Abstract
In October 2003 the Supreme Court of the United States allowed Arkansas officials to force Charles Laverne Singleton, a schizophrenic prisoner convicted of murder, to take drugs that would render him sane enough to be executed. On January 6 2004 he was killed by lethal injection, raising many ethical questions. By reference to the Singleton case, this article will analyse in both moral and legal terms the controversial justifications of the enforced medical treatment of death-row inmates. Starting with a description of the Singleton case, I will highlight the prima facie reasons for which this case is problematic and merits attention. Next, I will consider the justification of punishment in Western society and, in that context, the evolution of the notion of insanity in the assessment of criminal responsibility during the past two centuries, both in the US and the UK. In doing so, I will take into account the moral justification used to enforce treatment, looking at the conflict between the prisoner’s right to treatment and his right to refuse medication where not justified by outcomes that can be reasonably expected to be positive for the individual. Finally, in contrast with some retributivist arguments in favour of enforced treatment to enable execution, I will propose a possible alternative, necessary if we are to consistently uphold the notion of autonomy.
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Notes
Singleton v Arkansas, 124 S.Ct. 74 (2003) (Cert. Denied).
Even if it stands for something more specific than only that a convict is required to be lucid at the time of punishment, in the US system the current stand on the issue is mostly to be ascribed to the Ford case. Ford v Wainwright, 477 US 422 (Justice Powell, concurring).
Available at: http://www.clarkprosecuter.org/html/death/US/singleton887.htm [accessed on 16 November 2012].
Throughout the paper I will refer to “moment of sentencing” or “moment of the sentence” interchangeably as the time of trial, as American death penalty cases have separate liability and penalty phases.
It should be noted that the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) published by the American Psychiatric Association defines schizophrenia as a disorder that alternates periods in which the patient is lucid to others in which s/he has delusions and hallucinations, disorganised behaviour and/or speech. It describes schizophrenia normally as result of a stressful period. The role of death row in this process becomes thus quite peculiar, as this acknowledgement, obviously makes more paradoxical the imposition of a medical treatment in response to a condition (the inhumane procedure that leads to the execution) produced by the same power ordering the treatment itself.
Even if it is quite important to note that “Singleton prefers to take the medication rather than be in an unmedicated and psychotic state” 319 F.3d 1018, 1025–1027 (8th Cir. 2003), it is equally important to point out that this “free choice”, might have occurred out of tiredness (the whole procedure lasted nearly 20 years after all) rather than actual freedom. Even more relevant is the fact that the above affirmation must have been put into question at a certain time by Singleton, otherwise there would not have been any controversy.
A legal action of English origin which has been a historically important instrument to ensure protection of individual freedom against arbitrary state action, and which can be used to seek relief from unlawful detention. For a more detailed description see Freedman (2001).
Here I refer to all the agents involved in the judicial and medical procedures alike. It is important to point out that, even if the Eighth Circuit en banc opinions affirmed that the State was “only” arguing that forced medication leading to the restoration of the mental capacity necessary to execute the man for his crimes was in the interests of the State and its people and their criminal justice system, the practical outcomes of their opinions was not so uncompromising. In fact, given that the AMA Council on Ethical and Judicial Affairs (CEJA) clearly stated that forcing medication on a death row inmate only to restore competence is unethical, it seems implausible to logically sustain that the Eighth Circuit was not implicitly passing the message that enforcing medical treatment was -at least also- in Singleton’s best interests. Otherwise, they would be either asking doctors to behave unethically according to their own standards, or defining a legal document unbinding. American Medical Association Council on Ethical and Judicial Affairs: Physician Participation in Capital Punishment (adopted as CEJA Opinion 2.06). AMA: Chicago, 1992.
Singleton v Norris, 319 F.3d 1018 (8th Cir. 2003) (Habeas-Competency). Available at: http://www.cognitiveliberty.org/dll/singleton_8circ2.htm, p.16 [accessed on 16 November 2012]. It should be noticed that the Eighth Circuit Court of Appeals en banc majority opinion offered in this occasion a legal justification for forced treatment of psychotic, death row inmates.
It is important to point out that American law assesses the mental capacity of an individual differently for different purposes. The mental capacity necessary to fairly convict an individual of a crime or to be fairly tried can be different than the capacity sufficient to find him sane enough to be executed.
I am aware that in Israel this is possible only by the authority of an ethics committee with the power of regional court, after the patient was heard and only in the face of great danger in case of non-treatment. This section of the law has been used rarely, not really to enforce psychiatric care. In addition, skipping from one juridical system to another might be questioned. However, my intention here is to focus on various interpretations and applications of the current Western approach to bioethics that, arguably, US and Israel share.
Gross (2005).
