Charles Laverne Singleton v. Larry Norris, Director, Arkansas Department of Correction

HEANEY, Circuit Judge,

dissenting, in which BRIGHT, McMILLIAN, and BYE, Circuit Judges, join.

Charles Singleton suffers from mental illness that makes him psychotic. At times he has been forced to take powerful psychotropic drugs; at other times he takes the medication voluntarily. The drugs often mask his underlying psychosis. The majority believes this makes him fit for execution. I believe that to execute a man who is severely deranged without treatment, and arguably incompetent when treated, is the pinnacle of what Justice Marshall called “the barbarity of exacting mindless vengeance.” Ford v. Wainwright, 477 U.S. 399, 410, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986). My reasoning is guided by the decisions of the Supreme Court, and supported by the rulings of state courts which have considered the issue, the overwhelming majority of scholarly commentary, and the ethical standards of the medical profession. I dissent.

I.

Charles Singleton has been on death row since 1979 as a result of his conviction for the capital felony murder of Mary Lou York. He has been on psychotropic medication during much of his stay in prison. This medication was prescribed initially to alleviate anxiety and depression. Beginning in 1987, however, Singleton’s mental health began to deteriorate. He started to believe that his cell was possessed by demons and had “demon blood” in it. He reported that his brother would come to *1031his locked prison cell and take him out of it for walks. He was under the impression that a prison doctor had planted some type of device in his right ear and that his thoughts were being stolen from him when he read the Bible. During this time, he sustained a considerable loss of weight.

Singleton was diagnosed as likely schizophrenic and placed on antipsychotic medication. He initially took it on his own, but when he refused, he was forcibly medicated. For the next several years, Singleton continued to be treated for his psychosis. His medication was administered voluntarily at times, and at times it was administered forcibly. Whenever he was off his medication, his symptoms would resurface, and he would again experience hallucinations. In 1991, Singleton’s treating doctor took him off his medication in order to determine when symptoms of his illness would reappear. Within a few months, he was observed stripping off his clothes and speaking in a strange language. He became paranoid and delusional, and believed that he had already been executed.

Singleton was again put on an involuntary medication plan. From November of 1991 until March of 1995, he remained on this treatment plan. Despite being treated at the time, symptoms of Singleton’s mental illness flared up again in the summer of 1993. During this period, Singleton was under the impression that he was the victim of a voodoo curse, and endured disturbing hallucinations in which his food turned to worms and cigarettes became bones. His medication was altered, and he became more stable.

Beginning in March of 1995, Singleton was put on a voluntary treatment regime. He regularly accepted his medication until September of 1996, when a prison psychiatrist agreed to take him off the medication. Within a few months, Singleton was withdrawn and again lost a substantial amount of weight. His speech had become unintelligible. He was prescribed another an-tipsychotic medication, but did not take it regularly. By July of 1997, Singleton’s symptoms were much worse. Observations over the next few weeks have been summarized as follows:

On July 21, 1997, Mr. Singleton was described as very hostile, belligerent, and probably psychotic. The following day, he informed the staff he was “on a mission from God,” and he had to kill [treating physician] Dr. Oglesby and the President. On August 7, 1997, Mr. Singleton was described as bizarre, delusional, and he expressed the belief that he had been “freed by the Eighth Circuit and the U.S. Supreme Court.” On August 7, 1997, Mr. Singleton was described as exhibiting bad hygiene. He informed the staff he was “God and the Supreme Court” and that he had been set free. On August 13, Mr. Singleton was observed in his cell by mental health staff. He was described as nude and “zombie-like.” He displayed a vacant stare and was almost nonrespon-sive. He had torn up his mattress and flushed it. The following day, Dr. Oglesby recommended Mr. Singleton be seen by a Medication Review Panel, because he believed Mr. Singleton was psychotic and gravely disabled. On August 15, Mr. Singleton flooded his cell. He was seen on August 18 by the Medication Review Panel. He informed them he believed the courts had overturned his sentence and there was a conspiracy to execute him anyway.

(Mrad Dep. Ex. 1 at 9.) Based on Singleton’s behavior, the panel again decided to forcibly medicate him. This medication alleviated Singleton’s symptoms for a time, but by February of 1999 he was again withdrawn and exhibited a strange speech pattern. His medication was increased. In April of 1999, he reported that he was “hearing voices talking about doing something to him.” (Id. at 11.) Again, the *1032prison responded by increasing his medication.

