Inmate Poses Ethics Problem for Doctors

A big “what if” hangs over the sanity trial of condemned triple murderer Horace Edward Kelly Jr.: What if the jury charged with deciding whether the San Quentin inmate is sane enough to be executed concludes that he is not?

The short but fuzzy answer, by a state that has not faced this issue in nearly half a century, is that the 38-year-old inmate would probably be sent to a mental institution, treated for his psychosis and then executed after doctors brought him back to mental health.

But what doctor who swears by the Hippocratic oath to shield patients “from harm and injustice” would cure a man so that he may be killed? Conversely, what doctor who swears by that same oath to “use treatment to help the sick” would stand by and do nothing while a human being suffers the ravages of advanced psychosis?

Ever since the U.S. Supreme Court ruled in 1986 that executing the insane constitutes cruel and unusual punishment, doctors and psychiatrists, academics and ethicists nationwide have struggled with the thorny problem of what to do with these inmates.

Granted, prisoners like Kelly--who are ruled sane when they commit their crimes, sane when they are condemned to death, but allegedly lose their minds in the confines of death row--are a tiny subset of the burgeoning prison population, perhaps five men in the past 12 years.

But the fate of these condemned prisoners, the issues that their rare predicaments raise and the responsibilities of their keepers strain the moral parameters of our legal, medical and mental health systems.

And as the population on America’s death rows escalates--from 1,000 in 1982 to nearly 3,400 this year--an increasing number of mental health professionals will become involved in treating the condemned.

Debate Over Psychiatrists’ Role

Controversy over the role of psychiatrists in the corrections system bubbles throughout the pages of scholarly journals around the globe. The American Psychiatric Assn., the American Medical Assn. and the National Medical Assn., a group of predominantly black physicians, have all weighed in somewhere along the spectrum that runs from “never treat” the condemned if it will land them back on death row, to “always treat,” no matter what.

So murky is this ground that Dr. Robert Knapp--the medical director at one of the two institutions where Kelly could be sent if he is ruled not competent for execution--is torn about what to do.

“It’s a very rare thing,” said Knapp, of Atascadero State Hospital. “It’s not something that most of us have had experience with. . . . My position is very similar to my position on abortion: Since I have not been called upon to make that decision, I don’t know what I would decide.”

Why should we care about this small handful of murderers who committed crimes heinous enough to get them condemned to death? Why does their fate send a shudder through the medical and psychiatric communities?

“The death penalty tends to accentuate just about every dilemma we have in society,” said Richard J. Bonnie, a law professor at the University of Virginia and director of the university’s Institute of Law, Psychiatry and Public Policy. “Here, it accentuates the problems that occur in the treatment of people in custody and with severe disorders.”

Dr. Paul S. Appelbaum, chairman of the psychiatry department at the University of Massachusetts Medical Center, contends that what a culture does with the condemned insane raises fundamental questions about the involvement of medicine and psychiatry in the criminal justice process.

“It asks at what point does medical involvement cross the line from legitimate medical assistance . . . to being so closely implicated in the administration of punishment that it is no longer a legitimate part of the physician’s duty,” Appelbaum said.

Fourteen years ago, Horace Edward Kelly Jr., in the 24th year of a painful life, shot two women to death in San Bernardino after trying to rape them. A week later, he killed an 11-year-old boy who was walking to the candy store with his cousin after Thanksgiving dinner in the Riverside County town of Pedley. He shot the child three times, the last time in the face, as the boy pleaded for mercy.

The 1984 killings were Kelly’s first brush with the law. Until then, his role in life had been victim. He was abused by his mother, his father, strangers. Born two months premature and weighing 2 pounds, he began to exhibit “spells and trances” at age 2, according to court documents.

By late adolescence, “he believed he could talk to animals and at times believed he was an animal, ate dog food, ate meals in a tree where he sat and howled,” his attorney wrote to Gov. Pete Wilson in a letter asking for clemency. “Mr. Kelly’s schizophrenia reached its active phase by his early 20s. . . . He believed he had bionic ears and could hear, see and smell things others could not. By the mid-1980s, Mr. Kelly was floridly psychotic.”

By that time, he was also on death row at San Quentin State Prison, where medical records detailed his deteriorating mental state. By the time Kelly’s execution was set for April 14, the warden had become concerned that Kelly might not be competent to face lethal injection.

The year Kelly arrived at San Quentin, the U.S. Supreme Court had ruled that executing the insane was cruel and unusual punishment and, therefore, unconstitutional.

“Whether the aim is to protect the condemned from fear and pain without the comfort of understanding or to protect the dignity of society itself from the barbarity of exacting mindless vengeance, the restriction finds enforcement in the 8th Amendment,” Justice Thurgood Marshall wrote in the majority opinion.

