Amicus Curiae Brief — Perry v. Louisiana

MICHAEL OWEN PERRY,

Petitioner,

v.

STATE OF LOUISIANA,

Respondent.

On Writ of Certiorari to the Supreme Court

of the State of Louisiana

BRIEF FOR THE

AMERICAN PSYCHIATRIC ASSOCIATION AND THE

AMERICAN MEDICAL ASSOCIATION AS

AMICI CURIAE IN SUPPORT OF PETITIONER

Of Counsel: Jor. I. KLEIN *

KIRK B. JOHNSON JosEPHu N. ONEK

EDWARD B. HIRSHFELD RICHARD G. TARANTO

DAavip ORENTLICHER ONEK, KLEIN & FARR

AMERICAN MEDICAL AssociATION 2550 M Street, N.W.

535 N. Dearborn Street Washington, D.C. 20087

Chicago, IL 60610 (202) 775-0184

(312) 645-4600 CARTER G. PHILLIPS

SIDLEY & AUSTIN

1722 Rye Street, N. W.

‘ Washington, D.C. 20006

(202) 429-4000

* Counsel of Record

WiLeon - Eras Pawrine Co., Inc. - 769-0086 - WasnineTon, D.C. 20001

BEST AVAILABLE copffNNCöüV'd

TABLE OF CONTENTS

SUMMARY OF ARdUÄ ENT hk

9 ———— 1

THE DUE PROCESS CLAUSE OF THE

FOURTEENTH AMENDMENT PROHIBITS

A STATE FROM FORCIBLY MEDICATING

4. PRISONER SOLELY FOR THE PURPOSE

F RESTORING HIM TO COMPETENCE SO

THAT HE MAY BE KXECUTTEBEAẽ

AFTER REMAND, THE STATE MUST COM-

MUTE PETITIONER'S SENTENCE TO LIFE

IMPRISONMENT AND PROVIDE HIM WITH

MEDICATION FOR TREATMENT PUR-

1111 ——

(iii)

80

12

iv

TABLE OF AUTHORITIES

Cases Page

Addington v. Texas, 441 U.S. 418 (1979) 9

Bee v. Greaves, 744 F.2d 1387 (10th Cir. 1984),

cert. denied, 469 U.S. 1214 (1983) 10, 18

Bell ve Wolfish,. 441 U.S. 520 (19799 8

Reeves © Godeem, 561 F.2d 44 (4th Cir. 1977). 20

Caldwell wv. Tennessee, 1990 Tenn. Crim. App.

LEXIS 235 (Tenn. Ct. Crim. App. Mar. 21,

＋ʒjꝛʒdlĩ;., 24

Compagnie Fruncaise De Navigation 4 Vapeur v.

Louisiana State Bd. of Health, 186 U.S. 380

Re a ee ee eee 12

Dautremont v. Broadlawns Hosp., 827 F.2d 291

(8th Cir. 1987) . 13

DeShaney v. Winnebago County Dep't of Sociat

Servs., 109 S. Ct. 998 (1989) . 8,20

Estelle v. Gamble, 429 U.S. 97 (1976) 1 — 6. 20

Ford v. Wainwright, 447 U.S. 399 (198655 1, 4, 5, 24

Guglielmeni v. Alexander, 583 F. Supp. 821 (D.

X 20

Hawaii v. Standard Oil Co., 405 U.S. 251 (1972) 9

Hoptowit v. Ray, 682 F.2d 1237 (9th Cir. 1982) 20

Humphrey v. Cady, 405 U.S. 504 (1972) 15

Inmates of Allegheny County Jail v. Pierce, 612

LI Ll UE A 20

Jacobson v. Massachusetts, 197 U.S. 11 (1906) 12

Johnson v. Silvers, 742 F.2d 823 (4th Cir. 1 12

Johnson v. Solomon, 484 F. Supp. 278 (D. Md.

SE a cc N 14

Jones v. United States, 463 U.S. 354 (19899995 14. 15

Late Corp. of the Church of Jesus Christ of Latter-

Day Saints v. United States, 136 U.S. 1 (1890) 9

Mills v. Rogers, 457 U.S. 291 (1982 6,7

Morgan's Louisiana & T. R. & S.S. Co. v. Board of

Health, 118 U.S. 455 (1986) „ 12

Nelson v. Heyne, 355 F. Supp. 451 (N.D. Ind.

1972), aff'd, 491 F.2d 352 (7th Cir.), cert. de-

...- 14

O Connor v. Donaldson, 422 U.S. 563 (1975) 9

— — —

—*

TABLE OF AUTHORITIES—Continued

Pena „ New York State Div. for Youth, 419 F.

Supp. 208 (S. D. N. T. 1976) ................................

Schall v. Martin, 467 U.S. 253 (1980

State v. Perry, 502 So.2d 543 (La. 1986), cert.

denied, 484 U.S. 872 (19870777

United States v. Bryant, 670 F. Supp. 840 (D.

a

United States v. Charters, 863 F.2d 302 (4th Cir.

1988), cert. denied, 110 8. Ct. 1317 (1990)

United States v. Kidder, 869 F.2d 1328 (9th Cir.

Se a

United States v. Leatherman, 580 F. Supp. 977

(D. D.C. 1983), appeal dismissed, 729 F.2d 863

c

United States v. Watson, 898 F. 2d 970 (8th Cir.),

reh’g granted (Apr. 20, 1990) rr

Vitek v. Jones, 445 US. 480 (1980)

Washington v. Harper, 110 S. Ct. 1028 (1990)

Wellman v. Faulkner, 715 F.2d 269 (7th Cir.

1983), cert. denied, 468 U.S. 1217 (1984)...

Whitmore v. Arkansas, No. 88-7146 (U.S. Apr. 24,

Ee -q u . ——

Winston v. Lee, 470 U.S. 753 (198)

Woodall v. Foti, 648 F.2d 268 (5th Cir. Unit A

SS ee

Youngberg v. Romeo, 457 U.S. 307 (1982) .

Zaire v. Dalsheim, 698 F. Supp. 57 (S.D.N.Y.

