I previously wrote (here) about the U.S. Supreme Court’s recent cert grant in Ohio v. Clark, a case in which the Court will decide whether a three-year-old child’s statements to his preschool teachers are testimonial. Hiding in plain sight in that case is an issue as interesting as the Crawford question that the Court will decide. In Clark, the Ohio Supreme Court held that the child’s statements to his teachers identifying the defendant as the perpetrator were testimonial. It further held that the trial court violated the defendant’s confrontation clause rights when it admitted the child’s out of court statements to his teachers at trial, after finding the child—L.P. —incompetent to testify. L.P. was found to be incompetent six months after uttering the statements at issue. Continue reading
Tag Archives: competency
The American Psychiatric Association is about to release the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, commonly abbreviated DSM-V and pronounced “DSM five.” This is important to criminal lawyers because mental health issues are litigated in so many criminal cases, and the DSM is the generally accepted authority on mental health diagnoses. By all accounts, the new DSM will be a significant departure from prior editions. There are several implications of interest to criminal lawyers:
- The new DSM is controversial. While previous editions of the DSM have been widely accepted, the new version has received considerable criticism. Dr. Allen Frances, a Duke psychiatry professor who chaired the committee that produced the previous edition of the DSM, wrote in Psychology Today that the approval of the DSM-V was the saddest moment in his professional career. He views the DSM-V as “deeply flawed . . . unsafe and scientifically unsound.” In his view, the new DSM paves the way for overdiagnosis and overmedication by creating new disorders and expanding existing ones without justification. Furthermore, the National Institutes of Mental Health, which administers federal grants for research into mental illness, has announced that it will be “re-orienting its research away from DSM categories,” because of the manual’s “lack of validity” and the fact that DSM diagnoses are not “based on any objective laboratory measure,” but instead reflect the collective judgment of a group of practitioners. Scientific American reports on NIMH’s stance here. The President of the APA argues for the excellence of the new DSM here. NPR has a terrific 8-minute report on the new DSM here.
- The controversy may spill over into criminal cases. Whether a defendant suffers from a particular mental disorder, and if so, how that relates to his or her sanity, capacity, or appropriate sentencing, are familiar issues in criminal cases. But they have generally been litigated within the framework established by the DSM. The disagreement about the validity of the new DSM may result in an increasing number of disputes about whether a particular mental disorder listed in the book even exists, or whether the diagnostic criteria in the DSM properly define the disorder. These would largely be new frontiers. (Of course, it is also possible that the controversy will blow over and the book will continue in its role as “the Bible” of the mental health community.)
- More mental illnesses may mean more litigation about mental illness. Because it expands the number and scope of diagnoses, more people, including more criminal defendants, will be classified as mentally ill. This will lead to more disputes about sanity, capacity, and mitigation, including whether a defendant is eligible for the mitigating circumstance set forth in G.S. 15A-1340.16(e) (“suffering from a mental or physical condition [that] . . . significantly reduced the defendant’s culpability”). In other words, mental health concerns likely will play an ever-larger role in criminal litigation.
- The new definition of mental retardation may impact capital cases. The DSM-V changes the definition of intellectual disability, the disorder formerly called mental retardation. Reuters summarizes: “Earlier editions of the DSM defined mental retardation as an IQ score below 70 accompanied by an inability to meet certain developmental norms . . . . Based on that IQ benchmark, the . . . Supreme Court ruled in Atkins v. Virginia . . . that it is illegal to execute a mentally handicapped person. But the editors of DSM-V have dropped the 70 IQ score as an indicator of mental retardation and instead recommend that clinicians consider IQ scores while analyzing an individual’s behavior to determine if he or she meets the developmental standards.” Litigation over mental retardation in North Carolina capital cases has focused heavily on IQ scores. Because G.S. 15A-2005(a)(1) defines mental retardation for purposes of the state’s statutory ban on executing the mentally retarded as an IQ of 70 or below plus limitations in “adaptive functioning,” that strain of litigation will continue. But the more flexible definition in the DSM-V may make it easier for defense attorneys to argue that a defendant with an IQ above 70 is still mentally retarded for purposes of the Supreme Court’s constitutional prohibition on executing the intellectually disabled. And that argument may find some support in the current definition of intellectual disability adopted by the American Academy of Intellectual and Developmental Disability. As explained here, the Academy believes that “[g]enerally, an IQ test score of around 70 or as high as 75 indicates a limitation in intellectual functioning.”
