Respondents Brief — Perry v. Louisiana
Supreme Court brief1990
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In the
Supreme Court of the Ur
October Term, 1989
MICHAEL OWEN PERRY
Petitioner,
VS.
STATE OF LOUISIANA
Respondent.
= ON WRIT OF CER fORARI TO THE SUPREME COURT OF
THE STATE OF LOUISIANA
BRIEF FOR RESPONDENT
WILLIAM J. GUSTE, JR.
Attorney General
: RENE I. SALOMON’
4 Assistant Attorney General
M.PATRICIAJONES _
Assistant Attorney General
State of Louisiana
. Department of Justice
P.O. Box 94095
Baton Rouge, La. 70804-9095
(504) 342-7552
. Counsel for Respondent
*Counsel of Record
i
QUESTIONS PRESENTED
1. Is a mentally ill death row inmate competent to be executed if,
because of treatment with prescribed medication, he is aware of his
impending execution and the reason for it?
2. May a state administer prescribed medication to a mentally ill
death row inmate without his consent in order to achieve and
maintain his competency to be executed?
3. If competency to be executed may be achieved and
maintained with nonconsensual medication, what, if any, procedures
are required prior to such medication by the Due Process Clause of
the Fourteenth Amendment?
ll
TABLE OF CONTENTS
PAGE
QUESTIONS PRESENTED .ceccecsscsccsssssssssessesscrnrescinnesnnenennnn i
TABLE OF CONTENTS ..cccecccessscscesssccsssccssessseosssvesesssenssessinsnsinnnnnnan il
TABLE OF AUT HIORIT TES ....0ccccssesscsesscseciersscssneesvenennnnnans IV
STATEMENT OF THE CASSIE ..ccccosesccssscsssesscosecssessscrsiesinnssnnnnnnnnnn 1
ne on 2
Post-Conviction Competency Proceedings ............cc0ee 4
BVECRCE ..cccecceccncessecessessseeneseveseesoctessenseennsennnsssnnnsnnnnnnnnnnnnE 6
Decision of the State Cert .....cessscssessesscssexcissssnueene 8
SUMMARY OF ARGUMENT. ..ccscccccccsssssscssescssccsesssscnssnssssunennnsneannnns 9
ARGUMENT .....c0scosecscesesccoccvseneesesnsesnnvesssnnssensensinsnsennsinnsnnnnnnnnnnnnnE 11
I. Michael Owen Perry is competent to be executed
because, when on his prescribed medication, he is
aware of the penalty he is to suffer and he understands
the reason he is to suffer that perialty. ..............:cccceeeeeees 11
A. Under Ford v. Wainwright, 477 U.S. 399 (1986),
mentally ill prisoners are incompetent to be
executed only when their understanding of their
sentence of death is impaired. ...............:cccecsceeeeeeeeeeeeees 11
B. Louisiana has not created a constitutionally
protected liberty interest in avoiding execution
while incompetent which is greater than the right
recognized in Ford v. Wainwright, 477 U.S. 399
(DBE) ...ececvecececseeoncssnesissssirmonssinnesiaiiiuiiiaiainssiinininnnnnnnnnE 17
C. When Perry is on prescribed medication, his
understanding of his sentence of death satisfies the
Ford v. Wainwright, 477 U.S. 399 (1986), require.
ment of competency to be executed. «0.0.0.0... 19
Il. Treating Perry with prescribed medication to maintain
his competence for execution is not cruel and unusual
UNTRISI SRO NA. ....000000000s00cercscnsnesescesenenenesniennensiennnannnannannnnnnnnnnE 25
PAGE
A. Treating Perry with antipsychotic medication is
beneficial to Perry and comports with the State’s
duty to provide prisoners with medical treatment ....... 26
" B. There is no national consensus against involuntary
medication of capital offenders to achieve compe-
Teen cseuaneosoeannsseene 33
C. Nonconsensual treatment of death row inmates
which produces competency for execution does not
violate the Eighth Amendment prohibition of exces-
EEE 35
Ill. Perry has no Fourteenth Amendment right to refuse
prescribed medication which will render him compe-
Teen cenmnrmmes 38
A. The imposition of a sentence of death extinguishes
the right created by the Due Process Clause to re-
fuse prescribed antipsychotic medication..................... 38
B. Louisiana has not created a constitutionally
protected liberty interest in avoiding medication in-
tended to achieve competency for execution ............... 40
C. Even assuming that a death row inmate retains a
liberty interest in being free from involuntary
medication, such interest is outweighed by the
State’s interest in enforcing a validly imposed sen-
Teen ccemsuscenens 43
IV. The state court's conduct of adversarial hearings on the
issue of competency, accompanied by the full panoply
of attendant procedural protections, exceeded the
requirements of the Due Process Clause of the Four-
a 45
Se 50
SS la
iv
TABLE OF AUTHORITIES
PAGE
CONSTITUTIONAL PROVISIONS
Wee Ff hl, passim
ee passim
CASES
Coker v. Georgia, 433 U.S. 584 (1977) ......ccccececsneensneneneneeneneeeensennnnnnney 36
Enmund v. Florida, 458 U.S. 782 (1982) .........-.-ccseereeeeenenensnsenenenenenens 36
Estelle v. Gamble, 429 U.S. 97 (1976) ..........ccccccccceeceeseseesnsneenenenennnens 10, 32
Ford v. Wainwright, 477 U.S. 399 (1986) .............cceeeeeeeeeeeneeneres passim
Furman v. Georgia, 408 U.S. 238 (1972) ........-.c:csceeserenerenenenenenennnanananes 31
Gregg v. Georgia, 428 U.S. 153 (1976) .........ccccceeneeenennenennens 31, 33, 36-37
Hewitt v. Helms, 459 U.S. 460 (1983) ........cccccccecceeeeeeneneeees 19, 39, 42, 49
Johnson v. Cabana, __ US. __, 107 S.Ct. 2207 (1987)... 13
Kentucky Department of Corrections v. Thompson, __ US. ___.,
i 5) 19, 39, 42, 43
Lowenfield v. Butler, U.S. __, 108 S.Ct. 1456 (1988) ................ 13
Meachum v. Fano, 427 U.S. 215 (1976) ..........cccccccccceceeseeenersrerereceseeeene@
Montanye v. Haymes, 427 U.S. 236 (1976) .......ccceeeseersneeeeeeeenens 19, 39, 40
Olim v. Wakinekona, 461 U.S. 238 (1983) .........cccccccecceeeeeeeeeeneeenennnes 39, 49
Penry v. Lynaugh, US. , 109 S.Ct. 2934 (1989) ..........13, 33-36
Perry v. Louisiana, US. , 108 S.Ct. 205 (1987), reh 4
denied = US._, 108 S.Ct. 511 (1987) oo eeeceeeeeeeeneneee 4,15
Price v. Johnston, 334 U.S. 266 (1948) ........ccccccceceenenseenenenenenenennes aise
Solem v. Helo, 463 U.S. 277 (1983) ....cccccccccccsesesssseenesesnsrsnersecesersrerseerse
Stanford v. Kentucky, __ U.S. __, 109 S.Ct. 2969 (1989) ...........33-36
State v. Allen, 15 So.2d 870 (La. 1943) ..........ccccccccccceseesceseeneeeceneeeneneenenees 18
State v. Perry, 502 So.2d 543 (La. 1986) ..........cccccceeeneneneenenens 2, 15, 18, 19
State v. Perry, 543 So.2d 487 (La. 1989), reh’g denied,
TUN |) Ul SUC i)
Stein v. New York, 346 U.S. 156 (1953) ........cccccccccceseenseeceeeeeeeeneeneneennnens 20
Trop v. Dulles, 356 U.S. 86 (1958) ........... caieeenaeeuiemialeateaaidienantaiagai 16, 32, 33
Turner v. Safley,____. ~ US. __, 107 S.Ct. 2254 (1987) ..........00 43, 44
Vitek v. Jones, 445 U.S. 480 (1980) .....c.cccceccesesssesneenesesneeeneeeeneneesnseesnad
Washington v. Harper, US. , 110 S.Ct. 1028
if TTI «---cscassnnscsisennnnnasdseusennnntsnteessonsesusaineomannesamnesanmatencnensnttl passim
Vv
PAGE
Youngberg v. Romeo, 457 U.S. 307 (1982) ooocccccccccccccccccccseeseesessesseeseeseeee. 39
STATUTES
eI EET ee ee ee Tee 46
La. C.Cr.P. arts. 641-649.1 (1990) ooo. 4,8 17-1 9, 40,
La. RS. 15:890.1 (1990)... IT
“< -_—-—s Eee ane
a ae
OTHER
Appelbaum & Gutheil, Rotting With Their Rights On,
7 Bull. Am. Acad. Psychiatry & L. 306 (1979) |... 28
Brief for the American Psychiatric Association and the
Washington State Psychiatric Association as Amici Curiae,
Washington v. Harper, US. __, 110 S.Ct. 1028
RES ESET RIZE SEE cee eae 26, 27, 45
Gutheil & Appelbaum, “Mind Control,” “Synthetic Sanity”
“Artificial Competence,” and Genuine Confusion:
Legally Relevant Effects of Antipsychotic Medication,
12 Hofstra L.Rev. 77 (1963) .............cccececcccesesccccssseseeceeseese. 2,27
Haddox & Pollack, Psychopharmaceutical Restorationto = )
Present Sanity (Mental Competency to Stand Trial),
BG 5. Wem Gack, SE CRITI acceeecccecscevcnccecch nonce cceneceeennen. 33
Kemna, Current Status of Institutionalized Mental Health a |
Patients’ Right to Refuse Psychotropic Drugs,
6 J. Legal Med. 107 (1985) .o.............cccccccccecoccesccecsesesseceee. 23, 24, 27
Kessler & Waletzky, Clinical Use of the Antipsychotics,
138 Am. J. Psychiatry 202 (1981) oo... 0.oooccccccccccccceccscecceeee. 24, 27, 33
Miller, Evaluation of and Treatment to Compete
ncy to be
Executed: A National Survey and an Analysis,
16 J. Psychiatry & L. 67 (1988) ooo. cccccccecseceseeeceeeeeseseeees. 30, 31
U.S. Department of Justice, Bureau of Justice Statistics,
Capital Punishment 1988 (1989) ..................... 34
Ward, Competency for Execution: ProblemsinLawand
Psychiatry, 14 Fla.St. U.L. Rev. 35 (1986) |... 16, 30
No. 89-5120
In the
Supreme Court of the United States
October Term, 1989
MICHAEL OWEN PERRY
Petitioner,
VS.
STATE OF LOUISIANA
Respondent.
ON WRIT OF CERTIORARI TO THE SUPREME COURT
OF THE STATE OF LOUISIANA
BRIEF FOR RESPONDENT
STATEMENT OF THE CASE
This criminal case is before the Court on a writ of certiorari to
the Louisiana Supreme Court for review of state post-conviction
competency proceedings. Petitioner, Michael Owen Perry, is a
Louisiana death row inmate who has a history of mental illness. At
the suggestion of the Louisiana Supreme Court in its opinion
affirming Perry’s conviction and sentence, the state district court
initiated proceedings to determine Perry's competence to be
executed. Following appointment of a sanity commission and several
evidentiary hearings, the district court found Perry competent to be
executed and authorized prison officials to medicate Perry without
his consent in order to maintain his competence. The Louisiana
2
Supreme Court denied review of the district court's ruling, and this
Court granted Perry's petition for writ of certiorari.
Background
The evidence underlying Perry’s conviction and sentence of
death is summarized by the Louisiana Supreme Court in its opinion
on appeal, State v. Perry, 502 So.2d 543 (La. 1986), which is
reproduced in the Joint Appendix. (J.A. 1-44). Briefly, the facts are as
follows. On a Sunday morning in the summer of 1983, Perry entered
the home of his cousins, Randy Perry and Bryan LeBlanc, and killed
them as they slept. (J.A. 3, 41). He then walked the short distance to
his parents’ home and broke into the house. (J.A. 3-4). When his
parents, Chester and Grace Perry, arrived home from an out-of-town
trip with their two-year-old grandson, Anthony Bonin, Perry was
waiting for them. /d. He immediately shot and killed his parents and
the child. (J.A. 4). Following the murders, Perry stole money
belonging to his parents and fled in his parents’ car to Washington,
D.C., where he was arrested two weeks later. (J.A. 4-6).
Prior to Perry’s trial for the murders of his family, the trial court
conducted an inquiry into Perry’s mental capacity to proceed.
(J.A. 7). The court appointed a sanity commission composed of Drs.
Louis E. Shirley, Jr., and Young Hee Kang, both general practitioners
with limited experience in psychiatry. Jd. The physicians examined
Perry but did not render an opinion as to his competence to proceed
to trial. Jd. On recommendation of the commission, Perry was
committed to the Feliciana Forensic Facility for evaluation and
treatment. Jd. During his stay at the institution, Perry was diagnosed
as schizoaffective and was treated with Haldol, a neuroleptic
medication.' (R. 511, 519-20, 534, 593).’
‘Neuroleptic, or antipsychotic, drugs are used to control the symptoms
of psychotic illnesses such as schizoaffective disorder. Gutheil &
Appelbaum, “Mind Control,” “Synthetic Sanity,” “Artificial Competence” and
Genuine Confusion: Legally Relevant Effects of Antipsychotic Medication, 12
Hofstra L. Rev. 77, 79 (1983). Antipsychotics constitute a subclass of the
psychotropic family of medication which includes all drugs which affect
mental activity. /d.
?With the exception of medical records introduced as exhibits, all
portions of the record which are referred to in this Brief and which are not
contained in the Joint Appendix are reproduced in Appendix A.
3
, After Perry was released from the Feliciana facility, a second
sanity commission was appointed to evaluate his mental capacity. (J.A.
7). Drs. Shirley and Kang were again appointed to the commission
along with Dr. Aretta J. Rathmell, a practicing psychiatrist. Jd. This
time, after examining Perry, the commission was unanimous in its
opinion that Perry was competent to stand trial. Jd. The district court
agreed. (.A. 8). Consequently, Perry proceeded to trial.
At trial, Perry was found guilty as charged of five counts of first
degree murder. (J.A. 1). During the penalty phase of the trial, defense
counsel urged the jury to consider Perry’s mental condition as a
mitigating factor in sentencing. (J.A. 38). The jury nevertheless
recommended that Perry be sentenced to death on each of the five
counts. (A. 1). The jury based its recommendation on its finding of
two aggravating circumstances: Perry knowingly created a risk of
death or great bodily harm to more than one person, and the murders
were committed in an especially heinous, atrocious or cruel manner.
J.A. 1-2). In accordance with the recommendation of the jury, Perry
was sentenced to death. (J.A. 2).
On appeal to the Louisiana Supreme Court, Perry's conviction
and sentence were affirmed. (.A. 3). In reviewing the conviction, the
state’s high court found, among other things, that the “weight of the
evidence supports the trial court’s determination of competency.”
U.A. 11). With regard to Perry’s sentence, the court affirmed the
jury's rejection of Perry’s mental condition as a mitigating
circumstance:
Defense counsel argues the mitigating circumstances were
apparently overlooked by the jury. We find the conflicting
medical testimony on defendant's mental condition was provided
to the jury and the jurors chose to believe the State’s experts,
that the defendant did not suffer from a mental disorder so
overwhelming that he was insane or unable to control or
understand his actions.
(J.A. 38). In addition, the court held that the death penalty “is
——r to the offenses and to this particular defendant.” (J.A.
In concluding its opinion, the state Supreme Court offered the
following guidance on the issue of post-conviction incompetence:
4
The State will not impose the death penalty on Michael Owen
Perry if a court determines he has become insane subsequent to
his conviction for first degree murder and lacks the capacity to
understand the death penalty. . .. Defendant's burden is to show
by a preponderance of evidence that he lacks the present
capacity to undergo execution. . .. We have determined the
defendant was capable of proceeding at trial. A similar review
might be in order prior to execution.
(J.A. 43-4). This Court denied Perry's petition for writ of certiorari to
review the decision of the Louisiana Supreme Court. Perry v.
Louisiana, ___ U.S. ___, 108 S.Ct. 205 (1987), reh’g denied, ___
US. ___, 108 S.Ct. 511 (1987).
Post-Conviction Competency Proceedings
Following the suggestion of the Louisiana Supreme Court, the
state district court initiated proceedings to determine Perry's
competence for execution. (.A. 45-6). In accordance with the state
procedure for determining pre-trial competence to proceed, see La.
C.Cr.P. arts. 642-649.1 (reproduced in Appendix B), the court
appointed a sanity commission to evaluate Perry’s mental capacity.
(J.A. 45-46). The commission was composed of two psychiatrists: Dr.
Theresita Jimenez, Perry's treating physician during his pre-trial
confinement at the Feliciana Forensic Facility as well as the State's
expert in the penalty phase of the trial, and Dr. Aris Cox, Perry’s
treating psychiatrist on death row. (R. 509, 546; J.A. 10, 45).
Perry, represented by counsel, moved for the appointment of a
psychologist to the sanity commission. J.A. 46). The court granted
the motion, allowing Perry and respondent, the State of Louisiana,
the opportunity to recommend psychologists for appointment to the
commission. /d. Perry's counsel recommended appointment of
psychiatrist Dr. Glen Estes and psychologist Dr. Curtis Vincent. (R.
19). Dr. Vincent had examined Perry in 1983 when Dr. Vincent was a
clinical psychologist at the Feliciana Forensic Facility. (R. 587, 593).
Dr. Estes had not previously treated or evaluated Perry. (R. 649).
Accepting Perry's recommendations, the court appointed Dr. Estes
and Dr. Vincent to serve on the sanity commission along with Drs.
Jimenez and Cox. (JA. 46).