1988) . 8

Sinermen v. Burch, 110 8. Ct. 975 (1990)

Statutes

La. Rev. Stat. Ann. § 15:830.1 (West 19817

La. Rev. Stat. Ann. § 28:171(P) (West 1989) —

Md. Ann. Code art. 27, e (1987 vom

Vol.) =

Other Authorities

American Psychiatric Association, Diagnostic and

Statistical Manual of Mental Disorders (3d rev.

ed. 1987) .. —. Ü

vi

TABLE OF AUTHORITIES—Continued

American Psychiatric Association, Opinions of the

APA Ethics Committee on the Principles of

Medical Ethics with Annotations Especially Ap-

Applicable to Psychiatry (1989) „

Bagby, Gillis & Dickens, Detection of Dissimula-

tion with the New Generation of Objective Per-

sonality Measures, 8 Behav. Sci. & Law 93

See

Beers, C., A Mind That Found Itself: An Auto-

of Bmereing — . —

Brakel, S., Parry, J. & Weiner, R., The Mentally

Disabled and the Law (Ad ed. 1985)

Medical Association, Current Opinions (1989)

Duff, R., Trials and Punishments (1986) ies

A., Ethics and Psychiatry: Toward Profes-

Row

Behav. Sci. & Law 175 (1987) .

The Common Law and the Execution of

Insane Criminals, 4 Melb. U. L. Rev. 434 (1964)

Lethal Injection: An Uneasy Alliance of

and Medicine, 4 J. Legal Med. 383 (1983)

rF

Page

17

vii

TABLE OF AUTHORITIES—Continued

Gallemore & Panton, Inmate Responses to Lengthy

Death Row Confinement, 129 Am. J. Psychiatry

e ̃ 2

Greene, “Assessment of Malingering and Defen-

siveness by Objective Personality Inventories,”

in Clinical Assessment of Malingering and De-

ception (R. Rogers ed. 1988

Johnson, Under Sentence of Death: The Psychol-

ogy of Death Row Confinement, 5 Law & Psy-

Sg

Kaufman, The Violation of Psychiatric Standards

of Care in Prisons, 137 Am. J. Psychiatry 566

(1980) ....... . n

Lewis, et al., Psychiatric, Neurological and Psy-

choeducational Characteristics of 15 Death Row

Inmates in the United States, 143 Am. J. Psy-

r ..

Note, Medical Ethics and Competency to be Fre-

cuted, 96 Yale L. J. 167 (198))

Physician's Desk Reference (44th ed. 1990)

Psychiatric Ethics (S8. Bloch & P. Chodoff ed.

Radelet & Barnard, Ethics and the Psychiatric De-

termination of Competency to be Executed, 14

Bull. Am. Acad. Psychiatry & Law 37 (1986)

Radelet &« Barnard, Treating Those Found Incom-

petent for Execution: Ethical Chaos with Only

One Solution, 16 Bull. Am. Acad. Psychiatry &

"age

19

19

..——— 16, 19, 25

Resnick, “Malingered Psychosis,” in Clinical 4

sessment of Malingering and Deception (R.

Ce

Resnick, The Detection of Malingered Mental II-

ness, 2 Behav. Sci. & Law 21 (1984)...

Rogers, “Current Status of Clinical Methods,” in

Clinical Assessment of Malingering and Decep-

tion (R. Rogers ed. 1988)

viii

TABLE OF AUTHORITIES—Continued

Rogers, “Structured Interviews and Dissimula-

tion,” in Clinical Assessment of Malingering and

Deception (R. Rogers ed. 198)

Rogers, Towards an Empirical Model of Malinger-

ing and Deception, 2 Behav. Sci. & Law 93

(1984)

Rogers, Gillis & Bagby, The SIRS as a Measure of

Malingering: A Validation Study with a Cor-

rectional Sample, 8 Behav. Sci. & Law 85

he RIE ERO RE 5S LS a a ee

Schretlen & Arkowitz, A Psychological Test Bat-

tery to Detect Prison Inmates who Fake In-

sanity or Mental Retardation, 8 Behav. Sci. &

ge eI oe ee

Sheehan, S., Js There No Place on Earth for Me?

nnn . a eR

Valdiserri, Psychiatry Behind Bars, 12 Bull. Am.

Acad. Psychiatry & Law 93 (1984)

1 Walker, N., Crime and Insanity in England: The

Historical — Z

Ward, Competency for Execution: Problems ‘in

Law and Psychiatry, 14 Fla. St. U.L. Rev. 35

— ee

Page

21

19

In THE

Supreme Court of the United States

OCTOBER TERM, 1989

No. 89-5120

MICHAEL OWEN PERRY,

. Petitioner,

STATE OF LOUISIANA,

Respondent.

On Writ of Certiorari to the Supreme Court

of the State of Louisiana

BRIEF FOR THE

AMERICAN PSYCHIATRIC ASSOCIATION AND THE

AMERICAN MEDICAL ASSOCIATION AS

AMICI CURIAE IN SUPPORT OF PETITIONER

INTEREST OF AMICI CURIAE

Founded in 1844, the American Psychiatric Association

(APA) is the Nation’s largest organization of physi-

cians specializing in psychiatry. Approximately 35,000

of the Nation’s psychiatrists are members. The APA

has participated as amicus curiae in numerous cases in-

volving mental health issues, including Washington v.

Harper, 110 S. Ct. 1028 (1990), and Ford v. Wainwright,

477 U.S. 399 (1986). Because psychiatrists have the

primary responsibility for providing psychiatric treat

ment, including prescribing and administering antipsy-

chotic medication, to prisoners on death row, the order

compelling such medication in this case greatly affects

the concerns and work of the APA and its members. The

2

APA believes that its clinical experience, its scientific

knowledge of psychiatric disorders and their treatment,

and its work in psychiatric ethics can assist the Court in

resolving the issues presented. Several of the APA's

ethical principles, including the bar on psychiatrists’ par-

ticipation in an execution, are implicated by this case.

The American Medical Association (AMA) is a pri-

vate, voluntary, nonprofit organization of physicians. The

AMA was founded in 1846 to promote the science and

art of medicine and the improvement of public health.

Today, its membership exceeds 280,000 physicians and

medical students. The AMA has filed numerous briefs

in this Court in cases, such as this one, that raise serious

issues of public health or medical ethics. One of the

AMA’s ethical opinions, Opinion 2.06, which precludes

a physician from participating in a legally authorized

execution, is directly relevant to the matter before the

Court.“

STATEMENT

Petitioner Michael Perry, who has a long history

of mental illness, suffers from schizoaffective disor er.

Pet. App. 79, 133-34.“ His symptoms include auditory

hallucinations, paranoid thoughts, and disordered, delu-

sional, and inconsistent thinking. Id. at 70, 77, 84. In

the past, Perry has received psychotropic drugs, including

haloperidol (otherwise known by its trade name, Haldol),

as treatment for his illness. Id. at 50, 53.“

1 The parties have consented to the filing of this brief. Copi>s of

their letters have been lodged with the Clerk.

2 Schizoaffective disorder is characterized by the symptoms of

both schizophrenia (e.g., delusions, hallucinations, loosening of asso-

ciations) and mood disorders (depressive or manic episodes). APA,

Diagnostic and Statistical Manual of Mental Disorders 194, 208-10

(3d rev. ed. 1987).