I’m sure that others are more versed on the intersection of criminal law and mental health than I am, may have followed the evolution of the new DSM more closely than I have, and may have additional or different thoughts about the issues presented by the new edition. If so, please post a comment about the significance of the new manual.
Yesterday, the United States Supreme Court decided an important competency case. Let’s start the discussion with a quiz. Which of the following statements is true?
a. A trial may be conducted even when a capital defendant is incompetent.
b. Federal habeas proceedings may continue even when a petitioner/former capital defendant is incompetent.
c. An execution may take place even when the condemned is insane.
Process of Elimination. Most readers will quickly rule out (a), knowing that due process prohibits the trial of an incompetent defendant. See, e.g., Cooper v. Oklahoma, 517 U.S. 348 (1996) (“We have repeatedly and consistently recognized that the criminal trial of an incompetent defendant violates due process.”). See also G.S. 15A-1001 (stating that “[n]o person may be tried . . . for a crime” while incompetent). Experienced capital litigators know that (c) isn’t right. Under Ford v. Wainwright, 477 U.S. 399 (1986), “the Eighth Amendment prohibits a State from carrying out a sentence of death upon a prisoner who is insane.” By process of elimination, then, the answer must be (b).
Yesterday’s Ruling. Indeed, (b) is correct, under the Supreme Court’s ruling yesterday, which reversed two separate federal circuit courts. The case is Ryan v. Gonzalez, __ U.S. __ (2013) (Thomas, J.). Two death row inmates — one from Arizona and one from Ohio — sought federal habeas relief, then moved to stay the habeas proceedings based on the inmates’ asserted incompetence. Lower courts granted one inmate a stay pending a competency determination, and found the other incompetent and stayed proceedings in his case “with respect to any claims that required his assistance” to litigate. These rulings were based generally on the courts’ view that the statutory right to counsel provided in connection with federal habeas proceedings would be undermined if a case were allowed to proceed even though the petitioner was unable to communicate with and to assist counsel.
The Supreme Court reviewed the cases and ruled that there is no statutory right to a stay of habeas proceedings simply because a petitioner is not competent. In the Court’s view, habeas proceedings generally are based on the cold record, so counsel normally will be able to provide effective representation with little help from the petitioner. The first paragraph of the opinion summarizes: “These two cases present the question whether the incompetence of a state prisoner requires suspension of the prisoner’s federal habeas corpus proceedings. We hold that neither 18 U.S.C. §3599 nor 18 U.S.C. §4241 [the statutes relied upon by the lower courts] provides such a right and that the Courts of Appeals for the Ninth and Sixth Circuits both erred in holding that district courts must stay federal habeas proceedings when petitioners are adjudged incompetent.”
No Constitutional Right to Competence During Habeas. The Court noted in passing that there is also no constitutional right to competence during habeas proceedings, citing Murray v. Giarratano, 492 U. S. 1 (1989).
Courts Have Limited Authority to Enter Discretionary Stays. Finally, the Court considered whether a federal court has the discretion to stay habeas proceedings based on an inmate’s incompetence as a matter of the court’s power to manage its docket, even though the defendant has no right to such a stay. The Court did not completely prohibit discretionary stays, but indicated that where the proceedings concern only record-based claims, the petitioner’s input is not needed and the “claims do not warrant a stay.” Even as to claims for which the petitioner’s input would be helpful, “[a]t some point, the State must be allowed to defend its judgment of conviction,” so a district court “should take into account the likelihood that the petitioner will regain competence in the foreseeable future . . . [w]here there is no reasonable hope of competence, a stay is inappropriate.”
