Do no harm: should we medicate to execute?

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?

Charles Singleton was convicted and sentenced to death in Arkansas in 1979 for murder and aggravated robbery. In prison, his mental health began to deteriorate, and Singleton was diagnosed as suffering from schizophrenia. He experienced pervasive paranoid delusions and hallucinations. 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. At times, he believed that he had already been executed. In 1997, the prison began to involuntarily medicate Singleton with antipsychotics, 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.

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. Following the reasoning of a prior case in which the court upheld the constitutionality of involuntarily medicating a defendant to restore his competency for trial, the court balanced the government and society's compelling interest in punishing offenders against the defendant's liberty interest in refusing medication. 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.

Is it ethical for a medical professional operating in his "healing capacity" to participate in treatment that will ultimately facilitate an execution? According to those who hold the "always treat" view of a clinician's responsibilities, treatment is ethically permissible because mental-health professionals are obligated to treat severe mental illness when they are capable of providing relief and are not responsible for the ultimate, collateral consequence that the treatment may also facilitate execution. 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.

The "never treat" position argues that the facilitation of execution will always constitute the greater harm and that relief from psychosis does not justify treatment when the restoration of competence will likely result in the prisoner's death. 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.

Perhaps the Supreme Court will eventually consider the issues raised by the Singleton case and decide the constitutionality of treating the illness to kill the patient. In our opinion, when it is clear that a prisoner's competence can only be maintained through the forcible administration of powerful antipsychotic medication, the law should provide that the prisoner's death sentence be commuted to a sentence of life imprisonment (particularly in cases where the medical justification for forced treatment is less compelling because the prisoner is neither dangerous nor suffering when unmedicated). Restoration of competency for execution is not a legitimate justification for forced medication--a circumstance in which medical treatment does nothing to ease suffering or serve human dignity. Medical professionals should not be required to compromise their professional ethics and moral scruples by providing needed psychiatric treatment in the shadow of the executioner, thereby denying their own dignity along with that of the condemned.

Richard E. Redding is associate professor of law at Villanova University, associate professor of psychology at Drexel University, and director of the J.D./Ph.D. Program in Law and Psychology at Villanova and Drexel Universities. Kursten Hensl is a student in the program.