The terms “antipsychotic,” “neuroleptic,” nd “psychotropic”

are commonly used interchangeably to refer to medication used to

treat thought disorders such as Perry’s. See Washington v. Harper,

110 S. Ct. at 1032; R. Baldessarini, Chemotherapy in Psychiatry,

Not surprisingly, Perry’s mental condition was an

issue throughout the criminal proceedings against him.

Initially, two sanity commissions were convened to deter-

mine Perry’s competence to stand trial. State v. Perry,

502 So.2d 543, 547 (La. 1986), cert. denied, 484 US.

872 (1987). The first commission, composed of two physi-

cians and convened several months after Ferry's arrest,

recommended that he be transferred to : state ‘facility

for a complete psychiatric evaluation and {or ‘reatment.

Id. at 547-48. The trial court accepted the recommenda-

tion. Eighteen months later, a second sanity commission,

composed of three physicians, decided that Perry had

— 242 Id. 8 Thereafter,

against the advice of counsel, to withdraw his dual plea

and enter a simple plea of not guilty. Jd. at 547, 550.

In 1985, Perry was convicted on five counts of murder

and sentenced to death. The Supreme Court of Louisiana

affirmed the conviction and sentence. State v. Perry,

supra. Although the court rejected Perry’s claims that he

had not been competent either to stand trial or to with-

draw his insanity plea, the Louisiana Supreme Court

nonetheless suggested that a review of Perry’s sanity

prior to execution “might be in order.” 502 So.2d at

564.“ Accordingly, on January 21, 1988, the trial court

ch. 2 (rev. ed. 1985). Other medications, such as antidepressants

and lithium, treat mood rather than thought disorders. R. Baldes-

sarini, supra, at ch. 3-4. Haldol, a tranquilizer and neuroleptic, is

widely used by psychiatrists to manage the symptoms of thought

disorders. See Physician's Desk Reference 1282-86 (44th ed. 1990).

The court noted that Perry's counsel may apply to the trial

1A. M I.

determination” and that the prosecutor or judge could sua sponte

raise the issue of mental incompetence to be executed. 502 So.2d

at 564.

4

appointed a sanity commission, composed of three psy-

chiatrists and a clinical psychologist, to investigate

Perry’s “present sanity.” Pet. App. 25; Pet. 5.

During the next nine months, the trial court held four

separate hearings. At those hearings, the court received

testimony and reports from commission members, Perry’s

On October 21, 1988, the trial court issued its ruling.

The court adopted the test for incompetence to be ex-

ecuted that Justice Powell articulated in Ford v. Wain-

wright. Pet. App. 50. See 477 U.S. at 422 ‘Powell, J.

concurring in part and concurring in the result) (in-

court acknowledged that Perry had some right to refuse

psychotropic medication (id. at 47), it concluded, with-

out analysis, that “Louisiana’s interest in the execution

of [the] jury’s verdict override[s] those rights of Mr.

Perry” (id. at 56). Based on that conclusion, the court

: “defendant’s competency is achieved through the

use of antitropie [sic] or antipsychotic drugs including

Haldol and the Louisiana Department of Public Safety

and Corrections is further ordered to maintain the de-

i

by the medical staff” until September 25. Pet. App. 30. Perry

obtained a stay of the order of forcible medication from the Louisi-

fendant on the above medication as to be prescribed by

the medical staff of said Department and if necessary to

administer said medication forcibly to defendant and

over his objection.” Id. at 62.

ana

The trial court stayed its order until the Louisi

Supreme Court could rule on any appeal. The Louisiana

Supreme Court summarily declined to hear Perry’s chal-

lenge. State v. Perry, 543 So.2d 487, reh’g denied, 545

So.2d 1049 (1989). The stay of the medication order is

still in effect. Pet. 7.

SUMMARY OF ARGUMENT

The trial court’s order, requiring petitioner to be

medicated involuntarily for the sole purpose of restoring

him to competence, violates the Due Process Clause of the

Fourteenth Amendment. As this Court held in Washing-

ton v. Harper, 110 S. Ct. 1028 (1990), the substantive

component of that clause protects a prisoner’s liberty

interest in avoiding unwanted psychotropic medication.

In our view, a State cannot justify invasion of that inter-

est when contrary to the prisoner’s medica] interests. At

a minimum, however, the Due Process Clause must pre-

clude a State from administering involuntary medication

when it is not only contrary to the patient’s medical

interests but also unnecessary to treat a condition that

poses a danger to others. This Court’s decisions, lower

court decisions, state statutes, and the vital state interest

in preserving the ethical integrity and proper functioning

of the medical profession uniformly attest to the insuffi-

ciency of any state interest in ordering psychotropic

medication where, as here, neither a parens patriae nor

a dangerousness justification is present.

Once it is recognized that the State cannot administer

psychotropic drugs against an incompetent prisoner’s

will, and therefore cannot execute him (Ford v. Wain-

wright, 477 U.S. 399 (1986)), it is clear that neither

can the State allow the prisoner to languish in a per-

manent psychotic state without running afoul of the

Constitution. Any such indifference would violate the

prisoner’s Eighth Amendment right to needed medical

treatment. Estelle v. Gamble, 429 U.S. 97, 104 (1976).

No state interest in waiting indefinitely for a possible

natural restoration of competence (which is speculative)

or in deterring feigned incompetence (which is not present

here, and is generally detectable) can justify the State’s

denial of the constitutionally required treatment. Instead,

the State must commute petitioner’s sentence to life im-

prisonment and provide him with treatment.

ARGUMENT

I. THE DUE PROCESS CLAUSE OF THE FOUR-

TEENTH AMENDMENT PROHIBITS A STATE

FROM FORCIBLY MEDICATING A PRISONER

SOLELY FOR THE PURPOSE OF RESTORING HIM

TO COMPETENCE SO THAT HE MAY BE EXE-

CUTED

The legal standards governing substantive due process

analysis are settled. This Court traditionally has en-

gaged in a balancing process, weighing “the individual's

interest in liberty against the State’s asserted reasons for

restraining individual liberty.” Youngberg v. Romeo, 457

U.S. 307, 320 (1982). The inquiry involves two steps:

en definition of thſe] protected constitutional interest,

as well as identification of the conditions under which

competing state interests might outweigh it.“ Washing-

ton v. Harper, 110 S. Ct. at 1036 (quoting Mills v.

Rogers, 457 U.S. 291, 299 (1982)) (citations omitted).