After its appointment of the sanity commission, the court
5
granted an ex parte motion filed by Keith B. Nordyke, one of Perry’s
lawyers, for delegation of decision-making authority and appointment
as “Do-Gooder” for Perry. (R. 186-88; J.A. 47). The court appointed
Nordyke “as defendant’s representative in these criminal proceedings
authorized to make decisions on behalf of defendant as deemed
necessary and in best interest of Michael Owen Perry.” (J.A. 47). On
March 14, 1988, pursuant to the authority granted by the district
court and without notice to the State, Nordyke instructed the state
prison authorities to remove Perry from all psychotropic medication.
(R. 91, 184). Prior to that time, Perry was apparently voluntarily
taking Haldol as prescribed by his treating psychiatrists. (R. 518, 554,
594).
The members of the sanity commission separately examined
Perry in February and early March of 1988. (R. 509, 589, 637; J.A. 79).
On April 20, 1988, the court conducted an evic -ntiary hearing on the
issue of Perry’s competency. (J.A. 47). At the hearing, Perry
introduced various medical records (R. 539-40, 541-45) and called all
four members of the sanity commission to testify (R. 505, 545, 579,
634). In addition, Perry took the stand in support of his claim of
incompetence. (R. 661). Over the State’s objection, the court allowed
Perry’s testimony to be videotaped and ordered the videotape made a
part of the record in the case. (R. 660-61). At the conclusion of the
hearing, the court took the matter under advisement and invited
memoranda from the parties. (R. 691-92).
Shortly after the hearing, on April 29, 1988, Nordyke contacted
Dr. Kay Kovac, medical director at the Louisiana State Penitentiary,
regarding Perry's condition. (R. 714; J.A. 103). Nordyke authorized
Dr. Kovac to administer psychotropic drugs to Perry whenever
medically necessary. (J.A. 103).
Prior to issuing its ruling, the court requested that the Louisiana
Department of Public Safety and Corrections provide the court with
updated information on Perry's condition. (R. 698-99). Pursuant to
this request, the Department submitted several documents regarding
Perry's mental health: a letter and notes by Dr. Kovac, a report to Dr.
Kovac from social worker Marie Hughes, notes by Ms. Hughes, and
notes by social worker Randy Parent. (J.A. 100-106). Soon thereafter,
on June 22, 1988, Perry filed an objection to admission of the
documents into evidence. (R. 193-97). On the same day, Nordyke
6
again instructed authorities at the Louisiana State Penitentiary to
discontinue treating Perry with medication. (R. 204).
On August 26, 1988, the court overruled Perry’s objection to the
evidence submitted by the Department of Public Safety and
Corrections and ordered the evidence filed into the record. JA. 48).
Based on that evidence, the court concluded that “there has probably
been a change in the mental condition of the defendant.” (R. 700). As
a result, the court ordered Dr. Jimenez and Dr. Cox to re-examine
Perry and to aprear at a sanity hearing to be held on September 30,
1988. (J.A. 49). In addition, the court vacated its order authorizing
Nordyke to make decisions for Perry and ordered that, pending the
September hearing, Perry be treated and medicated “as to be
determined by the medical staff of the Department of Public Safety
and Corrections.” (J.A. 49).
Perry applied to the Louisiana Supreme Court for supervisory
writs to review the district court’s orders. The state supreme court
stayed the order authorizing forcible medication but refused to stay
the September hearing. (R. 305, 314).
At the September hearing, the court called Dr. Cox and Dr.
Kovac to testify. (K. 713, 735). Dr. Jimenez was unable to appear at the
hearing due to illness. (R. 712). Consequently, the court scheduled a
third competency hearing in order to allow Dr. Jimenez to testify. (R.
747). Following Dr. Jimenez’s testimony at the third and final hearing
on October 21, 1988, the court asked Nordyke whether he wanted to
present any evidence on Perry’s behalf. J.A. 125). Nordyke declined
the court's invitation. /d.
Evidence
The medical experts agree that Perry suffers from
schizoaffective disorder, a mental illness which affects both mood and
thougiit. (R. 511-12; J.A. 78, 89, 94). As explained by Dr. Cox and Dr.
Jimenez, schizoaffective disorder is characterized by symptoms such
as mood swings, paranoia, disorganized thinking, delusions and
hallucinations. (R. 514, 559; J.A. 70-71). The illness is incurable and
can be managed only with medication. (R. 513; J.A. 81). Antipsychotic
drugs, such as Haldol, can be used to control the symptoms of
schizoaffective disorder; such medication reduces delusions,
hallucinations, and paranoia and improves concentration and
7
cohesiveness of thought. (R. 518-19, 567-69).
As a result of his mental illness, Perry sometimes has
diminished contact with reality. (R. 615; J.A. 80, 94). For example, he
has repeatedly expressed a belief that he is god and that, since the
age of seven, he has been married to a woman named Susan
Bordelon. (R. 592, 641; J.A. 71, 94-96). He has also claimed that he
hears voices. (R. 592-93, 663; J.A. 59-60). In addition, Perry’s thoughts
are sometimes rambling and disorganized; as demonstrated by his
testimony at the April hearing, he jumps from one topic to another
without direction or cohesion. (R. 515, 590-91, 670-71). At times, he
is ambivalent and relates inconsistent information; for example, he
has on several occasions both denied and admitted that he murdered
his family. (R. 511, 629, 667; J.A. 92).
Perry’s mental condition improves with medication. (R. 520, 553-
95, 561; J.A. 100-102). As explained by Dr. Cox, when Perry is treated
with psychotropic medication, he is less hostile, his thinking is more
rational and coherent, and he is in better contact with reality. (R. 568
69). Although Perry has developed some minor side effects from the
medication, such as stiffness and drooling, he has not exhibited signs
of the more serious tardive dyskinesia. (R. 573-74; J.A. 72-73).
Moreover, according to Dr. Jimenez, Perry has exaggerated the side
effects. J.A. 72-73). With the exception of Dr. Estes, the members of
the sanity commission recommended that Perry be treated with
neuroleptic medication. (R. 554-55, 616; J.A. 70, 88). Dr. Estes was not
“prepared to recommend a course of treatment.” (J.A. 94-95).
At the competency hearings, each of the members of the sanity
commission expressed an opinion as to Perry’s understanding of his
death sentence. Dr. Jimenez repeatedly testified that Perry “does
understand that he’s convicted of the death of his family and he does
understand that the penalty is death.” (J.A. 72-73, 77, 122-23). Dr. Cox
likewise found that Perry “was aware of the fact that he was under a
sentence of death, that the process of electrocution could kill him and
... he was aware of why he was on death row.” (J.A. 115-16, 85-86).
According to Dr. Cox, Perry’s competence depends on his
medication: “[w]hen he’s on medication I think he’s competent, when
he’s not I don’t think he is.” (R. 571). Dr. Vincent expressed some
doubt as to Perry’s understanding that he committed the murders.
(.A. 92). Dr. Vincent concluded, however, that Perry understood that
8
he would be executed if found competent to proceed and that Perry
also understood “that if an individual murders somebody[,] they can
be found guilty and then could be executed legally.” J.A. 91-92). Dr.
Estes, the only member of the sanity commission to examine Perry
only once, opined that “Perry is not completely aware of the nature of
the current proceedings against him. . . . He does not understand his
sentence as punishment for what he did wrong.” (J.A. 63).
Decision of the State Court
At the conclusion of the October hearing, the district court
issued its ruling. (J.A. 126-147). The court held that the procedural
requirements of La. C.Cr.P. arts. 641-649.1, see Appendix B, regarding
pre-trial determinations of mental capacity to proceed also apply to
inquiries into post-conviction competency. (J.A. 131). Because
Louisiana law is silent with respect to the substantive standard
governing determinations of competency to be executed, the court
adopted the standard articulated by Justice Powell in Ford v.
Wainwright, 477 U.S. 399 (1986): “the State is prohibited from
executing those who are unaware of the punishment they are about to
suffer and why they are to suffer it.” J.A. 12830, 141). Applying that
standard to the evidence, the court found that “the defendant is
competent for execution. It is further obvious from the testimony that
he is competent only while maintained on psychotropic medication in
the form of Haldol.” J.A. 145).
Having found that medication is an essential prerequisite to
Perry’s competence, the court turned to the issue of nonconsensual
medication. Jd. The court observed that “the right to refuse medical
treatment has been specifically recognized as a subject of
constitutional protection.” (J.A 139). Nevertheless, the court
concluded that the State’s interest in carrying out the death penalty
outweighs Perry’s liberty interest in being free from unwanted
medication:
Louisiana’s interest in the execution of [the] jury’s verdict
override [sic] those rights of Mr. Perry. The State is entitled to
have that judgment made executory. To allow Mr. Perry to have
the authority to make this decision and to refuse treatment and
thereby become incompetent would allow total usurption [sic] of
the criminal! laws ....
9
(J.A. 146). Accordingly, the court ordered that “the Louisiana
Department of Public Safety and Corrections . . . maintain the
defendant on [antipsychotic] medication as to be prescribed by the
medical staff of said Department and if necessary . . . administer said
medication forcibly to defendant and over his objection.” (J.A. 148-49).
The court stayed execution of its judgment in order to allow
Perry the opportunity to seek review in the Louisiana Supreme
Court. (R. 794). The state’s high court denied review of the district
court's ruling. State v. Perry, 543 So.2d 487 (La. 1989), reh’g denied,
545 So.2d 1049 (La. 1989). (.A. 150-51). Petitioner now seeks relief
from that decision of the Louisiana Supreme Court.
SUMMARY OF THE ARGUMENT
1. The state court correctly found that, when treated with
antipsychotic medication, Perry is competent to be executed. The
evidence presented at the competency hearings demonstrates that, as
long as he is medicated, Perry understands that he has been
convicted of the murders of five members of his family and that, as a
result, he has been sentenced to die. Thus, when Perry is maintained
on medication his understanding of his sentence of death satisfies the
Eighth Amendment competency standard articulated by Justice
Powell in Ford v. Wainwright, 477 U.S. 399 (1986). Neither the Eighth
nor the Fourteenth Amendment requires application of a broader
standard of incompetency. In the first place, a majority of this Court
held in Ford that the Eighth Amendment does not provide mentally ill
prisoners with more protection than suggested by Justice Powell.
Ford, 477 U.S. 399 (Powell, J., concurring in part and concurring in
the judgment); id. (O’Connor, J., concurring in the result in part and
dissenting in part); id. (Rehnquist, J., dissenting). There is no reason
now for this Court to expand the Eighth Amendment's prohibition of
execution of the insane beyond the limits recognized in Ford.
Secondly, Louisiana has not created a liberty interest which is
protected by the Fourteenth Amendment in application of a definition
of insanity which is more expansive than that set out in Ford. Because
Louisiana law is silent with regard to the substantive standard
applicable to claims of incompetency to be executed, a state prisoner
cannot claim a justifiable expectation in application of any particular
standard of incompetency.
10
2. The state court order authorizing medication of Perry without
his consent does not violate the Eighth Amendment. The record is
replete with evidence of the benefits to Perry of antipsychotic
medication. Because such medication is actually good for Perry, it
cannot reasonably be considered cruel and unusual punishment. In
fact, because Perry is incompetent to make his own treatment
decisions, under the doctrine of Estelle v. Gamble, 429 U.S. 97 (1976),
the State is required to treat Perry with neuroleptic medication, with
or without his consent, in order to relieve the suffering caused by his
mental illness. In any case, regardless ui the benefits to Perry of
antipsychotic medication, the use of medication to produce
competency does not violate the Eighth Amendment. First, there is
no national consensus against the use of appropriate psychiatric
treatment to restore competency for execution. Second, by allowing
the State to carry out validly imposed death sentences, treatment of
death row inmates which produces competency for execution serves
the fundamental penological goals of retribution and deterrence.
Third, medication of condemned prisoners is not disproportionate
punishment for the crime of first degree murder. In this case in
particular, such treatment is amply justified by Perry’s merciless
killings of five members of his family.
3. Perry does not have a Fourteenth Amendment right to refuse
the medication authorized by the state court. Without question, a
sentence of death justifies restrictions on a condemned inmate’s
‘iberty which are necessary to effectuate the death penalty. Thus, the
due process right to refuse medication recognized in Washington v.
Harper, __ U.S. ___, 110 S.Ct. 1028 (1990), does not extend to
death row inmates who require medication to be competent for
execution. Also, because Louisiana law does not use explicitly
mandatory language to limit the circumstances under which a
prisoner can be treated with antipsychotic medication, Perry cannot
claim a constitutional entitlement based on Louisiana law to avoid the
medication at issue. Finally, assuming arguendo that either the Due
Process Clause or Louisiana law does create a liberty interest in
refusing medication which produces competency for execution, that
interest is overridden by the State’s interest in carrying out the death
penalty.
4. The state court’s conduct of adversarial hearings on the issue
ll
of competency, accompanied by the full array of attendant procedural
protections, more than satisfied the procedural demands of the
Fourteenth Amendment. Any failure of the state court to comply with
procedures mandated by Louisiana law is irrelevant to the due
process analysis. Moreover, because Perry's counsel had ample
opportunity to refute the evidence submitted by the Department of
Public Safety and Corrections, the court's consideration of that
evidence did not violate the Due Process Clause.
ARGUMENT
I. Michael Owen Perry is competent to be executed because,
when on his prescribed medication, he is aware of the
penalty he is to suffer and he understands the reason he is
to suffer that penalty.
Perry understands that he has been sentenced to death for the
murders of five members of his family. As a result, he is competent to
be executed; Ford v. Wainwright, 477 U.S. 399 (1986), does not
require more. Moreover, contrary to Perry's assertions, Louisiana
has not vested him with a constitutionally protected liberty interest in
application of a competency standard which is stricter than that
enunciated in Ford.
A. Under Ford v. Wainwright, 477 U.S. 399 (1986),
mentally ill prisoners are incompetent to be executed
only when their understanding of their sentence of
death is impaired.
In Ford v. Wainwright, 477 U.S. 399 (1986), this Court held that
the Eighth Amendment proscribes execution of the insane. In line
with its prior decisions, the Court explained that the Eighth
Amendment prohibits punishments which were considered cruel and
unusual at the time the Bill of Rights was adopted as well as
punishments which are contrary to “evolving standards of decency.”
Id. at 406, quoting Trop v. Dulles, 356 U.S. 86 (1958) (plurality opinion).
Thus, in reaching its decision, the Court examined both common law
and contemporary views toward executing the insane. The Court
found that execution of the insane was prohibited at common law and
remh4ins prohibited in every state in the union. Accordingly, the Court
concluded that “the Eighth Amendment prohibits a State from
12
carrying out a sentence of death upon a prisoner who is insane.” /d. at
409-10.
The Ford majority opinion did not define insanity for purposes of
the Eighth Amendment ban on executing the insane. Justice Powell,
however, in a concurring opinion, specifically addressed the issue of
what constitutes insanity in this context. Justice Powell pointed out,
as did the majority, that a number of explanations have been
advanced as justifying the common law rule against execution of the
insane. One theory is “that the prohibition against executing the
insane was justified as a way of preserving the defendant's ability to
make arguments on his own behalf.” Jd. at 419 (Powell, J., concurring
in part and concurring in the judgment). In light of the expansive
procedural protections now afforded defendants, Justice Powell
dismissed that theory as having only “slight merit today.” Jd. at 420.
On the other hand, Justice Powell recognized that “(t]he more
general concern of the common law—-that executions of the insane
are simply cruel—retains its vitality.” Jd. at 421. He explained:
It is as true today as when Coke lived that most men and women
value the opportunity to prepare, mentally and spiritually, for
their death. Moreover, today as at common law, one of the death
penalty’s critical justifications, its retributive force, depends on
the defendant's awareness of the penalty’s existence and
purpose.
Id. In accordance with those concerns, Justice Powell concluded that
“the Eighth Amendment forbids the execution only of those who are
unaware of the punishment they are about to suffer and why they are
to suffer it.” Jd. at 422.
Justice Powell’s standard for determining competency to be
executed does not distinguish between treated and untreated
inmates. The standard is explicitly framed in terms of the condemned
inmate’s awareness of his sentence of death and the reasons for it; the
standard thus focuses on the inmate’s understanding, not on his
diagnosis or treatment. Justice Powell explained that the Eighth
Amendment's proscription of execution of the insane serves two
purposes: “[i]f the defendant perceives the connection between his
crime and his punishment, the retributive goal of the criminal law is
satisfied. And only if the defendant is aware that his death is
approaching can he prepare himself for his passing.” Jd. Without
13
question, those objectives are satisfied as long as a death row inmate
understands his sentence of death, regardless of whether his
understanding is produced with medication. Indeed, Justice Powell
implicitly recognized that competency achieved through medical
treatment satisfies the Eighth Amendment requirement: “[i]t is of
course true that some defendants may lose their mental faculties and
never regain them, and thus avoid execution altogether. My point is
only that if petitioner is cured of his disease, the State is free to
execute him.” Jd. at 425 n.5.
It is the State’s position that Justice Powell’s standard governs
claims of incompetency to be executed under the Eighth Amendment.
Although Justice Powell was the only member of the Ford majority to
expressly adopt that standard, the other members of the majority
implicitly recognized the same standard in Justice Marshall's plurality
opinion: “[i]t is no less abhorrent today than it has been for centuries
to exact in penance the life of one whose mental illness prevents him
from comprehending the reasons for the penalty or its implications.”
Id. at 417 (plurality opinion). Moreover, Chief Justice Burger and
Justices Rehnquist, White and O’Connor rejected entirely the notion
that the Eighth Amendment offers the insane shelter from execution.