In March of 2000, a panel of this Court ordered a limited remand to determine issues surrounding Singleton’s competency to be executed. As a result, the district court ordered an evaluation to be performed on Singleton at the Federal Medical Center in Springfield. Singleton was held for observation from June 29, 2000 through August 14, 2000. During that time, he was interviewed a number of times by Dr. Mrad, a psychologist in the Forensic Evaluation Unit. Dr. Mrad had seen Singleton in 1995 for a similar evaluation, giving him some point of reference as to Singleton’s mental state.

During this evaluation period, Singleton’s comments to Dr. Mrad led Dr. Mrad to question whether Singleton might be psychotic even while on his medication. Singleton admitted to having continued hallucinations, and “occasionally referred to himself as God or God-like and on a few occasions referred to himself as the Holy Spirit.” (Mrad Dep. at 21.) Regarding Singleton’s understanding of his punishment, Mrad stated:

I asked him if he was God, how could he be executed, and he slapped his arm and said I’ve got this. My understanding referring to a body. He could be — he could be executed and that it would— and I think he knew that the reason for the execution would be conviction for the murder of Mary Lou York and by that I believed he had a factual understanding. He could recite — basically recite basic facts that he would be — what the sentence was and why he would be given that sentence.
The other part of it, the rational understanding I think was — has more to do with does he actually understand what this means, not only can he say it but does he actually understand what this means and what it means as applied to him, and it was not at all clear to me that he did. His thinking was so disorganized. He made these frequent comments about being the Holy Ghost or Holy Spirit. He talked about a — some beliefs about a parallel world, about being — an execution just being stopping breathing and then you start up again somewhere else and that — there was some statement made about correctional officers. Execution correctional officers stop you from breathing and then the judge can do something to start it up again.

(Id. at 33-34 (emphasis added).) Singleton explained that he had attempted to kill himself in 1997 and had cut his jugular vein, but that he was unable to die because the wound spontaneously stopped bleeding. There is no evidence in the record of any such suicide attempt. Singleton went on to tell Dr. Mrad that he was penning a book at the request of God, that he and St. John were on a mission to fight homosexuals, and that Sylvester Stallone and Arnold Schwartzenegger were somewhere between this universe and another one and were trying to save him.

When asked about Singleton’s current mental status, Mrad stated he would technically classify Singleton as “psychotic because he was describing that he was still experiencing hallucinations, and clearly when I had interviewed him his mental status was noticeably different than it had been, for instance, five years earlier. His thinking was much more disorganized. He was very difficult to follow.” (Id. at 29.) In summary, Dr. Mrad determined that Singleton was not competent under the Ford6 standard when he was off his medication in 1997, and that he would clearly be psychotic if his medication was discontinued. He further opined that Singleton’s current concept of death was not a rational *1033one, and that “he may not be currently competent from what I was seeing.” (Id. at 46.)

There is some question of the cause of Singleton’s psychosis during his observation period in the summer of 2000. Singleton did not take his medication in April of 2000, and Dr. Mrad thought that may have contributed to Singleton’s behavior. However, Mrad also stated that disorders such as Singleton’s often get worse with time. (See id. at 47 (“Generally, the disorder is chronic and usually lifelong and, if anything, a more common pattern would be to become more severe over time and that frequently as a patient has additional de-compensations they often — once they’re medicated, once their mental status is restored, they may not come back to the prior level of functioning they had before the last decompensation .... ”).)

On December 11, 2001, this Court received a letter directly from Singleton. In it, he declared that he did not believe Mary Lou York was dead, and that she “is somewhere on this earth waiting for me— her groom.” (Letter from Singleton to Court of December 7, 2001, at 1.) He further stated that “[s]omebody sent me, the robot, to Mrs. York, I know the police is in it’, you could be in it. So, if her service was/is in vain, its because that’s the way you want it.” (Id. at 2.)

II.

A.

In Ford v. Wainwright, 477 U.S. 399, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986), the Supreme Court was faced with the question of whether the Eighth Amendment prohibition on cruel and unusual punishment proscribed the execution of insane prisoners. Ford was a death row inmate who suffered from serious mental illness. Id. at 402, 106 S.Ct. 2595. As a result of his disease, Ford began to refer to himself as a religious leader, believed he had appointed new justices to the Florida Supreme Court, and began to speak in a strange alphanumeric code. Id. at 402-03, 106 S.Ct. 2595. Importantly, Ford was also under the impression that he was no longer subject to the death penalty, and could leave the prison whenever he wanted to do so. Id. at 403,106 S.Ct. 2595.