Under those standards, the trial court’s order cannot

stand, for the State has no adequate interest to justify

overriding Perry’s liberty interest in refusing psycho-

tropic medication.“

* This brief relies on a due process analysis and does not address

any distinct Eighth Amendment challenge to the involuntary medica-

tion order. We note, however, that in contrast to the State's

7

A. Petitioner has a Substantial Liberty Interest in

Avoiding the Unwanted Administration of Psycho-

tropic Drugs

In Washington v. Harper, this Court held that a prison

inmate possesses a “significant liberty interest in avoid-

ing the unwanted administration of antipsychotic drugs

under the Due Process Clause of the Fourteenth Amend-

ment.” 110 S. Ct. at 1036; see also Mills v. Rogers, 457

U.S. at 299 n.16 (assuming existence of liberty interest) ;

Vitek v. Jones, 445 U.S. 480, 493 (1980). That interest

is founded on the nature of the proposed invasion as

well as the individual’s legitimate claim to safeguard his

dignity and bodily integrity. Those factors are of height-

ened significance, of course, and the liberty interest in

avoiding the nonconsensual injection of Haldol is espe-

cially great, when the injection sets the prisoner directly

on the road to execution.’

Contrary to Louisiana’s contention (Br. in Opp. 10),

the fact that execution has been authorized through

criminal proceedings does not suffice to justify the inde-

pendent physical invasion of medication or to extinguish

Perry’s liberty interest in avoiding involuntary psycho-

tropic medication. It is axiomatic that conviction of a

crime and incarceration, while limiting an inmate’s right

to freedom from confinement, do not extinguish his right

argument—‘“the medication is an indirect means by which a punish-

ment that is sanctioned by the Eighth Amendment may be carried

out” (Br. in Opp. 4)—-this case can readily be viewed as involving

an indirect means by which a punishment prohibited by the Eighth

Amendment (execution of ‘he incompetent) may be carried out.

7 Perry's liberty interest is not diminished by the fact that he

is incompetent to give or refuse informed consent to medica] treat-

ment. An absence of consent may have the same legal consequence

whether it is the result of a competent person’s refusal or, an in-

competent person’s inability to consent. Cf. Zinermon v. Burch,

110 S. Ct. 975 (1990). In any event, it is difficult to conceive that

any guardian, under a “substituted judgment” or “best interests”

standard, would consent to medication that would lead to death.

8

to liberty altogether. Vitek v. Jones, 445 U.S. at 493-94;

Bell v. Wolfish, 441 U.S. 520, 545 (1979); see also De-

Shaney v. Winnebago County Dep’t of Social Servs., 109

S. Ct. 998, 1006 n.8 (1989). In Harper and elsewhere,

this Court has applied that principle in the specific con-

text of involuntary medical treatment of prisoners. See

Vitek v. Jones, 445 U.S. at 491-94; see also Youngberg v.

Romeo, 457 U.S. at 315-16. Here, involuntary medication

has not been authorized as part of Perry’s criminal

sentence, and it is not “among those [deprivations] gen-

erally authorized by his confinement.” DeShaney, 109

S. Ct. at 1006 n.8; see also Vitek . Jones, 445 U.S. at

493 (medical confinement is “qualitatively different from

the punishment characteristically suffered by a person

convicted of crime”). Consequently, Perry retains an in-

dependent liberty interest in avoiding involuntary admin-

istration of psychotropic medication—an interest not ex-

tinguished by criminal conviction and sentence, and pro-

tected unless overcome by a sufficient state interest.“

B. The State does not have a Sufficient Interest to

Override Petitioner’s Liberty Interest

Before this Court, Louisiana has suggested that the

order overriding petitioner’s substantial liberty interest

is justified by (a) a parens patriae interest in furthering

Perry’s medical interests (Br. in Opp. 4, 14-15), (b) a

police power interest in protecting others against dangers

caused by Perry’s incompetence (id. at 14), and (e) a

penal interest in carrying out Perry’s sentence. There is,

however, no basis for either a parens patriae or danger-

ousness justification in this case. The order requiring

administration of Haldol must stand, if at all, on the

ground that it facilitates Perry’s execution. But that in-

* State law recognizes a liberty interest that is at least as ex-

tensive as that protected by the Due Process Clause. See La Rev.

Stat. Ann. § 15:830.1 (West 1981).

terest is insufficient to justify the deprivation of Perry's

iiberty interest that Louisiana proposes.

1. The Medication Order is Based Only on the

State’s Interest in Facilitating Capital Purish-

ment

Although the court below did not rely on a parens

patriae rationale, the State here invokes such a rationale

to justify medicating Perry involuntarily. Pet. App. 56;

Br. in Opp. 14-15. According to the State, “the medicine

is in... Perrys. . . best interest.” Br. in Opp. 4. That

remarkable claim is obviously incorrect.

protect themselves.” Late Corp. of the Church of Jesus

ints v. United States, 136 U.S. 1,

Addington v. Texas, 441 U.S. 418,

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2. Involuntary Medical Treatment is Impermissible

if it is Contrary to the Patient’s Medical Inter-

ests and is not Necessary to Treat a Condition

that Threatens Harm to Others

In our view, involuntary medical treatment may never

constitutionally be justified if, as here, it is contrary to

the patient’s medical interests. That view is strongly

supported by decisions of this Court and lower courts as

well as by the pertinent statutes governing involuntary

hospitalization and treatment of the mentally ill. More

narrowly, no source of which we are aware authorizes

involuntary medication, including psychotropic medica-

tion, when it is contrary to the patient’s medical interests

and it is not needed to cure a condition that poses a dan-

ger to others. It is just such unprecedented authoriza-

tion that Louisiana seeks here. This Court should reject

the State’s claim: in addition to consistent precedent and

practice, compelling concerns respecting medical ethics

and treatment establish that the State has no sufficient

justification for overriding Perry’s liberty interest.

a. This Court in Harper upheld a prison policy that

authorized involuntary psychotropic medication only for

prisoners who (1) suffer from a mental disorder and (2)

either are gravely disabled or are a threat to themselves

or others. 110 S. Ct. at 1033 & n.3. In finding the State’s

interest constitutionally sufficient, the Court repeatedly

pointed out that involuntary medication was authorized

only when a physician had found it to be “in the inmate’s

medical interest” and the patient was “dangerous to him-

„ Decisions approving compulsory quarantines and vaccinations

are ne exception to that rule: such measures typically protect public

health and are not contrary te the individual’s medical interests.

See e., Jacobson v. Massachusetts, 197 U.S. 11 (1905) (com-

pulsory vaccination) ; Compagnie Francaise De Navigation A Vapeur

v State Bd. of Health, 186 U.S. 380 (1902) (quarantine) ; Morgan's

Lowisiana & T. R. & SS. Co. v. Board of Health, 118 U.S. 455

(1886) (quarantine).

