STATE v. PERRY
610 So.2d 746 (1992)
STATE of Louisiana
Michael Owen PERRY.
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.
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 I. FACTS, PROCEDURAL HISTORY AND ISSUE
type of punitive treatment system is not accepted anywhere in contemporary society and is apt to be administered erroneously, arbitrarily or capriciously.
Michael 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.