Id.(O’Connor, J., concurring in the result in part and dissenting in
part); id. (Rehnquist, J., dissenting). Thus, a majority of the Court
explicitly refused to recognize an Eighth Amendment right more
expansive than that outlined by Justice Powell. Justice Powell's
opinion therefore defines the outer limits of the Eighth Amendment
right recognized in Ford. Additionally, it is significant that this Court
has recently quoted Justice Powell's standard in referring to the
holding in Ford: “under Ford v. Wainwright, 477 U.S. 399 (1986),
someone who is ‘unaware of the punishment they are about to suffer
and why they are to suffer it’ cannot be executed. Jd. at 422 (Powell, J.,
concurring in part and concurring in judgment).” Penry v. Lynaugh,
____ US. ___, 109 S.Ct. 2934, 2954 (1989). See also Lowenfield v.
Butler, __ US. ; , 108 S.Ct. 1456, 1457 (1988) (Brennan, J.,
dissenting from denial of application for stay of execution); Johnson v.
Cabana, __—iUS. ; , 107 S.Ct. 2207, 2208 (1987) (Brennan,
J., dissenting from denial of petition for writ of certiorari and denial of
application for stay of execution).
Noting that this Court has not explicitly established a standard
14
for determining competency to be executed, Perry urges this Court
to adopt a definition of insanity which is more expansive than that
articulated by Justice Powell. In particular, Perry maintains that
“(t]he definition of competency [to be executed] should . . . include a
requirement that the inmate’s competency be stable and predictable”
as well as a requirement that the condemned inmate “be able to
provide meaningful assistance in the defense of his life.” Brief for
Petitioner at 50, 55. However, as explained above, Justice Powell's
standard represents the outer boundaries of the Eighth Amendment
prohibition against executing the insane. While the Eighth
Amendment may require /ess in this context than suggested by
Justice Powell, a majority of this Court has held that it does not
require more. Ford, 477 U.S. 399 (Powell, J., concurring in part and
concurring in the judgment); id. (O’Connor, J., concurring in the
result in part and dissenting in part); id. (Rehnquist, J., dissenting).
Moreover, as explained below, there is no reason for this Court to
expand the protection of the Eighth Amendment as Perry advocates.
Perry's first suggested addition to Justice Powell's standard is a
requirement that competency for execution be “stable and
predictable.” Brief for Petitioner at 50. According to Perry, such a
standard would ensure competency at the time of execution and
would avoid repeated evidentiary hearings to evaluate changes in a
condemned inmate’s mental condition. However, Perry’s proposed
requirement of stable and predictable competency for execution is
both unnecessary and unworkable. In the first place, Perry fails to
elaborate on the meaning of “stable and predictable” competency.
Thus, it is unclear whether the standard posed by Perry would
actually serve as an effective protection against execution of the
insane. Moreover, Perry’s insistence on predictable competency
demands the impossible. Regardless of the degree of stability and
predictability required for a finding of competency, no conipetency
standard can eliminate the possibility of post-hearing deterioration of
a death row inmate’s condition; after a determination of competency,
there is always the possibility that the inmate’s condition will change
before execution. Hence, in order to cure the flaw Perry imagines in
the Ford standard, this Court would have to outlaw the death penalty
altogether. Furthermore, the defect Perry claims to find in Justice
Powell's standard is nonexistent. Because a death row inmate is
entitled to repeatedly raise a claim of incompetency up until the
15
moment of his execution, he is amply protected by Justice Powell’s
standard even if his condition deteriorates following a determination
of competency. So, even assuming, as Perry contends, that his
competency changes unpredictably from day to day, he is adequately
protected by the Ford standard because he can raise the issue of
incompetency on each “bad day.” Brief for Petitioner at 51.
Although Perry expresses concern that Justice Powell's
standard invites repeated competency hearings, the possibility of
repeated hearings is irrelevant to the Eighth Amendment analysis;
the Eighth Amendment cannot be construed to exempt death row
inmates from execution merely because of an anticipated burden on
the judicial system. While the prospect of repeated competency
hearings might justify statutory limitations on the State’s right to
enforce the death penalty, that prospect is not a legitimate ground
for constitutionalizing an expansive definition of insanity.’
Perry secondly seeks recognition of an Eighth Amendment
prohibition against executing capital offenders who are unable to
assist in their defense. However, no such limitation on the death
penalty can be found in the Eighth Amendment. As the majority in
Ford pointed out, there is no uniform rationale underlying the
proscription of executing the insane; both at common law and today,
several theories have been advanced as justifying the rule.‘ Ford, 477
*Moreover, the specier of multiple hearings on an inmate’s competency
is plainly illusory. In order to trigger the right to a competency hearing, a
Louisiana capital offender must demonstrate “a reasonable ground to believe
he is presently insane.” Perry, 502 So.2d at 564 U.A. 43-44). See also Ford,
477 U.S. at 426 (Powell, J., concurring in part and concurring in the
judgment). Thus, an inmate who has been found competent cannot provoke
a subsequent competency hearing unless he makes a threshold showing that
his condition has deteriorated to the point of incompetency. It is unlikely
then that a condemned prisoner will be entitled to repeated competency
hearings.
‘The Ford majority opinion quotes Blackstone's explanation of the
common law ban on executing the insane: “had the prisoner been of sound
memory, he might have alleged something in stay of judgment or
execution.” Ford, 477 U.S. at 407, quoting 4 W. Blackstone, Commentaries
*24-*25. Notably, however, that rationale is conspicuously absent from the
Court’s discussion of the reasons for the-rule against executing the insane.
See Ford, 477 US. at 407410.
16
U.S. at 407-410. Consequently, there is no contemporary or historical
consensus that a prisoner should not be executed unless he is able to
assist in his defense. Indeed, Justice Powell’s standard, which does
not require such ability, is the “prevailing test” among the states.
Ford, 477 U.S. at 422 n.3 (Powell, J., concurring in part and
concurring in the judgment). That standard is therefore consistent
with “the evolving standards of decency that mark the progress of a
maturing society.” Trop v. Dulles, 356 U.S. 86, 101 (1958). In short,
execution of prisoners who are unable to assist in their defense has
never been uniformly viewed as cruel and unusual punishment. As a
result, execution of such criminal offenders is not prohibited by the
Eighth Amendment. See pp. 33-35, infra.
In addition, as recognized by Justice Powell, a requirement that
a death row inmate be able to assist in his defense is of limited utility
in light of the expansive procedural protections now afforded criminal
defendants: “[t]hese guarantees are far broader than those enjoyed
by criminal defendants at common law. It is thus unlikely indeed that
a defendant today could go to his death with knowledge of
undiscovered trial error that might set him free.” Ford, 477 U.S. at
420 (Powell, J., concurring in part and concurring in the judgment).
Moreover, as Justice Powell explained, because due process requires
that defendants be competent to stand trial, “the notion that a
defendant must be able to assist in his defense is largely provided for.
See Drope v. Missouri, 420 U.S. 162, 95 S.Ct. 896, 43 L.Ed.2d 103
(1975).” Id. at 421 (footnote omitted). It is certainly difficult to
conceive of a situation in which a mitigating fact or argument which
was overlooked by a competent criminal defendant and his counsel at
the trial stage would suddenly come to the attention of the defendant
prior to execution.
Finally, the danger of executing an individual who may discover
or remember a fact or argument in avoidance of the death penalty is
not limited to mentally ill inmates. Even “perfectly sane inmates,
given enough time, might be able to develop new defenses or devise
better appeals.” Ward, Competency for Execution: Problems in Law and
Psychiatry, 14 Fla.St. U.L. Rev. 35, 50 (1986). Moreover, even sane
inmates may fail to recognize the significance of important
information or may forget relevant facts. Thus, the only way of
guarding against executing an individual who may one day discover
17
an argument which would save him from execution is to eliminate the
death penalty entirely. Such certainty is clearly not required by the
Eighth Amendment.
B. Louisiana has not created a constitutionally protected
liberty interest in avoiding execution while
incompetent which is greater than the right recognized
in Ford v. Wainwright, 477 U.S. 399 (1986).
Perry maintains that Louisiana has adopted a standard of
competency which is stricter than the standard enunciated by Justice
Powell and which enjoys the protection of the Fourteenth
Amendment. Specifically, Perry asserts that La. C.Cr.P. art. 641
establishes the Louisiana substantive standard for judging claims of
incompetency to be executed and creates a constitutionally protected
liberty interest in application of that standard. That argument reflects
a misunderstanding of- both Louisiana law and Fourteenth
Amendment doctrine.
La. C.Cr.P. art. 641 provides that “[m]ental incapacity to proceed
exists when, as a result of mental disease or defect, a defendant
presently lacks the capacity to understand the proceedings against
him or to assist in his defense.” Relying on that provision, Perry
contends that a Louisiana death row inmate is not competent to be
executed unless he both understands his sentence of death as
required by Ford and is able to “assist in his defense.” /d. As
recognized by the state court, however, Article 641 applies to
determinations of “competency to stand trial,” not competency for
execution. (J.A. 129-30).
Article 641 is found in Louisiana Code of Criminal Procedure
Title XXI, Chapter 1, entitled “Mental Incapacity to Proceed.” See
Appendix B. When read in pari materia with the remainder of the
chapter, Article 641 cannot be reasonably interpreted as applying to
claims of incompetency to be executed. For example, the Official
Revision Comment to La. C.Cr.P. art. 642 notes that “[i]t is in the
interest of fair administration of justice that a defendant who lacks the
capacity to understand the proceedings against him and to assist in
his defense should not be brought to trial while that condition exists.”
La. C.Cr.P. art. 642 Official Revision Comment (emphasis added).
Similarly, La. C.Cr.P. art. 648 provides that the court shall determine
whether the “defendant [is] incapable of standing trial.” La. C.Cr.P.
18
art. 648B(3) (emphasis added). Other references in the chapter's
provisions and commentary likewise compel a conclusion that Article
641 applies only to determinations of competency to stand trial. See
e.g., La. C.Cr.P. art. 642 (“there shall be no further steps in the
criminal prosecution”); La. C.Cr.P. art. 642 Official Revision Comment
(“present incapacity to stand trial is ordinarily urged by the defense”);
La. C.Cr.P. art. 648B(1) (“treatment [shall not] exceed the time of the
maximum sentence the defendant could receive if convicted of the
crime with which he is charged”); La. C.Cr.P. art. 649 Official Revision
Comment (“The court’s determination of the question of regaineJ
Capacity to stand trial is in accord with [precedent]}”).
Despite the clear language of the Code, Perry insists that Article
641 applies to claims of incompetency to be executed. He argues that
the Louisiana Supreme Court adopted the Article 641 standard as
applicable in the post-conviction context in State vu Allen, 15 So.2d 870
(La. 1943), and in this case on direct appeal, State v. Perry, 502 So.2d
543 (La. 1986) (J.A. 1-44). Neither case, however, provides support for
Perry’s strained interpretation of Article 641.
In relying on Perry and Allen, Perry has apparently confused
substance with procedure. In Allen, the Louisiana high court
recognized that “[o]ne who has been convicted of a capital crime and
sentenced to suffer the penalty of death, and who thereafter becomes
insane, cannot be put to death while in that condition.” Allen, 15 So.2d
at 871. The issue in Allen was solely a procedural one: whether the
trial court erred in failing to appoint experts to evaluate the
condemned prisoner’s mental condition. Jd. The court ruled that the
procedures which govern claims of incompetency to stand trial
should also be applied to claims of post-conviction insanity: “for the
same reason that a person is entitled to a hearing before conviction
on the question of his sanity, he is entitled to a hearing after
conviction; and the same rules of procedure govern.” Id. (emphasis
added). The court did not rule, however, that the same substantive
standards govern claims of pre-trial and post-conviction
incompetency; the substantive issue was simply not before the court.
In Perry, the Louisiana Supreme Court suggested that an inquiry
into Perry’s competency “might be in order prior to execution.” (J.A.
44). As in Allen, the court indicated that the procedures applicable to
determinations of capacity to stand trial would govern such an
19
inquiry. (J.A. 43-4). But, with regard to the applicable substantive
standard, not once did the court cite Article 641 or refer to a
requirement that Perry be able to assist in his defense. Jd. To the
contrary, the court implicitly adopted the Ford standard: “(t]he State
will not impose the death penalty on Michael Owen Perry if a court
determines he has become insane subsequent to his conviction for
first degree murder and lacks the capacity to understand the death
penalty.” (j.A. 43) (emphasis added).
From the above discussion, one thing is perfectly clear:
Louisiana has not expressly adopted the Article 641 standard in the
post-conviction context. As a result, Louisiana has not created a
constitutionally protected liberty interest in application of that
standard to claims of incompetency to be executed. This Court has
explained that a state creates a liberty interest protected by the
Fourteenth Amendment when state law uses “explicitly mandatory
language in connection with requiring specific substantive
predicates.” Hewitt v. Helms, 459 U.S. 460, 472 (1983). Accord
Kentucky Department of Corrections v. Thompson, ___ U.S. __., 109
S.Ct. 1904 (1989). The Louisiana statutes obviously do not use
“explicitly mandatory language” to apply Article 641 to
determinations of post-conviction insanity. In fact, in Perry, the
Louisiana Supreme Court implicitly rejected such an application of
Article 641. (J.A. 43). At the very least, then, the Louisiana
substantive standard for determining competency for execution is
unclear. Consequently, Perry cannot claim a “justifiable expectation
rooted in state law” that he will not be executed unless he is able to
assist in his defense. Montanye v. Haymes, 427 U.S. 236, 242 (1976).
C. When Perry is on prescribed medication, his
understanding of his sentence of death satisfies tlhe
Ford v. Wainwright, 477 U.S. 399 (1986),
requirement of competency to be executed.
Applying Justice Powell’s standard to this case, there can be
little doubt that Perry is competent to be executed. Admittedly, Perry
has a history of mental illness. Yet that illness did not render him
incompetent to stand trial. J.A. 11). Nor, in the jury’s eyes, did it
mitigate against application of the death penalty. J.A. 38). Similarly,
Perry's illness does not now prevent him, when properly treated,
from understanding his sentence of death.
20
The state court correctly applied Justice Powell's s
found that “it is obvious . . . that [Perry] is competent Acer a :
(J.A. 141, 145). That determination is entitled to substantial
deference. As . sted in Stein v. New York, 346 U.S. 156, 181 (1953)
this Court will not overturn factual findings of a state court except to
correct “miscarriages of such gravity and magnitude that they cannot
be expected to happen in an enlightened system of justice, or be
tolerated by it if they do.” Even a de novo review of the record,
however, reveals overwhelming evidence that Perry understands his
sentence of death.
Three of the four members of the post-convicti i
commission indicated that Perry is aware of his Siaeiiiaemaies
and that he understands the reason for it.’ Of the commission
members, Dr. Jimenez and Dr. Cox were firmest in their conclusions
that Perry understands his sentence of death. Dr. Jimenez repeats ily
testified that Perry knows that he is going to be put to death for the
murders of his family. (.A. 72-73, 77, 122-23). She stated in no
uncertain terms that Perry “does understand that he killed his family
and he does understand that he is getting the chair for that crime.”
A. 77). Likewise, Dr. Cox concluded that, as long as Perry is
treated with medication, he is competent to be executed. (R. 571) Dr
Cox testified that, when Perry was examined, he “was aware of the
pede pond en chy sentence of death, that the process of
ocution could kill him and .. . ;
chen ak aaa nd he was aware of why he was on
Although Dr. Vincent did not state his opinion regarding Perry’s
understanding of his death sentence as decisively, or as clearly as
Drs. Jimenez and Cox, his testimony reveals that Perry does
understand his sentem. e of death. Dr. Vincent noted that, when Perry
was examined, “he kvew that he would be executed if he were found
‘Perry's assertion thai al! of the members of the sanity commission
found him _Incompetent, Brief for Petitioner at 45, is a grees
mischaracterization of the experts’ testimony. As explained in the text only
Dr. Estes found Perry incompetent under the Ford standard. While the ot her
sanity Commission members referred to Perry at times as “incompetent,”
their testimony reveals that all three found that Perry was aware of his
impending execution and the reason for it. (JA. 72-73, 85 91-92; R. 628)
21
competent to proceed.” (R. 590). Dr. Vincent further testified that
Perry understands the functions of the court and “the charges.” (R.
626, 628). When asked whether Perry understands the reasons for
the death penalty, Dr. Vincent responded:
That’s a much more difficult issue. I think he has the
understanding that if an individual murders somebody [,] they
can be found guilty and then could be executed legally. I think
he understands that. I’m not really convinced that he
understands that he did the murders. I think that varies
tremendously.
(J.A. 92). In other words, Dr. Vincent doubted Perry’s understanding
of his guilt. He did not, however, question Perry's understanding of
the connection between his conviction and his upcoming execution.
To the contrary, Dr. Vincent testified that Perry knows the charges of
which he was convicted, he knows that convicted murderers can be
executed, and he knows that he will be executed if found competent.
Considered as a whole, then, Dr. Vincent’s testimony supports a
conclusion that Perry is compétent to be executed.
Dr. Estes was the only member of the sanity commission to
conclude that Perry “is not completely aware of the nature of the
current proceedings against him. . . . He does not understand his
sentence as punishment for what he did wrong.” (J.A. 63). In addition,
Dr. Estes opined that Perry “failed to acknowledge the finality of his
death sentence.” Jd. Dr. Estes did concede, however, that Perry
knows that he is on death row and that, if found competent, he will be
executed. Jd.
Dr. Estes was also the only member of the sanity commission to
examine Perry only once; his opinions are based on a single sixty-
minute interview. (R. 649). Accordingly, when measured against the
testimony of experts who saw Perry on numerous occasions, his
testimony merits little weight. In contrast, the testimony of Dr.
Jimenez and Dr. Cox, which is based on extensive experience in both
evaluating and treating Perry, is entitled to great weight. Dr. Jimenez
was Perry’s treating physician during his pre-trial confinement at the
Feliciana Forensic Facility. (R. 509). She also testified as the State's
expert in the penalty phase of the trial. J.A. 10). Dr. Cox was Perry’s
treating psychiatrist on death row. (R. 546). Thus, Dr. Cox and Dr.