F

1987) ; Juhnson v. Silvers, 742 F

1984) ; United States v. Bryant, 670 F. Supp. 840, 842 (D.

Minn. 1987). Several courts have upheld involuntary

harm”); cf. United States v. Leatherman, 580 F. Supp.

977, 978, 980 (D.D.C. 1983), appeal dismissed, 729 P24

863 (D.C. Cir. 1984). And a number of courts have dis-

tings. See, e. g., Johnson v. Solomon, 484 F. Supp. 278,

The majority's references to this point are numerous. See

110 S. Ct. at 1039 (“The drugs may be administered for no purpose

other than treatment ); id. at 1039-40 (“[T]he Due Process

Claute permits the State to treat a prison inmate who has a serious

14

309-10 (D. Md. 1979); Pena v. New York State Div. for

Youth, 419 F. Supp. 203, 211 (S.D.N.Y. 1976) (involun-

tary medication may not be used as a behavior control

device and as punishment rather than “as part of an on-

going treatment program authorized and supervised by a

physician”); Nelson v. Heyne, 355 F. Supp. 451, 455

(N. D. Ind. 1972) (invalidating use of medication “for

the purpose of controlling excited behavior rather than

as part of an ongoing, psycho-therapeutic program”),

aff'd, 491 F.2d 352 (7th Cir.), cert. denied, 417 U.S. 976

(1974). See also Jones v. United States, 463 U.S. 354,

385 (1983) (dissenting opinion) (Supreme Court has

never approved practice of administering “psychotropic

medication to control behavior” or “for reasons that have

more to do with the needs of the institution than with

individualized therapy” ).’*

16 Consistent with those decisions are the suggestions in several

of this Court’s cases that involuntary medication cannot be used

for purposes of punishment. In Vitek v. Jones, this Court, in defin-

ing the liberty interest retained by a prisoner whom the State

sought to transfer to a mental institution, recognized that a crim-

inal conviction does not entitle[] a State. to subject [a prisoner)

involuntarily to institutional care in a mental hospital.” 445 U.S.

at 493. In Harper, three Justices flatly declared that forced

administration of antipsychotic medication may not be used as a

form of punishment.” 110 8. Ct. at 1047 (Stevens, J., with Brennan

and Marshall, JJ., concurring in part and dissenting in part).

The majority in Harper did not disagree with that assertion. See

also Jones v. United States, 463 U.S. at 373 n.4 (Brennan, J., with

Marshall and Blackmun, JJ., dissénting) (It is questionable that

confinement to a mental hospital would pass constitutional muster

as appropriate punishment for any crime.“).

Similarly, the Court in Winston v. Lee, 470 U.S. 753 (1985),

albeit in the Fourth Amendment context, rejected a State’s attempt

to subject a criminal suspect to surgery in order to secure evidence

The Court relied in particular on the risk to the suspect’s health

presented by the surgery. Id. at 761.

— —

15

Relevant legislative actions in this area reflect the same

principles. No statute, state or federal, of which we are

aware authorizes involuntary medication either specifi-

cally for purposes of facilitating execution by restoring

competence or, more generally, where the medication is

contrary to the patient’s medical interests and unneces-

sary to protect others. Indeed, a Louisiana statute itself

forbids medication of civilly committed mental patients for

any but medical reasons. La. Rev. Stat. Ann. § 28:171(P)

(West 1989) (“Medication shall not be used for non-

medical reasons such as punishment or for conveni-

ence of the staff.; see also Pet. 11-12. Moreover, state

statutes governing c‘vil commitment uniformly require

that the patient be inentally ill and either gravely dis-

abled or dangerous to himself or others. See S. Brakel,

J. Parry, & B. Weiner, The Mentally Disabled and the

Law 34-35 (3d ed. 1985); id. at 114-18 (table 2.6) (col-

lecting state statutes). See also Humphrey v. Cady, 405

U.S. 504, 509 (1972). Civil commitment as authorized

in our country is intended “to treat the individual’s

mental illness and protect him and society from his poten-

tial dangerousness.” Jones v. United States, 463 U.S. at

368.7

b. The widespread recognition of the prohibition on the

government's ability to use involuntary medication for

nonmedical ends is no accident. It reflects a deep-seated

social interest in preserving medical care, in actuality

and in public perception, as an unambiguously beneficent

healing art. At least until state legislatures clearly de-

clare otherwise and neither in Louisiana (see note 17,

17 Louisiana’s statute governing involuntary medication of men-

tally ill inmates reflects these same purposes. See La. Rev. Stat.

Ann. § 15:830.1 (West 1981) (short-term involuntary medication

possible only where treatment authorized by physician has been

refused and physician certifies that medication is “necessary to

prevent harm or injury to the inmate or to others”; longer term

involuntary medication possible only upon judicial finding that in-

mate is incompetent and where treatment is appropriate“)

16

supra) nor elsewhere has a legislature authorized what

the State urges here—a State’s interest in departing from

the familiar strictures on the use of medical treatment,

and in allowing involuntary medication in order to facili-

tate a patient’s death, cannot be deemed a sufficiently

weighty one, because any such departure would threaten

States’ vital interests in the ethical standards and the

treatment function of the medical profession.

To begin with, when the State’s purpose in medicating

someone involuntarily has no connection to either a parens

patriae or dangerousness principle, the directive to medi-

cate creates an excruciating ethical dilemma for treat-

ing physicians. See generally Note, Medical Ethics and

Competency to be Executed, 96 Yale L.J. 167 (1986).

Having taken the Hippocratic Oath, all physicians are

duty-bound (1) to employ their treatment arts for the

benefit of their patients and (2) to alleviate the patient’s

suffering. See Washington v. Harper, 110 S. Ct. at 1037

n.8 (“Unlike the dissent, we will not assume that physi-

cians will prescribe these drugs for reasons unrelated to

the medical needs of the patients; indeed, the ethics of

the medical profession are to the cortrary.”).’* In the

present situation, however, those ethical norms are in

conflict, for alleviation of present suffering by giving

medication will lead, by restoration of competence, to

death.

Though no longer explicitly enshrined in the code of

medical ethics, the maxim primum non nocere—first,

do no harm—has for centuries served as the ethical

touchstone for the medical profession. Radelet & Bar-

nard, Treating Those Found Incompetent for Execution:

1 The Declaration of Hawaii, adopted in 1977 by the World

Psychiatric Association in response to the misuse of psychiatric

treatment in the Soviet Union, prohibits compulsory treatment

unless, among other things, “it is done in the patient’s best in-

terests.” See Psychiatric Ethics 27, 351 (S. Bloch & P. Chodoff

ed. 1981).

