Psychiatric Times
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.

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Dr. Stone is Touroff-Glueck Professor of Law and Psychiatry in the fac­ul­ty of law and the fac­ul­ty of med­i­cine at Harvard University.