I. INTRODUCTION II. PHYSICIANS & CAPITAL PUNISHMENT III. FORCIBLE MEDICATION: FROM HARPER TO SELL AND BEYOND IV. FORCIBLE MEDICATION MEETS CAPITAL PUNISHMENT V. PSYCHIATRISTS, CAPITAL PUNISHMENT AND THE STATES A. Nevada B. Washington C. Louisiana F. Implications VI. A ROLE FOR PSYCHIATRISTS? A. Philosophical Underpinnings to Opposition B. How Complicit is Too Complicit? C. Toward a Zero-Tolerance Rule? VII. CONCLUSION: A POST-PSYCHIATRY CAPITAL PUNISHMENT REGIME?
Michael Owen Perry of Lake Arthur, Louisiana, an unemployed oil-field roustabout with a history of repeated hospitalizations for mental illness and an obsessive interest in singer Olivia Newton-John, was an unlikely individual to call into question many of the fundamental underpinnings of modem forensic psychiatry. (1) However, after his arrest in 1983 for murdering his parents, his 2-year-old nephew and two cousins at point-blank range with a shotgun, the delusional 28-year-old Perry became the center of a seven-year court battle over the appropriate role for psychiatrists in the administration of capital punishment. (2) Although at various times Perry, who suffered from schizoaffective disorder, expressed his belief that he was God and that Ms. Newton-John was "a Greek goddess living under a nearby lake," he was nonetheless found competent to stand trial and subsequently convicted of first-degree murder--despite a plea of innocent by reason of insanity. (3) The jury also found Perry responsible for "committing murders with the intent to inflict great bodily harm to one or more persons" in a manner "especially heinous, atrocious or cruel" and recommended a death sentence. (4) Judge Cecil Cutrer formally imposed this penalty on December 19, 1985. (5) By that time, however, no psychiatrist could be found to declare Perry competent--a requirement for execution under the United States Supreme Court's 1986 ruling in Ford v. Wainwright--and the question arose whether the anti-psychotic drug haloperidol might be administered, over the patient's objections, to treat his active psychosis and render him fit for execution. (6)
Perry's predicament created a challenge for both his psychiatrists and the legal system. If he were forced to take anti-psychotic medication--a demand his lawyers termed "Orwellian"--the psychiatrists who evaluated him stated that he might indeed be rendered sane enough to meet the level of competence required for execution. (7) On the other hand, if Perry was permitted to refuse anti-psychotic medication, he would continue to live in a state of nearly perpetual psychosis in which, to offer just one example of his delusions, he believed that he had to shave his eyebrows to "let his brain breathe." (8) The question for the legal system was whether, under standards outlined in the 1990 Supreme Court decision in Harper v. Washington, Perry might be forcibly medicated without violating his rights under the Constitution's guarantee of due process. (9) Psychiatrists faced an equally challenging dilemma: Did medicating Perry, and thus indirectly making his execution possible, violate the canons of their profession's ethics? (10) More broadly, how complicit or entangled might psychiatrists become in the apparatus of capital punishment before such conduct became a censurable offense? Judge L. J. Hymel of the Louisiana Criminal Court had initially ruled in 1988, prior to the Supreme Court's Harper decision, that Perry might be forcibly medicated and executed. (11) Perry appealed his own case all the way up to the United States Supreme Court--which sidestepped the issue and instructed the Louisiana State Supreme Court to review the case in light of the Harper ruling, even though the state's highest court was already made in light of the Harper decision. (12) The judges in Louisiana clearly recognized the message from above: Caught between their own past interpretation of Harper and the U. S. Supreme Court's new order, they ruled that Perry had a right not to be forcibly medicated for execution under the "cruel and unusual punishment" clause of the state constitution, thereby avoiding the larger question of the rights of defendants under federal law. (13) As a result, Perry's sentence was to be stayed indefinitely until the government could demonstrate that the prisoner had "achieved or regained his sanity and competence for execution independent of the effects or influence of antipsychotic drugs." (14) This disposition fell short of that called for by the American Psychiatric Association in its amicus brief--namely, that Perry's sentence be formally commuted to life imprisonment so that he might receive appropriate psychiatric care without any risk of placing his life in future jeopardy. (15) At the same time, it opened the door for medicating Perry in the short term, and thereby spared both physicians and the state from grappling with the bind posed by his case. (16) However, the questions that had prompted the initial lawsuit remained unresolved.
