By Mick Collins, a 2009 graduate of Concord Law School and a
member of the 2009 class of ACS Next Generation Leaders. The faculty of Concord
Law awarded Collins the honor of outstanding graduate in his class. Collins
passed the California bar exam and plans to practice Criminal Law.
Can states execute "chemically competent" defendants without
running afoul of the Constitution? In other words, does the Eighth Amendment ban on cruel and unusual punishment prohibit government executions of
death row convicts after those inmates have been brought from incompetency to
competency through forced administration of antipsychotic drugs?
A recent Sixth Circuit opinion lamented the fact that neither the U.S. Supreme
Court nor the Sixth
Circuit have
"squarely addressed" this question. This same opinion declined to
answer this "difficult question" because the State of Tennessee never
actually forced the defendant, Gregory
Thompson, to take antipsychotic medications.
Convicted of first
degree murder and sentenced to death, Thompson sought relief through a series
of habeas petitions. Before the Tennessee Supreme Court, Thompson filed a final substantial change petition including an assertion of his incompetency. Thompson also raised the
question whether executing an incompetent could constitute cruel and unusual
punishment. Tennessee's highest court found Thompson's history of mental
illness and his delusions "stale" and "not relevant to the issue of present
competency." The Court reasoned that because
Thompson recounted details of the crime and made statements that showed
Thompson knew about his death sentence and the reason for it, Thompson remained
competent. Three well qualified mental health professionals agreed that Thompson suffered
from pronounced delusions and paranoia rendering Thompson unable to
comprehend his pending execution. Although his drug regimen enabled his state
of "chemical competency," the Tennessee Supreme Court failed to address the Eighth
Amendment issue.
Even though
Thompson voiced fears that the state would force medication if he ever quit
taking his prescriptions, Thompson had been voluntarily taking
psychotherapeutic drugs. The Sixth Circuit side-stepped the Eighth Amendment because these facts did not include
any instance of forced medication. However, the Circuit Court did find that the
Tennessee Supreme Court unreasonably determined that Thompson's "severe
delusions" were "irrelevant" to Thompson's competency analysis.
Accordingly, the Sixth Circuit ordered the District Court to revisit Thompson's underlying
petitions of ineffective counsel.
Perhaps more
importantly for future cases involving the "chemically competent," dicta concerning the impact of the Eighth Amendment
emerged in the Circuit opinion. Employing the trio of forced
medication Supreme Court cases Harper, Riggins and Sell,
the Sixth Circuit recognized that an Eighth Amendment claim infers a level of absolute necessity when giving forced medication. The
appeals court stated:
Although the
Supreme Court in Harper, Riggins and Sell addressed due process challenges and
not Eighth Amendment claims, the logical inference from these holdings is that
subjecting a prisoner to involuntary medication when it is not absolutely
necessary or medically appropriate is contrary to the "evolving standards
of decency" that underpin the Eighth Amendment. See Trop v. Dulles, 356 U.S. 86, 100-01, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958) ("[T]he words of the
[Eighth] Amendment are not precise, and ... their scope is not static. The
Amendment must draw its meaning from the evolving standards of decency that
mark the progress of a maturing society.").
Sell indicated that cases where the government could forcibly
administer antipsychotic medication "may be rare." By suggesting that the
Eighth Amendment imposes a burden characterized as absolute necessity, has the
Sixth Circuit illustrated or even bolstered that notion of rarity expressed in Sell?