17

Ethical Chaos with Only One Solution, 16 Bull. Am. Acad.

Psychiatry & Law 297, 298 (1988). Out of a recog-

nition that doing harm is antithetical to the guiding

spirit of medical ethics, the ethical code of the American

Medical Association, as adopted and interpreted by the

American Psychiatrie Association, prohibits a psychia-

trist from being “a participant in a legally authorized

execution.” APA, The Principies of Medical Ethics:

With Annotations Especially Applicable to Psychiatry § 1,

Annot. 4 (1989). See also Council on Ethics and Judicial

Affairs, American Medical Association, Current Opinions

§ 2.06 (1989). That principle, which derives directly

from the Hippocratic Oath’s prohibition on administering

a poison (Oath of Hippocrates, reprinted in A. Dyer,

Ethics and Psychiatry: Toward Professional Definition

41 (1988)), forbids a psychiatrist personally to admin-

ister a lethal injection. APA, Opinions of the APA

Ethics Committee on the Principles of Medical Ethics

with Annotations Especially Applicable to Psychiatry

§1-C (1989). See also A. Dyer, supra, at 39-40; Finks,

Lethal Injection: An Uneasy Alliance of Law and Medi-

cine, 4 J. Legal Med. 383, 389-90 (1983). Administering

involuntary medication in circumstances like the present

is only a small step away from participating in the exe-

cution itself. See Ewing, Diagnosing and Treating “In-

sanity” on Death Row: Legal and Ethical Perspectives,

1” When forensic psychiatrists testify for the State in criminal

proceedings, they are not violating the maxim, because there is no

treatment relationship. Instead, the psychiatrist is acting as a con-

sultant in the adversary process, providing a professional evaluation

that is frequently subject to cross-examination or to refutation by

contrary evidence. See also APA, The Principles of Medical Ethics:

With Annotations Especially Applicable to Psychiatry § 7, Annot. 1

(1989) (psychiatrists may serve as consultants to judicial branch) ;

id. at § 4, Annot. 6 (psychiatrist conducting examination for legal

competence must first fully disclose nature and purpose of examina-

tion and lack of confidentiality). By contrast, the order in this case

requires psychiatrists to employ their treatment arts to maintain

competence so that their patient may be executed.

18

5 Behav. Sci. & Law 175, 183 (1987). Such a role

stretches medical ethics to, if not beyond, the breaking

poin..”” '

Physicians’ ethical dilemma in giving medical treat-

ment to facilitate capital punishment is mirrored in the

resulting corruption of their treatment function. Physi-

cians, and especially psychiatrists, require the trust of

their patients. A treating psychiatrist must build a rela-

tionship with the patient to encourage communication of

symptoms and to allow monitoring of the effects of medi-

cation. The psychiatrist must encourage the patient to

speak openly to facilitate individual and group therapy.

There can be few more certain ways of jeopardizing these

necessary treatment functions than for the psychiatrist

to become an instrument of punishment. See Radelet &

Barnard, Ethics and the Psychiatric Determination of

Competency to be Executed, 14 Bull. Am. Acad. Psychi-

atry & Law 37, 49 (1986).

This concern is at its greatest with respect to patients

in prison. Prisoners already have reasons to be suspicious

of psychiatrists, because psychiatrists in an evaluative

role often testify against prisoners in competency, in-

sanity, and death penalty proceedings. If psychiatrists

are now required to do harm to prisoners in their treat-

ment role, the ability of all physiciahs to maintain an

effective patient-physician relationship with prisoners will

be significantly impaired.

Prisons and prisoners generally, and death row in-

mates particularly, can ill afford to be deprived of effec-

tive psychiatric care—either by the compromising of the

physician-patient relationship or by psychiatrists’ avoid-

ance of death row prisoners for fear of being put in an

ethically unconscionable position. The psychiatric needs

20 Indeed, one psychiatrist in this case stated oa the record that

his ethical doubts prevented him from treating Perry. Pet. App.

80, 87 (testimony of Dr. Cox).

19

of death row inmates are acute.“ Despite an unques-

tioned need, the provision of psychiatric care in the Na-

tion’s prisons and jails leaves much to be desired. Kauf-

man, The Violation of Psychiatric Standards of Care in

Prisons, 137 Am. J. Psychiatry 566 (1980); Valdiserri,

Psychiatry Behind Bars, 12 Bull. Am. Acad. Psychiatry

& Law 93, 93, 97 (1984); see also APA, Task Force Re-

port 29: Psychiatric Services in Jails and Prisons (Mar.

1989). Numerous factors already operate to discourage

psychiatrists from working with prison populations, in-

cluding poor working conditions, the potential for con-

flicts with prison officials, the diminished emphasis on re-

habilitation, and problems of prestige and remuneration.

APA, Task Force Report 29, at 2; Valdiserri, supra, at

93-94. Allowing i woluntary medication to be employed

for the purposes of facilitating capital punishment would

exacerbate those problems.“ The result would be to under-

21 Like Michael Perry, many inmates arrive with a long history

of mental illness behind them. See, e.g., Lewis, et al., Psychiatric,

Neurological, and Psychoeducational Characteristics of 15 Death

Row Inmates in the United States, 143 Am. J. Psychiatry 838,

840-41 (1986). Once on death row, inmates face unique psychological

stresses. [Plossibly the most stressful of all human experiences

is the anticipation of death at a specific moment in time and in a

known manner.” Gallemore & Panton, Jnmate Responses to Lengthy

Death Row Confinement, 129 Am. J. Psychiatry 167, 167 (Aug.

1972) ; see also Johnson, Under Sentence of Death: The Psychology

of Death Row Confinement, 5 Law & Psychology Rev. 141, 176-81

(1979). Available studies suggest that this stress causes a sig-

nificant proportion of death row inmates to deteriorate psycho-

logically. See Gallemore & Panton, supra, at 168, 169; Bluestone &

McGahee, Reaction to Extreme Stress: Impending Death By Execu-

tion, 119 Am. J. Psychiatry 393 (Nov. 1962).

2 The reaction of Florida mental health professionals to treating

Gary Alvord, an inmate who was judged incompetent for execution,

is telling. Because of the ethical dilemmas they faced, all of the

staff members who worked with Alvord said that they would not

again become involved in treating an inmate judged incompetent

to be executed. Radelet & Barnard, supra, 16 Bull. Am. Acad. Psy-

chiatry & Law at 303-04.

20

mine important state interests without any evidence that

state legislatures are ready to sacrifice them.