Three distinct sets of questions arose surrounding the Perry case, itself the product of simultaneous changes in the technology of capital punishment and in attitudes toward the death penalty that have increasingly placed the exigencies of the legal system on a collision course with the consensus opinion of the medical community. The first of these questions was whether the United States Constitution protected condemned inmates from unwanted medical treatment--either corporeal or psychiatric--if receiving such care made them fit to be lethally injected. The second question was the degree to which, under the canons of medical ethics, psychiatrists might participate in capital punishment. While the specific issue in Perry was forcible medication, this represents just one of many points in the chain of complicity where a psychiatrist might be called upon to facilitate the process. Even the act of testifying that a prisoner is competent and thereby executable under the Ford v. Wainwright standard is a form of participation, albeit remote, and the professional debate surrounding Perry left the ethics of various degrees of participation largely unresolved. (17) (Another matter still unresolved is whether one might medicate a willing inmate to render him competent for execution--or whether doing so would actually be abetting a suicide--but that is a question beyond the scope of this essay.) Finally, the truncated resolution of the Perry case left entirely open the question of the impact that legal codes and social context might have on ethical norms in this area: If a certain degree of medical or psychiatric acquiescence in the execution process might be necessary to reduce a patient's suffering, once execution had been unequivocally decided upon by the state, was such limited participation excusable or even desirable? For example, might a physician ethically re-infuse an anesthetic or sedative during the execution process, after initial attempts by ancillary staff had failed, if a patient appeared to be in acute discomfort? In short, this question asks to what degree existing practices and the existing legal regime may allow for exceptions to general ethical principles that govern the conduct of physicians in the area of capital punishment.
The purpose of this paper is to merge two largely separate bodies of writing on the subject of psychiatric participation in capital punishment. Much has already been written from the perspective of legal academics regarding the rights of prisoners to be free from unwanted medical care if the purpose of providing such care is to render them fit for execution. (18) Medical ethicists have also written much on the degree to which physicians, and specifically psychiatrists, may participate in facilitating the death penalty before they become so complicit as to violate accepted standards of professional ethics. (19) Surprisingly, these two fields of inquiry have developed in relative isolation. What this essay seeks to do is to examine the relationship between these two bodies of thought and to explore the following question: What impact do the ethical limits of psychiatric practice have on the application of capital punishment? Two other questions naturally follow: 1) Do ethical limitations on psychiatric participation create a "bottleneck" that will, in practice, make executions impossible; and 2) Are there ways of meeting the constitutional rights of condemned defendants that would allow for execution without the participation of medical professionals? In order to answer these questions, a brief exploration of evolving medical attitudes toward capital punishment is necessary.
II. PHYSICIANS & CAPITAL PUNISHMENT
The controversy surrounding the role of physicians in capital punishment dates back to at least the 18th century Enlightenment, when French physician and death-penalty opponent Joseph-Ignace Guillotin proposed a more humane method of execution, "a machine that beheads painlessly," to replace the torture of the condemned upon the breaking wheel. (20) In the years following American independence from Great Britain, Dr. Benjamin Rush became the public face and voice of opposition to capital punishment in the United States. (21) His campaign to end executions as "contrary to reason," launched from Benjamin Franklin's front porch in 1787 and supported by many of his medical brethren, convinced the Pennsylvania legislature to prohibit executions for all crimes except first degree murder. (22) By the late 19th century, physicians had become active participants in the national debate over which methods of execution were most humane. For example, notable physicians dominated the New York State commission that in 1887 recommended the prohibition of hanging as a method of killing. (23) Three years later, New York State asked three nationally prominent medical men--Carlos F. MacDonald, the President of the State Board of Lunacy; George F. Shrady, editor of the Medical Record; and alienist Edward Charles Spitzka--to witness the electrocution of murderer William Kemmler and to ascertain that the first use of the electric chair proceeded smoothly. (24) Yet Kemmler's execution devolved into chaos when the condemned man started to breathe again after MacDonald and Spitzka had already declared him dead. (25) Soon thereafter, Dr. Shrady spoke out publicly against the death penalty, writing that, "Although science had triumphed, the question of the humanity of the act is still an open one.... We venture to predict that public opinion will soon banish the death chair ... and that imprisonment for life will be the only proper punishment meted out to a murderer." (26) The debate over the merits of execution, and the appropriate role for physicians in the process, brewed for months after the Kemmler execution before the uproar abated. (27)