Further Reading. SCOTUSblog has a review of the case here. Crime and Consequences welcomes the ruling here.
I’ve previously written on this blog (here) about forfeiture of counsel. As I’ve noted, waiver is different from forfeiture. A waiver of counsel involves a knowing, voluntary, and intelligent relinquishment of the right to counsel. Forfeiture of the right to counsel involves an involuntary relinquishment of the right, typically because of misconduct. A recent case, State v. Cureton, involves a twist on the forfeiture question. Specifically, it addresses whether forfeiture is permissible vis-à-vis an Indiana v. Edwards “gray area” defendant.
Recall that in Indiana v. Edwards, 554 U.S. 164 (2008), the U.S. Supreme Court held that a state may limit a defendant’s right to self-representation by insisting on representation by counsel at trial when the defendant is competent to stand trial but lacks the mental capacity to conduct the defense unless represented. The Court described such defendants as “gray area” defendants. After an initial hiccup in the case law after Edwards, the North Carolina Supreme Court clarified the implications of Edwards with respect to waivers of counsel:
For a defendant whose competence is at issue, he must be found [competent] before standing trial. If that defendant, after being found competent, seeks to represent himself, the trial court has two choices: (1) it may grant the motion to proceed pro se, allowing the defendant to exercise his constitutional right to self-representation, if and only if the trial court is satisfied that he has knowingly and voluntarily waived his corresponding right to assistance of counsel . . . ; or (2) it may deny the motion, thereby denying the defendant’s constitutional right to self-representation because the defendant falls into the “gray area” and is therefore subject to the “competency limitation” described in Edwards. The trial court must make findings of fact to support its determination that the defendant is “unable to carry out the basic tasks needed to present his own defense without the help of counsel.”
State v. Lane, 365 N.C. 7 (2011).
As noted, Cureton involved the implications of Edwards on a judge’s determination that the defendant had forfeited his right to counsel because of serious misconduct. In Cureton, the defendant faced a bevy of charges including resisting an officer, felony breaking or entering, felony larceny, felonious possession of a stolen firearm, and possession of a firearm by a felon. The defendant was appointed three different lawyers. Each moved to withdraw because of the defendant’s behavior, which included shouting at them, insulting them, abusing them, and threatening them. In fact, one moved to withdraw after the defendant spat in his face and threatened to kill him. On the basis of this behavior the trial court found that the defendant forfeited his right to counsel and required him to proceed pro se. The defendant was convicted and he appealed.
On appeal the court affirmed the trial court’s ruling that the defendant’s misconduct warranted a finding that he had forfeited his right to counsel. However, the defendant also asserted that the forfeiture was improper because Edwards imposed a blanket ban on forfeiture of counsel with respect to “gray area” defendants. According to the defendant, although a “gray-area” defendant may commit serious misconduct that would ordinarily justify forfeiture, it would violate the Sixth Amendment to deprive such a defendant of his right to counsel. The court rejected this argument, concluding that even if the defendant qualified as a “gray area” defendant, Edwards does not prohibit self-representation by such persons.
As a fallback, the defendant argued that State v. Lane, 365 N.C. 7 (2011), cited above, and State v. Wray, 206 N.C. App. 354 (2010), prohibit “gray-area” defendants from representing themselves at trial. The court quickly dispensed of this argument as to Lane, concluding that Lane “stop[ped] short of holding that a trial judge may never permit a “gray-area” defendant to represent himself at trial.” Wray was a trickier case—both for trial judges when it was announced and for the court of appeals in this decision. In Wray, the defendant argued that the trial court erred by ruling that he had forfeited his right to counsel where there was evidence that he was a “gray area” defendant. The Wray court agreed and reversed the trial court’s forfeiture ruling. In Cureton, the court wiggled around that holding, concluding that Wray didn’t explicitly forbid self-representation by “gray-area” defendants. Rather, the court read Wray as basing its decision to reverse on four factors: (1) significant evidence that the defendant might have been a “gray-area” defendant; (2) lack of evidence in the record of serious misconduct; (3) the fact that the evidence of the defendant’s misbehavior was the same evidence that cast doubt on his competence; and (4) the defendant was not given an opportunity to participate at the forfeiture hearing. Thus, the court concluded, the reversal in Wray wasn’t based exclusively on the possibility that the defendant might have been a “gray area” defendant and “it cannot be said with any certainty that the evidence of the defendant’s potential incompetence could have been sufficient on its own to support the Court’s reversal.” For similar reasons, the court distinguished the facts before it from those presented in Wray, noting among other things, the clear record of serious misconduct presented in the case at bar.