Jimenez were thoroughly familiar with Perry’s case prior to their
22
appointment to the sanity commission. In addition, at the court’s
direction, Dr. Jimenez and Dr. Cox, unlike Drs. Vincent and Estes, re-
examined Perry after the first sanity hearing. J.A 49, 114, 122-23).
Following re-evaluation of Perry’s condition, both confirmed their
initial conclusion: Perry is aware of his impending execution and the
reasons for it. J.A. 115-16, 122-23).
Aside from the opinions of the sanity commission members,
Perry’s own words 2lie the contention that he is incompetent for
execution. For exan le, Perry’s statements to Dr. Kovac regarding
his refusal te take his medication are particularly telling:
[Perry] went on to say that his attorney had instructed him not
to take the medicine. And I said, well, you know, I understand
but I think just for your best health we really need to talk about
this because I think it’s in your best health to take your
medicine. And, uh, Mr. Perry said, no, my attorney has told me
not to take my medicine. He said, it’s just—it’s very simple to
understand, take my pills and die, don’t take my pills and live.
And he said, so, I’m not going to take my pills. . . . I’m not going
to take my injections any more either. ... [M]y attorney said this
is going to go to the supreme court. And he said, I’m just not
going to take any—I don’t want any injections, I don’t want any
other medications.
(J.A. 113-14). Perry made substantively identical comments to Dr.
Jimenez and to a hospital social worker. (J.A. 104-05, 123). In addition,
Perry told the socia! worker that “he does not believe he is ‘crazy’ but
if ‘they’ think he is, he will not get ‘burned.” J.A. 104). Obviously,
Perry is keenly aware that he is going to be put to death.
Perry’s statement to Dr. Jimenez regarding Charles Manson
even more clearly reveals his understanding of his sentence:
[Perry] talk{ed] about having seen a program about Charles
Manson, and he was—he voiced some concerns about the
picture and his opinions about that show. .. . It was about a show
by Geraldo, and it was on Charles Manson, and he was
questioning the fact as to why Charles Manson had people
killed, or killed some people, and he was not being executed and
why, why he, who only killed five people should be executed.
23
J.A. 124). Certainly, these are not the words of someone “whose
mental illness prevents him from comprehending the reasons for
the penalty or its implications.” Ford, 477 U.S. at 417 (plurality
opinion).
In spite of the overwhelming evidence of his competency, Perry
insists that he is not competent for execution because his mental
condition changes rapidly and unpredictably even when he is on
medication; he concludes that medication is unsuccessful “in
achieving sustained or predictable competency.” Brief for Petitioner at
24. That conclusion is simply without foundation in the record. The
great bulk of the evidence, discussed above, reveals that Perry is
competent for execution. But, as found by the district court, his
competency is unquestionably dependent on his receipt of
medication. J.A. 145). Thus, Perry’s competency changes when
changes are made in his medication. There is no evidence, however,
that Perry’s competence varies while he is on medication. Dr. Cox,
who originated the now familiar “moving target” reference, explained
that Perry is a “moving target” because he responds rapidly to
changes in his medication. J.A. 81-82). Dr. Cox did not testify that
Perry is a “moving target” when on medication. Rather, Dr. Cox made
it perfectly clear that, as long as Perry is maintained on medication,
he is competent to be executed.* (R. 571). Hence, contrary to Perry’s
claim that his competency is ephemeral and unpredictable, Perry’s
competency is entirely sustainable and predictable with medication; it
is only when Perry is removed from medication that his competency
is unpredictable.’
In support of his claim of incompetency, Perry directs this Court
to several portions of the record. First, he relies heavily on the
medical records from the state penitentiary. (D.Ex. 5; R. 544-45).
*Dr. Cox does acknowledge that, because the medication does not take
effect immediately, Perry has, at times, been incompetent even while on
medication. (J.A. 80). See Kemna, Current Status of Institutionalized Mental
Health Patients’ Right to Refuse Psychotropic Drugs, 6 J. Legal Med. 107, 110
n.15 (1985) (“after oral administration the maximum effect [of antipsychotic
drugs] does not develop for several hours.”)
"Interestingly, the instability of which Perry now complains is caused by
his own refusal to take medication and by his counsel's actions in putting
him on and taking him off medication. (R. 184, 204; J.A. 103).
24
Indeed, Perry’s brief describes the day-to-day observations of his
behavior from December 1985 to January 1988 in excruciating detail.
Brief for Petitioner at 5-12. According to Perry, the medical records
demonstrate that his competency is fleeting and unpredictable. Yet
those records shed little light on the question of Perry’s competency.
Unlike the testimony of the sanity commission members, the medical
records are not focused on the issue of Perry’s understanding of his
sentence of death. As a result, the bizarre behavior described in the
records is, for the most part, irrelevant to the competency
determination. For example, the fact that Perry feeds soap to the
toilet or shaves his eyebrows does not indicate that he is incompetent
to be executed. As explained by Dr. Cox, Perry can have psychotic
symptoms and still remain aware of his sentence of death. J.A. 83).
Moreover, the medical records do not support Perry’s contention that
his illness is not controllable with medication. In fact, Perry’s
discussion of the medical records reveals that, each time he was
hospitalized for medication, his condition quickly stabilized and he
was promptly released from the hospital.* Brief for Petitioner at 5-12.
‘Admittedly, portions of the medical records seem to indicate thal
decompensates even when on medication. However, several factors weigh
against concluding from those portions of the record that Perry does not
respond to medication. First, an indication in the record that Perry is
receiving medication does not mean that he is receiving a proper dosage of
medication. See Kessler & Waletzky, Clinical Use of the Antipsychotics, 138
Am. J. Psychiatry 202, 203 (1981) (“The most common cause of treatment
failure in the management of an acute psychotic episode is prescribing an
inadequate dose.”). Both Drs. Cox and Jimenez have stated that Perry's
medication requires adjustment. (R. 511; J.A. 115). Second, as explained by
Dr. Vincent, even when the records indicate that medication was
administered to Perry, one cannot be sure that Perry actually ingested the
medication. (R. 594, 599). Thus, only when Perry was forcibly medicated is it
certain that the medication was in fact in his system Third, the timing and
consistency of the medication must be taken into account in evaluating the
effect of medication on Perry’s condition. “The beneficial effect of
[antipsychotic] drugs is temporary and generally does not last beyond the
time the medication is eliminated from the bloodstream.” Kemna, supra note
6, at 110 (footnote omitted). Short-acting Haldol is effective for, at most,
eight to ten hours. (J.A. 116). So, it is not surprising that Perry sometimes
decompensates within a day of receiving the short-acting form of
medication. In contrast, injéctions of the long-acting Haldol D will remain
25
Second, Perry places great emphasis on Dr. Cox’s testimony
that Perry’s competence is “relative” and that, even when medicated,
Perry is never “completely coherent, well-intergraded [sic], rational.”
(J.A. 78, 84). Neither of these comments, however, supports a
conclusion that Perry is not competent when medicated. In stating
that Perry’s competence is “relative,” Dr. Cox specifically explained
that Perry’s competence depends on his medication: “[i]t has to do
with the treatment Mr. Perry is receiving.” (J.A. 78). Thus, read in
context, Dr. Cox’s statement regarding the relativity of Perry’s
competency directly contradicts Perry's assertion that he is
incompetent even while on medication. Further, Perry can draw little
support from Dr. Cox’s opinion that Perry is never completely
rational. The Constitution does not require that a condemned inmate
be “completely” rational for execution; the Eighth Amendment
requires only that death row inmates be aware of their impending
execution and the reason for it. As Dr. Cox concluded, even though
Perry is not completely rational, when medicated he does satisfy the
Eighth Amendment competency requirement. (J.A. 85; R. 571).
Third, Perry points to his testimony at the April hearing as proof
that he is incompetent for execution. However, at his counsel's
instruction, Perry’s medication was discontinued over a month before
the hearing. (R. 184). Thus, thanks to Perry's counsel, Perry’s
testimony is absolutely useless in determining whether he is
competent while medicated. 5
In sum, the evidence is clear that, when medicated, Perry is
aware of the penalty he is to suffer and why he is to suffer it. As a
result, Perry is competent to be executed.
effective for a month. J.A. 118). However, it takes three months of
medication with Haldol D supplemented by short-acting Haldol before a
patient is stabilized. J.A. 11819). As noted by Dr. Cox, prior to the sanity
hearings Perry had not been treated for three months with the long-acting
Haldol and consequently he was never stabilized. (J.A. 118). Finally, as
discussed at pages 28-29, the unanimous concensus of medical opinion is
that Perry does improve with medication. Regardless of how Perry's
attorneys view the medical records, none of the medical personnel who have
had the opportunity to observe Perry both on and off medication doubt that
Perry is competent when medicated.
26
Il. Treating Perry with prescribed medication to maintain his
competence for execution is not cruel and unusual
punishment.
Perry maintains that the state court’s order authorizing
medication without his consent violates the Eighth Amendment.’
However, administration of antipsychotic medication to Perry is a
legitimate response both to Perry's medical needs and to his claim of
incompetency to be executed. Because medication with antipsychotic
drugs is in Perry's medical interest, it cannot reasonably be
considered cruel and unusual punishment. Moreover, medication of
incompetent death row inmates is in accord with contemporary
American views regarding treatment of death row inmates, furthers
the State’s penological interests in retribution and deterrence, and is
consistent with the Eighth Amendment's proportionality
requirement. Accordingly, such medication does not violate the
Eighth Amendment.
A. Treating Perry with antipsychotic medication is
beneficial to Perry and comports with the State’s duty
to provide prisoners with medical treatment.
Perry's brief presents a grim view of treatment with
antipsychotic medication; indeed, Perry virtually equates such
treatment with medical experimentation and torture. That
characterization of the treatment authorized by the state court in this
case is irresponsible and insupportable. In simple terms,
antipsychotic medication is good for Perry. By “[p]resuming that
psychotropic medications are harmful, ignoring their unquestioned
therapeutic benefits, and refusing even to acknowledge the
unfortunate consequences of a refusal to be treated,” Perry's
representatives have misled this Court and have closed their eyes to
Perry’s real medical needs. Brief for the American Psychiatric
Association and the Washington State Psychiatric Association as
Amici Curiae, Washington v. Harper, _ __ U.S. __, 110 S.Ct. 1028
(1990).
*Perry's argument is that involuntary medication to achieve competency
is unconstitutional, not that execution of treated inmates is unconstitutional.
In fact, Perry concedes that the State may constitutionally execute a
condemned prisoner whose competence is maintained through medical
treatment. Brief for Petitioner at 60.
27
As this Court has recognized, “the therapeutic benefits of
antipsychotic drugs are well documented.” Washington v. Harper,
___. US. ___, 110 S.Ct. 1028, 1041 (1990). Specifically, such drugs
have been found to reduce “hallucinations, delusions, disordered
thought processes, agitation, withdrawal, and other symptoms of
psychotic illnesses.” Gutheil and Appelbaum, supra note 1, at 100
(footnotes omitted). Because this Court is familiar with the use of
psychotropic medication in treating psychotic illnesses, see Harper,
___. US. at ___, 110 S.Ct. at 1041, the State will not detail here the
extensive psychiatric literature documenting the benefits of
antipsychotic medication. See, e.g., Kessler & Waletzky, supra note 8.
It suffices to note that administration of neuroleptic medication to
mentally ill patients is not an outlandish, experimental or cruel
procedure; rather, as explained by the American Psychiatric
Association and the Washington State Psychiatric Association,
“[p]sychotropic medication is widely accepted within the psychiatric
community as an extraordinarily effective treatment for both acute
and chronic psychoses.” Brief for the American Psychiatric
Association ef al. at 11, Harper, _-- US. __, 110 S.Ct. 1028. See
Brief for the American Psychiatric Association and the American
Medical Association as Amici Curiae in Support of Petitioner at 10.
The State recognizes, of course, as did this Court in Harper, that
antipsychotic medication can produce serious side effects. Harper,
___. US. at ___, 110 S.Ct. at 1041. The possibility of side effects,
however, does not invariably render prescription of antipsychotic
medication inappropriate. In almost all cases in which side effects
appear, they can be eliminated by reducing the dosage of
psychotropic drugs or by prescribing anti-parkinsonian medication.
Gutheil and Appelbaum, supra note 1, at 109; Kemna, supra note 6, at
112. Even tardive dyskinesia, which is considered the most serious
side effect of antipsychotics, “is generally mild, not necessarily
progressive and very often disappears if antipsychotic medication can
be halted. Although severe cases may induce some subjective
distress, it is not uncommon ... for patients to be completely
unaware of their movements.” Gutheil and Appelbaum, supra note 1,
at 109 (footnote omitted). Moreover, the potential for side effects is
outweighed by the substantial benefits produced by antipsychotic
medication; “the overwhelming preponderance of data supports a
high benefit/risk ratio for these medications and a safety record
28
commensurate with other powerful pharmacologic agents.”
Appelbaum & Gutheil, Rotting With Their Rights On, 7 Bull. Am.
Acad. Psychiatry & L. 306, 307 (1979) (footnote omitted).
Aside from the advantages of antipsychotic drugs in general, the
evidence is clear that, in this particular case, Haldol affects Perry
beneficially.’* Dr. Cox testified that, although Perry is not “completely
coherent, well-intergraded [sic], rational” even on medication, he
“gets better when he takes medication and he gets worse when he
doesn’t.” (J.A. 84; R. 561). Dr. Cox elaborated:
When he’s taking medication he has indicated to me that he
feels better, that it helps him rest better and, to me, he seems to
function better. When he does not take the medication certainly
there’s change in his function. To me, there’s been a very clear
relationship between him being compliant with medicine in the
clinical picture that I see when I examine him.
(J.A. 85). Specifically, Dr. Cox explained that, when Perry is
medicated, he is less hostile, his thinking is more rational and
coherent, and he is in better contact with reality. (R. 568-69).
Similarly, Marie Hughes, a prison social worker, has reported that
“Perry contends that during the post-conviction proceedings
“|mJedication was never placed at issue until the trial court decided to force
medication.” Brief for Petitioner at 30. He complains that the state court did
not allow testimony regarding treatment, that he was not given an
opportunity to be heard on the treatment issue, and that the state court
made no findings as to the possible effects on him of medication. /d. at 27,
30. These complaints are wholly without merit. First, all of the experts were
questioned and allowed to testify regarding recommended treatment. (R.
554-55, 616; J.A. 70, 88, 94-95). The court limited questioning only as to the
experts’ ethical opinion of treatment of death row inmates to achieve
competency. (R. 643-44). Second, at the close of the very first sanity hearing,
the court explicitly raised the issue of medication and suggested that the
parties brief the issue. (R. 692). Thus, Perry's counsel was well aware of the
treatment question and was given ample opportunity to address the issue.
Finally, the court specifically found that neuroleptic medication is effective in
rendering Perry competent for execution. (J.A. 145). Wisely, the court did
not attempt to weigh the costs and benefits to Perry of such medication but
rather left the decision as to the desirability of medication to the professional
judgment of Perry’s physicians. J.A. 148-49).
29
medication results in substantial improvement in Perry’s condition.
J.A. 101-02). According to Ms. Hughes, when Perry is on medication
“he is able to function fairly well in his environment. He is calm,
cooperative, verbally spontaneous with appropriate answers to
questions . . . Delusional conversation is usually omitted unless
specific questions are asked.” (J.A. 101). In contrast, when Perry does
not take his medication, “he exhibits bizarre behavior, threatens to
kill himself and others, states that he is God, and associations are
loose. He changes the subject in the middle of a sentence and such
delusional matter is spontaneously verbalized.” (J.A. 102). Dr.
Jimenez and Dr. Kovac have also observed improvement in Perry’s
condition with medication. (R. 520, 724, 731-32, 761). With the
exception of Dr. Estes, who refused to suggest treatment, all of the
members of the sanity commission recommended that Perry be
treated with neuroleptic medication. (R. 554-55, 616; J.A. 70, 88, 94-95).
Not only is Haldol effective in controlling Perry’s psychosis, but
Perry has not developed any severe side effects from the medication.
In particular, he has not exhibited symptoms of tardive dyskinesia.
(R. 552, 574). On the other hand, he has demonstrated some minor
side effects, such as drooling and stiffness. (J.A. 72-73). However, Dr.
Jimenez testified that Perry exaggerates those symptoms. /d.
Moreover, such moderate adverse effects on motor functions can be
eliminated with medication. (R. 553).
The uncontroverted evidence, then, establishes that treatment
with psychotropic medication is in Perry’s best medical interest.
Indeed, Perry himself has indicated that he would voluntarily take the
medication were it not for the instructions of his lawyer to the
contrary. J.A. 104). Nevertheless, Perry ingenuously suggests that
the medication ordered by the state court is somehow not
“treatment” because it has been judicially authorized for the purpose
of maintaining competency for execution." Perry asserts that the
“Perry admits that his doctors were, in his own words, “treating” him
with psychotropic drugs from 1985 until the state court issued its order
authorizing nonconsensual medication. Brief for Petitioner at 27-28. Thus,
Perry does not claim that administration of antipsychotic medication is
inherently non-treatment. Rather, he suggests that appropriate psychiatric
treatment with neuroleptic drugs was mysteriously transformed into non-
treatment by the judicial order authorizing its involuntary administration.
30
state court’s medication order considers only the State’s interest in
achieving competency and ignores his medical needs; as a result, he
contends that medication pursuant to the court’s order is not
treatment.” Contrary to Perry’s characterization of the medication
order, however, the court’s authorization of medication ta 5 into
account both Perry’s medical needs and the State’s interest in
assuring Perry’s competency for execution. Because the court's
order authorizes medication only when prescribed by the prison’s
medical staff JJ.A. 148-49), the order “ensures that the treatment in
question will be ordered only if it is in the prisoner’s medical
interests.” Harper, US. at __, 110 S.Ct. at 1037. As in Harper,
this Court should “not assume that physicians will prescribe these
drugs for reasons unrelated to the medical needs of the patients;
indeed, the ethics of the medical profession are to the contrary.” " Jd.
at 1037 n.8.
