By Laura Hermer
The U.S. bars executions of mentally-ill prisoners. See Ford v. Wainwright, 477 U.S. 399, 410 (1986). When, if ever, should it be permissible for the state to forcibly administer antipsychotic medication to a mentally-ill condemned criminal, when the medication would render him sufficiently competent then to be executed? Singleton v. Norris, a recent case arising out of the Eighth Circuit, brings this question sharply into focus. While the Supreme Court has considered a number of different circumstances in which a criminal defendant or a convicted criminal may be medicated against his or her will, it has yet to address this particular issue.
A prisoner has a “significant liberty interest” in avoiding the unwanted administration of an antipsychotic drug. Harper v. Washington, 494 U.S. 210, 221 - 222 (1990). Nevertheless, there are a few circumstances in which the Supreme Court has determined the state may forcibly administer such drugs to an inmate or criminal defendant in the absence of her consent. If the inmate is a threat to herself or to others in the absence of medication while incarcerated, and if taking the medication is in her medical interest, then the state may force her to take an appropriate antipsychotic medication without her consent. See Harper v. Washington, 494 U.S. at 227 (1990). Moreover, the Supreme Court has stated in dicta that a state may be justified in forcibly medicating an insane criminal defendant if it can establish that “it [cannot] obtain an adjudication of [a defendant’s] guilt or innocence by using less intrusive means,” then forcible medication may also be warranted. Riggins v. Nevada, 504 U.S. 127, 135 (1992).
At least three circuits have examined the issue of forcibly medicating a non-dangerous criminal defendant in order to render him competent to stand trial. This issue is presently before the Supreme Court. See Sell v. United States, No. 02-5664. It does not appear, however, that any circuit, other than the Eighth in Singleton, has addressed the issue of medicating an inmate for the primary purpose of carrying out his sentence, once he has been found guilty. In Singleton, a sharply divided Eighth Circuit held that the Eighth Amendment, forbidding “cruel and unusual punishments,” is not violated by forcibly medicating an insane condemned person so that he becomes sufficiently sane to execute. Singleton v. Norris, 2003 WL 261795, 7 (8th Cir. (Ark.) 2003).
To reach this result, the Eighth Circuit used the same test it applied in Sell, the involuntary medication case presently before the Supreme Court. In Sell, the Eighth Circuit held that the state could force a mentally ill criminal defendant to take antipsychotic medication in order to render him sufficiently competent to stand trial. To reach this result, it applied the following test: the state must “(1) ‘present an essential state interest that outweighs the individual's interest in remaining free from medication,’ (2) ‘prove that there is no less intrusive way of fulfilling its essential interest,’ and (3) ‘prove by clear and convincing evidence that the medication is medically appropriate.’” Singleton, 2003 WL 261795, 5 (quoting United States v. Sell, 282 F.3d 560, 567 (8th Cir.)).
The court observed that well-settled law establishes that the government has a compelling interest in carrying out a lawfully imposed criminal sentence. It ruled that the state’s interest in carrying out Singleton’s sentence outweighs Singleton’s interest in remaining free from medication in this case; after all, Singleton himself admitted that, all things being equal, he prefers to be medicated rather than unmedicated. The court further found that no less-intrusive method existed by which the state could attain its end. Finally, the court found that Singleton’s medication was medically appropriate. It noted that Singleton does not like the effects of his psychosis, and that the antipsychotic medication that he takes has had few, if any, negative side effects for him. Moreover, any due process consideration of life has been “foreclosed” by Singleton’s death sentence. Thus, there is no need, the court reasoned, to factor in the issue of execution into the consideration of Singleton’s medical interest. Because it is in Singleton’s short-term interest to be medicated, it therefore satisfies the third prong of the Eighth Circuit’s Sell test.
There are a number of problems with the Eighth Circuit’s approach. First, the Eighth Circuit’s Sell test is an interesting but strained agglomeration of present law governing the forcible medication of inmates and criminal defendants. It takes dicta in Riggins suggesting that a state may forcibly medicate a non-dangerous but insane criminal defendant in the interest of obtaining a fair adjudication of a person’s guilt or innocence, and extends it to the state’s interest in carrying out sentences. It then tacks on the following requirements from Harper: the prisoner’s interest in not having medication forced upon her against her will must be balanced against the state’s interest, and taking the medication must be in the prisoner’s medical interest. It does not consider Harper’s requirement that the prisoner be a danger to herself or others – not surprising, perhaps, in light of the fact that the record does not suggest that Sell and Singleton pose any threat due to their mental illness if not medicated. Sell’s mix-and-match approach suggests an ends-oriented approach, rather than one based in sound principles of law and ethics.
A further problem lies in the ethics of forcing a psychotic condemned prisoner to take medication that may restore competence, in order to circumvent Ford’s prohibition on the execution of the insane. First, it is a longstanding tenet of both common law and U.S. law that the state may not execute an insane convict. Sir Edward Coke argued, for example, that “because execution was intended to be an ‘example’ to the living, the execution of ‘a mad man’ was such a ‘miserable spectacle ... of extreme inhumanity and cruelty’ that it ‘can be no example to others.’” State v. Perry, 610 So.2d 746, 749 (La. 1992) (quoting 3 E. Coke, Institute 6 (1794)). Much more recently, the Supreme Court made the following observation in Ford:
today, no less than before, we may seriously question the retributive value of executing a person who has no comprehension of why he has been singled out and stripped of his fundamental right to life. … Similarly, the natural abhorrence civilized societies feel at killing one who has no capacity to come to grips with his own conscience or deity is still vivid today. And the intuition that such an execution simply offends humanity is evidently shared across this Nation. Ford, 477 U.S. at 409.The Court noted that the prohibition against killing the insane not merely “protect[s] the condemned from fear and pain without comfort of understanding.” Rather, it also “protect[s] the dignity of society itself from the barbarity of exacting mindless vengeance.” Ford, 477 U.S. at 410.
One might argue that the need for such protection is negated when the
convict is sufficiently competent to understand the link between his crime
and the punishment he is to suffer. However, the mean by which the
prisoner is made competent is barbaric and arguably unconstitutional in
itself. Even convicts have a liberty interest in remaining free from
unwanted medication. This interest may sometimes yield, but it nevertheless
does exist. Even the state may not forcibly medicate a convict to
further its own ends, unless the medication is also in the prisoner’s own
medical interest. And, as the one state high court to have considered
the issue noted, “forcing a prisoner to take antipsychotic drugs to facilitate
his execution does not constitute medical treatment but is antithetical
to the basic principles of the healing arts.” Perry,
610 So.2d at 751. As such, the physician who prescribes the drugs
arguably violates medical ethical tenets of beneficence and nonmalfeasance.
Moreover, if the prisoner does not consent to the drugs’ administration,
and if the primary reason for their administration is to carry out the
condemned prisoner’s sentence (rather than, for example, the prisoner’s
own medical benefit and the safety of fellow prisoners and prison staff),
then it arguably constitutes cruel and unusual punishment to force the
prisoner to take the antipsychotic medication. The act of medication
itself becomes punishment in such a case – punishment to which no court
lawfully sentenced the prisoner, and which serves little purpose other
than to facilitate further punishment. The Supreme Court, if asked
to review the case, should reverse the decision of the Eighth Circuit in