Mental health and the death penalty

¶ … executing the mentally ill. The writer explores case law, as well as moral issues when it comes to medicating the mentally ill with anti-psychotics so they are well enough to be executed. There were five sources used to complete this paper.

An eye for an eye, a tooth for a tooth" is the philosophy many people adhere to when it comes to the punishment of criminals. The death penalty has been debated for many years as it has come into and then fallen out of favor for the American public. The death penalty is especially volatile when it comes to the mentally ill. When a mentally ill person commits a crime worthy of the death penalty the state and those involved with the case often face a moral and ethical dilemma.

If the person is not capable of understanding why they are being executed or what the death penalty means to them, there is a legal, ethical and moral question about the fairness of that execution.

The states' answer has been to medicate the mentally ill prisoner with anti-psychotic drugs so that they become capable of mentally understanding they are going to be executed. The question then becomes how humane is it to bring them out of their mental illness, get them well and then kill them when they are able to finally understand what is happening to them?

Making death row inmates sane enough to execute is a legal, moral and ethical debate that warrants investigation.

In 1986, the United States Supreme Court decided Ford v. Wainwright, holding that the execution of the mentally incompetent violates the Eighth Amendment prohibition against cruel and unusual punishment. A prisoner cannot be executed unless sufficiently competent to understand the nature and reasons for his punishment. This year, in a six-to-five decision and the first ruling of its kind, the closely divided United States Court of Appeals for the Eighth Circuit held, in Singleton v. Norris, that a mentally ill prisoner may be involuntarily medicated with antipsychotic drugs to restore his competency for execution. The decision raises acute ethical dilemmas for criminal law and for medical and mental-health professionals who provide treatment for the condemned. Should medical professionals provide necessary mental-health treatment to a condemned prisoner when restoration of competency will likely result in his execution? Does doing so shift their role from that of "healer" to accomplices in the administration of the death penalty?"

In that particular case the death row inmate was a man who murdered and committed aggravated robbery. While in prison his mental health began to worsen and he was diagnosed as suffering from schizophrenia. His illness made him suffer from paranoia, delusions and other problems that are common to those with that disorder.

Singleton believed, for example, that his thoughts were being stolen and that demons filled his cell, and in his hallucinations, his food turned to worms and his cigarettes to bones. He lost considerable weight, spoke in odd languages, and sometimes refused to wear clothing. "

There were times when he believed he had already been executed.

In 1997, the prison began to involuntarily medicate Singleton with anti-psychotics, after a medication review panel found that he posed a danger to himself and others and that forcibly administered medication was appropriate. Under current constitutional jurisprudence, people have a substantial liberty interest in refusing mind-altering medication. A prisoner may be forcibly medicated only when the treatment is medically appropriate and the prisoner poses a danger to himself or herself or others when unmedicated."

The medication caused his psychotic symptoms to go away and in 2000 the courts set a date of execution for him.

Singleton's psychotic symptoms eventually subsided, and in 2000, his execution date was set. Singleton's lawyers, however, argued that once the execution date was set, the forced medication became unconstitutional because it was no longer in his long-term medical interest. Rather than allowing Singleton to face the choice of being involuntarily medicated (and later executed) or left to suffer painful psychotic symptoms, his attorneys suggested that his execution should be stayed unless and until involuntary medication was no longer required to maintain his competence. But the Eighth Circuit disagreed."

The courts used a prior case to make the decision. In the prior case the court also upheld the constitutional soundness of forcing medication on a defendant to make him competent to be executed.

The court said that forcibly medicating Singleton, regardless of the ultimate consequence of execution, was the medically appropriate way to restore his competence while also satisfying his best medical interests -- which the court defined in terms of his immediate need for treatment to alleviate psychotic symptoms. Without irony, the court noted that "[e]ligibility for execution [would be] the only unwanted consequence of medication."

The question remains: Is the state's decision to medicate Singleton intended to alleviate his symptoms and protect him from harm or simply to render him competent for execution? Judge Gerald Haney's vigorous dissent, joined by three judges, argued that the state's true motivation for forcibly administering medication is called into question once an execution date is set, at which time the justification for medicating Singleton for his best medical interests "evaporate[s]." It also highlights the ethical dilemmas forced on medical and mental-health professionals by the court's ruling. Under the ethics guidelines of both the American Medical Association and the American Psychiatric Association, health professionals are prohibited from assisting in the execution of a condemned prisoner. Indeed, the Hippocratic Oath directs physicians to "First, do no harm." Those treating an incompetent, psychotic prisoner are often left in the untenable position of deciding whether to provide needed psychiatric treatment that may enable an ultimate execution, or to refuse to provide treatment needed to alleviate painful and perhaps dangerous psychotic symptoms."

The question came into play about the clinician's role in the execution because they are the ones who administer the drugs to make the inmate able to be executed. The do no harm vow becomes caught in a catch 22 situation at that point because they are ethically obligated to treat the mental illness but by doing so they cause the execution to occur.