“It is ironic that Perry’s counsel demands that decisions regarding
medical treatment should be made by Perry’s physicians in the exercise of
their professional judgment without regard to non-medical considei ations.
As explained in the text, that is exactly what the state court order authorizes.
Moreover, Nordyke’s actions during his reign as Perry’s decision-maker
betray his expressions of concern for Perry's medical welfare. While
Nordyke now proclaims that Perry’s treating doctors were responsive to his
medical needs, Brief for Petitioner at 27-28, during the post-conviction
competency hearings, he twice ordered prison authorities to remove Perry
from all medication without regard to the professional judgment of Perry's
physicians. (R. 184, 204). Indeed, the medication issue is now before this
Court only because Nordyke has instructed Perry to ignore the
recommendations of his doctors. Thus, Nordyke’s professed faith in the
professional judgment of Perry’s doctors and his concern that Perry be
“treated” are, to say the least, suspect.
“Perry and amici curiae the American Psychiatric Association and the
American Medical Association posit that treatment of condemned inmates to
produce competency for execution is itself contrary to standards of medical
ethics. The amici curiae go so far as to argue that even the State has a “vital”
interest in avoiding violation of that supposed ethical norm. Brief for the
American Psychiatric Association et al. at 16. However, the ethical stance
assumed by Perry and the amici curiae is not universally accepted in the
medical profession. Many psychiatrists take the position that it is unethical
not to treat a mentally ill death row inmate, even if the ultimate result is
competency to be executed. Miller, Evaluation of and Treatment to
31
Considering the benefits to Perry of antipsychotic medication, it
is ludicrous for Perry to suggest that such treatment is “cruel and
unusual punishment” forbidden by the Eighth Amendment.
Common sense dictates that the State does not violate the Eighth
Amendment by doing something good for a prisoner. As explained by
Justice Brennan, the fundamental principle underlying the Eighth
Amendment is that criminal penalties must comport with the basic
concept of human dignity:
At bottom, then, the Cruel and Unusual Punishments Clause
prohibits the infliction of uncivilized and inhuman punishments.
The State, even as it punishes, must treat its members with
respect for their intrinsic worth as human beings. A punishment
is ‘cruel and unusual,’ therefore, if it does not comport with
human dignity.
Furman v. Georgia, 408 U.S. 238, 270 (1972) (Brennan, J.,
concurring). Accord Gregg v. Georgia, 428 U.S. 153, 173, 182 (1976)
Gjoint opinion of Stewart, Powell and Stevens, jJ.); Trop, 356 U.S. at
100. While “the Court has not confined the prohibition embodied in
the Eighth Amendment to ‘barbarous’ methods that were generally
outlawed in the 18th century,” Gregg, 428 U.S. at 171 Goint opinion of
Stewart, Powell and Stevens, JJ.), this Court has never extended the
Eighth Amendment'’s proscription to beneficial treatment of prisoners.
Medical treatment which benefits a mentally ill inmate is simply not
Competency to be Executed: A National Survey and an Analysis, 16 J.
Psychiatry & L. 67 (1988); Ward, supra p. 16. That position recognizes the
distinction between the medical decision to treat and the legal decision to
impose the death penalty. Thus, many psychiatrists and the National Medical
Association “endors[e] the principle that physicians are ethically obligated to
relieve suffering without consideration of subsequent non-medical
consequences.” Miller, supra, at 77.
To be sure, the ethical question posed by the decision to treat a
condemned prisoner is not an easy one. But that question need nut be
resolved here. The constitutional issues before this Court are entirely
separate from the ethical issues; it is manifest that the Constitution does not
embrace any particular view of medical ethics. The ethical choice of whether
or not to treat a death row inmate must be left to physicians on a case-by-
case basis. If Perry’s physicians continue to prescribe antipsychotic
medication, as they have in the past, it is not for amici curiae or this Court to
attempt to erect ethical barriers to such treatment.
32
contrary to the “dignity of man” or outside “the limits of civilized
standards.” Trop, 356 U.S. at 100. Thus, unless the Eighth
Amendment is turned on its head, it cannot be construed as
prohibiting appropriate and beneficial psychiatric treatment.
Despite the recognized benefits to Perry of neuroleptic
medication, Perry seems to argue that nonconsensual administration
of such medication constitutes cruel and unusual punishment
because the State’s purpose is to induce competency for execution.
That argument is without merit. Medication of Perry is, of course,
intended to render him competent for execution. In fact, every aspect
of Perry’s confinement contemplates, and is intended to facilitate,
Perry's eventual execution. Perry's confinement itself is a precursor
to execution of the death penalty. Yet his mere imprisonment is
certainly not cruel and unusual punishment. Because capital
punishment is an acceptable penalty under the Eighth Amendment,
the State must be allowed to employ the means necessary to carry
out the death pena'ty unless those means are themselves cruel and
unusual. In short, treatment of a prisoner which is not otherwise
violative of the Eighth Amendment does not become cruel and
unusual punishment merely because it facilitates execution.
In this case, involuntary treatment is not only permitted by the
Eighth Amendment, but it is mandated by the Amendment. This
Court held in Estelle v. Gamble, 429 U.S. 97, 104 (1976), that
“deliberate indifference to serious medical needs of prisoners”
constitutes cruel and unusual punishment. Hence, the Eighth
Amendment creates a State duty to provide prisoners with medical
treatment. In compliance with that duty, the State has been treating
Perry with psychotropic drugs since his conviction. Now, at the
instructions of his lawyers, Perry refuses to accept prescribed
medication. Nevertheless, the State cannot ignore its duty to care for
Perry's medical needs. Because Perry loses touch with reality when
he goes without his medication, he cannot be considered competent
to make his own treatment decisions. Indeed, Perry's counsel
conceded as much when he moved for appointment as Perry's
decision-maker: “the decision making processes of the defendant are
so impaired as to render them completely unreliable.” (R. 187). Thus,
notwithstanding Perry’s refusal of medication, the State, as Perry’s
custodian, must ensure that he receives proper psychiatric treatment.
33
To honor Perry's objections and allow him to languish in a continual
state of psychosis, tortured by hallucinations, delusions and paranoid
fantasies, would unquestionably constitute cruel and unusual
= See Brief for the American Psychiatric Association et al.
at 20.
B. There is no national consensus against involuntary
medication of capital offenders to achieve competency
for execution.
Even assuming for the sake of argument that beneficial medical
treatment could constitute cruel and unusual punishment under some
circumstances, the Eighth Amendment does not forbid prescribed
medication of death row inmates which produces competency for
execution. Perry insists that there is a national consensus opposing
such medication. However, medication which induces competency for
execution is entirely consistent with contemporary American
standards regarding treatment of mentally ill prisoners.
This Court has held that the Eighth Amendment ban on cruel
and unusual punishment is not limited to those penalties forbidden at
the time the Bill of Rights was adopted." Ford, 477 US. at 406; Gregg,
428 U.S. at 171 (joint opinion of Stewart, Powell and Stevens, JJ.).
Rather, the Eighth Amendment proscription extends to punishments
_ which are contrary to “the evolving standards of decency that mark
the progress of a maturing society.” Trop, 356 U.S. at 101. Thus,
where there is a national consensus against a particular punishment,
this Court will find imposition of that punishment to be cruel and
unusual in violation of the Eighth Amendment. Stanford v. Kentucky,
__ US. ____, 109 S.Ct. 2969 (1989): Penry, __- US. , 109 S.Ct.
2934. In determining whether a national consensus exists, this Court
looks to “objective indicia that reflect the public attitude toward a
given sanction.” Gregg, 428 U.S. at 173 Goint opinion of Stewart,
Powell and Stevens, JJ.). In particular, the Court considers legislation
“Perry does not argue that involuntary medication to restore sanity for
execution was prohibited at common law. Nor could he. Antipsychotic drugs
were not available as a treatment for mental illness until this centur y. Kessler
& Waletzky, supra, note 8, at 202: Haddox & Pollack, Psychopharmaceutical
Restoration to Present Sanity (Mental Competency to Stand Trial), 17 J
Forensic Sci. 568, 570-71 (1972).
34
to be “the primary and most reliable indication of consensus.”
Stanford, __ US. at__, 109 S.Ct. at 2977.
A review of state legislation reveals no “objective evidence . . . of
an emerging national consensus,” Penry, - U.S. at__, 109 S.Ct.
at 2955, against medication of death row inmates to produce
competency for execution. No jurisdiction explicitly prohibits such
medication. On the other hand, contrary to Perry’s allegation that
“[n]o state has passed legislation authorizing the use of medication to
establish competency for execution,” Brief ior Petitioner at 40
(emphasis omitted), Maryland expressly allows medication of
condemned prisoners to restore competency. See Appendix E.
Moreover, of the 37 states which have enacted capital punishment, 24
(including Maryland) contemplate the use of medication to produce
competency by specifically authorizing treatment of incompetent
death row inmates or by providing that the execution of such inmates
will be stayed or suspended until competency is regained.” See
Appendix F. The statutes of the remaining 13 death penalty states,
including Louisiana, are silent on the issue of restoration of
competency. However, these 13 states, as well as the 13 states and
the District of Columbia which do not allow capital punishment,
authorize involuntary treatment of prisoners and criminal defendants
in other contexts."* See Appendixes H and I. Thus, involuntary
medication of prisoners is not, in and of itself, contrary to
contemporary values.’ Moreover, at least twenty states statutorily
provide that competency to stand trial may be achieved with
medication. See Appendix J.
“In addition, three other states had similar provis‘ons before outlawing
capital punishment. See Appendix G.
“As evidence of a national consensus against involuntary medication of
prisoners, Perry points this Court to a host of state statutes regarding the
rights of civilly commited patients. Appendix to Brief for Petitioner, Chart 2.
However, because prisoners do not necessarily possess the same rights
enjoyed by those who have not been convicted of crimes, statutes governing
treatment of civilly committed patients are for the most part irrelevant to the
issue of contemporary standards regarding treatment of prisoners.
"Indeed, 20 states authorize capital punishment by lethal injectior. U.S.
Department of Justice, Bureau of Justice Statistics, Capital Punishment 1988.
5, Table 2 (1989).
35
Recently, in Stanford v. Kentucky, _ US. : , 109 S.Ct.
2969, 2975-76 (1989), this Court held that a showing that 15 states
forbid the execution of 16-year-old offenders and that 12 states forbid
the execution of 17-year-old offenders did “not establish the degree of
national consensus this Court has previously thought sufficient to
label a particular punishment cruel and unusual.” Thus, in claiming
that involuntary medication of prisoners to achieve competency for
execution is prohibited by the Eighth Amendment, it is Perry’s
“heavy burden’ . . . to establish a national consensus against it.” Id. at
___, 109 S.Ct. at 2977 (citation omitted). As the above survey of state
legislation demonstrates, Perry has failed to carry that burden. Not a
single state has enacted legislation forbidding medication of prisoners
to restore competency for execution. Moreover, such medication is
authorized by the only state which has specifically addressed the
issue by statute. Hence, “the clearest and most reliable objective
evidence of contemporary values,” Penry, _ U.S. at__, 109 S.Ct.
at 2953, reveals absolutely no opposition to the use of medication to
achieve competency for execution, much less a national consensus
against such treatment. In short, medication of condemned prisoners
to produce competency is not contrary to “evolving standards of
decency."
C. Nonconsensual treatment of death row inmates which
produces competency for execution does not violate
the Eighth Amendment prohibition of excessive
punishment.
“Perry places great emphasis on the fact that the state court’s order is
not specifically authorized by state statute or by a decision of the state
Supreme Court but rather is, as he phrases it, “the product of penological
policy-making by a single trial judge.” Brief for Petitioner at 37. That is
beside the point. A particular punishment need not be explicitly sanctioned
by statute or supreme court decision in order to be permissible under the
Eighth Amendment. For example, in Penry v. Lynaugh, __ US. —s
S.Ct. 2934 (1989), a mentally retarded murderer was sentenced to death: the
sentence was not based on an explicit state authorization of capital
punishment of mentally retarded murderers. Yet this Court refused to hold
that execution of mentally retarded offenders violates the Eighth
Amendment. Likewise, in this case, Louisiana’s failure to expressly authorize
the treatment at issue does not render that treatment violative of the Eighth
Amendinent.
36
In Gregg v. Georgia, 428 U.S. 153 (1976), Justices Stewart, Powell
and Stevens wrote that “public perceptions of standards of decency
with respect to criminal sanctions are not conclusive [of the Eighth
Amendment issue]. A penalty also must accord with ‘the dignity of
man,’ which is the ‘basic concept underlying the Eighth
Amendment.’ . . . This means, at least, that the punishment not be
‘excessive.” Jd. at 173 (joint opinion of Stewart, Powell and Stevens,
JJ.) (citation omitted). “Under Gregg, a punishment is ‘excessive’ and
unconstitutional if it (1) makes no measurable contribution to
acceptable goals of punishment and hence is nothing mcre than the
purposeless and needless imposition of pain and suffering; or (2) is
grossly out of proportion to the severity of the crime.” Coker v.
Georgia, 433 U.S. 584, 592 (1977) (plurality opinion). See also
Stanford, ___ U.S. ____, 109 S.Ct. 2969 (O’Connor, J., concurring in
part and concurring in the judgment); id. (Brennan, J., dissenting);
Penry, US. , 109 S.Ct. 2934 (opinjon of O’Connor, J.): id.
(Brennan, J., concurring in part and dissenting in part). As explained
below, medication of incompetent death row inmates is not only
consistent with this nation’s “evolving standards of decency,” but it
survives the excessiveness inquiry suggested by Gregg."
There are two generally accepted purposes of the death penalty:
retribution and deterrence. Enmund v. Florida, 458 U.S. 782 (1982).
“In part, capital punishment is an expression of society’s moral
outrage at particularly offensive conduct... . [C]ertain crimes are
themselves so grievous an affront to humanity that the only adequate
response may be the penalty of death.” Gregg, 428 U.S. at 183-84 (joint
opinion of Stewart, Powell and Stevens, JJ.) (footnotes omitted). In
addition, the death penalty can be in some cases an effective
deterrent to potential capital offenders: “[t]here are carefully
contemplated murders, such as murder for hire, where the possible
penalty of death may well enter into the cold calculus that precedes
the decision to act. And there are some categories of murder, such as
murder by a life prisoner, where other sanctions may not be
adequate.” Jd. at 186 (footnotes omitted).
“Perry does not expressly claim that involuntary medication to achieve
competency for execution violates the Eighth Amendment proscription of
excessive punishment. Nevertheless, because the basis for Perry's Eighth
Amendment claim is not entirely clear, we address the excessiveness issue.
fe
37
Medication of death row inmates which produces competency
for execution significantly contributes to both goals of the death
penalty. It is readily apparent that, if a condemned prisoner is
shielded from execution by virtue of incompetency, the State cannot
give effect to society’s moral outrage at the prisoner’s crime.
Medication which restores competency and thereby allows execution
of the death penalty thus satisfies the retributive goal of capital
punishment. In addition, medication which induces competency
enhances the deterrent effect of the death penalty by increasing the
likelihood of execution. As loopholes to execution are narrowed or
closed. the death penalty becomes a more certain punishment and
hence a better deterrent. Thus, by limiting the effectiveness of mental
illness as an escape hatch from execution, medication of incompetent
death row inmates contributes to the penological goal of deterrence.
The second prong of the Eighth Amendment excessiveness
inquiry requires evaluation of the proportionality of the punishment
in relation to the seriousness of the offense. See Solem v. Helm, 463
U.S. 277 (1983). As Justices Stewart, Powell and Stevens explained in
Gregg, “(t|here is no question that death as a punishment is unique in
its severity and irrevocability.” Gregg, 428 U.S. at 187 Goint opinion of
Stewart, Powell and Stevens, JJ.). Yet capital punishment is not
invariably disproportionate punishment for the crime of deliberate
murder. Jd. Assuming for the sake of argument that involuntary
medication to achieve competency for execution increases the
severity of a capital offender’s punishment, such medication certainly
does not constitute punishment that is so severe as to be
disproportionate to the crime of premeditated murder, “the most
extreme of crimes.” Jd. Murders which are “so grievous an affront to
humanity,” id. at 184, as to justify the ultimate penalty of death must
likewise merit the relatively minor intrusion of nonconsensual
medication.
In this case in particular, the “penalty” of involuntary
medication is amply justified by Perry’s cold-blooded murders of five
members of his family. As described by the Louisiana Supreme Court,
Perry’s crimes were particularly egregious:
The offense was a shocking mass murder in a small town. Five
members of defendant's family were killed on a Sunday
morning, two as they slept in their beds. After killing his
38
parents, his cousins and a nephew, the defendant took money
from his mother’s belongings and from his father’s pockets and
fled the state in his father’s car, taking refuse [sic] in a
Washington hotel. He killed the adult victims in their own homes
in a violent, bloody encounter which was deliberately planned
He waited for his parents more than an hour following his
murder of his two cousins in a house just two doors away. A total
of three weapons were used. The death penalty in such a case is
proportionate to the offenses and to this particular defendant.
U.A. 40-41). Obviously involuntary medication is not overly severe
treatment for the criminal responsible for these crimes. The brutal
slayings of five people, including a two-year-old child, merit the death
penalty, even if carrying out that penalty requires treating Perry with
medication to achieve his competency.
III. Perry has no Fourteenth Amendment right to refuse
prescribed medication which will render him
competent to be executed.