So where are we? First, our understanding of Edwards and Lane is unchanged: Those cases hold that a state trial court may deny a waiver of counsel by a “gray area” defendant. Second, neither Edwards, Lane, nor Wray limit a trial judge’s ability to find that a “gray area” defendant has forfeited his or her right to counsel, provided that the record supports a finding of serious misconduct. In this respect, my advice to trial judges remains the same as it was in my earlier post on forfeiture: Proceed with caution and be sure to make a good record.
A former School of Government law fellow blogged here about the involuntary medication of death-sentenced prisoners. A recent Fourth Circuit case has moved me to think about the somewhat more common issue of the involuntary medication of incompetent defendants.
Sell v. United States, 539 U.S. 166 (2003), held that the state is permitted “involuntarily to administer antipsychotic drugs to a mentally ill defendant facing serious criminal charges in order to render that defendant competent to stand trial, but only if the treatment is medically appropriate,” in other words, is likely to work, “is substantially unlikely to have side effects that may undermine the fairness of the trial, and, taking account of less intrusive alternatives, is necessary significantly to further important governmental trial-related interests.” As to the last consideration, the Court noted that the government’s interest in trying a defendant for a serious crime – whether against persons or property – is normally significant, but that it may be lessened if, for example, the defendant’s refusal to accept medication is likely to result in a lengthy period of involuntary commitment. The Court stated that it will be “rare” that involuntary medication is permissible on competency grounds, and suggested that many involuntary medication issues are better addressed under the dangerousness analysis of Washington v. Harper, 494 U.S. 210 (1990) (holding that a prison inmate may be involuntarily medicated if necessary to stop the inmate from being a danger to himself or others).
No reported North Carolina case has been decided under Sell, but the Fourth Circuit just decided United States v. White, in which it reversed a district court’s order authorizing involuntary medication. The defendant in White was charged with credit card fraud and identity theft. She apparently suffers from a delusional disorder that, several experts agreed, rendered her incompetent to stand trial. She refused both “competency classes” and medication to treat the disorder, so the government sought permission to have the medication administered involuntarily. The district court judge received testimony from two psychiatrists who described both the process of involuntary medication and the risks and benefits of the available antipsychotic drugs. Because the experts indicated that the defendant was not dangerous, involuntary medication was not justified under Harper, but the judge found that the Sell standard was met and ordered that the defendant be medicated. She appealed.
A divided panel of the Fourth Circuit reversed, holding that “the special circumstances present in this case reduce the government’s interest in prosecuting [the defendant] to the point that infringement on her constitutionally protected liberty interest in freedom from forcible medication cannot be sustained.” The majority relied on several considerations to reach this conclusion, including that the charged offenses were non-violent; that the defendant had already been in custody for 29 months, which it viewed as a substantial portion of her likely sentence if convicted; and that “the drugs proposed . . . have rarely, if ever, been tested on individuals with [the defendant’s] condition,” and might be ineffectual or carry significant side effects. In all, the majority did not believe that this case was the “rare” case contemplated by Sell, and viewed the district court’s decision as coming “perilously close” to making forcible medication routine.
Judge Niemeyer, in dissent, praised the district judge’s work as “especially careful and thorough.” (Having had some experience with the district judge in question, I am certain that Judge Niemeyer is correct on that point, at least.) He argued that crimes against property can be just as serious as crimes against persons; that the majority’s suggestion that the defendant had already been in custody for a substantial portion of her likely sentence was grounded in improper speculation about what her sentence might be; and that in any event, the government has interests other than the confinement of a defendant, such as “the message a prosecution sends to the public.”
