Editor’s note: Tom Tynan is an alumnus of Duke University Law School, a recent federal judicial clerk, and a soon-to-be associate at a large law firm. He spent several months at the School of Government recently, helping me prepare to update the Capital Case Law Handbook. We’ll miss him.
by School of Government law fellow Tom Tynan
While helping Jeff prepare a new edition of the Capital Case Law Handbook, I’ve researched some pretty interesting topics, to say the least. Just recently, I came across a report called Mental Illness and the Death Penalty in North Carolina: A Diagnostic Approach. The Charlotte School of Law compiled it after a 2006 symposium on Mental Illness and the Death Penalty: Seeking a ‘Reasoned Moral Response’ to an Unavoidable Condition. Among the many important issues raised in the report, one that especially caught my eye pertains to whether it is permissible for the state to execute a mentally ill prisoner who regains competence as a result of an involuntary antipsychotic medication regime.
As far as I can tell, no court in North Carolina has had reason to chime in here, but the opportunity could certainly arise. Consider this scenario: On the eve of execution, a death-row inmate files a motion in North Carolina state court claiming to be incompetent and therefore ineligible to be executed under Ford v. Wainwright, 477 U.S. 399 (1986). The court agrees that the inmate is incompetent. Later, either by court order or by the order of medical personnel, antipsychotic medication is administered to the inmate involuntarily. If the medication has its intended effect, and the prisoner’s competency is restored, can the state then set an execution date?
Singleton v. Norris, 319 F.3d 1018 (8th Cir. 2003), involved almost identical facts. There, the prisoner argued that: (1) under the Due Process Clause of the Fourteenth Amendment, once the state set an execution date, his forcible medication regime became unconstitutional and, (2) under the Eighth Amendment, it was cruel and unusual to execute an “artificially competent” prisoner, relying on State v. Perry, 610 So.2d 746 (La. 1992).
Neither argument prevailed. In regard to the Due Process claim, the central question was whether the forced medication was in the prisoner’s “best medical interest.” To conclude as much was illogical, the prisoner argued, because the medication made him competent to be executed, and execution is by no means in anyone’s “best medical interest.” The court disagreed. The question had to be answered “without regard to whether there [was] a pending date of execution.” Singleton, 319 F.3d at 1026. Both the death sentence and involuntary medication regime had been lawfully imposed. At this point, then, the defendant could assert neither a life interest nor a liberty interest.
In regard to the Eighth Amendment claim, the court did not find Perry persuasive, especially since it rested on state constitutional principles. Notably, in its discussion of Perry, the court found it significant that the state had a duty to provide appropriate medical care to inmates, citing DeShaney v. Winnebago County Dep’t of Soc. Servs., 489 U.S. 189, 199-200 (1989), and Estelle v. Gamble, 429 U.S. 97, 103 (1976), and because of that duty, proof that the state had any other motive in medicating the inmate (say, to render him competent for execution) was irrelevant.
Singleton was decided before the Supreme Court issued its opinion in Sell v. United States, 539 U.S. 166 (2003) (allowing the involuntary medication of incompetent defendants before trial, when medically appropriate and necessary to further important trial-related interests), which undoubtedly had some effect on the jurisprudence in this area. In fact, one court recently suggested that Sell, Washington v. Harper, 494 U.S. 210 (1990), and Riggins v. Nevada, 504 U.S. 127 (1992), may collectively stand for the notion that the execution of an inmate who is competent only by virtue of forced medication might violate the Eighth Amendment’s evolving standards of decency. See Thompson v. Bell, 580 F.3d 423, 439-40 (6th Cir. 2009). But the Thompson court didn’t reach a final conclusion on this issue, see id. at 441 n.2, because the defendant had not yet been forcibly medicated – he merely alleged that he would be in the future if he refused to take his medication.
I wonder how this issue will play out in North Carolina courts and elsewhere, if it does at all. Thoughts?