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Medicating Prisoners So They Can Be Killed:
A Federal Court Approves Forcible Antipsychotic Treatment for Mentally Incompetent Convicts


Wednesday, Feb. 26, 2003

Earlier this month, the U.S. Court of Appeals for the Eighth Circuit decided the case of Singleton v. Norris. The court there approved the forcible medication of death row inmates who would otherwise be incompetent - that is, too mentally impaired - to be executed.

In justifying its decision, the court explained that it had balanced the government's interest in carrying out a scheduled execution, against the inmate's right not to endure forcible medical treatment. In that balancing, the court said, the state's interest had prevailed.

The result the court reached exposes the peculiar consequences of a legal doctrine that requires that a prisoner be "competent" before he can be executed.

The Legal Doctrine of Competency To Be Executed

In Ford v. Wainwright, the U.S. Supreme Court held that executing a person who is incapable of comprehending what is happening to him or why violates the Eighth Amendment's prohibition against cruel and unusual punishments. The Court's opinion provides an array of possible rationales for this holding but does not express a preference among them.

According to some, insanity is its own punishment. Others believe that people about to die should be able to prepare to meet their maker. There are also those who say that to execute the insane is arbitrary and thus has no educative or deterrent value. Some theorize further that true retribution requires a comprehending target. And people have additionally argued that an insane inmate cannot help his lawyer obtain a last-minute stay of execution.

The idea of competence for punishment is unique to the death penalty. If John Doe is sentenced to a term of imprisonment and later goes out of his mind, the state may continue to keep him in the penitentiary for the duration of his sentence. Though Doe might receive medical treatment as a prisoner, the constitutionality of his remaining in prison does not hinge on the outcome of that treatment.

Ordinarily, a person who has been lawfully tried, convicted, and sentenced will be punished, regardless of whether he later becomes mentally incapacitated. One need not be "competent for incarceration."

The Problem of Declining Sanity on Death Row

Readers may wonder how it is that an insane person winds up on death row in the first place. After all, if a person is insane at the time of his crime, then he should qualify in most states for acquittal by reason of insanity.

The reason for this odd state of affairs is that even if a defendant is sane at the time of her crime, the experience of living on death row can lead her to descend into madness. And under Ford, if she does, then the state cannot execute her -- no matter what her mental state might have been at a previous time.

Prosecutors have thus become advocates of forcibly medicating death row inmates, and judges are left to decide the legality of this practice.

The Right to Refuse Medical Treatment

Under most circumstances, every person in the United States has a privacy right to refuse medical treatment, even if the treatment in question is necessary to save the person's life. The issue in Singleton is whether that right applies when the treatment in question is necessary to end the person's life.

The Supreme Court has addressed a few of the concerns embedded in this issue. These precedents, however, ultimately shed only limited light on whether the Eighth Circuit's decision was correct.

The first concern is whether a patient can be forcibly medicated to achi eve an objective that is separate from the patient's own wellbeing. Requir ing vaccinations (a measure that the Court has upheld), rests on such a fou ndation: although the vaccine is intended to protect the person who is vacc inated, it is also mandated as a means of protecting the rest of the popula tion from a contagious disease.

More specifically regarding the prison context, the Supreme Court ruled in Washington v. Harper that forcibly medicating a dangerous prisoner with antipsychotic drugs was permissible if the drugs were in the prisoner's medical interest. The fact that the medication facilitated prison security and order did not undermine the constitutionality of the treatment.

The second concern embedded in the Singleton dilemma is whether the determination of a person's medical interests should encompass the legal consequences that follow from forcible treatment. In Riggins v. Nevada, the Supreme Court considered whether a criminal defendant could be forcibly medicated to maintain his competence to stand trial. On the particular facts, the Court found that the State of Nevada had not adequately proved that antipsychotic drugs were necessary to that end.

Furthermore, the Court said, the possibility that antipsychotic medication could distort the defendant's affect or dull his emotional investment in the outcome of the proceeding militated strongly against forcible medication of defendants during trial.

Justice Anthony Kennedy wrote a separate concurrence "to express [his] view that absent an extraordinary showing by the State, the Due Process Clause prohibits prosecuting officials from administering involuntary doses of antipsychotic medicines for purposes of rendering the accused competent for trial, and to express doubt that the showing can be made in most cases, given our present understanding of the properties of these drugs."

Why the Supreme Court's Precedents Don't Resolve the Singleton Case

Neither Harper nor Riggins definitively answers the Singleton question. Granted, the Court in Harper does not balk at the potential for ulterior motives in medicating prisoners. But it is also true that maintaining order in a prison is not inherently antithetical to the prisoner's medical interests; indeed, it could further those interests by preventing a psychotic prisoner's violence toward himself. It is difficult to say the same of execution.

Riggins, on the other hand, does raise barriers to forcible medication for trial competency. But its primary worry is the defendant's ability to assist in his own defense, rather than the privacy right against forcible treatment.

The Riggins Court, moreover, does not appear to classify a potentially unfair trial (at which, for example, the defendant makes strange faces and comes across to jurors as indifferent) as an undesirable medical consequence of treatment. Instead, the Court considers it a Sixth Amendment problem.

Practicing Offensive Medicine

Prisoners, as a general matter, have fewer and less robust constitutional entitlements than the rest of the population. For that reason, the right to refuse medical treatment is not unqualified among prisoners, even under circumstances in which it would be for free people.

Furthermore, in Singleton's particular case, the drugs to be administered are helpful and, in the absence of a scheduled execution, Singleton concedes, he would willingly take them. Singleton's interest is simply in avoiding execution, an interest that no longer carries constitutional weight.

The court of appeals put the matter starkly: "Singleton's argument regarding his long-term medical interest boils down to an assertion that execution is not in his medical interest. Eligibility for execution is the only unwanted consequence of the medication."

To understand why this issue is agonizing for many, consider two analogies. First, suppose that an inmate scheduled to be executed by hanging is not heavy enough for the hanging machinery to kill him instantaneously.

In the light of Eight Amendment precedents, the state Supreme Court finds that the prisoner may not be hanged at his current weight. To make him eligible for execution, the state proposes force-feeding the condemned, who is admittedly underweight and would be healthier if he were fifteen pounds heavier. Can force-feeding occur?

Second, imagine that an inmate scheduled to be executed becomes comatose and therefore incompetent to be executed. There are various treatments that would probably revive the prisoner, but he has left an advance directive indicating that he does not want to be treated if he becomes comatose, unless his sentence is first commuted to life imprisonment. The state proposes treating the prisoner despite his expression of intent. Can he be brought out of the coma against his will?

In both of these cases, there is something vaguely grotesque about utilizing a therapeutic intervention to facilitate a scheduled execution. The process of improving a person's health in order to kill him feels like a cruel betrayal.

Creating moral ambiguity, however, is the fact that a refusal to provide needed medical care or food might itself raise serious questions of cruel and unusual punishment. There is betrayal, whichever way we turn.

Severing the Link Between Treatment and Execution

The solution to the dilemma may be to sever the link between treatment and death. States could classify mentally ill individuals as automatically ineligible for execution, regardless of how effective treatment might be. Alternatively, the Supreme Court could reconsider the requirement of competency for execution.

However we proceed, the link between medical treatment and execution sullies not only the doctors who participate in such treatment but also the prosecutors who fight to revive a man's sanity only to extinguish both the man and his sanity shortly thereafter.

Sherry F. Colb, a FindLaw columnist, is a Professor at Rutgers Law School in Newark.

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