In addition to his Eighth Amendment argument, Perry contends
that he is protected from unwanted medication by the Fourteenth
Amendment. According to Perry, both the Due Process Clause and
Louisiana law grant state prisoners a liberty interest in refusing
antipsychotic medication. However, a sentence of death justifies
restrictions on a condemned inmate’s liberty which are necessary to
carry out the death penalty; thus, a death row inmate who requires
medication to be competent for execution is not entitled by the
Fourteenth Amendment to refuse such medication. Moreover,
Louisiana law does not create a constitutionally protected liberty
interest in avoiding medication which is intended to produce
competency for execution. Finally, even assuming that Perry has a
liberty interest in refusing medication, that interest ‘s overridden by
the State’s interest in effectuating the death penalty.
A. The imposition of a sentence of death extinguishes the
right created by the Due Process Clause to refuse
prescribed antipsychotic medication.
This Court has consistently recognized that prisoners do not
retain the full range of liberty interests enjoyed by others. It is self.
evident that a conviction and sentence of imprisonment necessarily
extinguish the right to be free from confinement. Likewise, a
39
conviction and sentence of imprisonment justify restrictions on an
inmate’s freedom which are “ordinarily contemplated by a prison
sentence.” Hewitt, 459 U.S. at 468 . “Lawful incarceration brings about
the necessary withdrawal or limitation of many privileges and rights,
a retraction justified by the considerations underlying our prison
system.” Price v. Johnston, 334 U.S. 266, 285 (1948). Thus, this Court
has held that prisoners do not enjoy constitutionally created rights to
be free from administrative segregation, Hewitt, 459 U.S. 460,
restrictions on visitation, Thompson, US.__, 109 S.Ct. 1904,
interstate transfer from one prison to another, Meachum v. Fano, 427
U.S. 215 (1976), or transfer to an out-of-state prison, Olim v.
Wakinekona, 461 U.S. 238 (1983). “As long as the conditions or
degree of confinement to which the prisoner is subjected is within the
sentence imposed upon him and is not otherwise violative of the
Constitution, the Due Process Clause does not in itself subject an
inmate’s treatment by prison authorities to judicial oversight."
Montanye, 427 U.S. at 242. See also Vitek v. Jones, 445 U.S. 480 (1980).
In Washington v. Harper, US. __, 110 S.Ct. 1028 (1990),
this Court held that a Washington State prisoner had a liberty interest
under the Due Process Clause of the Fourteenth Amendment in
refusing medication with psychotropic drugs. The Court explicitly
recognized, however, that “[t]he extent of a prisoner's right under the
Clause to avoid the unwanted administration of antipsychotic drugs
must be defined in the context of the inmate’s confinement.” Jd. at
____, 110 S.Ct. at 1037.
In this case, Perry’s interest in refusing antipsychotic
medication must be viewed in light of his sentence of death. Just asa
sentence of imprisonment justifies conditions of confinement which
are “within the sentence imposed,” Montanye, 427 US. at 242. so does
a sentence of death justify restrictions on liberty which are required
to effectuate the death penalty. A sentence of death contemplates that
the liberty interests of the condemned inmate will be restricted to the
extent necessary to carry out that sentence. For example, a sentence
of death by electrocution requires that the condemned prisoner be
physically strapped to the electric chair; as a result. ye constitutional
liberty interest in freedom from bodily restraint, see Youngberg v.
Romeo, 457 U.S. 307, 316 (1982), is superseded by imposition of the
death penalty.
40
The State cannot carry out Perry's sentence of death unless his
competence to be executed is maintained with the use of
antipsychotic drugs. Treatment of Perry with such medication is thus
a necessary precondition to execution of Perry’s sentence and is
therefore “within the sentence imposed upon him.” Mowtanye, 427
U.S. at 242. In short, the Harper right to be free from involuntary
medication was extinguished by Perry's sentence of death.
B. Louisiana has not created a constitutionally protected
liberty interest in avoiding medication intended to
achieve competency for execution.
As previously noted, the decisions of this Court establish that
“where a statute indicates with ‘language of an unmistakable
mandatory character,’ that state conduct injurious to an individual will
not occur ‘absent specified substantive predicates,’ the statute creates
an expectation protected by the Due Process Clause.” Ford, 477 U.S.
at 428 (O'Connor, J., concurring in the result in part and dissenting in
part), quoting Hewitt v. Helms, 459 U.S. at 471-72. Perry maintains
that Louisiana law creates a constitutionally protected right to refuse
psychiatric treatment intended to achieve competency for execution.
Specifically, Perry asserts that La. C.Cr.P. art. 648, La. RS. 15:830.1,
and La. R.S. 28:171(P) grant him a constitutionally protected liberty
interest in avoiding the medication authorized by the state court.
However, none of those statutes creates such a liberty interest.
La. C.Cr.P. art. 648, which is reproduced in Appendix B, provides
that, when a criminal defendant is judicially determined to be
incapable of standing trial, he shall be committed “to the custody of
the Department of Health and Human Resources or a private
institution approved by the court for custody, care, and treatment as
long as the lack of capacity continues.” La. C.Cr.P art. 648A. The
statute further provides that if, after commitment, the court finds that
the defendant is not likely to become capable of standing trial, the
defendant shall be released on probation or, if he is a danger to
himself or others, civilly committed for treatment. La. C.Cr.P. art.
648B. Although Article 648 is addressed to determinations of capacity
to proceed to trial, Perry submits that the Code articles governing
claims of incompetency to stand trial, including Article 648, have been
applied by the Louisiana Supreme Court in the post-conviction
context However, as explained supra at pages 18-19, only the
41
procedural requirements of La. C.Cr.P. arts. 641 et seq. have been
extended to the post-conviction setting. Thus, any substantive right
created by Article 648 is not available to Perry. More importantly,
though, Article 648 plainly does not recognize a right to refuse
treatment. In fact, the Article explicitly requires treatment to achieve
competency. So, assuming for the sake of argument that Article 648 is
fully applicable to post-conviction competency proceedings, it
specifically authorizes the treatment ordered in this case.
La. R.S. 28:171(P) is likewise inapplicable here. Section 171,
which is reproduced in Appendix C, is a declaration of the rights of
patients in state treatment facilities for the mentally ill; it simply does
not apply to treatment of prisoners on death row.” Assuming
arguendo that the statute applies, it does not creata a right to refuse
the medication at issue in this case. La. R.S. 28:171(P) provides that
“[n]o medication may be administered to a patient except upon the
order of a physician. . .. Medication shall not be used for nonmedical
reasons such as punishment or for convenience of the staff.” Perry
claims that this provision prohibits any medication which is not for
“treatment.” However, as explained supra at pages 29-30, the
medication authorized by the state court is to “treat” Perry. So, if
Section 171(P) establishes treatment as a “substantive
predicate” absent which medication will not be ordered, that
substantive predicate has been met.”
“La. R.S. 28:2(28)(C) specifically excludes prisons and jails from the
definition of “treatment facility.” See Appendix C. Moreover, a reading of
Section 171 in its entirety makes it crystal clear that it was not intended to
apply to state prisoners. The Section grants patients the rights to
“unimpeded, private and uncensored communiyation .. . bj mail, telephone
and visitation,” La. R.S. 28:171(C), to “be employed at a useful occupation,”
La. R.S. 28:171(H), and to “wear [their] own clothes,” La. R.S. 28:171(G).
Certainly, the legislature did not intend to grant those rights to death row
inmates.
"The mere fact that Perry's treatment also produces competency for
execution is of no consequence. Section 171(P) cannot be read as
prohibiting medically necessary treatment merely because the t-eatment
aiso serves another purpose. Indeed, as discussed above, La. C.CrP art. 648
explicitly requires treatment to produce competency to stand trial. Thus.
Louisiana law does not categorically forbid the use of medically appropriate
treatment to produce competency.
42
Unlike Article 648 and Section 171, La. R.S. 15:830.1, reproduced
in Appendix D, does apply in the prison setting. That statute provides
for involuntary treatment of a mentally ill prisoner for up to fifteen
days when a prison physician or psychiatrist “certifies that the
treatment is necessary to prevent harm or injury to the inmate or to
others.” La. R.S. 15:830.1A. Section 830.1 further provides that, when
treatment for more than fifteen days “is deemed necessary,” judicial
proceedings shall be initiated to determine whether the inmate
should be committed to a treatment facility for continued treatment.
Id. The proceedings must “be in accord with all procedures required
by law in the case of judicial commitment.” La. R.S. 15:830.1C.
Treatment of the prisoner must continue during pendency of the
proceedings. La. R.S. 15:830.1A. Following a judicial hearing at which
the prisoner is represented by counsel, “the court shall determine
whether the inmate is competent and, if not, he shall order that
appropriate treatment be provided.” Jd.
Section 830.1 does not create a constitutionally protected liberty
interest because it does not contain “explicitly mandatory language”
that nonconsensual medication “will not occur absent specified
substantive predicates.” Hewitt, 459 U.S. at 472. Section 830.1
provides that involuntary medication of a prisoner “will be permitted”
if such treatment “is necessary to prevent harm or injury to the
inmate or to others,” La. R.S. 15:830.1A, but it does not mandate
treatment under those circumstances. Thus, the statute “stop[s]
short of requiring that a particular result is to be reached upon a
finding that the substantive predicates are met.” Thompson, __ US.
at__, 109 S.Ct. at 1910 (footnote omitted). Moreover, Section 830.1
does not specify that involuntary medication is permitted only if
necessary to prevent harm or injury. A finding that medication is
necessary to prevent harm or injury is a sufficient condition for
nonconsensual administration of neuroleptic medication, but it is not
a necessary condition for that treatment. Perry cannot therefore
“reasonably form an objective expectation” that he will not be
medicated absent a finding that he poses a risk of harm or injury to
himself or others. Jd. at__, 109 S.Ct. at 1911. In other words, even if
Section 830.1 creates an expectation that an inmate will be medicated
if necessary to prevent harm or injury, the statute does not create “a
justifiable expectation on the part of the inmate that the drugs wi!! not
43
be administered unless [that condition] exist[{s].” Harper, _ US..at
___, 110 S.Ct. at 1036 (emphasis added) .”
Cc. Even assuming that a death row inmate retains a
liberty interest in being free from involuntary
medication, such interest is outweighed by the State’s
interest in enforcing a validly imposed sentence of
In Turner v. Safley, _' US. , 107 S.Ct. 2254, 2261
(1987), this Court held that a prison regulation which interferes with
prisoners’ constitutional rights is valid as long as “it is reasonably
related to legitimate penological interests.” Although the Turner
standard of review is stated in terms of prison “regulations,” this
Court has noted that the standard “applies to all circumstances in
which the needs of prison administration implicate. constitutional
rights.” Harper, ___ US. at __, 110 S.Ct. at 1038. Thus, even
assuming that Perry retains a right to refuse medication under either
the Due Process Clause or Louisiana law, the court order
*Perry contends that Section 830.1 creates a constitutionally protected
entitlement because it is “written in mandatory language.” Brief for
Petitioner at 42. Specifically, Perry points out the following language in
Section 830.1: “If treatment for a longer period is deemed necessary, a
petition shall be filed in a court of competent jurisdiction setting forth the
reasons for the treatment. . . . After a hearing . . . , the court shall determine
whether the inmate is competent and, if not, he shall order that appropriate
treatment be provided.” La. R.S. 15:830.1A (emphasis added). However, this
language is not relevant to the issue of whether Section 830.1 creates a
liberty interest in refusing medication. As explained by this Court in
Kentucky Department of Corrections v. Thompson, __US.___,_ in,
109 S.Ct. 1904, 1910 n.4 (1989), “the mandatory language requirement is not
an invitation to Courts to search regulations for any imperative that might be
found. The search is for relevant mandatory language that expressly
requires the decisionmaker to apply certain substantive predicates jin
determining whther [sic] an inmate may be deprived of the par ticular
interest in question.” The language relied on by Perry does not require that
medication be ordered if an inmate poses a danger to himself or others; the
quoted language comes into play only after an initial decision has been made
to medicate the inmate for fifteen days. In addition, the quoted language
does not prohibit medication under other circumstances. Thus, the language
is “irrelevant mandatory language.” Jd. at__n.4, 109 S.Ct. at 1910-11 n.4.
44
authorizing nonconsensual medication to achieve Perry’s competency
to be executed is valid because it is reasonably related to the State’s
interest in carrying out the death penalty.
In Harper, this Court considered a constitutional challenge to a
Washington prison regulation which provided for forcible treatment
of mentally ill prisoners with prescribed antipsychotic drugs if the
prisoners were found likely to harm themselves or others. While
recognizing a constitutional liberty interest in refusing unwanted
medication, the Court applied the Turner standard of review and
upheld the regulation as reasonably related to legitimate penological
interests. Jd. In so holding, the Court considered three factors which
the Turner decision identified as relevant to the determination of the
reasonableness of a regulation:
‘First, there must be a “valid, rational connection” between the
prison regulation and the legitimate governmental interest put
forward to justify it.’ 482 U.S., at 89 (quoting Block v. Rutherford,
468 U.S. 576, 586 (1984)). Second, a court must consider ‘the
impact accommedation of the asserted constitutional right will
have on guards and other inmates, and on the allocation of
prison resources generally.’ 482 U.S., at 90. Third, ‘the absence
of ready alternatives is evidence of the reasonableness of a
prison regulation,’ but this does not mean that orison officials
‘have to set up and then shoot down every conceivable
alternative method of accommodating the claimant’s
constitutional complaint.’ Jd., at 90-91; see also Estate of Shabazz,
supra, at 350.
Id.
Consideration of the three Turner factors supports a conclusion
that nonconsensual medication of a death row inmate to achieve
competency for execution is constitutionally permissible. First, it is
manifest that the State has. a substantial interest in enforcing criminal
sentences. See Brief for Petitioner at 44. The fundamental purposes 0!
punishment, retribution and deterrence, cannot be served if criminal
sentences are not carried out. In addition, as in Harper, the State has
an interest in prowiding prisoners with treatment which is in their
best medical interest. Harper, ___ U.S. at__, 110 S.Ct. at 1039. The
provision of medically prescribed treatment to a mentally ill prisoner
to achieve his competency to be executed serves both of these State
45
interests. The medication makes it possible for the State to enforce a
validly imposed death sentence. Moreover, “the fact that the
medication must first be prescribed by a psychiatrist . . . ensures that
the treatment in question will be ordered only if it is in the prisoner’s
medical interests, given the legitimate needs of his institutional
confinement.” Jd. at__, 110 S.Ct. at 1037 (footnote omitted).
Second, under the circumstances, accommodation of the right to
refuse medication would impose a significant burden on the prison
system. Supervision and care of untreated mentally ill prisoners is
considerably more difficult han supervision and care of mentally ill
prisoners who are properly treated. As explained by the American
Psychiatric Association and the Washington State Psychiatric
Association, “[mJaintaining a significant number of unmedicated
patients may impose considerable burdens on the staff in caring for
the refusing prisoner and others whose treatment programs break
down. These burdens, in turn, carry unfortunate consequences for
recruiting and keeping staff of a consistently high quality.” Brief for
the American Psychiatric Association et al. at 21 n.17, Harper,
U.S. ____, 110 S.Ct. 1028. In addition, prohibition of involuntary
medication would make claims of incompetency more inviting by
granting incompetent prisoners an absolute reprieve from execution:
such an approach would likely encourage death row inmates to feign
incompetency. See Ford, 477 U.S. at 435 (Rehnquist, J., dissenting).
Third, when an incompetent death row inmate refuses
treatment, there is no alternative to medication which will serve the
State’s interest in carrying out the inmate’s sentence. The right to
refuse medication is thus tantamount to the power to circumvent the
death penalty. In this case, the evidence is undisputed that Perry will
not remain competent for execution unless he is maintained on
Haldol. Consequently, without the right to treat Perry, the State
cannot enforce his sentence of death.
In sum, nonconsensual medication of Perry is reasonably
related to the State’s legitimate penological interest in enforcing the
death penalty. Such medication is also reasonably related to the
State’s interest in providing Perry with treatment which is in his
medical interest. As a result, the medication is permissible under the
Fourteenth Amendment.
46
IV. The state court’s conduct of adversarial hearings on the
issue of competency, accompanied by the full panoply of
attendant procedural protections, exceeded the
requirements of the Due Process Clause of the
Fourteenth Amendment.
Assuming arguendo that he has a protected interest in refusing
medication, Perry has two liberty interests which were at stake in the
post-conviction proceedings: the Eighth Amendment right to avoid
execution during incompetency and the right to refuse medication.
Both rights hinge on tiie determination of competency; if Perry is
competent, he may be executed, and, if Perry is incompetent, he may
be treated agains? his will with antipsychotic medication to achieve
competency. The Due Process Clause thus requires that Perry be
afforded procedures adequate to ensure that the competency
determination is neither arbitrary nor erroneous.
This Court's decisions in Ford and Harper are instructive as to
the procedures due Perry under the Fourteenth Amendment. In
Ford, this Court held that the Florida procedure for determining
competency for execution did not provide for a full and fair hearing
under 28 U.S.C. §2254. Justice Marshall's plurality opinion identified
three defects in the Florida scheme: “failure to include the prisoner in
the truth-seeking process,” 477 U.S. at 413, “denial of any opportunity
to challenge or impeach the state-appointed psychiatrists’ opinions,”
id. at 415, and “placement of the decision wholly within the executive
branch,” id. at 416. While Justice Marshall indicated that “a full trial
on the issue of sanity” is not necessary, he stressed that “the
adversary presentation of relevant information [should] be as
unrestricted as possible” and that “the manner of selecting and using
the experts responsible for producing that ‘evidence’ [should] be
conducive to the formation of neutral, sound, and professional
judgments.” /d. at 416-417. In a concurring opinion, Justice Powell
noted that the issue of whether the state fact-finding procedure
amounted to a full and fair hearing under 28 U.S.C. §2254 was
identical to the procedural due process issue. /d. at 424 (Powell, J.,
concurring in part and concurring in the judgment). Although Justice
Powell did not determine “the precise limits that due process imposes
in this area,” he stated that “the requirements of due process are not
as elaborate as Justice Marshall suggests.” /d. at 425, 427. He
47
concluded that, in general, only an impartial decisionmaker and an
opportunity to be heard are constitutionally required. /d. at 427.