During the first half of the 20th century, a handful of physicians gained widespread attention for campaigning against capital punishment, and the role of physicians in the process, most notably psychiatrist Lloyd Briggs, but it was not until the 1960s that Dr. William F. Graves returned the controversy to the center stage of professional and public opinion. (28) Graves, a former physician at San Quentin Penitentiary from 1942 to 1954 who had participated in the executions of notorious killers Barbara Graham and William Charles Cook, refused to take part in any further executions after the death of Cook because he had concluded that doing so violated the ethical canons of his profession--making his the first documented case of an American prison physician refusing to participate in the administration of capital punishment. (29) After his change of heart, Graves toured the country warning the public about the horrors of the death penalty. (30) The ideas of men like Briggs and Graves paved the way for a second debate over the role of the medical profession in capital punishment, beginning in the late 1970s, which stemmed largely from changes in the material aspects of the punishment process. (31)
The role of physicians in the administration of capital punishment in the United States was rather limited until the late 1970s. Ironically, efforts to abolish the death penalty led indirectly to an increased role for medical professionals. At the time of the Supreme Court's ruling in Furman v. Georgia (1972), which declared the existing regime governing the death penalty unconstitutional and ultimately led to a four year moratorium on the practice, the thirty-seven states that sanctioned executions relied upon four methods: hanging, electrocution, lethal gassing and firing squad. (32) Although several states required physician involvement in these processes, and all mandated a physician to confirm that death had in fact occurred, none of these methods of execution inherently demand a significant role for healthcare professionals. (33) It was the shift toward lethal injection--a method first introduced in Oklahoma and Texas in 1977 because it was considered "less painful and thus more humane"--that opened the door to a closer entanglement between physicians and the death apparatus of the states. (34)
The preferred method of lethal injection in the thirty-eight states that eventually adopted this method of execution is administration of a three-drug cocktail containing sodium thiopental (to render the prisoner unconscious), pancuronium bromide (to paralyze the prisoner) and potassium chloride (to induce cardiac arrest).
Dosing of these substances may prove challenging, and errors in dosing can cause severe suffering on the part of the inmate. (35) Selecting an injection site, and ensuring that the cocktail is injected into a vein, as opposed to muscle tissue, is also essential if the suffering of the condemned is to be minimized. (36) While lethal injection might theoretically be administered and supervised by a layperson, non-medical efforts have often led to unpalatable complications for the inmate and bad publicity for the state. As a result, many states require the participation of doctors in the process. (37) Oklahoma's pioneering statute, for example, initially required a licensed physician to inspect the equipment to make sure that it would flow into the prisoner's veins and for a physician to pronounce the inmate dead. (38) A "trained medical employee" was permitted to administer the lethal dose. (39) Other states have also opted to have physicians train lay executioners, such as physician's assistants, to conduct the injections.
As states introduced lethal injection statutes in the late 1970s and early 1980s, American physicians for the first time argued that a collective stand against their participation in the process might be necessary. When Texas passed its lethal injection statute in 1977, the state's medical association became the first in the nation to restrict the role of physicians in executions, issuing a policy statement which warned that the only role an ethical physician might play in the process was to certify the death of the inmate. (40) Soon afterward, Dr. Louis J. West of the University of California at Los Angeles called for a "national medical declaration that it would be unethical for a physician to lend his presence to an execution, even as an official examiner to certify the fact and time of death." (41) In 1980, attorney William J. Curran and cardiologist Ward Casscelles published a "Sounding Board" article in the New England Journal of Medicine that threw down the gauntlet on the subject of lethal injection. After a thorough investigation of the moral dangers of physician involvement in this process, they concluded: "The medical profession in the United States should formally condemn all forms of medical participation in this method of capital punishment." (42) Within months, both the American Medical Association and the American Psychiatric Association, while noting that they were not taking a stand upon the morality of capital punishment, declared participation by physicians in the process to be unethical. (43) According to the A.M.A. resolution, which relied upon the Hippocratic Oath's dictum to do no harm, "A physician as a member of a profession dedicated to preserving life when there is hope of doing so should not be a participant in a legally authorized execution." (44) The A.P.A. position statement, drawing a direct comparison to medical practice in Nazi Germany, stated that the organization "strongly opposes any participation by psychiatrists in capital punishment, that is, in activities leading directly or indirectly to the death of a condemned person as a legitimate medical procedure." (45) The following year, the 45-nation World Medical Association called upon American physicians to refuse collectively to participate in the process. (46) By 1982, when Texas executed Charles Brooks Jr. via lethal injection, the first actual use of this novel method, many of the …