II. AFTER REMAND, THE STATE MUST COMMUTE

PETITIONER’S SENTENCE TO LIFE IMPRISON-

MENT AND PROVIDE HIM WITH MEDICATION

FOR TREATMENT PURPOSES

If this Court holds that a State cannot administer anti-

psychotic medication to a nonconsenting prisoner in order

to facilitate his execution, Louisiana will face 4 choice.

First, it could warehouse petitioner in an unmedicated

state in the hope that someday he will regain competence

spontaneously and thus become eligible for execution.

Second, it could administer ant psychotic medication to

alleviate petitioner’s suffering, which means forgoing im-

position of the death penalty. We submit that only the

second option is constitutionally permissible.

The Eighth Amendment confers on prisoners a right

to adequate medical treatment for known medical prob-

lems. See Estelle v. Gamble, 429 U.S. at 104; see also

DeShaney v. Winnebago County Dep’t of Social Servs.,

109 S. Ct. at 1005. That right clearly extends to the

provision of adequate psychiatric care.“ Unquestionably,

for a State deliberately to allow a prisoner to languish

with a treatable psychosis would violate the Eighth

Amendment principle established in Estelle v. Gamble.

See C. Beers, A Mind That Found Itself: An Autobiog-

raphy (5th ed. 1921) (describing experience of severe

mental illness); see also M. Bowers, Retreat From

Sanity: The Structure of Emerging Psychosis 33-40

23 See, e. g., United States v. Kidder, 869 F.2d 1328, 1330 & n.1

(9th Cir. 1989); Wellman v. Faulkner, 715 F.2d 269, 272 (7th Cir.

1983), cert. denied, 468 U.S. 1217 (1984) ; Hoptowit v. Ray, 682 F.2d

1237, 1253 (9th Cir. 1982) ; Woodall v. Foti, 648 F.2d 268, 272 (5th

Cir. Unit A 1981) (per curiam) ; Jnmates of Allegheny County Jau

v. Pierce, 612 F.2d 754, 763 (3d Cir. 1979); Bowring v. Godwin, 551

F.2d 44, 47 (4th Cir. 1977); Guglielmoni v. Alexander, 583 F. Supp.

821, 826 (D. Conn. 1984).

21

(1974) (quoting from accounts of experience of schizo-

phrenia) ; S. Sheehan, Is There No Place on Earth for

Me? 59-68 (1982) (describing behavior of acutely schizo-

phrenic patient).

There is little need to belabor this obvious Eighth

Amendment principle, because Louisiana itself concedes

that “to refuse Haldol medication to Perry and let him

languish in a world filled with delusions and hallucina-

tions . . . would violate Perry’s rights under the Eighth

Amendment.” Br. in Opp. 15. But even if a State could,

under some circumstances, justify withholding medical

care needed for a known, serious medical problem, the

State cannot plausibly do so here. Only two interests

might be advanced to support withholding needed medi-

cal care—the State’s interest in awaiting a spontaneous

restoration of competence so that the sentence of death

can be carried out; and the State’s interest in combating

the feigning of incompetence. Neither interest, however,

stands up to analysis.

a. The possibility of spontaneous recovery can be of

no help to Louisiana in this case. After hearing the ex-

pert testimony, the trial court found as a factual matter

that Perry was “competent only while maintained on

psychotropic medication in the form of Haldol.” Pet.

App. 54 (emphasis added). The State has not challenged

that finding, and there is no record basis for any con-

trary suggestion that Perry might become competent

without medication. See Br. in Opp. viii.

More generally, a State has at best only a slight in-

terest in withholding medical care in the hope that a

prisoner will spontaneously remit at some future time,

thereby removing the barrier to his execution. For many

psychotic patients, it is highly speculative that spontane-

ous recovery will ever occur. Even if some improvement

does occur wthout medical intervention, moreover, that

improvement may not be sufficient to achieve competence

to be executed. And even if competence is achieved, a

22

relapse may occur before the State’s execution machinery

can be properly deployed. In any event, while the State

waits for a sufficient spontaneous recovery, the prisoner

continues to suffer from a psychosis, perhaps for years

or even forever.

b. Nor can any state interest in preventing prisoners

from feigning incompetence to be executed justify a de-

liberate refusal to give needed treatment to relieve the

suffering caused by psychosis. Again, in this case, a

court has already determined, after a series of adversary

hearings, that petitioner is incompetent to be executed

without his medication—a conclusion not challenged by

the State. There is thus no issue of feigning here.

More generally, the State’s interest in preventing

feigning by other prisoners can be successfully furthered

through the use of 1) clinical screening techniques and

(2) legal burdens of proof. The clinical literature dem-

onstrates the difficulty of successful feigning.“ Certain

conditions, notably severe mental retardation, are ex-

tremely difficult to feign because of the obvious possibil-

ity of verifying the condition by reference to an individ-

ual’s school or vocational records. Resnick, The Detec-

tion of Malingered Mental Iliness, 2 Behav. Sci. & Law

21, 29 (1984). For other conditions, psychiatrists now

have at their disposal a range of methods shown by

empirical studies to be effective in the detection of ma-

lingering. See generally Rogers, “Current Status of

Clinical Methods,” in Clinical Assessment of Malingering

and Deception 293, 294-95 (R. Rogers ed. 1988) (sum-

marizing usefulness of wide, range of clinical and psy-

chometric methods).” A large and growing body of

24In recent years, increasing attention has been focused on the

problem of detecting malingering. See, e. g., Clinical Assesement

of Malingering and Deception (R. Rogers ed. 1988); Malingering

and Deception: An Update, 8 Behav. Sci. & Law 1-104 (1990) (Spe-

cial issue).

23 For example, malingering can be detected successfully with

the aid of certain objective psychological instruments, principally

knowledge concerning the signs of malingering is now

available to clinicians.” Special interview techniques may

be helpful as well.“ The psychiatrist’s standard diagnos-

the Minnesota Multiphasic Personality Index (MMPI). See Rogers,

Towards an Empirical Model of Malingering and Deception, 2

Behav. Sci. & Law 93, 99-101 (1984) (summarizing MMPI re-

search). See generally Greene, “Assessment of Malingering and

Defensiveness by Objective Personality Inventories,” in Clinical

Assessment of Malingering and Deception 123, 138-50 (R. Rogers

ed. 1988) (explaining MMPI scales and their effectiveness and sum-

marizing research). Newly developed tests have also been used

with promising results. See Bagby, Gillis & Dickens, Detection of

Dissimulation with the New Generation of Objective Personality

Measures, 8 Behav. Sci. & Law 93 (1990) (Basic Personality In-

ventory and the Millon linical Multiaxial Inventory-II). Use of

a combination of different objective tests including the MMPI may

be especially useful. Schretlen & Arkowitz, A Psychological Test

Battery to Detect Prison Inmates who Fake Insanity or Mental

Retardation, 8 Behav. Sci. & Law 75 (1990).