Justice O'Connor, concurring in the result in part and dissenting in
part, reasoned that “the Due Process Clause imposes few
concurrin are l ‘ a d Kt nephag =
g in the result in part and dissenting in part). She
nevertheless found the Florida procedure invalid because it filed r
provide the prisoner with an opportunity to be heard. Id. at 430.
In the Harper case, as noted above, this Court considered a due
process challenge to a Washington prison regulation providing for
forcible medication of mentally ill prisoners who pose a danger to
themselves or others. The challenged policy allowed nonconsensual
medication of an inmate only after an adversary hearing before a
Special committee composed of a psychologist, a psychiatrist and the
associate superintendent of the treatment facility. -~US. at ,
110 S.Ct. at 1033. The policy afforded the prisoner the rights to
notice, attendance at the hearing, presentation of evidence, cross-
examination of witnesses, assistance of a lay advisor and judicial
review. Id. at__, 110 S.Ct. at 1033-34. This Court upheld the policy's
procedures as adequate under the Fourteenth Amendment. /d. at
—_., 110 S.Ct. at 1040. Specifically, the Court ejected claims that due
process requires a judicial decisionmaker, right to counsel,
application of the rules of evidence, or proof by “clear, cogent and
convincing” evidence. /d. at__, 110 S.Ct. at 1042, 1044.
The procedures used by the state court in determining Perry's
competency far exceeded the requirements of the Harper and Ford
decisions. The competency determination was made by a judicial
decisionmaker after adversary hearings and was subjected to
appellate review. Perry was allowed to recommend appointments to
the sanity commission, and his recommendations were honored. (R.
19; J.A. 46). Throughout the proceedings, Perry was represented by
counsel. U.A. 45-51). He was afforded the rights to be present at the
hearings UA 47, 50), to testify in his behalf (JA. 95-97), to cross-
examine witnesses (see, e.g., R. 722), to compel production of
documents UJ.A. 46), to videota~e the proceedings (J.A. 47), to
present evidence (J.A 125; R. 539-40, 542-45), and to submit written
memoranda and oral argument (see, ¢.g., R. 691, 763, 766). In short,
the state court conducted a full-scale competency trial; it is
48
Perry nevertheless asserts that the competency proceedings
were constitutionally deficient in two respects. First, he complains
that the court admit’ed into evidence the documents submitted by the
Department of Pi blic Safety and Corrections. (J.A. 99-106).
According to Perry, because the documents were submitted ex parte
and contain hearsay, their consideration by the court amounts to a
denial of due process. Second, Perry insists that his due process
rights were violatec because the trial court failed to comply with
procedures required by Louisiana law. Both of these complaints are
meritless.
In Harper, this Court rejected an argument that a pre-hearing
meeting between the special committee and the treatment facility
staff, conducted without the inmate's presence, violated due process.
The Court explained that “[a]bsent evidence of resulting bias, or
evidence that the actual decision is made before the hearing, allowing
[the inmate] to contest the [state's] position at the hearing satisfies
the requirement that the opportunity to be heard ‘must be granted at
a meaningful time and in a meaningful manner.” Harper, _ US. at
____., 110 S.Ct. at 1044 (citation omitted). Similarly, in this case, Perry
cannot show that he was prejudiced by the ex parte submission of the
challenged documents. The documents were submitted to the court
in early June of 1988. ().A. 99). By the end of that month, at the latest,
Perry's counsel was aware of the Department's submission of the
documents. (R. 194-97). In August of 1988, the court ordered the
documents admitted into evidence. (JA. 48). Subsequently, the court
conducted two evidentiary hearings at which Perry had the
opportunity to contest the evidence. Indeed, at the conclusion of the
October hearing, the Court specifically offered Perry's counsel the
opportunity to present evidence. (J.A. 125). Under the circumstances,
Perry cannot claim that he was prejudiced, or even inconvenienced,
by the short delay in notifying him of the documents’ submission.
Perry simply cannot now complain because he neglected to refute
record evidence of which he was aware for several months.
Perry's objection to the hearsay nature of the evidence is
likewise unfounded. Perry points to no authority for the proposition
that the hearsay prohibition is constitutionally required in
competency proceedings. Neither Ford nor Harper suggests such a
49
requirement. In Harper, this Court explicitly rejected
that application of the "indaltmeupseen ee
—_. at___, 110 S.Ct. at 1044. In addition, the plurality opinion
in Ford stressed that “the adversary presentation of relevant
intormation [should] be as unrestricted as possible.” 477 U.S. at 417.
Certainly, Perry cannot claim that the documents in question were
not relevant. Moreover, given the medical nature of the competency
determination, the inmate's interests are better protected by
considering “the realities of frequent and ongoing clinical observation
by medical professionals,” Harper, __ US. at__, 110 S.Ct. at
first hearing. (R. 539-40). Finally, because Perry was given an
unfettered opportunity to contest the evidence, he cannot assert that
he was prejudiced by its admission.
Perry's second complaint is that the state court failed to comply
with procedures required by Louisiana law. However, Perry does not
identify any specific deficiencies in the state court procedure.
Moreover, a state's failure to follow its own procedures is not a
violation of due process; “an expectation of receiving process is not
without more, a liberty interest protected by the Due Process
Clause.” Olim, 461 U.S. at 250 n.12. This Court rejected an identical
argument in Olim v. Wakinekona, 461 U.S. 238 (1983):
“recess is not an end in itself. Its constitutional purpose is to
protect a substantive interest to which the individual has a
legitimate claim of entitlement. . . . The State may choose to
require procedures for reasons other than protection against
deprivation of substantive rights, of course, but in making that
a the State does not create an independent substantive
Id. at 250-51 (footnote and citations omitted). See also Hewitt, 459 U.S.
460. Thus, the State’s compliance or noncompliance with its own
procedural requirements is irrelevant to the constitutional issues
before this Court.
SO
CONCLUSION
For the foregoing reasons, the judgment of the Louisiana
Supreme Court should be affirmed.
*Counsel of Record
Respectfully submitted,
WILLIAM J. GUSTE, JR.
Attorney General
RENE |. SALOMON*
Assistant Attorney General
M. PATRICIA JONES
Assistant Attorney General
State of Louisiana
Department of Justice
PO. Box 94095
Baton Rouge, La. 70804-9095
(504) 342-7552
Counsel for Respondent
la
APPENDIXES
APPENDIX A
APPENDIX B
APPENDIX C
APPENDIX D
APPENDIX E
APPENDIX F
APPENDIX G
APPENDIX H
APPENDIX |
APPENDIX J
2a
APPENDIXES
Excerpts From Record
Louisiana Code of Criminal Procedure, Title XX],
Chapter 1, “Mental Incapacity to Proceed”
Louisiana Revised Statutes, Title 28, Sections 2 and
171
Louisiana Revised Statutes, Title 15, Section 830.1
State Which Expressly Authorizes Medication to
Achieve Competency for Execution
States Which Authorize Treatment or Stay or Sus-
pend Execution Until Competency Is Regained
Former Death Penalty States Which Stayed or Sus-
pended Execution Until Competency Was Regained
Death Penalty States Which Involuntarily Treat
Criminal Defendants in Other Contexts
Non-Death Penalty Jurisdictions Which Involuntari-
ly Treat Criminal Defendants in Other Contexts
States Which Statutorily Provide That Competency
to Stand Trial May Be Achieved Through Treatment
APPENDIX A
EXCERPTS FROM RECORD
LETTER TO JUDGE HYMEL FROM
KEITH B. NORDYKE
{RECORD—P. 19]
Nordyke and Denlinger
Attorneys at Law
228 Napoleon
Baton Rouge, Louisiana 70802
Keith B. Nordyke T.
June E. Denlinger PR end
Mailing Address
PO. Box 237
Baton Rouge, LA 70821
January 20, 1988
The Honorable L. J. Hymel, Judge
19th Judicial District Court
Parish of East Baton Rouge
222 St. Louis Street
Baton Rouge, LA 70801
Re: State of Louisiana v. Michael Owen Perry
Dear Judge Hymel:
You have asked the defense to submit names of persons who the
defense would like to nominate to the sanity commission in the above
captioned. To that end, the defense would nominate as a psychiatrist
qualified to serve on the sanity commission Dr. Glen Estes, Suite 3,
—— Avenue, Baton Rouge, Louisiana, telephone (504)
- As I stated in open court, Dr. Curtis Vincent, a psychologist prac.
ticing in Baton Rouge, did extensive workups on Mr. Perry while
Michael was at Feliciana Forensic Facility. As the 1987 legislature
amended the Code of Criminal Procedure to allow psychologists to sit
on sanity commissions I think it would be appropriate for Dr. Curtis
Vincent to be appointed especially in light of his familiarity with this
case. I therefore nominate as the psychologist member of this panel
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Dr. Curtis Vincent, 5000 Constitution Avenue, Baton Rouge,
Louisiana, telephone (504) 928-6460.
Please advise if there is anything further that we can do to assist
the court in this regard.
Very truly yours,
NORDYKE AND DENLINGER
/s/ Keith B. Nordyke
KEITH B. NORDYKE
The State * * * did not receive from defense counsel, a copy of
Mr. Nordyke’s March 14, 1988 letter (attached as App. F) to the War-
den of the Louisiana State Penitentiary. Mr. Nordyke’s letter instruct-
ed the warden to discontinue, the administering of any and all psy-
chotropic medication to Michael Owen Perry: including but not
limited to the mediication ordered by medical doctors under whose
care Michael Perry was placed.
6a
[RECORD—P. 184]
Nordyke and Denlinger
Attorneys at Law
228 Napoleon
Keith B. Nordyke Telephone
i (504) 383-1601
June E. Denlinger woh “ea
P.O. Box 237
Baton Rouge, LA 70821
March 14, 1988
Warden
Angola State Penitentiary
Angola, LA 70775
Re: Michael Owen Perry
(Death Row)
Dear Warden:
Pursuant to that decision making authority that has been delegat-
ed to me, I hereby request that Michael Owen Perry be removed from
any and all psychotropic medication including but not limited to Hal-
dol and Prolixin, which may currently be administered to Mr. Perry.
This medication shall not be given to Mr. Perry until such time as |
specifically concur or of course, a court orders otherwise. Mr. Perry is
totally incompetent and unable to make decisions on his own behalf.
He is currently undergoing evaluation by numerous doctors. I deem it
in Mr. Perry’s best interests not to be taking medication at this point
in time. I have carboned a copy of this letter to the hospital at Angola
and request that same be placed clearly in Mr. Perry’s chart.
7a
[RECORD—P. 186]
**
EX PARTE MOTION FOR DELEGATION OF
DECISION MAKING AUTHORITY
NOW INTO COURT, through undersigned counsel, comes
Michael Owen Perry, an incompetent death row inmate, who respect-
fully suggests to the Court through his undersigned counsel the fol-
lowing:
1.
Undersigned counsel visited with Perry on January 6, 1988, at
the hospital at Louisiana State Penitentiary. Michael was blatantly psy-
chotic, unable to articulate any facts regarding his case cogently and
was completely incapable of making decisions on his own behalf.
2.
It is anticipated during the course of the representation of Mr.
Perry for purposes of the “Perry Motion” that there will be certain is-
self should be an exhibit or attempt to testify. Counsel believes Perry
to be totally incapable of making these decisions for himself
3
On January 15, 1988, undersigned counsel contacted Mr Tom
Collins, executive counsel of the Louisiana State Bar Association, in an
attempt to obtain ethical guidance and in particular, interpretation of
Rule 1.14 of the Louisiana Code of Professional Responsibility. Rule
1.14 (copy attached) asserts that the attorney must “take other protec-
tive action as may appear appropriate under the circumstances” [when
his client is under a disability and unable to make decisions]. Mr.
Collins stated that the committee would not be able to provide an ethi-
cal opinion or guidance on this issue and that counsel should proceed
under existing procedural or substantive law.
[RECORD—P. 187] 4.
Although Rule 1.14 suggests the possibility of a curator, it is clear
that that portion of Rule 1.14 is dealing with civil matters. Counsel
does not believe there is any authority for a curator to make decisions
8a
in criminal cases on behalf of his client and further, does not believe
that such decisions should or can be made by a curator.
5.
It is anticipated that expert psychiatric testimony in this cause
will show that the decision making processes of the defendant are so
impaired as to render them completely unreliable.
6.
Counsel represents to the Court that there are no close family
relatives available to appoint to make decisions on behalf of Mr. Perry
and further, even if such relatives were available, they would not be el-
igibie for appointment due to the nature of the crime accused in this
matter. -
7
Counsel desires to undertake to make these decisions on behalf
of Mr. Perry, keeping Mr. Perry's best interests at heart at all times, in
order that adequate representation might be given. Other than “a Mo-
tion to Appoint a DoGooder” counsel knows of no other method to ad-
equately protect Mr. Perry's rights and to competently and timely ex-
ercise the decision making that must be done in this case
Movers desire that this motion be kept under seal and that any
hearing held in this matter be held in chambers ex parte.
9.
Counsel certifies that they have read the appropriate rules of pro-
fessional responsibility and there is no guidance other than what is at-
tached.
10.
In the alternative, mover desires that an experienced criminal
lawyer, who has practiced in the field of death penalty [RECORD—P.
188] defense, be appointed to make decisions on behalf of Michael
Owen Perry and undersigned counsel would be happy to provide the
Court with a list of such persons in the Baton Rouge area.
WHEREFORE, MOVER PRAYS that after due proceedings had,
there be a hearing in chambers, ex parte, and any record thereof be
kept under seal, and that Michael Owen Perry be allowed to make de-
9a
cisions through counsel or by a representative to be appointed from
the Criminal Bar of the City of Baton Rouge who has experience in
death penalty defense.
‘an a ihe PRAYS for a general and equitable relief as
BY ATTORNEYS:
/s/ June E. Denlinger
KEITH B. NORDYKE
JUNE E. DENLINGER
228 Napoleon
Baton Rouge, LA 70802
Phone: (504) 383-1601
* *£ *
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LETTER TO JUDGE HYMEL FROM
KEITH B. NORDYKE
{RECORD—P. 193]
Nordyke and Denlinger
Attorneys at Law
228 Napoleon
Baton Rouge, Louisiana 70802
Keith B. Nordyke Telephone
June E. Denlinger (504) 383-1601
Mailing Address
P.O. Box 237
Baton Rouge, LA 70821
June 22, 1988
Honorable L. J. Hyme!
Judge
19th Judicial District Court
222 St. Louis Street
Baton Rouge, Louisiana 70801
Re: State of Louisiana v. Michael Owen Perry
Number: 985-472
Dear Judge Hymel:
I enclose herewith an objection to additional evidence which has
been attached to various state briefs in this matter. | understand Your
Honor does not want this matter being set for hearing therefore, we
would appreciate this objection being filed into the record so that our
rights for appe'late review are reserved if necessary.
Thanking you for your cooperation and attention, we remain
Very truly yours,
NORDYKE AND DENLINGER
/s/Keith B. Nordyke
KEITH B. NORDYKE
lla
[RECORD—P. 194]
OBJECTION TO AMICUS BKIEF AND OBJECTION TO
INTRODUCTION OF ADDITIONAL EVIDENCE
NOW INTO COURT, through undersigned counsel, comes
Michael Owen Perry who respectfully objects to the filing of an ami-
cus brief by the State of Louisiana and to the objection of additional ev-
idence for reasons set forth below:
1
Mover would object to the amicus brief filed on behalf of the
State of Louisiana (Department of Corrections) for the reason that the
Department of Corrections has no interest in this matter and no cog-
nizable standing to file an amicus brief. Further, Michael Owen Perry
perceives an amicus brief by the state as merely an attempt to get a
“second bite of the apple”. There is no showing anywhere that the At-
torney General’s office is not sufficiently motivated or prepared to
handle this case. In other words, it seems that “the state is the state is
the state” and that an additional opportunity to file a brief is being giv-
en the state by use of an amicus brief.
Attached to the amicus brief and further, attached to the state's
original memorandum in this matter, is evidence adduced after the tri.
al of this matter held in April, 1988. Michael Owen Perry vigorously
objects to the introduction of this evidence for numerous reasons in-
cluding but pot limited to the following:
1. The is hearsay;
2. The evidence was not taken subject to cross examination
3. The evidence purports to be opinion testimony however no
qualification of the expert has been had, and Michael Owen Per-
ry believes that the physicians in this matter are the best experts.
4. Michael Owen Perry has been denied due process as defined
in Ford vu. Wainwright in that the introduction of this evidence
completely denies Michael Owen Perry an opportunity to re-
spond and to be heard.
5. Any evidence obtained from Michael Owen Perry in addition
to being uncross-examined, was in violation of his right to coun-
12a
sel in that said evidence was taken [RECORD—P. 195] from
Michael Owen Perry while he was either incompetent or without
the advice of his counsel and certainly without the knowledge of
his counsel both in violation of the Fifth and Sith Amendments
to the United States Constitution.
3.
For the above and foregoing reasons and based on the Fifth,
Sixth, Eighth and Fourteenth Amendments to the United States Con-
stitution as well as the corresponding provisions of the Louisiana Con:
stitution plaintiff objects to the introduction of any additional evidence.
WHEREFORE MOVER PRAYS that all evidence filed and not
connected with the trial of this matter and subsequent to the trial of
this matter be stricken and not considered.
BY ATTORNEYS:
/s/ Keith B. Nordyke
KEITH B. NORDYKE
NORDYKE AND DENLINGER
P.O. Box 237
Baton Rouge, Louisiana 70821
Telephone: (504) 383-1601
13a
[RECORD—P. 196]
OBJECTION TO INTRODUCTION OF ADDITIONAL
‘EVIDENCE
NOW INTO COURT, through undersigned counsel, comes
Michael Owen Perry who objects to the introduction of evidence sub
sequent to the close of the hearing for reasons set forth below:
1.
