March 2004 Vol. XXI Issue 3
Condemned Prisoner Treated and Executed
Commentary by Alan A. Stone, M.D.
On Jan. 6, the state of Arkansas executed Charles Singleton by lethal injection. His death went unnoticed by the national media, but it will be remembered and discussed in the years ahead by medical ethicists and everyone else interested in the intersections of human rights, psychiatry and law.
Singleton by all accounts had become psychotic during the 24 years he spent on death row and would have been incompetent to be executed had he not been taking psychiatric medications. Richard Dieter, executive director of the Death Penalty Information Center in Washington, D.C., believes that Singleton is the first prisoner to be executed after being declared incompetent to be executed under the guidelines formulated by the U.S. Supreme Court in the case of Ford v Wainwright, 477 US 399 (1986).
The late Justice Thurgood Marshall, a lifelong opponent of capital punishment, wrote the majority opinion in Ford, holding that the Eighth Amendment's prohibition of cruel and unusual punishment prevents the state from executing an insane prisoner. However, in what proved to be the crucial concurring opinion, the late Justice Lewis F. Powell Jr. emphasized that the state had a valid interest in imposing the death penalty on Ford and that the issue was not whether Ford could be executed, "but, when his execution may take place." And then in an ominous footnote Powell explained, "My point is only that if petitioner [Ford] is cured of his disease the state is free to execute him."
Powell's "cure to execute" footnote raised serious ethical questions for psychiatrists. The state might have a legal interest in curing and executing condemned prisoners, but psychiatrists thought it would be medically unethical to participate in that process. However, psychiatrists also recognized that it would be unethical to withhold treatment and allow a profoundly psychotic death row inmate to suffer and deteriorate. Ethical guidelines were established by the American Medical Association and the American Psychiatric Association, which recognized that an ethically responsible psychiatrist would have to steer an uncharted course between these pitfalls (Code of Medical Ethics, H-140.950 Physician
Participation in Capital Punishment).
The Supreme Court's decision in Ford did not deal with the question of whether the state, in its efforts to cure death row inmates, could force antipsychotic medications on them. That issue was soon presented to the court in Perry v Louisiana, 498 US 1075 (1990). The APA, in its amicus brief, emphasized the ethical quandaries for psychiatrists and urged the Supreme Court to commute Perry's death penalty to life imprisonment without possibility of parole. This would allow Perry to receive appropriate care without his psychiatrists having to worry that they would be facilitating his execution. The Supreme Court eventually sent the case back to Louisiana and has never resolved the question of whether a state can involuntarily treat, cure and execute a death row prisoner.
The Louisiana Supreme Court, however, had no difficulty deciding the answer to that question. In the case of State v Perry, 610 So2d 746 (La 1992), the court gave great weight to the ethical objections of organized psychiatry and found compelling reasons within its own constitution not to force treatment on a condemned man so that he could be executed. The South Carolina Supreme Court soon followed the Louisiana precedent, and the state of Maryland passed legislation adopting the commutation approach the APA had urged on the U.S. Supreme Court in Perry.
That is where the law seemed to stand until 1999 when the Arkansas Supreme Court broke with the precedents of its sister states and found a rationale for the treatment and execution of Charles Singleton, 338 Ark 135 (1999). Four years later, overruling its own three-judge panel, the Eighth Circuit Federal Court of Appeals issued an opinion supporting the state Supreme Court's decision in Singleton v Norris, 319 F.3d 1018 (8th Cir) (en banc), cert denied, 124 SCt 74 (2003). Chief Judge Roger Wollman, writing for the majority in a sharply divided 6-5 decision, ruled that neither the Eighth Amendment nor other procedural protections prohibited the execution of a death row inmate who "regained competency through appropriate medical care." The most startling line of the judge's decision was: "eligibility for execution is the only unwanted consequence of the medication."
Singleton's execution seemed to follow the scenario of Justice Powell's ominous footnote, but the real world of law and psychiatry is far more complicated. The ethical questions raised by the Singleton case, as we shall see, have more to do with physician-assisted suicide than with physician participation in capital punishment.
During his 24 years on death row, Singleton had been treated often for his psychiatric disorder. At times, he voluntarily took his medication (Appellant's Brief to the Eighth Circuit 2000 WL 33983423: 2000). For instance, in a 1995 hearing, Singleton stated that he was then voluntarily taking antipsychotic medication. Two years later, in 1997, he ceased taking the medication voluntarily. At that time his psychiatrist diagnosed him as psychotic, delusional and suffering from paranoid schizophrenia. He referred Singleton to the Medication Review Panel, which ordered involuntary treatment under the guidelines established by the Supreme Court in Washington v Harper, 494 US 210 (1990).
