4. U.S. News & World Report, March 26, 2001, Science & Ideas: Criminal
Justice; Vol. 130, No. 12; Pg. 50,
"Psychosis and punishment," by Marianne Szegedy-Maszak

Highlight: Should the mentally ill be drugged so they can face execution?

He is a 48-year-old paranoid schizophrenic who believes that he donated all
his skin to lepers and invented electricity. Too mentally ill to be tried
for assault and vandalism, he was brought to the North Florida Evaluation
and Treatment Center in Gainesville two years ago to be restored to
competence with therapy and drugs. Today he sits, flanked by two guards, at
a hearing that will determine if he is to continue on antipsychotic drugs.
He glowers as psychiatrist James Yelton explains to the judge why his
patient must be medicated--against his will if need be--for both legal and
humanitarian reasons.

"His reality is so impaired that normal communication is impossible," Yelton
says. "His reasons for not taking the medication are completely based on his
delusions."

"I am not psychotic! You are a hypocrite," the accused explodes.

After a few minutes of similar exchanges, the guards lead him out of the
room. The judge rules that the medication be continued for an additional 90
days, after which there will be another hearing.

No defense. Twenty-nine residents appear before the judge on this day. All
are severely mentally ill and accused of committing a violent crime. Some,
already tried and found not guilty by reason of insanity, must have their
symptoms treated so they can go to a less secure facility. Others have not
yet gone to court; they've been labeled "incompetent to proceed," which
basically means they are too delusional to help with their own defense.
Twenty-nine times, the judge orders continued medication.

These are only a few of the thousands of competence cases routinely
processed around the country each week. The basic issue is whether drugs can
restore sufficient sanity to deranged defendants to allow them to stand
trial. In far fewer cases--but far more troubling ones--the question is
whether prisoners on death row can be restored to sanity--just to be
executed for their crimes.

These are as much legal and ethical questions as medical ones, and the
poster boy for the debate is Russell E. Weston Jr., who in 1998 was charged
with killing two U.S. Capitol security guards. Also a paranoid
schizophrenic, Weston has for more than two years (on his lawyer's advice)
refused medication, raising these questions: Is it ethical to keep the
mentally ill in a state of psychosis if standing trial means a possible
death penalty? Conversely, is it a violation of basic civil rights to
forcibly medicate patients? Finally, if these people are restored to
competence and brought to trial, is the sane person standing trial a
fundamentally different person from the psychotic person who was arrested?

A 1994 American Bar Association report describes competence as "the single
most important issue in the criminal mental health field." The exact number
of competency cases is difficult to determine because each state has
different procedures. But Richard J. Bonnie, director of the Institute of
Law, Psychiatry and Public Policy at the University of Virginia, estimates
that there are about 60,000 pretrial competency evaluations every year in
the United States. Many of those involve the mentally ill, who according to
a 1998 U.S. Department of Justice survey make up 16 percent--or 283,800--of
all inmates.

Opponents of forced medication see it as a fundamental civil rights issue.
The days of routine forced medication ended with the patients' rights
movement and legal reforms of the 1960s. Today, in the typical forensic unit
of a state hospital, about 15 percent of the patients refuse to take
medication. Many of these dislike the side effects--including impotence,
incontinence, cotton mouth, and an irreversible and disfiguring movement
disorder called tardive dyskinesia. Some believe nothing is wrong with them
or choose other options, like prayer or willpower.

But not all mental health experts see the decision to refuse treatment as a
clear-cut civil rights issue. Indeed, proponents of forced medication
contend that patients' rights activists are condemning the mentally ill to
"rot with their rights on." Judges do have the option of forcing treatment
if it is medically necessary or a patient is dangerous--either to himself or
others. In Weston's case, the judge ruled this month that drugs should be
forcibly administered "to prevent Weston from harming others and restore his
competency to stand trial." Weston's lawyers can still appeal the ruling.

Low bars. The courts have a rather low standard for what constitutes
competence to stand trial, says Jonathan Pincus, a neurology professor at
Georgetown University and an expert on competency issues. "If you don't look
like Charles Laughton in The Hunchback of Notre Dame, you are competent to
stand trial." The standards of competence to be executed are different but
similarly open to wide interpretation. The defendant must have the ability
to know that he is to be executed, that death is permanent, and that the
penalty is the result of a judicial process imposed to punish a crime. Sean
D. O'Brien, a lawyer with the Public Interest Litigation Clinic in Kansas
City, calls execution competency standards "a fly-swatter test: If the fly
jumps out of the way, it's competent."

Civil rights advocates and defense lawyers also worry about what they call
"synthetic sanity." Andrew Goldstein, for example, was a paranoid
schizophrenic who had been hospitalized 13 times before he pushed Kendra
Webdale in front of a subway car in 1999. At his first murder trial, he was
medicated and docile--a demeanor far different from the delusional and
violent one when he was unmedicated. The jury deadlocked. He then refused
drugs for retrial to bolster the persuasiveness of his insanity defense. (He
was convicted anyway.)

As a practical matter, restoring someone to competence to stand trial is
rarely a contentious issue; indeed, it's often in the interest of the
accused, who needs to be competent to plea bargain. But in the rare death
penalty cases, refusing antipsychotic medication is often the only legal
strategy available, says the University of Virginia's Bonnie. "What is the
social gain of going through the horrendous effort to treat them medically
so you can kill them?" he asks.

Back at the North Florida Evaluation and Treatment Center, mental health
administrator Dennis Gies is observing the inventor of electricity. "Two
years ago this guy couldn't say anything without telling you to go f - - -
yourself. Now he's coming around." He will probably never be restored to
legal competency, Gies concedes. But in the end, the real question is not
whether someone should be medicated to restore competency. The real question
is, competent for what?

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