Justice Marshall outlined the historical contours of the prohibition on executing the insane. Finding support as far back as Sir Edward Coke’s seventeenth century treatise on the subject, the Court determined that while legislatures, courts, and commentators provided diverse rationales for the prohibition, they all agreed on one thing: execution of the insane does not comport with the ideals of a civilized society. Id. at 408-10, 106 S.Ct. 2595. Consistent with this historical principle, the Court held that “the restriction [on executing the insane] finds enforcement in the Eighth Amendment.” Id. at 410, 106 S.Ct. 2595. Justice Powell, in his concurrence, suggested that if the insane inmate becomes “cured of his disease, the State is [then] free to execute him.” Id. at 425 n. 5,106 S.Ct. 2595.

The issue left unresolved by Ford is the very one in this case: whether the Eighth Amendment permits the execution of an insane inmate who is receiving treatment. At the outset, I believe that our analysis should consider what precisely “treatment” means in this context. Singleton has been forced to take antipsychotic medication, the stated goal of which is to stabilize his mental ' condition. However, receiving treatment is not synonymous with being cured. Antipsychotic drugs “merely calm and mask the psychotic symptoms which usually return to debilitate the patient when the medication is discontinued.” State v. Perry, 610 So.2d 746, 759 (La. 1992); Keith Alan Byers, Incompetency, Execution, and the Use of Antipsychotic Drugs, 47 Ark. L.Rev. 361, 377 (1994) (not*1034ing consensus in medical community that antipsychotic drugs provide only temporary relief); see also Rhonda K. Jenkins, Comment, Fit to Die: Drug-Induced Competency for the Purpose of Execution, 20 S. Ill. U. L.J. 149, 169 (Fall, 1995) (“A subset of psychotropic medications, psychoactive drugs diminish the symptoms of mental illness, but they do not cure the underlying mental illness.”); Nancy S. Horton, Comment, Restoration of Competency for Execution: Furious Solo Furore Punitur, 44 Sw. L.J. 1191, 1204 (Winter, 1990) (“Despite their beneficial effects, an-tipsychotic drugs merely mask the debilitating symptoms of major mental disorders; the drugs do not cure the mental disorder.”)

Thus, when antipsychotic medication results in an improved mental state, the patient is merely displaying what has been termed “artificial” or “synthetic” sanity. Byers, supra, at 377; Horton, supra, at 1203-04. One of the pitfalls of equating true sanity with its medically-coerced cousin is that drug-induced sanity is temporary and unpredictable: “the effect of psychoactive drugs on a particular recipient is uncertain; the drugs may affect the same individual differently each time they are administered.” Jenkins, supra, at 170.

Singleton’s case is exemplary of the unpredictable result antipsychotic drug treatment has on mentally ill prisoners. A review of the record establishes that since the outset of the Singleton’s symptoms, the treatment plan for his mental disease has been consistently fluid. Singleton’s medication has often been changed, either in dose or in type, in response to observations of his mental stability. Even when evaluated by Dr. Mrad pursuant to our court order, Singleton’s behavior left Dr. Mrad with the impression that Singleton had decompensated and was currently psychotic, in spite of his treatment plan. Particularly because Singleton’s treatment plan has never kept him consistently free of symptoms, “it would be very difficult to ensure that the prisoner was truly free of the effects of his psychosis and able to meet the [Ford] standard of competency at the exact moment of his execution.” Byers, supra, at 377.

Based on the medical history in this case, I am left with no alternative but to conclude that drug-induced sanity is not the same as true sanity. Singleton is not “cured;” his insanity is merely muted, at times, by the powerful drugs he is forced to take. Underneath this mask of stability, he remains insane.7 Ford’s prohibition on executing the insane should apply with no less force to Singleton than to untreated prisoners.8

*1035B.

It is beyond dispute that the forcible injection of psychotropic medication into a person’s body represents a substantial interference with that person’s liberty. Riggins v. Nevada, 504 U.S. 127, 134-35, 112 S.Ct. 1810, 118 L.Ed.2d 479 (1992) (citing Washington v. Harper, 494 U.S. 210, 229, 110 S.Ct. 1028, 108 L.Ed.2d 178 (1990)). The Court recognized that while such drugs often benefit the recipient, “it is also true that the drugs can have serious, even fatal, side effects.” Harper, 494 U.S. at 229, 110 S.Ct. 1028. For this reason, forcing a prisoner to take antipsychotic drugs is “impermissible absent a finding of overriding justification and a determination of medical appropriateness.” Riggins, 504 U.S. at 135, 112 S.Ct. 1810. Specifically, the Due Process clause of the Fourteenth Amendment requires the State to show that the mind-altering medication is 1) necessary because the inmate is dangerous to himself or others, and 2) in the inmate’s best medical interest. Harper, 494 U.S. at 227, 110 S.Ct. 1028.9

The question for our court is whether Hamper is satisfied where the consequence of forcibly medicating the inmate will be his execution. The majority believes that its analysis should focus on the State’s intent in medicating the inmate, and concludes that it is constitutional for the State to forcibly medicate Singleton into a state of competency because the State’s motive in medicating Singleton is to improve his well-being.

