STATE v. PERRY
610 So.2d 746 (1992)
STATE of Louisiana
v.
Michael Owen PERRY.
No. 91-KP-1324.
Supreme Court of Louisiana.
October 19, 1992.
Dissenting Opinion November 9, 1992.
Rehearing Denied November 25, 1992.
Keith B. Nordyke, June E. Denlinger, McGlinchey, Stafford, Cellini & Lang, Joseph I. Giarrusso, Jr., for applicant.
Richard Ieyoub, Atty. Gen., Douglas P. Moreau, Dist. Atty., Mary P. Jones, Kathleen E. Petersen, for respondent.
Dissenting Opinion by Justice Cole November 9, 1992.
DENNIS, Justice.
The fundamental question raised by this case is whether the state can circumvent the centuries old prohibition against execution of the insane by medicating an incompetent death row prisoner against his will with antipsychotic drugs and carrying out his death sentence while he is under the influence of the drugs. After a hearing to determine whether the death row inmate was competent to be executed, the trial court, in effect, found that the inmate was insane but susceptible to being made able to understand the link between his crime and punishment by antipsychotic drugs. The trial court ordered the state to administer antipsychotic drugs to the prisoner for this purpose, without his consent if necessary. The prisoner did not consent to medication, but applied for review by this court, which denied writs, 543 So.2d 487 (La. 1989), and by the United States Supreme Court, which granted certiorari. Perry v. Louisiana, 494 U.S. 1015, 110 S.Ct. 1317, 108 L.Ed.2d 492 (1990). After entertaining briefs and oral argument, the Supreme Court vacated the trial court's order and remanded the case for further proceedings in light of Washington v. Harper,494 U.S. 210, 110 S.Ct. 1028, 108 L.Ed.2d 178 (1990). Perry v. Louisiana,498 U.S. 38, 111 S.Ct. 449, 112 L.Ed.2d 338 (1990). On remand, the trial court reinstated its order. We granted the prisoner's application for a writ of certiorari and stayed the trial court's forcible medication order. State v. Perry,584 So.2d 1145 (La.1991). We affirm in part and reverse in part. The trial court's determination that Perry is not competent for execution without the administration of antipsychotic drugs is affirmed. The court's order requiring the state to medicate Perry with antipsychotic drugs without his consent is reversed. The execution of the death sentence is stayed. The state may apply to this court for a modification of the stay of execution of the death sentence if Perry achieves or regains his sanity independently of and without the influence of antipsychotic drugs.
For centuries no jurisdiction has approved the execution of the insane. The state's attempt to circumvent this well-settled prohibition by forcibly medicating an insane prisoner with antipsychotic drugs violates his rights under our state constitution. La. Const.1974 Art. I, §§ 5, 20. First, it violates his right to privacy or personhood. Such involuntary medication requires the unjustified invasion of his brain and body with discomforting, potentially dangerous and painful drugs, the seizure of control of his mind and thoughts, and the usurpation of his right to make decisions regarding his health or medical treatment. Furthermore, implementation of the state's plan to medicate forcibly and execute the insane prisoner would constitute cruel, excessive and unusual punishment. This particular application of the death penalty fails to measurably contribute to the social goals of capital punishment. Carrying out this punitive scheme would add severity and indignity to the prisoner's punishment beyond that required for the mere extinguishment of life. This
type of punitive treatment system is not accepted anywhere in contemporary society and is apt to be administered erroneously, arbitrarily or capriciously. I. FACTS, PROCEDURAL HISTORY AND ISSUEMichael Owen Perry was convicted and sentenced to death for murdering his mother, father, nephew and two cousins in a senseless criminal episode in 1983. Perry was 28 at the time of his offenses but had continued to live with his parents due to his long history of mental illness. At the age of 16, he was diagnosed as schizophrenic, and he was committed to mental institutions by his parents several times because of his psychotic symptoms. Although the record does not disclose any previous criminal conduct, he escaped from mental facilities twice and was made to sleep in a shed behind his parents' house due to his disruptive conduct.
1. Prior to trial, the trial court appointed a sanity commission to determine Perry's capacity to proceed. The commission diagnosed Perry as having a long history of paranoid schizophrenia; therefore, the trial court ordered that Perry be sent to the Feliciana Forensic Facility for evaluation and treatment. Subsequently, upon motion by the state, a second sanity commission was appointed to evaluate Perry. At the second sanity hearing, all three physicians unanimously agreed that Perry was mentally competent and could assist counsel in his defense. The trial court agreed and ruled accordingly.