Harper provided for involuntary treatment when a prisoner is dangerous to self or others, and "the treatment is in the inmate's medical interest." Harper does not deal with the issue of restoration to competency to be executed.
It was clear that Singleton had become competent to be executed under the regimen of depot injections ordered under Harper, so his lawyer appealed.
According to the Arkansas Supreme Court, (99 SW2d 768,769): "The primary legal issue presented in this case was whether the State may mandatorily administer antipsychotic medication to a condemned prisoner [under Harper guidelines] when a collateral effect of that medication is to render him competent to understand the nature and reason for his execution." The Arkansas Supreme Court ruled that it "must look to the intent of the state in its decision to involuntarily medicate appellant" and concluded that "the intent of the state was not to make him competent to be executed" but to treat him under Harper.
How the state Supreme Court could identify the intention of the state of Arkansas baffled many who commented on the decision. As one reviewing judge noted respectfully, the state had been trying to execute Singleton for 20 years, which might indicate they had other intentions.
Singleton's lawyer Jeff Rosenzweig, who spoke to me by phone, has argued that treatment under Harper for a death row inmate might be constitutionally permissible during a stay of execution. However, once an execution date has been set, continuing involuntary treatment is not in the inmate's medical interest and other constitutional limitations on the state's power apply. He made those arguments to the Eighth Circuit Federal Court of Appeals.
Wollman, in the previously mentioned 6-5 decision, rejected Rosenzweig's argument; however, he did not rely on the Arkansas Supreme Court's intent of the state rationale. The judge reviewed the major constitutional cases dealing with the state's power to impose involuntary treatment. Wollman ignored the fact that none of those decisions dealt with capital punishment and that the Sell decision in his own court (about restoring competency to stand trial) had said that forced treatment for the death penalty raised different questions, 282 F3d 560 (2002). He reviewed the involuntary treatment decisions only for the standards they established for the medical appropriateness of forced treatment. Wollman observed that antipsychotic medication controlled Singleton's symptoms, that there were no untoward side effects, that there was no less intrusive treatment, that Singleton does not dispute that medication "is in his medical interest during the pendency of a stay of execution" and that it has restored his competency. These observations led Wollman to conclude that Singleton's treatment was medically appropriate and "the best medical interests of the prisoner must be determined without regard to whether there is a pending date of execution." Wollman then reformulated Powell's ominous footnote: "A state does not violate the Eighth Amendment as interpreted by Ford when it executes a prisoner who becomes incompetent ... but who subsequently regained competency through appropriate medical care."
Like the Arkansas Supreme Court, Wollman's opinion ignored the basic moral-legal question: Is it wrong--cruel and unusual, or excessive punishment--to restore a condemned madman to sanity so he can be executed by the state? Wollman also ignored the ethical questions raised by organized medicine and psychiatry that his dissenting colleagues addressed.
The Eighth Circuit opinion and the execution of Singleton have to be considered defeats for those who championed the ethical guidelines against psychiatric participation in capital punishment. But as noted, the case is more complicated than those guidelines imagined. At some point Singleton gave up his fight against the death penalty and asked his lawyer not to attempt further appeals. His lawyer reported that judges who conducted the hearings were very concerned that Singleton have informed consent, and he was told more than once in open court that if he took medication voluntarily it might lead to his execution. Nonetheless, at some point Singleton decided to take antipsychotic medication voluntarily because it controlled his symptoms. His lawyer confirmed that he was in fact taking the medication voluntarily in the weeks leading up to his execution. Furthermore, the governor of Arkansas indicated that if Singleton himself requested clemency he would consider granting it. But Singleton did not. According to his lawyer, he had become resigned to his fate.
Given these additional facts, one confronts a different set of ethical questions. Does a psychiatrist who is treating a death row inmate in Singleton's circumstances have an ethical duty to withhold a medical treatment that mitigates suffering and that the patient has decided to accept? One can perhaps imagine a psychiatrist determining that the patient/inmate is incompetent to make such a decision because he fails to appreciate that the treatment will bring about his execution. But a psychiatrist who attempted to make such difficult clinical and ethical determinations would (in my view) be considering the issues that have arisen in physician-assisted suicide and would get little help from organized psychiatry's guidelines on participation in capital punishment, which do not take into account the possibility that the inmate is consenting to treatment because he is resigned to his fate (Code of Medical Ethics, H-140.950 Physician Participation in Capital Punishment).
It is important to emphasize that had Singleton continued to refuse medication and allowed his lawyer to attempt further appeals, there may well have been a different ruling. Although the Singleton case is a defeat, in my experience, organized psychiatry's ethical opposition to participation in the death penalty has played an important role in modifying the law and the practice of capital punishment.
Dr. Stone is Touroff-Glueck Professor of Law and Psychiatry in the faculty of law and the faculty of medicine at Harvard University.