In relation to the definition of informed consent in more directly related American contexts, for example the American Cancer Society writes: “if you are competent to make your own medical decisions, you have the right to refuse any and all medical treatment and diagnostic procedures. Even if not treating the disease or condition means that the person will die, US courts have mostly agreed that patients have the right to reject treatment.” Available at: http://www.cancer.org/treatment/findingandpayingfortreatment/understandingfinancialandlegalmatters/informedconsent/informed-consent-refusing-treatment [accessed on 16 November 2012].
State v Taylor, 771 S.W.2d 387 (Tenn. 1989).
Code of Medical Ethics, American Medical Association, Opinion 2.06, Capital Punishment.
See, amongst others: Peloso and Bandini (2007).
I am aware that capital punishment is an highly debated topic and that, for example, according to the ECHR, this form of punishment is defined as a violation of human rights. See for example: http://www.eeas.europa.eu/human_rights/adp/index_en.htm. However, my intention here is to accept the current status quo in the US juridical system, and leave the speculation over its moral acceptability on the side, to concentrate the focus on the potential moral liability present in the process. It is not the intention of this work to defend capital punishment, but -given that such a procedure is still in use in countries such as the US or Japan- this analysis wants to instead ensure a more coherent application of the very principles behind its implementation. In relation to footnote 5 above however, one particular aspect is worth of attention. In the Soering v UK case (Soering v United Kingdom 161 Eur. Ct. H.R. (ser. A) 1989), the European Court mentions the “death row phenomenon”, and describes it like a pathology determined by the mere staying in the death row, equalizing it to torture for the ECHR standards. The US Supreme Court on the other hand, till now has not said anything on the relationship between death row and the cruel and unusual punishment of the Eighth Amendment. However, this makes us question: does the arising of the psychiatric illness during the death row period, and the consequent (perceived by public authorities) need of the compulsory treatment (preparatory to the execution) correlate the death row to the Eighth Amendment? If it does, because the execution on an incapable subject contrasts with the human dignity principle, and the relationship between death row and psychiatric illness (and consequent incapability) is the one considered in footnote 5 above, it would appear like the unique solution could be the suspension of the execution and the commutation to life imprisonment without medical treatment (respecting the right to self-determination). This scenario will be considered more in depth later in the paper.
The doctrine of double effect (DDE) has been historically criticised by consequentialists as incapable to draw a substantial distinction between two comparable acts perpetrated with different intentions. Such critique has been counter criticised, and for example Justin Oakley and Dean Cocking, affirm that: “Consequentialists commonly reject the moral relevance of this distinction on the grounds that there is no asymmetry in moral responsibility between intending and foreseeing evil. We argue that even if this claim about moral responsibility is correct, it does not entail, as many Consequentialists believe, that there is no moral asymmetry between acts of intended and foreseen evil” (Oakley and Cocking 1994). In this work, I will not enter the discussion over the validity of the DDE, but I only want to stress that, even accepting it to be valid, it still cannot be applied to the Singleton case.
Amongst other methods such as brain surgery, TMS and deep brain stimulation, one of the most debated approaches to restoring competence is represented by Electro-Convulsive Therapy (ECT). Concerning this treatment see, amongst others: Ladds (1995).
Douglas (2008).
See, amongst others: Gerbasi and Scott (2004).
See footnote 9.
To be more specific on the issue of the temporal dimension of responsibility, it should be noted that there is wide agreement that responsibility can be looked at in at least two different temporal directions: backward and forward. For reasons of space, I cannot discuss this point in greater depth here, but what is important to note for the purposes of this work is the general acceptance that if certain variables change over time, the assessment of responsibility can be influenced in accordance. For a more complete account of this issue see, amongst others: Vincent (2009), Kutz (2004) and Duff (1998).
I am aware that other ways of justifying enforced treatment could be considered. Amongst these, certainly the Hegelian idea of reconciliating Singleton to society (and to an extent to his true self) could be seen as a powerful argument. However, without denying its validity, an important clarification must be made. This work will not focus on these parallel approaches for two reasons: first of all, properly explaining those arguments would require a much more detailed investigation than the scope of this work permits. Secondly -as will become apparent later on in the work- my intention is to model this part of the work on a pre-existing article that places retributivism at its centre.
Wolf (2003).