Mover understands however has not been favored with a service
copy of certain evidence which has been forwarded to the trial court
in this matter subsequent to the close of the hearing on April 20, 1988.
2.
In particular, mover has been made aware of a June 7, 1988 letter
from Annette Viator, attorney for the Depa. tment of Corrections, to
the Honorable L. J. Hymel, forwarding certain documentation from
the Louisiana State Penitentiary to the trial court.
3.
Furthermore, these documents, which are not introduced into
evidence, and have not been subjected to cross examination had been
attached to the state's brief in this cause.
4
The aforereferenced June 7, 1988 letter indicates that a physician
at Louisiana State Penitentiary will be following up with weekly re-
ports to Your Honor and mover would respectfully and vigorously ob-
ject to this procedure as evidence has been taken in this matter and
the case has been taken under advisement.
5.
This procedure completely and totally violates defendants rights
in this cause as these witnesses were not called by the State of
Louisiana at the hearing in this matter (when the state [RECORD—P.
197] had total opportunity to do so) and these documents attempting
to be introduced in this fashion solely in an effort to circumvent cross
examination and normal evidentiary procedure.
l4a
6.
The aforereferenced procedure is violative of Michael Owen Per-
ry’s rights under the Fifth, Sixth, Eighth and Fourteenth Amend-
ments to the United States Constitution as well as all Louisiana corre
sponding constitutional provisions in that the documents submitted in
the aforereferenced fashion have not been tested by cross examina-
tion, have not been subjected to scrutiny by counsel, have not been
served upon counsel, afford no notice and opportunity to be heard
and appear to be derived from Michael Owen Perry without the bene-
fit and advice of counsel.
WHEREFORE MOVER PRAYS that after due proceedings had
mover prays that the State of Louisiana be prohibited from introducing
any further evidence after 20 April 1988 and further, that all such doc-
umentation submitted after 20 April 1988 be stricken from the record.
MOVER FURTHER PRAYS that the State of Louisiana be or-
* dered and prohibited from further attempts at providing documenta-
tion to this Court without:
a. Forwarding a copy to opposing counsel.
b. Noticing a hearing and producing the witnesses and the oppor-
tunity to be heard.
BY ATTORNEYS:
/s/ Keith B. Nordyke
KEITH B. NORDYKE
NORDYKE AND DENLINGER =
P.O. Box 237
Bator Rouge, Louisiana 70821
Telephone: (504) 383-1601
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LETTER TO ANNETTE VIATOR FROM
KEITH B. NORDYKE
[RECORD—P. 204]
Nordyke and Denlinger
Attorneys at Law
228 Napoleon
Baton Rouge, Louisiana 70802
Keith B. Nordyke Telephone
June E. Denlinger (504) 383-1601
Mailing Address
P.O. Box 237
Baton Rouge, LA 70821
June 22, 1988
Ms. Annette Viator
Department of Corrections
P.O. Box 943-4
Baton Rouge, Louisiana 70804
Re: Michael Owen Perry
Dear Annette:
As attorney for Michael Owen Perry I would respectfully request
at this time that all medication to Michael Owen Perry be discontin-
ued until such time as the state has complied with the Statutory proce.
dures set forth in Title 15 of the Louisiana Revised Statutes.
* *+ *
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[RECORD—P. 305]
Supreme Court
STATE OF LOUISIANA
New Orleans
Chief Justice
John A. Dixon, Jr.
Associate Justices
Pascal F. Calogero, Jr.
Walter F. Marcus, Jr.
James L. Dennis
Jack Crozier Watson
Harry T. Lemmon
Luther F. Cole
Clerk of Court 301 Loyola Ave., 70112
Frans J. Labranche, Jr. Telephone 504-568-5707
August 29, 1988
Hon. L. J. Hymel
Judge, 19th Judicial District Court
222 St. Louis St.
Baton Rouge, LA 70801
Re: No. 88 KD-2239
State of Louisiana vs. Michael Owen Perry
Dear Judge Hymel:
This is to advise that the Court took the following action, this
date, in the above ent\tied matter:
“The order of the trial judge dated August 26, 1988 in the minutes
of court requiring forced medication of defendant pending the
hearing on September 30, 1988 is stayed pending orders of this
Court.”
With kindest regards, I remain,
Very truly yours,
/s/Frans J. Labranche, Jr.
FRANS J. LABRANCHE, JR.
Clerk of Court
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{[RECORD—P. 314]
Supreme Court
STATE OF LOUISIANA
New Orleans
Chief Justice
John A. Dixon, Jr.
Associate Justices
Pascal F. Calogero, Jr.
Walter F. Marcus, Jr.
James L. Dennis
Jack Crozier Watson
Harry T. Lemmon
Luther © Cole
Clerk of Court 301 Loyola Ave., 70112
Frans J. La! ranche, Jr. Telephone 504-568-5707
September 23, 1988
Hon. L. J. Hymel
Judge 19th JDC
222 St. Louis Street
Baton Rouge, La. 70801
In Re: State of Louisiana vs. Michael Owen Perry
No. 88 KD-2239
Dear Judge Hymel:
This is to advise that the Court took the following action on
September 22, 1988 with regards to the above entitled matter:
—" motion to stay the September 30, 1988 hearing is de
nied.”
With kindest regards, | remain,
Very truly yours,
/s/ Frans J. Labranche, Jr.
FRANS J. LABRANCHE, JR.
Clerk of Court
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EXCERPTS FROM SANITY HEARING HELD
APRIL 20, 1988
[RECORD—P. 505}
MR. NORDYKE: Dr. Jimenez, if you will please take the stand so
we can get you out of here.
[RECORD—P. 509] [EXAMINATION OF DR. THERESITA —
JIMENEZ]
Q Dr. Jimenez, you were appointed by Judge Hymel to examine
Mr. Michael Owen Perry, were you not?
A Yes, sir.
Q And, of course, you're familiar with Mr. Perry because you
were, | believe, his treating physician in the Feliciana Forensic in "83
and "84?
A That's right, sir.
Q And I believe you were also the medical director or the psychi-
atric director of Feliciana Forensic during those years, were you not?
A Yes, sir.
Q Okay. And on February 4th of 1988 I believe you went to
Louisiana State Penitentiary at Angola and evaluated Mr. Perry, is that
correct?
A Yes, sir.
[RECORD—P. 514) I feel that Mr. Perry will become competent
with the proper medication adjustment. He does understand that he is
convicted and also expressed that he does not want to die.
Q What facts went into that opinion, doctor?
A When I went to see Mr. Perry that day he was fairly coopera
tive but he was evasive with the type of answers and mood that he was
in. He indicated at the first part of the interview that he didn’t kill the
people that were killed, that somebody else did it. At a later part of the
19a
interview he accepted that he did it because he had a lot of anger to
wards his mother. So the information he was giving at that point was
him very well because he was a member of the Mafia. And he was
felt at that time that if we could readjust the medication that we would
be able to get him much better.
Q I believe you've diagnosed Mr. Perry as having Schizoaffec-
tive Disorder, is that correct?
A That's correct, sir.
Q Would you please tell the judge what Schizoaffective Disorder
is and what the symptoms of Schizoaffective Disorder may be, includ-
ing the bipolar nature and that sort of thing?
A Schizoaffective Disorder is an illness wherein the patient has a
problem with thinking disorder and at the same time also a problem
with his feeling tone or the de“ective [sic] component. When they are
in the state of acute illness they (RECORD—P. 512] usually are very
manic if they are in a manic phase and very paranoid. Now if they are
also in the depressed state they could be very withdrawn and would
manifesting symptoms like not wanting to sleep, not wanting to talk or
having crying adversity. The problem is also that they would have
some distortion in their thinking and that would be the Schizophrenic
component of the illness.
[RECORD—P. 513] Q Dr. Jimenez, my first interest is you have pre
viously, have you not, diagnosed Michael Perry as being Schizoaffec-
tive Disorder?
A Yes, sir, I did.
Q And do you classify that as a major mental illness?
A Yes, sir.
Q Okay. And can that be acute at times and disappear and fade
out at other times?
A The symptoms would get better at some point but the illness
would be there. It has to be controlled by medication.
20a
{RECORD—P. 514] Q All right. Now you mentioned that this is a
thinking disorder. Can you give me some examples of how this think-
ing disorder would affect any one of us? | mean how would it make our
lives different having a thinking disorder labeled as you have Schizoef.
fective Disorder?
A Well, if you have problems with thinking disorder there are
times wherein you would not be in touch with reality when you are
acutely ill, and there are times when you would feel like people are out
to get you or people are out against you. And that would be the para.
noid component of the illness. And . . .
Q And if—go ahead.
A Sometimes you would think that you are sometody that you
really are not. And that’s like when you think you are God.
Q Okay. Now if you think people are out to get you when they're
not is there a label that psychiatrists attach to that phenomena?
A Paranoia.
Q And do you conclude that paranoia is an element of a Schizoaf-
fective Disorder?
A It's a part of the problem but some people can also be paranoid
without being Schizophrenic.
{RECORD—P. 515] A* * * Sometimes, also, he rambles. His
thinking is not cohesive. He would go from one topic to the other and
there is very loose association.
Q Did you say good or bad association or disassociation?
A Loose, loose.
Q Loose associations. And how do you determine a loose associ-
ation?
A A loose association, uh, you would note when you are talking
to a person and the answers that they give you are—or when they give
you information there is no cohesiveness or they just don’t stick to
gether.
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[RECORD—P. 518] BY THE COURT:
Q Dr. Jimenez, while you're looking for that, when you examined
him on February 4th of this year at my request do you know whether
or not Mr. Perry was on medication then?
A Yes, sir, he was on medication, a small amount of medication,
but he was not taking it regularly.
Q What type of medication and what dosages?
A Haldol, and I think he was taking ten milligrams of Haldol.
Q Is that a daily prescription?
A Yes, sir, he had often times refused it. In fact, at that time that I
saw him I think he was just restarted or he had just started agreeing
to take the medicine.
Q What kind of drug is Haldol and what is its purpose and what
does it do and what affect, in your opinion, did it (RECORD—P. 519]
have and does it have on Michael Owen Perry?
A It's a psychotropic medication. It's supposed to get the think-
him to be able to concentrate and participate in the interviews, make
him less paranoid. It's supposed to help his illness get better. That's
the purpose of keeping him on the medication. At one time he was
also tried on Lithium Carbonate but he did not do too well and he de
veloped too many side effects so that was discontinued.
Q Do you know of your own knowledge or have you reviewed
the report showing when he was placed on the Haldol?
A I was the one who started that on him back when he—when
he first arrived he was doing well. And at that time I didn’t feel that he
was having any mental illness because he was really—other than be-
ing hostile and uncooperative [RECORD—P. 520] at that time. We
did not then put him on any medication, really just tried to observe
him and referred him for some testing which was done. And then his
behavior became worse and he was very hard to deal with and he was
causing a lot of—making a lot of threats so he was started on medica-
tion. He did better after that but then we had problems also with the
side effects so we pretty much had to readjust his medicine regularly
and watch him closely. He also has a problem about wanting to take
22a
medication. He really never was interested in taking medication.
[RECORD—P. 534] Q Dr. Jimenez, does Mr. Perry have a different
diagnosis or prognosis after your February 4th, 1988 interview as op
posed to your interviews and observations prior to trial? Have you de-
tected any different symptoms in your February 4th, 1988 interview
as opposed to what you observed and saw prior to his trial?
A No, sir.
[RECORD—P. 539] MR. NORDYKE: Now that we're back on
record, Your Honor, in connection with this proceeding I would offer,
introduce and file into evidence, into evidence as Exhibits Two, Three
and Four various medical records, the originals of which I'll be putting
into evidence, copies of which I have provided to everybody, including
the physicians in this case in bound format.
THE COURT: Which volumes [RECORD—P. 540] are those?
MR. NORDYKE: It varies. Exhibit Two, Your Honor, corre-
sponds with volume six. This is the Lake Charles Mental Health
records.
*_ * *
[RECORD—P. 542] THE COURT: Let it [Exhibit Two] be filed.
*_ * *
{[RECORD—P. 543] THE COURT: Which are the Feliciana Foren-
sic documents. The Court will allow them [Exhibit 3] to be filed as
such.
[RECORD—P. 544] THE COURT: Let them [Exhibit 4] be filed as
marked.
* * *
MR. NORDYKE: And, D-5 will be the Angola records
{[RECORD—P. 545] THE COURT: Let that be filed as Exhibit Five.
MR. NORDYKE: And we will supplement the record with that at
23a
the next break. We will cail Dr. Aris Cox, please.
[RECORD—P. 546] [EXAMINATION OF DR. ARIS COX]
Q You are one of Mr. Perry’s treating psychologists at Angola,
are you not?
A No. I'm his treating psychologist [sic] at Angola, yes.
* * *
[RECORD—P. 552] A I have not noticed him to have any symptoms
of tardive dyskinesia.
*
{RECORD—P. 553] A Well, there are medicines that can be given
for side effects that improve the extra-parameatal symptoms, and also
discontinuing neuroleptic medication can prevent it.
* * *
A Ihave seen him on and off medication several times now and |
have seen him respond to medication. When I saw him
[RECORD—P. 554] back on the 3rd of March he looked about as
good to me then as I've ever seen hin look. At that time I thought he
probably was competent. He deteriorates quickly when off medica-
tion. So his competency status tends to change, it’s very labile, it
moves about. What I meant by this perhaps offhand remark was that
his competency changes frequently and he’s not in the same place ail
the time. And sometimes he’s competent and sometimes he’s not.
That’s what I meant by that.
* * *
BY THE COURT:
Q Who made the decision, it you know, to place him off Haldol?
A One of the other psychiatrists there, a Dr. Jalisonne, and Dr.
Montero has seen him also and they had put him on the medication.
* £*
Q * * * But my question is do you agree with (RECORD—P.
555] their. .
24a
A That treatment is a rational appropriate treatment for the psy-
chiatric illness that this man has, in my opinion.
Q And does Haldol affect him beneficially?
A Yes, sir, when he takes it in adequate doses it affects him bene
ficially.
Q What is an adequate dose, in your opinion?
A Thirty milligrams a day, or more.
[RECORD—P. 559] Q * * * Could you give me your definition of
Schizoeffective Disorder, please?
A It is a psychotic illness characterized by a mixture of symp
toms which include mood swings, disorganized thought processes,
and certain other symptoms, such as, fixed false beliefs, such as, delu-
sions, response to non-existent stimuli, such as, hallucinations, and
disorganized thinking.
Q You used another word on me in your definition that I want
you to define for me and that is psychotic illness.
A Well, psychotic illness is generally accepted as being an im-
pairment of mental functioning to such an extent that the person is un-
able to meet the ordinary demands of life, I believe the AMA says.
And, also, that there specifically is meant that there contact or appreci-
ation of external reality is impaired. They hear things that aren't there,
they see things that aren't there, they misinterpret what goes on
around them.
[RECORD—P. 561] A To me, the changes that have occurred in
him, his response to medication has been valuable to me in reaching
conclusions about him.
Q Explain to me why.
A Because he gets better when he takes medication and he gets
worse when he doesn't. And I think this is indicative of the fact that he
has a process going on that responds to the medication. And, second-
ly, I think argues against the fact that he’s malingering because in my
experience people who malinger tend to do it whether they're on med-
ication or not.
25a
[RECORD—P. 567] Q Now you mentioned to me also that there
was neuroleptic medication?
A Yes, sir.
Q Could you give me a definition for that?
A Neuroleptic medications such as Haldol is the name applied to
these medications which are given to people for certain jysychiatric ill-
nesses, and they basically suppress, control, or improve the symptoms
of the illness.
Q Okay. And what illness is the specific case Mr. Perry endures?
A He's being given this drug because he has a diagnosis of
[RECORD—P. 568] Schizoeffective Disorder.
Q And this neuroleptic drugs will suppress what particular
symptoms of Schizoeffective Disorder?
A Makes his thinking become coherent and rational, it makes
his delusional beliefs either go away or become much less compelling
or controlling. If he’s hallucinating it will suppress or cease the halluci-
nations, will make him less labile and agitated.
Q Okay, so you told me he would become passive, it will reduce
his delusions. . .
A Not passive, but he will. . .
Q Less hostile?
A Less hostile, less aggressive, less bouncing around off the
wall.
Q All right, so, what else do we have besides less hostile, and no
delusions or reducing .
A Thinking more shit and more in contact with his envi-
ronment.
Q More coherently means what?
A Well, more coherent means that he could sit down and give
me—lI could ask him a question and he can develop an answer and ex-
plain an answer to me in a logical fashion, carry out a discussion with
me and string together three or four or five thoughts or concepts in a
logical sequence that makes sense. If, for example, I ask him, for ex-
26a
ample, tell me what happened when you were in the hospital last
week, he’s able to sit down and tell me what was going on, why they
took him to the hospital, how long he was there, etcetera, etcetera, in a
coherent fashion. When he’s not on medication he rambles so that he
goes from talking about the hospital to something that happened be-
fore he ever came to Angola, [RECORD—P. 569] to something else
that is completely unrelated.
[RECORD—P. 571] A We were discussing the issue of the man's
competency and I said it has to do with whether or not he’s on medica
tion or not. When he’s on medication I think he’s competent, when
he’s not I don’t think he is. And he [Mr. Nordyke] was aware that
Michael was being given medication at Angola and he was taking it.
And he indicated to me the he was going to advise him to quit taking it
or see to it that he stopped taking it.
[RECORD—P. 573] A Is a specific motor—there’s two specific mo-
tor pathways in the nervous system, the parameatal and the extra
parameatal motor systems. They control motor movement and coordi-
nation. These drugs have affects on so-called extra-parameatal system
and produce certain movement disorders in patients.
Q Extra-parameatal. . .
A Parameatal.
Q . . . parameatal means controlling moto
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