The Atlantic

Is Psychiatry Partisan?

A debate on the nature of expertise in mental health could decide three people’s lives, and many more to come.
Source: Jesada Sabai / Shutterstock / Zak Bickel / The Atlantic

Minutes before Don Davis was to be executed last month, word came from the U.S. Supreme Court not to proceed. For now, Davis is still alive, a convicted murderer among the survivors of Arkansas Governor Asa Hutchinson’s April rush to execute eight death-row inmates before state’s supply of midazolam expired and could no longer be considered safe to use in bringing about death.

The execution, along with that of inmate Bruce Ward, was stayed based on a legal question over what sort of mental-health assistance indigent defendants should receive. Davis was sentenced to death after evaluation at a state hospital and denied a mental-health expert to assist in his defense. His case raised the same question that is currently before the Supreme Court in McWilliams v. Dunn.

That case goes back to 1986, when James McWilliams was sentenced to death for the rape and murder of a convenience-store clerk in Alabama. McWilliams did not receive a mental-health expert to assist in his defense, and the state claimed that he was only entitled to a court-appointed expert—one who would be shared by the prosecution and defense.

That psychiatrist testified that McWilliams had no serious mental illness but had tried to feign one. A stack of health records landed on the desk of his attorney shortly before the trial with no one to interpret or make sense of their implications.

So the question is whether this sort of mental-health assessment, from a court-appointed expert (often referred to as a neutral or independent expert) is sufficient and fair. McWilliams’s case argues that indigent defendants claiming to be mentally ill or incompetent to stand trial must be provided with a psychiatrist who will work with the defense, confidentially, in assessing these claims.

Scott Braden, who represents Davis and Ward, said in a statement: “The Arkansas Supreme Court recognized that

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