# Amicus Curiae Brief — Perry v. Louisiana

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1990
- **Citation:** 498 U.S. 38

## Text

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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12

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_1451%3A7. Public record. Not legal advice.