The gun smoke had barely cleared – leaving six dead and 13 wounded, including Democratic Congresswoman Gabrielle Giffords, who had a hole in her head – before federal prosecutors took the first step in hustling the shooter, Jared Lee Laughner, to the death gurney.
Attempting to assassinate a member of Congress is a capital offense, and one of the dead was a federal judge, making Laughner's target practice a second federal capital offense.
Never mind that Laughner had a long history of mental illness; the federal death penalty law allows for a very limited insanity defense, so Laughner's prospects of living to old age might seem dim. Except that his lawyer is Judy Clarke.
Colleagues, writing in posts on the Internet, widely regard Clarke as the best death penalty defense lawyer in the business. She successfully cut a deal with prosecutors to spare the life of the Unabomber, and she successfully kept Susan Smith, the Alabama mom who drowned her two toddlers in the bath tub, off the death gurney. Colleagues say that Clarke is not just philosophically opposed to the death penalty; for her, it is a driving passion.
The first step in Laughner's journey through the legal system was a competency hearing, where the judge weighed testimony from a defense psychiatrist and a prosecution forensic psychologist. Unlike many such hearings, where the experts tailor their testimony to the needs of their legal team, both the defense and prosecution experts agreed that Laughner was a paranoid schizophrenic who was incompetent to stand trial – meaning that he was too crazy to participate in his own defense. The judge remanded Laughner to a federal forensic hospital for months of observation.
Laughner's mental status did not improve – which is hardly surprising since he's been schizophrenic for years – so the docs sought to medicate him. Clarke exploded and sprang like a panther with a string of objections … Unlike many high-profile lawyers, Clarke does not talk to the press – including Truthout. But her objections to forcibly medicating Laughner with antipsychotic drugs are obvious: they would, first, render him competent to stand trial; and second, lead him down a road that will end not with an injection of an antipsychotic, but rather a lethal cocktail of pentobarbital, pancuronium bromide and potassium chloride – which passes for humane execution in the United States.
But can the states or the federal government medicate a person against his or her will? The Supreme Court has ruled that prison docs can forcibly medicate a mentally ill inmate if he “poses a threat to himself or others” or if the medication is in his own best interest. Clearly, a defense lawyer will argue that the purpose of medicating a person in a capital case is not to provide medical care, but to create a state that has been called “synthetic sanity” – a condition of pseudo-sanity that can be palmed off as competency.
Clarke is sure to capitalize on the niche in this ruling, because it's hardly in Laughner's best interest to medicate him so that he can stand trial for his life. It is questionable whether antipsychotic drugs enable the defendant to help his lawyer in an insanity defense. Many psychiatrists feel that these drugs do not attack the core of the illness, but rather make the patient think, act and look “doped up,” without addressing the underlying pathological processes.
Antipsychotics – especially the older drugs like Haldol and Thorazine – also exert deleterious effects on the body. Neurological side effects such as tremors, shaking and writhing of the extremities are common. Smacking of the lips and popping of the tongue are not rare. Some patients experience neuroleptic malignant syndrome, a sometimes fatal metabolic disorder.
The new generation of antipsychotics – Abilify, Seroquel, and others – are a distinct improvement: they provide a broader spectrum of efficacy, not just against schizophrenia, but against mood disorders as well, and fewer severe side effects. However, even these drugs are not entirely safe. Of course, defense lawyers strive to maximize the dangers, and minimize the benefits, of antipsychotic drugs … but then, as my grandfather liked to say to my father, “Don't call 'em lawyers; call 'em liars.”
A capital trial comprises two components. First is the innocence phase, during which the jury decides whether the defendant did or did not commit the crimes in question. Next, if found guilty, comes the penalty phase, in which the jury must decide whether the sentence shall be death or (in most states) life without possibility of parole. Persons who have been sentenced to death often linger on death row for ten or 15 years before the sentence is carried out – or, with increasing frequency of DNA testing and other forensic measures – before they are exonerated. They may be sane when they are convicted, but with the passage of years, they may become depressed, anxious, psychotic or otherwise too incompetent to be executed.