I don’t follow this area of the law closely enough to know for certain if White is in the mainstream or outside of it. My vague sense is that this issue doesn’t come up so often that the law is completely settled, and that different jurisdictions interpret Sell pretty differently. In fact, a comment over at Sentencing Law and Policy says that “Texas uses forced medication to restore competency even for petty misdemeanors.” If that’s right, there may be a very wide range of views that the North Carolina courts might adopt when this issue is litigated here. If you’ve had experience litigating in this area, or if you know of a pending case that may lead to an appellate ruling on point, please post a comment.
This week, the court of appeals decided State v. Forte, a case in which the defendant was convicted of exploitation of an elder adult in violation of G.S. 14-112.2 and its predecessor. The case provides a helpful interpretation of some of the key terms in the statute, and it is worth reading for that alone. This post, however, focuses on a different aspect of the case – the court’s ruling that the victim in the case was competent to testify.
Generally, the state’s evidence suggested that the defendant worked for an elderly man first as a handyman, then as a sort of driver and personal assistant. In the latter capacity, the defendant began “helping” the victim with bill paying and financial matters, and eventually began writing checks to himself on the victim’s account.
The victim was at least 93 years old at the time of the first charged conduct, and was at least 99 years old at the time of trial. As his daughter acknowledged, his faculties were declining. The defendant argued that the decline was such that the victim was not competent to testify. Under Rule 601, every person is presumed competent, but may be declared incompetent if he or she is “(1) incapable of expressing himself concerning the matter as to be understood . . . or (2) incapable of understanding the duty of a witness to tell the truth.” Id. At least on appeal, the defendant’s argument was based on the first prong of the Rule.
Many of the cases on witness competency involve the second prong of the rule, and most of the cases involve very young witnesses, not elderly ones. In fact, a few minutes on Westlaw turned up only one other case that involved a similar fact pattern: in Rodriguez v. State, 772 S.W.2d 167 (Tex. Ct. App. 14 Dist. 1989), the court held that a witness born in 1907 and diagnosed with Alzheimer’s was competent to testify; although she did not know her own age, was confused about the day of the week, and her testimony contained inconsistencies, the court determined that she was lucid overall. Given the scarcity of similar cases, Forte presented an interesting fact pattern.
The trial judge conducted a voir dire on the issue of competency, eventually ruling that the victim would be allowed to testify. The court of appeals affirmed, finding no abuse of discretion. It quoted State v. Davis, 106 N.C. App. 596 (2002), for the proposition that “Rule 601(b) does not ask how bright, how young, or how old a witness is,” but instead focuses on functional competence. And it noted that other cases have held that a witness who is unable to answer certain questions, or who gives only vague or ambiguous answers, is not necessarily incompetent. Noting that the victim in the case at bar “correctly testified to his full name, his birth date, and where he lived,” identified several of his relatives and the defendant, and knew that he was at a courthouse for a trial, the court held that the trial judge had not abused his discretion in allowing the victim to testify.
As far as I know, the entire transcript isn’t available online. However, the defendant’s brief includes several excerpts from it, and in those excerpts, the victim does appear to be confused about some very fundamental facts, like his deceased wife’s name; how many children he had and where they live; whether, how long, and how well he knew the defendant; whether the defendant had ever been to his home; and whether he had a checking account. (The state’s brief points out that the victim was able to answer some questions about his prior employment and other matters.)
If the excerpts cited in the defendant’s brief are representative of the victim’s overall performance – and again, I haven’t read the whole transcript so I don’t have an opinion on that point – the fact that the court ruled as it did highlights two things. First, competency is a low hurdle. Our appellate courts have consistently allowed testimony from very young children, see, e.g., State v. Rael, 321 N.C. 528 (1988) (four year old), and witnesses with serious mental illnesses, see, e.g., Carpenter v. Boyles, 213 N.C. 432 (1938), in some cases despite very limited abilities to recall relevant events and to answer questions. See generally Kenneth S. Broun, Brandis & Broun on North Carolina Evidence § 132 (6th ed. 2004). Forte appears to be in keeping with this tradition, which generally assumes that juries are able to assess the capacities of various witnesses. And second, the abuse of discretion standard of review is quite deferential. The court of appeals emphasized that the trial judge “was present and able to observe [the victim’s] demeanor firsthand,” and was clearly reluctant to reach a contrary conclusion based on a cold record.