Even if I were to accept that the State’s intent should control the analysis, the majority’s reasoning remains unsound. It is beyond dispute that the State may not execute Singleton when he is unmedicated and displays the typical symptoms of his psychosis. Ford v. Wainwright, 477 U.S. 399, 409-10, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986). It is also true, as the majority states, “[tjhat the government has an essential interest in carrying out a lawfully imposed sentence cannot be doubted.” Ante at 1025. The State’s vigor in pursuing this goal may well lead it to obscure the true reasons for forcibly medicating an inmate into competence.10 See Bryan Lester Dupler, The Uncommon Law: Insanity, Executions, and Oklahoma Criminal Procedure, 55 Okla. L.Rev. 1, 54 (Spring 2002) (“As a matter of candor and common sense, the long-term health (or ‘medical interest’) of the insane capital prisoner is not the concern of the State that seeks to forcibly medicate him.”); Roberta M. Harding, “Endgame”: Competency and the Execution of Condemned Inmates-A Proposal to Satisfy the Eighth Amendment’s Prohibition Against the Infliction of Cruel and Unusual Punishment, 14 St. Louis U. Pub.L.Rev. 105, 125 (Fall, 1995) (noting that “there is a real risk that a state might cite an ‘appropriate’ reason for forcible medication, such as providing medical care as required by the Eighth Amendment, while refusing to disclose the real reason, wanting to make the inmate death qualified”); cf. State v. Perry, 610 So.2d 746, 761 (La.1992) (refusing to accept State’s “manufactured” justification that forcibly medicating capital inmate into competence was appropriate because it also made in*1036mate less dangerous); Rhonda K. Jenkins, Comment, Fit to Die: Drug-Induced, Competency for the Purpose of Execution, 20 S. Ill. U.L.J. 149, 175 (Fall, 1995) (“Perry pointed out that the state could not credibly come forward with a request to forcibly administer antipsychotic drugs to a death row inmate and claim the involuntary medication was in the inmate’s medical interest when the state has condemned the inmate to death.”)11

The problem with pinning the constitutionality of a prisoner’s execution to the State’s intent in forcibly medicating him is that it will often be difficult to determine whether the State is medicating a prisoner to protect him from harming himself or others, or whether the State is medicating the inmate to render him competent for execution. Moreover, such an inquiry rests on the faulty assumption that the State maintains one exclusive motive for its actions. Here, even the majority recognizes two competing State interests: the safety of the prison guards and inmates (including Singleton), and its interest in exacting punishment. In light of the record, it is simply illusory for our court to conclude that it can discern the State’s single, directed motivation for forcibly medicating Singleton. See Harding, supra, at 125 (noting it is “extraordinarily difficult, if not impossible, to decipher the state’s motivation” in this situation); see also Keith Alan Byers, Incompetency, Execution, and the Use of Antipsychotic Drugs, 47 Ark. L.Rev. 361, 381 (1994) (recognizing the “problem of determining the true motive behind an attempt to medicate an inmate” is one without a workable solution).

Once an execution date was set, I believe that the justification for medicating Singleton under Harper evaporated. An inquiry into the State’s motivation is unhelpful, for it presupposes a single, directed motivation, which is not the ease here. In fact, the evidence suggests two competing interests: the welfare of the prison, and the execution of the prisoner’s sentence.12 At the very least, the setting of an execution date calls into question the State’s true motivation for administering the medication in the first instance. The circumstances of Singleton’s case changed once the execution date was set, and changed in such a way that Harper no longer supports the prison forcing him to take medication.

C.