Researchers have documented and catalogued common clinical

indicators such as the malingerer’s tendency to (1) exaggerate

the severity of symptoms, (2) display symptoms that are rare or

inconsistent with a diagnostic category, and (3) provide virtually

no random responses or “self-damaging” statements. Rogers, supra,

2 Behav. Sci. & Law at 94-95, 106; Resnick, supra, 2 Behav. Sci. &

Law at 31-32 (summarizing sixteen common clues to malingered

psychoses). More, too, is known about the usual experience of per-

sons with particular mental illnesses or particular symptoms. See

Resnick, “Malingered Psychosis,” in Clinical Assessment of Ma-

lingering and Deception 34 (R. Rogers ed. 1988). For example,

several researchers have studied the characteristics of auditory

hallucinations in schizophrenic patients, yielding a body of clinical

knowledge against witch the symptoms of suspected malingerers

can be judged. Id. at 37-39; Resnick, supra, 2 Behav. Sci. & Law

at 27-28. Nonverbal indicators such as facial expression and move-

ment of limbs can also be used successfully by clinicians to detect

feigners. Rogers, supra, 2 Behav. Sci. & Law at 101-05.

27 See Rogers, “Structured Interviews and Dissimulation,” in

Clinical Assessment of Malingering and Deception 250 (R. Rogers

ed. 1988) ; see also Rogers, Gillis & Bagby, The SIRS as a Measure

of Malingering: A Validation Stu'y with a Correctional Sample,

8 Behav. Sci. & Law 85 (1990) (structured interview technique

successfully used on prison population).

24

tic handbook itself provides useful guidance in identifying

fakery. See APA, Diagnostic and Statistical Manual of

Mental Disorders 360 (3d rev. ed. 1987) .**

In addition to psychiatric evaluations, legal procedures

for raising incompetence claims can and do operate to

thwart a death row inmate’s ability to feign incompe-

tence. As Justice Powell observed in his Ford concur-

rence, once convicted and sentenced, an inmate must

overcome a presumption of sanity. 477 U.S. at 425-26.

Louisiana law, for example, requires a prisoner to bear

the burden of demonstrating “reasonable ground[s]” to

believe that he is incompetent to be executed in order

to get a sanity commission appointed in the first place.

State v. Perry, 502 So.2d at 564.“ A prisoner such as

Perry also bears a second burden of persuasion—by a

preponderance of the evidence—on the ultimate issue of

incompetence. Ibid.

The fo.egoing clinical and legal safeguards, taken to-

gether, greatly reduce the danger that a prisoner will be

able to feign a mental condition that constitutes incom-

petence, at least under the standards suggested by Jus-

tice Powell in Ford. And, of course, additional procedures

could be adopted if experience proves them necessary to

28 Of course «© orieemer’s incentive to feign is at its acme in the

context of determining competence te be executed. Clinicians, how-

ever, will be well aware of that incentive; indeed, psychiatrists are

specifically advised by the standard diagnostic handbook (at 360)

to consider the clinico-legal context in evaluating signs of malinger-

ing. Moreover, in this unique context, special measures to uncover

malingering may be employed, such as a particularly close review

of past psychiatric records, including a comparison of symptoms

past and present. See Lewis, et al., supra, 143 Am. J. Psychiatry

at 842-44 (clinical findings verified by examining objective evi-

dence such as hospital records, using psychological and educational

tests, and interviewing parents).

2° Here, Perry did just that. See Pet. App. 69. Compare Caldwell

v. Tennessee, 1990 Tenn. Crim. App. LEXIS 235, at *19-21 (Tenn.

Ct. Crim. App. Mar. 21, 1990) (upholding refusal to appoint sanity

commission)

provide greater assurance of accuracy. At present, how-

ever, it would be groundless speculation to conclude that

feigning is effectively incapable of detection and thereby

permit the State to forgo providing appropriate medical

care to an inmate.

In short, a State has no real interest in allowing an

incompetent inmate like Perry to suffer for lack of

needed medication. The Eighth Amendment thus requires

the State to administer to petitioner whatever medication

is appropriate for treatment purposes and to commute

his sentence to life imprisonment.” This course will re-

solve the supposed “Catch-22 situation” posited by the

State (Br. in Opp. 14 —i. e., that the State is barred from

involuntarily medicating petitioner but at the same time

is required by the Eighth Amendment to provide psy-

chiatric care. The State can meet its Eighth Amendment

obligation by medicating petitioner to promote a true

parens patriae interest in serving his medical needs;

it simply cannot medicate petitioner solely for purposes

of capital punishment.”

This solution has been mandated by statute in Maryland. There,

once an inmate is found incompetent to be executed, his sentence

is automatically commuted to life imprisonment. Md. Ann. Code

art. 27, § 75A(d)(3) (1987 Repl. Vol.). In addition, commutation

for incompetent death row inmates was the uniform practice in

England between the early 1840s and 1965, when England abolished

the death penalty. 1 N. Walker, Crime and insanity in England:

The Historical Perspective 205, 216 (1967); Feltham, The Common

Law and the Execution of Insane Criminals, 4 Melb. U.L. Rev.

434, 475 (1964) ; see also R. Duff, Trials and Punishments 15 (1986).

31 In light of the ethical dilemmas, psychiatrists in this country

who have worked with the few inmates found incompetent to be exe-

cuted, and other commentators, have also endorsed this approach.

Ward, Competency for Execution: Problems in Law and Psychiatry,

14 Fla. St. U. L. Rev. 35, 91 (1986) (Florida State Hospital Human

Rights Committee’s recommended commutation rule after dealing

with dilemmas posed by treating Gary Alvord); Note, supra, 96

Vale L.J. at 186; Radelet & Barnard, supra, 16 Bull. Am. Acad.

Psychiatry & Law at 301-06 (describing Alvord case at length).

CONCLUSION

The judgment of the Louisiana Supreme Court should

be reversed.

Respectfully gubmitted,

Of Counsel: JOEL I. KLEIN *

KIRK B. JOHNSON JOSEPH N. ONEK

EDWARD B. HIRSHFELD RICHARD G. TARANTO

DAVID ORENTLICHER ONEK, KLEIN & FARR

AMERICAN MEDICAL ASSOCIATION 2550 M Street, N.W.

535 N. Dearborn Street Washington, D.C. 20037

Chicago, IL 60610 (202) 775-0184

(312) 645-4600 CARTER G. PHILLIPS

SmpLey & AUSTIN

1722 Eye Street, N.W.

Washington, D.C. 20006

(202) 429-4000

* Counsel of Record