THE COUNSELOR’S CORNER

For those of you who watch “The Practice” on ABC, you’ve probably noticed that their stories are often based on real-world situations. I experienced this first hand in 1999 when one of their writers contacted me regarding a jury trial I had recently finished in which a Jehovah’s Witness was the victim in a drunk driving traffic collision case. She died, however, not from the collision, but because she would not accept a blood transfusion.

I have written on that before; however, today’s column deals with another “ripped from the headlines” story line on “The Practice.” On the television show, defense attorney Eleanor Frutt defended a female prisoner on death row who was legally insane when not taking prescribed medication. In that case, the prosecution wanted her to be forced to take her medication so that they could then execute her. Only in the world of television could the judge rule that the woman not be put to death, and then later allow her to go back on her medication and live her life free of the insanity that kept her from being executed.

Flash forward to the real world. In February of this year, a Federal Appeals Court in the Midwest ruled that prison officials in Arkansas could force a death row prisoner to take his anti-psychotic medication. This medication, when it kicks in, will make him sane enough to be executed. The United States Supreme Court has previously ruled that the insane cannot be put to death; this is why prison officials wanted to drug the prisoner, so that he would be of the requisite state of mind that he could be killed through capital punishment.

This wasn’t exactly a united court. The federal appeals court voted six to five in favor of the execution. This is the matter of Charles Singleton, who killed a grocery store clerk in 1979 and was sentenced to death. He has been on death row since then, and in 1986, the United States Supreme Court barred the execution of the insane. In 1987, Mr. Singleton’s mental health began to head south. Mr. Singleton was then evaluated by a battery of psychologists, and it was concluded that he is psychotic and not mentally competent. Not competent, that is, as long as he is not on medication. There are drugs which do return him to sanity. The United States Supreme Court has ruled that there are times when prisoners can be forced to take anti-psychotic medication. The ruling that permits this talks about making certain that prisoners are mentally competent so that they can stand trial. The United States Supreme Court has not yet decided whether or not a prisoner can be forced to take medication so that he can be executed.

As I mentioned earlier, this court is extremely split. In one of the all-time silliest remarks ever made by a judge, Roger Wollman, writing for the majority, said that “eligibility for execution is the only unwanted consequence of the medication.” THE ONLY UNWANTED CONSEQUENCE! How ridiculous is that! At the risk of stating what I would think would be the obvious, what good is it to feel better if the feeling better qualifies you for execution? In this case, the “only unwanted consequence” is the only consequence that matters. I don’t think that Mr. Singleton will be real happy about the fact that he’s feeling pretty good if that means he’s going to die.

The minority five want Mr. Singleton to be medicated, but do not want him to be executed. Judge Heaney, writing for the minority, opines that “receiving treatment is not the same as being cured.” His viewpoint is that “sanity, which comes by way of medication is not the same as true sanity.” I am not sure about that, either, although I’ll take it over Judge Wollman’s comment. There are many people who take medication on a daily basis to make it through the day. The depressed person takes his anti-depressant; the bipolar individual takes his medication, and they each have a “normal” life.

Justice Heaney further indicates that the Court’s decision leaves doctors with significant ethical difficulties. The doctor can either treat the individual, helping him to be sane, so that thereafter he can be executed, or not treat him and have him live in a horrific world filled with auditory and visual hallucinations.

Even the American Medical Association has weighed in on this matter, indicating that doctors cannot treat people for the purposes of making them executable.

It looks like the United States Supreme Court is up next in this case. Bear in mind that the make up of the Court is a whole lot different than in 1986, when it initially barred the execution of the insane. Back then it was the late Justice Thurgood Marshall writing for the majority who indicated that this was an inhuman practice. Justice Marshall is no more, and the Court has headed to the right since 1986.

This may well come down to Justice Kennedy, who is often the tie-breaking vote in 4-4 split situations. Chief Justice Rehnquist, and Justices Thomas, Justice Scalia and probably Justice O’Connor will line up for execution. Justices Souter, Ginsberg, Stevens, and Breyer will in all likelihood line up for a life sentence. That puts Justice Kennedy once again in the hot seat, and whether Mr. Singleton and many others will live or die, is likely to be decided by a 5 to 4 decision.

I vote for life in this case. Whether one is for the death penalty or not, I don’t think this is a case where it ought to be implemented. I don’t want doctors to have to make tough decisions regarding what to do in a case like this. I want an individual to have his sanity restored without him having to worry about whether it means he will live or die. I do agree, however, with those who want to make absolutely certain that an individual is, in fact, insane and does not merely act as if he is in order to avoid the death penalty. Hopefully, accurate determination of one’s mental capacity will continue to be made.

Dr. Charles J. Unger is a criminal defense attorney in the Glendale law firm of Flanagan, Unger & Grover, and a therapist at the Foothill Centre for Personal and Family Growth. Mr. Unger writes a bimonthly column on legal and psychological issues. He can be reached at charlieunger @hotmail.com