Forcing Treatment to Force Execution

“Jared Loughner spends his life in isolation but is never alone. Cameras watch his every movement. Guards log his actions every 15 minutes. His existence is charted in three colors. Blue means he’s in bed. Green means he’s up and awake. Red means he is pacing in tight circles in his small cell. Red made up the largest slice on Loughner’s chart some days during the summer. Since then, the red slice has shrunk. The colors shift with his moods as the man accused of fatally shooting six people and wounding 13, including Arizona Rep. Gabrielle Giffords, responds to therapy and drugs.” – Details of Loughner’s life emerge from testimony, file, USA Today.

Charles Laverne Singleton, a diagnosed schizophrenic, was forcibly injected with an antipsychotic drug and then executed on January 6, 2004. Arkansas then-Governor Mike Huckabee refused a request by Amnesty International and the European Union to commute Singleton's sentence to life in prison.

Jared Lee Loughner is arguably America’s current Public Enemy No. 1. On January 8, Loughner opened fire at a grocery store parking lot killing six people, including U.S. District of Arizona Judge John Roll and a staff member for U.S. Representative Gabrielle Giffords. As the public reeled from the shooting, the media began trying to uncover Loughner’s motivations and revealed a YouTube account where Loughner accused the government of mind-controlling and brainwashing citizens with language. Since being imprisoned, Loughner’s condition has rapidly deteriorated. He was receiving forced medication until the Ninth Circuit ordered it stopped, after which he paced in circles up to 14 hours in one day, leading to a blister on his foot that gradually infected his leg.

The stage has been set for a high-profile case involving the federal death penalty and mental incompetency.

In recent decades, medical treatment for psychological disorders has advanced at unprecedented rates, effectively treating and altering the lives of patients with otherwise-debilitating conditions. Not all patients, however, are created alike. Unsurprisingly, the nation’s prisons are well populated by mentally ill individuals. Prisoners don’t have the liberty to choose their method of treatment.

Can, and should, a prison forcibly medicate a mentally ill prisoner for the protection and safety of other inmates and guards? The Supreme Court says yes. Washington v. Harper, 494 U.S. 210 (1990).

What about forcibly medicating to make that inmate competent to stand trial? The Supreme Court says that’s permissible, also. Sell v. United States, 539 U.S. 166 (2003). On the other hand, the Supreme Court has held that an ‘incompetent’ inmate on death row cannot be executed. Ford v. Wainwright, 477 U.S. 399 (1986).

Significantly, the Court has persisted in leaving one logical follow-up question unanswered: Can a prison forcibly medicate a mentally ill prisoner to render him competent to be executed?

Two states—Louisiana and South Carolina—have explicitly held that it is unconstitutional to forcibly medicate an inmate for the sole purpose of rendering him competent for execution. In 2003, the Eighth Circuit reached the opposite conclusion, citing the state’s strong interest in carrying out lawfully imposed sentences. The Supreme Court denied certiorari to review the Eighth Circuit’s decision in Singleton v. Norris. 319 F.3d 1018.

Meanwhile, more recently, the Supreme Court has affirmed the constitutionality of forcibly medicating to render a detainee competent to stand trial. Sell v. United States, 539 U.S. 166 (2003). But it is obvious why Sell can’t control the issue of forcing medication to execute. The death row inmate’s interests are markedly different than the detainee’s interests in a fair trial.

Moreover, the ruling in Washington v. Harper was that an inmate’s liberty interest against involuntary treatment could be compromised if, and only if, two important conditions are met:
(1) He is a danger to himself or others.
(2) The treatment is in his medical interest.

What constitutes “medical interest”? Is it in a death row inmate’s medical interest not to be executed? The system appears to be forcing inmates into a grisly decision: remain untreated and subject to debilitating delusions, or render yourself competent and be executed. The decision also puts prison doctors in an incredibly unenviable position that defies ethics.

I believe that there is a truth most Americans have been unwilling to face since reinstituting the death penalty over three decades ago, which lies beneath the issue of death row medication: the death penalty is fundamentally incompatible with our democratic ideals. The Eighth Circuit in Singleton v. Norris (allowing forced medication) reached its decision on what seem to be highly paternalistic grounds. The decision essentially tells the inmate: ‘We feel guilty about executing you because you’re insane, so we will forcibly medicate you to make sure you understand you are about to be executed because it’s in our interest to do so, then at least we can execute you with a clear conscience.’

The complicated reasoning lends itself to a host of important questions.  Is a mentally insane person no longer insane once medicated?  Does an individual’s freedom to refuse medication disappear after he is sentenced to death? Has modern medicine advanced in such a twisted way as to allow more executions of the insane rather than less?  And is this really the kind of justice we want for America?