On Jan. 6, the state of Arkansas executed Charles Singleton by lethal injection. His death went unnoticed by the national media, but it will be remembered and discussed in the years ahead by medical ethicists and everyone else interested in the intersections of human rights, psychiatry and law. Singleton by all accounts had become psychotic during the 24 years he spent on death row and would have been incompetent to be executed had he not been taking psychiatric medications. Richard Dieter, executive director of the Death Penalty Information Center in Washington, D.C., believes that Singleton is the first prisoner to be executed after being declared incompetent to be executed under the guidelines formulated by the U.S. Supreme Court in the case of Ford v Wainwright, 477 US 399 (1986).
The late Justice Thurgood Marshall, a lifelong opponent of capital punishment, wrote the majority opinion in Ford, holding that the Eighth Amendment's prohibition of cruel and unusual punishment prevents the state from executing an insane prisoner. However, in what proved to be the crucial concurring opinion, the late Justice Lewis F. Powell Jr. emphasized that the state had a valid interest in imposing the death penalty on Ford and that the issue was not whether Ford could be executed, "but, when his execution may take place." And then in an ominous footnote Powell explained, "My point is only that if petitioner [Ford] is cured of his disease the state is free to execute him."
Powell's "cure to execute" footnote raised serious ethical questions for psychiatrists. The state might have a legal interest in curing and executing condemned prisoners, but psychiatrists thought it would be medically unethical to participate in that process. However, psychiatrists also recognized that it would be unethical to withhold treatment and allow a profoundly psychotic death row inmate to suffer and deteriorate. Ethical guidelines were established by the American Medical Association and the American Psychiatric Association, which recognized that an ethically responsible psychiatrist would have to steer an uncharted course between these pitfalls (Code of Medical Ethics, H-140.950 Physician Participation in Capital Punishment).
The Supreme Court's decision in Ford did not deal with the question of whether the state, in its efforts to cure death row inmates, could force antipsychotic medications on them. That issue was soon presented to the court in Perry v Louisiana, 498 US 1075 (1990). The APA, in its amicus brief, emphasized the ethical quandaries for psychiatrists and urged the Supreme Court to commute Perry's death penalty to life imprisonment without possibility of parole. This would allow Perry to receive appropriate care without his psychiatrists having to worry that they would be facilitating his execution. The Supreme Court eventually sent the case back to Louisiana and has never resolved the question of whether a state can involuntarily treat, cure and execute a death row prisoner.
The Louisiana Supreme Court, however, had no difficulty deciding the answer to that question. In the case of State v Perry, 610 So2d 746 (La 1992), the court gave great weight to the ethical objections of organized psychiatry and found compelling reasons within its own constitution not to force treatment on a condemned man so that he could be executed. The South Carolina Supreme Court soon followed the Louisiana precedent, and the state of Maryland passed legislation adopting the commutation approach the APA had urged on the U.S. Supreme Court in Perry.
That is where the law seemed to stand until 1999 when the Arkansas Supreme Court broke with the precedents of its sister states and found a rationale for the treatment and execution of Charles Singleton, 338 Ark 135 (1999). Four years later, overruling its own three-judge panel, the Eighth Circuit Federal Court of Appeals issued an opinion supporting the state Supreme Court's decision in Singleton v Norris, 319 F.3d 1018 (8th Cir) (en banc), cert denied, 124 SCt 74 (2003). Chief Judge Roger Wollman, writing for the majority in a sharply divided 6-5 decision, ruled that neither the Eighth Amendment nor other procedural protections prohibited the execution of a death row inmate who "regained competency through appropriate medical care." The most startling line of the judge's decision was: "eligibility for execution is the only unwanted consequence of the medication."
Singleton's execution seemed to follow the scenario of Justice Powell's ominous footnote, but the real world of law and psychiatry is far more complicated. The ethical questions raised by the Singleton case, as we shall see, have more to do with physician-assisted suicide than with physician participation in capital punishment.