Professionals endorsing this position argue that it is not an endorsement of the death penalty, but rather, a permissible way to separate one's duty as a clinician from the legal system's administration of punishment. The "sometimes treat" position, which is most readily accepted by mental-health professionals, advocates treatment for the incompetent prisoner facing execution on a case-by-case basis and only when the individual wants to receive treatment. The immediate benefits of treatment, such as restoration of dignity for the individual and the alleviation of symptoms, are weighed against the risks of treatment and the possible facilitation of an ultimate execution. But those incompetent for execution may be unable to provide valid consent to treatment or will refuse treatment, as Singleton did."

Those who are against any form of forced treatment for mentally ill death row inmates believe that treating the illness assists in a greater harm in providing the means to execute, therefore the health care workers should not agree to administer the medications as it goes against the medical vow of doing no harm.

Condemning the death penalty as "both cruel and unnecessary," Pope John Paul II has said "the dignity of human life must never be taken away." In the encyclical Evangelium vitae, the pope urges professionals not to participate in medical procedures that endanger human life. Yet, the dignity of the condemned is also threatened when he or she is allowed to suffer painful psychotic symptoms without providing the efficacious treatments that modern medicine offers. Such symptoms rob individuals of their dignity, autonomy, and personhood. Indeed, as the psychiatrist

Sally Satel notes, "the freedom to be delusional is no freedom at all." Singleton's lawyer is now considering an appeal of the Eighth Circuit decision to the U.S. Supreme Court, which in an appeal from another Eighth Circuit case (Sell v. United States) will soon be deciding the constitutionality of forcibly medicating defendants to make them competent to stand trial. During oral arguments before the High Court in the Sell case, Justice Antonin Scalia captured well the difficulty in deciding the issue: "We can't try him because his mind is not working properly, but [counsel argues] he's entitled to refuse the drugs that would make his mind work properly. it's just a crazy situation." Many observers expect the Court to hold that the government's interest in adjudicating defendants will alone be a sufficient reason to permit forced medication, even when doing so is not required to prevent the defendant from posing a danger to himself or others."

Getting Worse Before it Gets Better

The mentally ill comprise 25% of death row inmates. "The U.S. Supreme Court refused to grant relief and therefore let stand Singleton v. Norris, the ruling permitting the state of Arkansas to forcibly medicate mentally ill death row inmate Charles Laverne Singleton in order for him to be competent to be executed. Specifically, Singleton's case was denied review by the U.S. Supreme Court in 2003, and he was executed in Arkansas on January 6, 2004. As noted in the lower court's dissent: "Treating the prisoner may provide short-term relief but ultimately result in his execution, whereas leaving him untreated will condemn him to a world such as Singleton's, filled with disturbing delusions and hallucinations." Simply put: The Court found it in the state of Arkansas' best interest for Singleton to be forcibly treated and executed rather than left untreated but alive."

The U.S. Supreme Court has been consistently clear since the decision in Gregg v. Georgia that the Constitution does not prohibit execution as long as procedural safeguards are established, but the Court's jurisprudence concerning the mentally ill as opposed to the mentally retarded has been less clear. In 2002, the Court ruled that it is unconstitutional to execute the mentally retarded (see Atkins v. Virginia). The Court, however, has upheld executing the mentally ill with a series of inconsistent, or perhaps ambiguous, opinions. "

In another case, Ford vs. Wainwright, the U.S. Supreme Court ruled that executing an insane inmate is not constitutional, because it does not teach the sane any lessons, nor does it serve to rehabilitate other insane inmates.

In Riggins v. Nevada, the U.S. Supreme Court ruled that the state could not forcibly medicate a capitally charged defendant prior to trial, and in Sell v. United States, the Court held that the state could not forcibly medicate a defendant to make him competent to stand trial unless there was an issue of danger to self or others."

The difference between Riggins and Sell on the one hand and Ford and Singleton on the other appears to be that the former still were considered defendants, whereas the latter were "offenders." Defendants lose certain constitutional protections (such as the right to refuse antipsychotic medication) in their passage to the status of offender/prisoner. Basically, mentally ill defendants -- innocent until proven guilty -- are not subject to government-imposed treatment regimens until convicted. But a death row inmate cannot be executed if, as a result of mental illness, the prisoner is unaware of his or her pending execution and the reasons for it. A mentally ill death row inmate can only be executed if he or she is restored to competency (sanity) and understands the above. Restoration may be accomplished through a variety of means that normally would include medication in addition to therapy. A death row inmate who takes antipsychotic medication voluntarily presents no constitutional issues. The problem is with those inmates who refuse to take antipsychotic medication and the role that the medical profession should play."

Stone, Alan. Condemned Prisoner Treated and Executed.

Psychiatric Times; 3/1/2004)

Those who assist in the medication of the mentally ill on death row facilitate the harm done by the execution. This is a point that has been argued in the courts for many years and is still hotly debated today.