Diagnosis Dangerous: Why State Licensing Boards Should Step in to Prevent Mental Health Practitioners from Speculating Beyond the Scope of Professional Standards

This Article reviews the use of mental health experts to provide testimony on the future dangerousness of individuals who have already been convicted of a crime that qualifies them for the death penalty. Although this practice is common in many states that still retain the death  penalty, it most frequently occurs in Texas because of a statute that makes  it mandatory for juries to determine the future dangerousness of the  defendant they have just found guilty. Both the American Psychiatric  Association and the American Psychological Association have protested  the use of mental health professionals in this setting because there are no  scientifically valid methods to make these predictions for people who face  long periods of incarceration in maximum-security prisons. Existing  models of prediction consider the behavior of individuals in the free world.  Moreover, the Supreme Court has upheld these predictions of  dangerousness in capital sentencing hearings on the grounds that neither  of the protesting professional organizations actually license mental health  professionals. Therefore, this Article suggests that these state licensing  boards be held responsible for assuring mental health professionals do not  testify beyond the scope of medical support or evidence. In so doing, it  analyzes cases in which health care professionals, in general, have been  held responsible by state licensing boards for testimony that is beyond  what is acceptable practice in that profession.