Jury Begins Hearing Case on Tuesday

A turn-of-the-century California statute, unused since 1951, requires that a jury decide whether Kelly is sane enough to die by lethal injection. That jury was impaneled last Thursday, and the trial is expected to begin Tuesday. If the jury of nine women and three men finds Kelly sane, a new execution date will be set.

If it does not, the California Penal Code requires that he be sent to “a medical facility of the Department of Corrections.” The two possibilities are the Atascadero facility, just north of San Luis Obispo, and the California Medical Facility at Vacaville, east of San Francisco.

To date, where Kelly will go and what will happen to him there are open questions, said Matt Ross, spokesman for the California attorney general. “First things first,” Ross cautioned. “Let’s wait and see about the competency hearing.”

Kelly spends his days mute and immobile, chained to a chair in a Marin County courtroom, receiving no medication or treatment. The doctors who would care for him if he is judged insane can find some guidance--and some conflict--in the official policies of the nation’s medical and psychiatric associations.

The American Psychiatric Assn.’s policy statement notes that physicians in this century committed “heinous crimes,” causing death and torture in Russia and Germany, and that “some physicians were notoriously cooperative with the official aims of Nazi Germany.”

As a result, the association “strongly opposes” psychiatrists treating inmates if that would lead “directly or indirectly to the death of a condemned person,” the policy states.

The American Medical Assn. advises physicians to treat condemned prisoners for psychosis or any other illness--but only to relieve extreme suffering and only if that treatment will not lead to a patient’s execution.

“When a condemned prisoner has been declared incompetent to be executed, physicians should not treat the prisoner to restore competence unless a commutation order is issued before treatment begins,” the association says in its official policy.

This is because the medical arts are only meant to remedy illness, said Dr. Randolph Smoak, vice president of the AMA board of trustees. The organization opposes both physician-assisted suicide and the treatment of prisoners to enable execution--for the same reason.

“We are not in the business of creating death,” said the South Carolina surgeon.

The Hippocratic oath, to which all doctors swear, has as its major tenet a doctor-patient relationship with the patient’s best interests at heart. But if doctors are working for the state at the same time that they are ostensibly working for a patient, whose interests are they really serving?

In that circumstance, a doctor becomes “suddenly a double agent,” said Dr. Paul J. Fink, former president of the American Psychiatric Assn. “You have the psychiatrist in two worlds struggling with his own moral and ethical rules and the fact that he will lose his job if he doesn’t follow orders. . . . He is the agent of the state. He should be the agent of the patient.”

Oath Subject to Interpretation

But the same oath that says medical treatment should not expose a patient to “harm and injustice,” also says that a doctor’s job is to treat, to ease suffering, to help the sick--a tension that is far from new.

Psychiatrists during World War I were responsible for curing soldiers of shell shock, only to send them off to almost certain death in the trenches.

“How far can we look into the consequences of what we do?” asked Atascadero’s Knapp. “If we treat someone and they get better and they return to a setting where they will be victimized or exploited or have a destructive family relationship, we say, ‘No, treat them. Of course.’

“If someone is going to be executed, we say, ‘Oh, our actions will lead to their death.’ I’m not sure that by treating them to recover their mental health we are directly responsible for their death,” he said.

The National Medical Assn. does not specifically address the concerns of inmates on death row but believes that “during the period of incarceration inmates should be tested, treated and counseled appropriately concerning their health care problems.”

Dr. Shirley Marks, a Texas psychiatrist and NMA trustee, acknowledges the complexity of the ethical issue. She worries that a blanket ban on the treatment of the condemned insane could end up depriving other death row inmates of the psychiatric care they need, she said.

There is also a middle position on the treatment spectrum, a position that is considered ethical under the AMA guidelines: Treat the prisoner to relieve suffering, but stop short of readying that inmate for execution.

If, for example, a patient is in full psychosis and suffering from a condition called “catatonic excitement,” that prisoner could bash his head against the wall for 48 hours or could gouge his eyes out with his thumbs.

“If the suffering is that acute,” said Bonnie, “then there might be a reason to treat. . . . An important mission for psychiatry under these circumstances is to prevent suffering. But we have a conflict of professional ethical goals.”

If Horace Kelly is ruled not competent for execution, the case of Gary Alvord--who has been on Florida’s death row on and off for 25 years--is a cautionary tale for Kelly’s future caregivers.

In 1973, Alvord was convicted of murdering a Tampa, Fla., woman, her mother and her daughter. On the eve of his execution 11 years later, three psychiatrists examined the man and questioned his understanding of his upcoming punishment.

Then-Gov. Bob Graham ruled that Alvord should go to a mental hospital run by the state’s corrections department. But hospital personnel protested the transfer “and refused to evaluate him for competency for execution,” said Michael Radelet, chairman of the University of Florida sociology department and author of “Executing the Mentally Ill.”

Radelet, who has studied and written about the Alvord case, said that Alvord later refused to cooperate in psychiatric evaluations and was returned to death row, where he remains to this day, “lost in legal limbo and crazy as a three-dollar bill.”