Capital Punishment, Psychiatrists and the Potential "Bottleneck" of Competence
Appel, Jacob M., Journal of Law and Health
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. …