In Ford v. Wainwright, 477 U.S. 399 (1986), the Supreme Court held that “the Eighth Amendment prohibits a State from carrying out a sentence of death upon a prisoner who is insane.” In other words, a defendant who was sane at the time of the crime, and competent at the time of his trial, but who later becomes insane may not be put to death. As the Court explained in Panetti v. Quarterman, 551 U.S. 930 (2007), it is not appropriate to execute a defendant who lacks a “rational understanding” of the “link between crime and punishment.”
The purpose of this post is to ask whether Ford has any application outside the context of capital punishment. In other words, can a defendant who is sentenced to a term of imprisonment and then becomes insane obtain any relief under Ford? On the one hand, much of the reasoning in Ford and Quarterman arguably applies to noncapital punishments as well. If it is not appropriate to execute a defendant who cannot appreciate the “link between crime and punishment,” why is it appropriate to impose a different punishment upon him? On the other hand, it is well established that “death is different” and that the procedural and substantive constraints surrounding capital punishment are more restrictive than in noncapital proceedings.
If you’ve ever litigated a Ford claim in a noncapital case, please post a comment or otherwise let me know. In North Carolina, there’s a statutory basis for such a claim as well: under G.S. 15A-1001, which provides that “[n]o person may be tried, convicted, sentenced, or punished for a crime when by reason of mental illness or defect he” lacks capacity. I’d be just as interested in a statutory Ford claim as a constitutional one.
I’ve spent a few minutes looking without success for noncapital cases, in North Carolina or elsewhere, in which Ford issues were raised. I did find a single law review article on point, but it didn’t cite any cases either. Dan Markel, Executing Retributivism: Panetti and the Future of the Eighth Amendment, 103 Nw. U. L. Rev. 1163 (2009) (arguing that Panetti “has implications that reach well beyond death penalty cases” and prevents the incarceration of the incompetent). Maybe this suggests that I’m pondering a non-issue, though I suspect that the lack of cases is due in part to the fact that appointed counsel is generally unavailable to post-conviction noncapital defendants.
As a final thought, the practical problems with such claims appear to be daunting. Suppose that such a claim were cognizable. What would happen to a defendant who prevailed on one? The procedures in G.S. 15A-1002 — which generally call for incompetent defendants to be considered for involuntary commitment — were not written with sentenced defendants in mind. Even assuming that those statutes could be adapted, would an incompetent defendant who did not meet the standard for involuntary commitment be released? To my knowledge, no Ford claimant has ever sought that relief, and it’s hard to imagine a court endorsing it given the tsunami of malingering that would likely ensue.
As always, I’m interested in your thoughts and reactions.
When one side or the other questions a defendant’s capacity to proceed, the judge may order a competency evaluation. The evaluation is often done locally on an outpatient basis, but in some circumstances, the judge may order the defendant committed “to a State facility for the mentally ill for observation and treatment for the period, not to exceed 60 days, necessary to determine” competency. G.S. 15A-1002(b)(2). The relevant facility is the Central Regional Hospital — Raleigh Campus, universally known as Dorothea Dix. The form typically used to request, and to order, such an evaluation is AOC-CR-208.
News reports suggest that Dorothea Dix is currently unable to handle all the demands placed on it. If true, that’s not surprising, given the state’s fiscal situation and the uncertain future of Dorothea Dix itself. As it relates to criminal cases, I’ve heard from several people around the state that officials at Dorothea Dix have put the word out that when a judge orders a defendant to Dorothea Dix for an evaluation, the sheriff should not simply bring the person to the hospital. Instead, the sheriff should call ahead and make an appointment, which the hospital may schedule several weeks down the line. When the defendant arrives at the hospital, he receives what some are calling a “drive by evaluation,” or a screening evaluation. Apparently, if the defendant is obviously competent or plainly incompetent, he can be sent back home without ever spending a single night at Dorothea Dix. If the defendant’s capacity is a closer call, he gets admitted to the hospital for observation.
