Ian Loveland, Professor of Constitutional Law at City University and a barrister at 8 Kings Bench Walk, finds himself both fascinated and appalled by the latest development in United States death penalty jurisprudence.
The Eighth Amendment to the US Constitution forbids governmental authorities from inflicting `cruel and unusual punishments'. The Supreme Court has never taken the view that this provision prohibits the infliction of capital punishment per se. The Court has however insisted that execution can be used as a punishment only in respect of the most egregious of crimes - (essentially murder with aggravating factors) - and that rigorous trial procedures must be complied with before such a sentence can be imposed.
For students with a dark sense of irony who take my class in US Constitutional Law at City University, one of the more memorable cases which we examine is Chaney v Heckler [1], decided in 1983. Chaney was one of a series of cases addressing the constitutionality of the methods through which execution can be carried out. The State government had proposed that Chaney be executed by lethal injection. Chaney's lawyers had noted the point that the drug concerned had not been approved for use on human patients by the federal government, on the grounds that the drug might prove injurious to their health. Chaney's counsel argued that, as a general principle, State authorities could only administer drugs approved by the Federal Drug Administration to persons in their care/custody; and more specifically that prison authorities seeking to execute prisoners by lethal injection could only do so by using `safe' drugs. The surreal or perhaps oxymoronic nature of this argument was evidently plain to the Court, which dismissed Chaney's arguments.
Shortly thereafter, in Ford v Wainwright[2], the US Supreme Court has held that the Eighth Amendment did not permit the execution of prisoners who had become insane during the period between sentence and execution. Citing from the eminent seventeenth century English jurist, Coke, the Supreme Court observed that the execution of the insane was; `a miserable spectacle, both against Law and of extream inhumanity and cruelty'.[3] The Court also cited the following passage from Blackstone's Commentaries;
`[I]f, after judgment, he becomes of nonsane memory, execution shall be stayed; for peradventure, says the humanity of the English law, had the prisoner been of sound memory, he might have alleged some thing in stay of judgment or execution'.[4]
The Supreme Court suggested that several justifications could be advanced to explain this principle: execution of the insane served no retributive purpose, as defendants could not be regarded as morally culpable; nor did it have any general deterrent effect; nor was it consistent with humane religious sentiment.
Chaney v Heckler has been supplanted in the pantheon of bizarre (or disturbing) capital punishment cases. The judgment in issue is that of a federal appeals court in v Singleton.[5]
Singleton had been convicted of robbery and murder in 1979. The evidence against him was overwhelming, and his guilt has never appeared to be in issue. Nor does there ever appear to have been doubt as to his mental competence at the time the crime was committed. In the intervening twenty-plus years however, while Singleton pursued all possible avenues of appeal against the sentence, his mental state has deteriorated; to the point where he is now dangerously psychotic.
Per Ford v Wainwright, this development would seem to have precluded implementation of his sentence. The Arkansas authorities seem however determined to see that punishment is carried out. Singleton's psychosis, it appears, can be treated by drugs. It also appears that the treatment would be sufficiently effective for Singleton to become - while he remained on medication - competent for the purposes of being executed. Arkansas therefore decided to administer the anti-psychosis drugs to Singleton for the sole objective of rendering him fit for execution.
The obstacle in the State's path was the established principle in American constitutional law that a government body can only administer drugs to a mentally non-competent prisoner if it is in that person's `best medical interests' for the government to do so.[6] Rather unsurprisingly, Singleton's lawyers raised the argument that it could hardly be in his `best medical interests' to receive these drugs if a consequence of him so doing was that he would be executed.
The case was heard by an eleven judge court, which divided 6-5 in favour of Arkansas' contention. The majority opinion framed the issue before the Court in the following way;
"Society's interest in punishing offenders is at its greatest in the narrow class of capital murder cases in which aggravating factors justify imposition of the death penalty. This societal interest must be weighed against Singleton's interest in being free of unwanted medication".[7]
The majority then took the view that Singleton had little to weigh in the balance. With one assumes unintentionally ironic understatement, the majority opinion observed that;
"Singleton's argument regarding his long term medical interest boils down to an assertion that execution is not in his medical interest".[8]
Without really explaining why, the majority then went on to conclude that the pending execution was not a factor relevant to Singleton's best medical interests. That question should be addressed solely with reference to the narrow substantive issue of whether Singleton should remain in a psychotic state. That the treatment was per se effective, not dangerous and without intrinsically induced side-effects pointed the court inexorably towards the conclusion that treatment should be imposed.
The majority opinion attracted some stinging dissent. One of the dissenting judges characterised the Court's conclusion as; "the pinnacle...of the barbarity of exacting mindless vengeance".[9] The closeness of the decision on the appeals court, and the extraordinary nature of the facts presented in the case, make it difficult to understand why the US Supreme Court refused to allow Singleton any further appeal. The consequence of that refusal is as clear as it is bizarre; that the State of Louisiana administered drugs to Singleton to save his mind in order that the State could thereafter take his life. Which, early in 2004, the State of Arkansas duly did.
[1]. 718 F 2nd 1174.
[2]. (1986) 477 US 399.
[3]. Institute 6.
[4]. (198 ) 477 US 399 at 406; citing Blackstone (1769) 4 Commentaries 25.
[5]. [2003] WL 261795 (8th Cir.(Ark)).
[6]. v Harper (1990) 494 US 210.
[7]. At p 7.
[8]. At para 8.
[9]. Justice Loken, at p 10.