Lastly, I am compelled to note that the majority holding will inevitably result in forcing the medical community to practice in a manner contrary to its ethical standards. Physicians are duty bound to act in the best interest of their patients. See Perry, 610 So.2d at 752 (“Under [the Hippocratic Oath], the physician pledges to do no harm and to act only in the best medical interests of his patients.”) Consequently, the ethical standards of both the American Medical Association and the American Psychiatric Association prohibit members from assisting in the execution of a condemned prisoner. Singleton, 437 S.E.2d at 61; Perry, 610 So.2d at 752-53. *1037Needless to say, this leaves those doctors who are treating psychotic, condemned prisoners in a untenable position: treating the prisoner may provide short-term relief but ultimately result in his execution, whereas leaving him untreated will condemn him to a world such as Singleton’s, filled with disturbing delusions and hallucinations.

The ethical dilemma outlined above is not simply a policy matter; courts have long recognized the integrity of the medical profession as an appropriate consideration in its decision-making process. In Washington v. Glucksberg, 521 U.S. 702, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997), the Supreme Court considered the whether a statute outlawing physician-assisted suicide was constitutional. It noted that the American Medical Association and other physician groups had condemned the practice. Id. at 731, 117 S.Ct. 2258. The Court explicitly recognized the significance of this factor, giving credence to the State’s “interest in protecting the integrity and ethics of the medical profession.” Id. at 731, 117 S.Ct. 2258; see also Harper, 494 U.S. at 222 n. 8, 110 S.Ct. 1028 (citing American Psychiatric Association’s ethical code in support of holding).

I see no reason for the majority’s divergence from the Supreme Court in this matter. Here, as in Glucksberg, the medical community has spoken with a singular voice, opposing its members’ assistance in executions. Instead of giving due consideration to this serious issue, the majority eschews it altogether, without so much as an acknowledgment of the dilemma it has created. I adhere to the Supreme Court’s position that the integrity of the medical profession is an interest that the court should consider and protect.

III.

Charles Singleton is an insane death row inmate. He is forced to submit to a treatment regime that includes powerful, mind-altering drugs. As a result of his treatment, he sometimes appears lucid and rational; other times he does not. The fact is, however, that he remains insane. I believe that we must continue to abide by the Supreme Court’s prohibition on executing the insane, particularly in this case, where the State is motivated to medicate a person into competence in order to carry out its punishment. I am gravely concerned that the majority has created a serious ethical dilemma for the medical community as a result of its opinion. I would hold that the State may continue to medicate Singleton, voluntarily or involuntarily, if it is necessary to protect him or others and is in his best medical interest, but it may not execute him. I continue to believe that the appropriate remedy is for the district court to enter a permanent stay of execution. Accordingly, I have no alternative but to dissent.

. Ford v. Wainwright, 477 U.S. 399, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986).

. Singleton, in fact, exhibits some of the very same manifestations of psychosis that Ford himself did, including a belief that his sentence has been overturned and that he cannot be executed.

. There is also some question as to whether forcing Singleton to take medication that will lead to his execution is violative of the Eighth Amendment’s prohibition against excessive punishment. Cf. Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 2246, 153 L.Ed.2d 335 (2002) (“The Eighth Amendment succinctly prohibits 'excessive' sanctions.”) Two state supreme courts, under their state constitutions, found such punishment to be excessive and thus unconstitutional. See generally, Singleton v. State, 437 S.E.3d 53 (S.C.1993); State v. Perry, 610 So.2d 746 (La.1992). The Supreme Court has recognized the potentially debilitating side effects of psychotropic medication. Washington v. Harper, 494 U.S. 210, 229-30, 110 S.Ct. 1028, 108 L.Ed.2d 178 (1990). It has been recognized that forcibly medicated condemned inmates have to endure greater suffering than the typical condemned inmates, Perry, 610 So.2d at 766-68, and it is not beyond reason to suggest that the "evolving standards of decency that mark the progress of a maturing society” do not permit such a distinction, Trop v. Dulles, 356 U.S. 86, *1035101, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958) (plurality opinion).

. As in Harper, I consider it obvious that a determination of what is in the inmate’s best medical interest must be made by a licensed care provider, such as a doctor or psychiatrist. Harper, 494 U.S. at 221-22, 110 S.Ct. 1028.

. The State conceded in its brief and at the initial oral argument in this matter that it may not medicate Singleton for the express purpose of rendering him competent for execution.

. Unlike the majority, I am not convinced that forced medical treatment is in Singleton’s best medical interest when it may ultimately result in his execution. See Jenkins, supra, at 162 (noting that, among others, American Psychiatric Association has argued "it matters little if the drugs benefit the prisoner in the short term when the overall effect of the drug treatment is his ultimate death.”)

. I reiterate this point not to question the State’s veracity, but only to underscore that carrying out an inmate's sentence is typically of tremendous importance to the State; it has been fighting to put Singleton to death since 1979.