In 1974, a Florida man named Alvin Ford killed a cop in the course of a robbery. The available evidence shows that Ford was sane at the time of his crime, trial and sentencing. The jury's verdict was “death,” but after eight years on death row, Ford developed hallucinations and delusions that the Ku Klux Klan was after him and that he was Pope John Paul III, among other outré psychiatric symptoms. After exhausting all but one appeal, the defense succeeded in persuading the Supreme Court to hear the case. There was no precedent in American law. The court sought guidance in English common law, which forbids the execution of the insane. Sir Edward Cooke, writing in the 16th century, characterized the execution of the insane as a “miserable spectacle.” And a century later, the eminent jurist Sir William Blackstone deemed the practice “savage and inhuman.” The majority of the Supreme Court Justices agreed with these English jurists. Associate Justice Lewis Powell, in a concurring opinion, gave the court's verdict a spin that still prevails. If it sounds sadistic and retributive, one can only say that it is, for Powell wrote that, in order for a person to be competent for execution, he must understand the nature of his punishment and the reason why he is being punished. It almost seems more humane to execute a lunatic who believes he's coming back as a turtle than to make a sane man or woman tick off the days and years until his legally sanctioned murder.
But if a condemned man or woman – conceivably Laughner – deteriorated to the point where prison psychiatrists deemed him incompetent to be executed, could the prison authorities forcibly medicate him into a state of “synthetic sanity,” so that he would perhaps understand that he was going to be killed and the reason why? The supreme courts of two Southern states – Louisiana and South Carolina – deemed it contrary to their state constitutions to forcibly medicate a prisoner in order to prep him for execution. The United States Supreme Court has had two opportunities to address the issue, but all they did was touch up Powell's opinion to mean that the condemned person must have “rational understanding” of the reason why he or she is going to be killed.
And if a person does not possess “rational understanding,” can prison docs help him out with medication?
The seminal case involves a man named Charles Laverne Singleton, who was condemned to death for murder, burglary, larceny and first-degree sexual assault. Singleton had a long history of mental illness, did not grasp that he was going to die in the electric chair, could give no more than yes or no answers to his attorney and evinced no understanding why or whether he was going to be punished for his misdeeds. Nevertheless, the Eighth Circuit Court of Appeals ruled that the state could forcibly medicate Singleton preparatory to his execution. In 2003, the Supremes refused to hear the case, letting stand the Eighth Circuit's ruling that forcible medication neither violates the Eighth Amendment against cruel and unusual punishment, nor the due process clause. Singleton was duly medicated and executed on January 6, 2004.
I spoke with Richard Dieter, executive director, Death Penalty Information Center. Dieter told me that the Singleton case was the only one that's worked its way up through the courts, but he judged it likely that there had probably been several other cases where inmates had been forcibly medicated to effectuate synthetic sanity. This did not surprise me, because in the course of writing the present series of articles on capital punishment for Truthout*, I came across instances of court-appointed lawyers who failed to file vital papers on time, who turned up drunk in the courtroom or who slept through the trial. In America, justice usually comes with a price tag. Without a dedicated lawyer to monitor the authorities, it's easy to see how psychotic, confused inmates could be fed antipsychotic drugs … and no one would ever know. Who's to know the little pills aren't “vitamins?” Then, too, there's “bug juice”: odorless, tasteless liquid Haldol that can be mixed in food or drink.
Ethically and morally, the buck stops with prison psychiatrists. Both the American Medical Association (ABA) and the American Psychiatric Association forbid members from participating in executions, but neither organization has punished a member for doing so. Only the American Board of Anesthesiology has adopted a policy with real teeth in it, but executions are carried out in a secretive manner, and the ABA has yet to catch a member in the act.
Eventually the Supreme Court will probably rule on forcibly medicating inmates for the purpose of executing them. It is difficult to be optimistic about the verdict that would be handed down by the Roberts court; the outcome will probably depend upon Justice Kennedy. But whatever the verdict of the Supreme Court Justices, prison physicians can make the difference. All too many of them have long forsaken the fundamental oath of medicine, “Do No Harm.” Doctors must stand up against synthetic sanity in substantial numbers, and their professional societies must punish those who breach the doctor's oath. Ultimately, however, there is only one definitive solution to practices like creating synthetic sanity: to abolish the benighted practice of capital punishment once and for all.