“Where you’re talking about areas where there is a standard protocol and scientific methodology—like with DNA testing—there are a very specific, validated steps that every examiner is supposed to follow,” said Brand, the defense attorney with the Fair Punishment Project. “And you can cross-examine an expert on it. Whereas when you’re talking about forensic psychiatry and forensic psychology, those fields are just, they’re—malleable isn’t quite the right word. But they really require a lot more subjective analysis.”
So what happens when that expert opinion is based largely on the words of the patient? And the disorder in question is characterized by deceitfulness?
Len Cruz spent 12 years as a psychiatrist in the U.S. Air Force, where he faced similar dilemmas. He tells me it was common for commanding officers to send him troops who had been “exhibiting unusual behavior” and ordering them to undergo a psychiatric evaluation. Among the ethical challenges, Cruz recalled to me earlier this year, was that officers were often sent to him who didn’t want to be there. “How do you penetrate beneath the surface to try to determine is this soldier is, you know, faking? There are some ways, but, boy, that’s not an easy interview.”
The question is obviously especially consequential when deeming a person malingering means they could be put to death. In assessing a person’s capacity in court, psychiatric diagnosis tend to be “of secondary importance,” explains Petrila, the forensic-psychology scholar. A person might be under tremendous stress, and have bipolar disorder, but if the person has a basic understanding of what the legal system intends to do, then they can be deemed competent to be executed. “The question is, is the person able to make decisions, to take in information. And it’s based on imprecise measures.”
Petrila thinks that guaranteeing access to mental-health experts is, in principle, a good thing. “But I’m also mindful that you don’t want to have kind of avalanche of experts. So now the prosecution has theirs, I’ve got mine. They disagree. So now we want a third expert, you know. It can become ludicrous,” he said.
“I’m in favor of the principle if it serves fairness,” he added, “but I’m not under any illusion that it solves quality issues or creates efficiency.”
From the subjectivity of diagnoses to the imprecision of assessing competence, mental health does seem unique among medical specialties. Gorsuch’s concern for a slippery slope could well be misplaced.
“I think mental health issues are unique because when you're talking about criminal prosecution, that that's where the relevant issues are,” said Stephen Lally. “And as a question of resources, yes, it would be cheaper to say nobody has such a right. Just like it would be cheaper in terms of resources to say that we don't have a right to an attorney. But in a justice system that values fairness and a level playing field, it just seems like an important part of that is allowing the defendant to have access to a mental health expert who could help clarify and consult.”