upbringings may have diminished these eight condemned juveniles expressed a desire to their judgment and self control; (3) to call attention be evaluated by the clinical team. In these cases, for to the failure of previous clinicians to obtain, either reasons that were not shared with the team, they from the juveniles or from outside sources, their were not permitted to do so. No known demo- medical, educational, and family histories—data po- graphic differences existed between participants and tentially relevant to culpability and/or mitigation; nonparticipants. Volume 32, Number 4, 2004 409 Biopsychosocial Characteristics of Juveniles Awaiting Execution All 18 subjects were 17 years of age at the time of were experienced in the neuropsychiatric assessment the murders for which they were condemned to of violent juveniles and adults. The nature of the death. The average age at the time of the present psychiatric evaluation and the ways in which symp- evaluations was 26.6 years (SD ϭ 2.5 years; me- toms were classified have been described.14 Briefly, it dian ϭ 27.0 years). Subjects’ time on death row consisted of a semistructured interview based on the ranged from 2 to 14 years (M ϭ 6.9 years, SD ϭ 3.0 Bellevue Adolescent Interview Schedule and the Dis- years). Forty-four percent of the subjects were sociative Disorders Interview Schedule.15–17 Topics Latino, 29 percent African-American, 22 percent included histories of neuropsychiatric symptoms, European-American, and 5 percent other. Seventeen psychiatric treatment, medical history, characteris- of the group came from families in socioeconomic tics of temper, family mental health histories, and Classes IV and V, based on Hollingshead and Red- histories of child physical and sexual abuse and fam- lich’s Two Factor Index of Social Position,13 and one ily violence. An examination of scars on the face, came from socioeconomic Class III. head, and body was also performed.

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