3. Specifically, Perry was given Haldol to control the symptoms of his schizo-affective disorder.
5. 494 U.S. 1015, 110 S.Ct. 1317, 108 L.Ed.2d 492 (1990).
6. Perry v. Louisiana,498 U.S. 38, 111 S.Ct. 449, 112 L.Ed.2d 338 (1990) (per curiam), reh'g denied, ___ U.S. ___, 111 S.Ct. 804, 112 L.Ed.2d 865 (1991). 8. La.Code Cr.Pro. art. 930.3 provides:
If the petitioner is in custody after sentence for conviction for an offense, relief shall be granted only on the following grounds:
(1) The conviction was obtained in violation of the constitution of the United States or the state of Louisiana;
(2) The court exceeded its jurisdiction;
(3) The conviction or sentence subjected him to double jeopardy;
(4) The limitations on the institution of prosecution has expired;
(5) The statute creating the offense for which he was convicted and sentenced is unconstitutional; or
(6) The conviction or sentence constitute the ex post facto application of law in violation of the constitution of the United States or the state of Louisiana.
9. The trial court, noting that there were no express statutory rules of procedure to determine competency for execution, used the procedure outlined in La.Code Crim.P. art. 641 et seq. We note that this procedure satisfies the procedural due process requirements outlined in Ford v. Wainwright,477 U.S. 399, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986), namely:
1) Inclusion of the defendant in the truth seeking process;
2) The opportunity to cross examine in an adversarial setting; and
3) Inclusion of the judiciary in the decision making process (either in an active capacity or a reviewing capacity).
A specific statutory rule of procedure to determine competency for execution addresses itself to the legislature.
10. In Harper, the Court held that under the Due Process Clause, the state could "treat a prison inmate who has a serious mental illness with antipsychotic drugs against his will, if the inmate is dangerous to himself or others and the treatment is in the inmate's medical interest." (Emphasis added). Similarly, La.R.S. 15:830.1 provides: "Whenever a mentally ill or mentally retarded inmate refuses treatment and any staff physician, staff psychiatrist, or consulting psychiatrist of the institution certifies that the treatment is necessary to prevent harm or injury to the inmate or others, such treatment will be permitted...." (Emphasis added).
11. Perry also asserts that he is afforded a constitutionally protected right to refuse medication by a consent decree adopted by the United States District Court for the Middle District of Louisiana in Head v. King, No. 84-209-B (M.D.La. Mar. 5, 1991). First, given the evidence in the record, the scope and effect of the consent decree is unknown. Second, the proposed plan detailing the use of psychotropic medication on an involuntary basis merely follows the procedure provided in La.R.S. 15:830.1. The proposed plan does not address medication for execution and is therefore inapplicable to this case.
12. Additionally, Perry argues that by forcibly medicating him solely for the purpose of carrying out execution makes that medication a part of his punishment not authorized by the legislature. The commission recommended that Perry be treated with psychotropic medication to control his mental disorder. He was voluntarily administered the medication prior to his sanity hearings. Additionally, his attorney authorized the state prison authorities to resume treatment of Perry with psychotropic medication after the sanity hearing of April 20, 1988. Since the medication actually benefits Perry, it cannot be viewed as a form of punishment.
13. The trial court, noting there was no express statutory procedure to determine whether one should be forcefully medicated for purposes of execution, adopted the procedure outlined in La.Code Crim.P. art. 641 et seq. (as it did for the competency determination. See supra note 10). A specific statutory rule of procedure to permit forced medication for execution addresses itself to the legislature.
1. It is interesting to note the majority's effort to ensure this case is decided solely on state law grounds, thus barring further, perhaps unfavorable, review by the Supreme Court of the United States.
2. "According to polls more than eighty percent of Americans favor the death penalty." Ernest van den Haag, Why Capital Punishment?, 54 Albany L.Rev. 501, 501 (1990).
3. The majority opinion asserts that there is no question that Perry is incurably insane and incompetent for execution but also concedes that, while medicated, Perry is able to function at a minimum level of rationality. At such a level of rationality, Perry can understand the nature of the punishment to be imposed and the reasons for its imposition. That is sufficient to pass constitutional muster.