In many legal systems, pathologies and precarious health conditions are able to cause the suspension of a punishment, and this fact does not seem to contrast with the retributive nature of the criminal system. Nevertheless, generally, psychic infirmity cannot lead to the possible postponement of the punishment: when the infirmity follows the sentence, its effect is the compulsory hospitalisation. This of course can be ascribed to the potential danger that the mentally ill prisoner represents for the others (this valid argument will be considered later when discussing the “Harper Involuntary Medication”), but it could also be seen as an intentional decision from the State to not reconcile a “distorted” version of experiencing our human nature, with the surrounding community. Plenty could be said over this provocative speculation, and indeed it has been done by innovative thinkers such as Michel Foucault. However, for reason of space I will only limit myself to briefly point out two aspects of his work here: Foucault suggested an innovative view on both punishment and mental illness. While he argued that all modern mechanisms of criminal justice require some form of “metaphysical torture”, when talking about madness, he wrote: “the constitution of madness as mental illness […] bears witness to a rupture in a dialogue, gives the separation as already enacted, and expels from the memory all those imperfect words, of no fixed syntax, spoken falteringly, in which the exchange between madness and reason was carried out” (Foucault 2009). For a more in depth analysis of the relationship between society and its ostracism towards “unwanted bodies” such as the mentally ill or the poor, see: Foucault (2003). I have also discussed the issue more in details in Garasic, M. D. and Foster, C. 2013, When autonomy kills: The case of Sami Mbarka Ben Garci, Medicine and Law, 34(4). [Forthcoming].
See, amongst others: Wolf, S., ibid., p. 372–387, and Bok, H., Op. Cit., p. 130–167 both in Watson, G., (ed), Free Will, OUP, 2003.
Hope (1994).
Parfit (1984).
Hart (1968).
Ibid., p. 229.
Berman (2008).
M’Naghten’s case [1843] UKHL J16 (19 June 1843), available at: http://www.bailii.org/uk/cases/UKHL/1843/J16.html [accessed on 16 November 2012].
Eigen (2004).
Parsons v Alabama, 81 AL 577, So 854 1886 AL.
Ibid.
See, amongst others: Sinclair v State of Mississippi, 132 So. 581 1931 MS, State v Strasburg, 110 P. 1020 1910 WA, Leland v Oregon, 343 US 790 1952 OR, Durham v United States, 214 F.2d 862.
Model Penal Code, American Law Institute, Philadelphia, 2007 in Maeder, T., Crime and Madness, Harper and Row Publishers, 1985, p. 95.
Latzer (2003).
Gostin (2003).
Kutz, C., Op. Cit, p. 571.
Ford v Wainwright, 477 US 422 (Justice Powell, concurring).
During the capital punishment procedure, a psychiatrist diagnosed that Ford did not understand why he was being executed and that he was unable to make any connection between the murder he had committed and his death sentence. As a result, Ford’s counsel required Florida’s authorities to determine the prisoner’s competency. A panel of three psychiatrists was appointed to evaluate whether Ford had “the mental capacity to understand the nature of the death penalty and the reasons why it was imposed upon him.” The three psychiatrists disagreed in the results but they all agreed that Ford was sane under this definition.
Washington v Harper, 494 US 210.
Zonana (2003).
Ibid., p. 374.
Ibid.
Penry v Lynaugh, 492 US 302. It should be noticed that in this instance the Eighth Amendment is not violated by the execution of the mentally retarded as a per se matter. However, in a subsequent case of 2002, this judgement was overruled.
Atkins v. Virginia, 536 US 302.
It should be noticed that in 29 states, including Texas, Tennessee and New Jersey, the defendant still carries the burden of proving mental retardation in death-penalty cases to receive a lesser sentence. As stressed by this work, the obvious resulting discrepancy of judgement and treatment has produced very different outcomes in relatively similar cases within the US. Amongst other cases, this is particularly evident in the case of Warren Hill—whose lethal injection was stopped 90 min before its schedule time on 24 July 2012 in Georgia and Yokamon Hearn, who was instead denied relief on his Atkins claim, and executed on 18 July 2012 in Texas. See: http://www.guardian.co.uk/world/2012/jul/23/warren-hill-execution-stayed-georgia [accessed on 19 November 2012]; http://jurist.org/paperchase/2012/07/georgia-supreme-court-halts-warren-hill-execution.php [accessed on 19 November 2012]; http://www.bbc.co.uk/news/world-us-canada-18897310 [accessed on 19 November 2012].
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Acknowledgments
I am particularly grateful to Daniele Santoro from the Center for Ethics and Global Politics at LUISS University for the many useful discussions we have had since the first draft of this paper. His help and advice have helped enormously in the shaping of the work. In addition, I wish to thank all the professors and researchers at the Ethox Centre, The University of Oxford, for their interesting inputs in my research. Tom Bailey, Stephen Latham, Gregory Kaebnick and Michael Barilan and all the blind reviewers involved in the shaping of this article also deserve my gratitude for their help and advices during the revision of the work. Finally, I am convinced that the advices I received at TU Delft, especially from Nicole Vincent, have added much strength to this work and I want to thank her for this.
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Garasic, M.D. The Singleton case: enforcing medical treatment to put a person to death. Med Health Care and Philos 16, 795–806 (2013). https://doi.org/10.1007/s11019-013-9462-8
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DOI: https://doi.org/10.1007/s11019-013-9462-8