The benefits of the appointment system for the mental health professionals at Dorothea Dix are obvious: it must help them to manage their workflow and to conserve resources by limiting admissions to those for whom admission is most necessary. But the system creates problems, too. I recently received a call about a case in which the defendant was ordered to Dorothea Dix, but whose appointment was scheduled three weeks out. In the interim, the defendant posted bond and was released. My interlocutor wanted to know: should the sheriff have allowed the defendant to post bond, given the commitment order? And, is the sheriff still on the hook to find the defendant and transport him to Dorothea Dix when his appointment rolls around?
The first question, in particular, has no easy answer. G.S. 15A-1002 is predicated on the assumption that when a defendant is ordered to Dorothea Dix, he’ll go forthwith. The statute doesn’t address what should happen when a defendant tries to post bond in between being ordered to Dorothea Dix and actually being taken there, because the General Assembly didn’t expect there to be an “in between.” One could argue that the commitment order functions like a detainer: the defendant can be held in jail until the commitment order can be effectuated. Or one could argue that the commitment order only authorizes the defendant to be held at Dorothea Dix — or en route to or from the hospital — and provides no basis for holding the defendant in jail if he has satisfied his pretrial release conditions.
I tend to think that this situation should be handled in one of two ways, both of which obviate the need to decide whether to let a defendant who is subject to a commitment order out on bond. Option one is for the sheriff to resist the hospital’s request to operate on the appointment system. After all, the sheriff is ordered to take the defendant to Dorothea Dix, not to hold the defendant in jail for a while and then take the defendant to Dorothea Dix. It isn’t obvious that the hospital can properly refuse to accept defendants who have been ordered there for an evaluation. (Whether the hospital can do so is a complicated question, involving both state law and the federal anti-patient-dumping statutes; my colleague Mark Botts is much more schooled on this issue than I am.) Option two is for the judge who enters the order also to order that the defendant be held in jail, pending transportation to Dorothea Dix, for a reasonable period of time if necessary to accommodate the schedule of Dorothea Dix. Such an order appears to be authorized under G.S. 15A-1002(c), which allows a court to “make appropriate temporary orders for the confinement or security of the defendant pending” competency proceedings. The quoted language appears to have been intended to cover the period of time after a defendant returns from Dorothea Dix and before the competency hearing is held, but it seems elastic enough to cover the pre-evaluation period, too. There’s not an easy place to put such a temporary order on AOC-CR-208, but presumably it can be squeezed in somewhere.
Anyone have a different way of handling this issue? I’m sure there’s local variation, and I’d like to know about it. I’d also be interested in the views of sheriffs and Dorothea Dix officials on the suggestions above.
The second question posed by my correspondent was whether the sheriff was still responsible for transporting the defendant to Dorothea Dix even though the defendant had been released. The answer to that one is pretty clear: the form order states that the sheriff “shall transfer the defendant” to Dorothea Dix as well as bring him back from the hospital. Nothing in the order depends on the defendant’s custody status, so the sheriff is on the hook. Indeed, if the defendant had already posted bond and been released at the time the order was entered, the order would have read the same way and would clearly have required the sheriff to provide transportation. While the sheriff might argue that the language of G.S. 15A-1002(b)(2) only imposes on the sheriff the duty to bring the defendant back from Dorothea Dix, not to take him to the hospital, the clear terms of the order seems to me to resolve any statutory uncertainty in favor of placing the burden on the sheriff. I know that doesn’t sit well with officers involved in such transportation assignments, who aren’t able to do their usual duties and who instead must do work for which they may not have much training, but I don’t think there’s another reasonable interpretation. If you’ve got one, please post a comment.
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?
