PERRY v. LOUISIANA
Argument of Keith B. Nordyre
Chief Justice Rehnquist: We'll hear argument now on No. 89-5120, Michael Owen Perry v. Louisiana.
Mr. Nordyke, you may proceed whenever you're ready.
Mr. Nordyre: Thank you.
Mr. Chief Justice, and may it please the Court:
The question before the Court today is whether or not the State of Louisiana may, for the sole purpose of executing an inmate, forcibly medicate a mentally ill inmate with psychotropic drugs.
The Louisiana Supreme Court, confirming conviction and sentence on direct appeal, restated that Louisiana does not execute the insane, and invited inquiry as to competency to be executed.
The trial court on its own motion determined that Mr. Perry has met the threshold test of Ford v. Wainwright as adopted by Louisiana and held a hearing to determine competency to be executed.
The result of that hearing was an order which we contend is without any limits, without any exercise of medical judgment, without review, without any ability to terminate medication, that is, without the medical approach that this Court has previously used.
That order said that the medical staff of the Louisiana State Penitentiary should medicate Mr. Perry with the drug Haldol solely for the purpose of preparing him for execution.
Mr. Perry has schizoaffective disorder, which is a major mental illness that is incurable.
There are two major components to this disorder, the first of which is a mood component... we commonly think of it as a bipolar disorder or manic depressive... and the second is a psychotic component where Mr. Perry has delusions, has auditory hallucinations, and very often does not know where he is.
It's also marked by very strong ambivalence, meaning that he cannot say consistently and know consistently from one minute to the next the same thing.
The classic example that appears throughout the record is Mr. Perry on the one hand will say, I killed my mother and my father, and within the same sentence will say, for $20,000 I'll tell you who killed my mother and my father.
The Louisiana Supreme Court initially stayed the forcible medication order in this case and then denied writ.
Under Louisiana law a writ denial is not to be considered an expression of the law.
The tension in this case as Petitioner sees it is the pitting of the... the medication model of treatment versus the punitive model of treatment.
Unknown Speaker: Mr. Nordyke, there is a Louisiana statute, is there not, that deals with forcible medication of prisoners?
Mr. Nordyre: Yes, ma'am, title XV, section 830.1.
Unknown Speaker: Was that section called to the attention of the trial court?
Mr. Nordyre: Your Honor, we briefed that section consistently throughout and the only time the trial court used the word was in an August 26th hearing where he ordered forcible medication and he just simply said, in accordance with 830.1, I order the forcible medication.
The problem with him simply doing that is that 830.1 sets up a whole panoply of due process protections virtually similar to the Harper decision last year.
Unknown Speaker: Well, do you take the position that that statute governs in this situation, or should govern?
Mr. Nordyre: Your Honor, from day 1 in this case we have taken that precise position.
Unknown Speaker: Your position being that medication is not permitted under the statute because he's not a danger to himself or others?
Mr. Nordyre: Your Honor, I think there are two prongs to that and it's the same two prongs that Your Honor wrote about in Harper last term.
First, we have the best interest component and secondly, the danger to self and others component.
The record in our case is absolutely barren of either.
There is no finding of best interest and no finding of danger to self or others by the trial court.
It's simply an order that calls for punishment.
Unknown Speaker: And you took this position consistently throughout all the proceedings to this Court?
Mr. Nordyre: Yes, Your Honor.
Unknown Speaker: Well, is it your contention that the Louisiana trial court which authorized the medication is acting in violation of Louisiana law?
Mr. Nordyre: Your Honor, it's--
Unknown Speaker: That's not one we would be likely to entertain.
Mr. Nordyre: --If we're asking about the Pennhurst problem, the answer is no.
What I am saying is that Louisiana has set up a statutory scheme in title XV 830.1 and title XXVIII, section 59, which is a companion statute to 830.1, that specifically deal with the forcible medication of prisoners in the event that they refuse and that those statutes set up a liberty interest that's protective--
Unknown Speaker: Did you argue that in the trial court?
Mr. Nordyre: --Yes, Your Honor, we have briefed those issues--
Unknown Speaker: You briefed the argument that the Louisiana statute set up a liberty interest which gave you a right under the due process clause of the Fourteenth Amendment?
Mr. Nordyre: --I believe we did, Your Honor.
Unknown Speaker: You say you believe we did.
Are you uncertain about it?
Mr. Nordyre: I am, Your Honor.
I don't remember the first brief, but I am almost certain... I know that we briefed 830.1.
Unknown Speaker: Yes, but that's quite different than briefing the argument that 830.1 creates a liberty interest which would in turn give you a right under the Fourteenth Amendment.
Could you supply us with a transcript citation?
Not at this moment, but after the argument?
Mr. Nordyre: We will file that with the Court, Your Honor.
Unknown Speaker: And I would like to know if you... if the issue came up before the supreme court.
Mr. Nordyre: Definitely it came up before the Supreme Court of Louisiana, Your Honor.
We briefed... the brief that we filed in this Court is very similar to the brief that we filed in the Louisiana Supreme Court and has virtually all the same arguments, including the due process argument, the State created liberty interest.
We take the position that the order's sole purpose is for purposes of punishment.
The sole reason that the trial court ordered this medication is to attempt to change the man, to change the mind of this individual for the Government's purposes.
The injections that the State wants to give Mr. Perry are for no other purpose than to execute Mr. Perry and, therefore, become a step in his punishment and part of the execution that, to our mind, are not part of the Louisiana law, not authorized by Louisiana law.
The second major point that we want to make in terms of showing its sole purpose is for punishment is that no prison physicians have ordered this.
As was pointed out a second ago, Louisiana does have a statute which we claim sets up a liberty interest, and that statute sets up the medical model that this Court has consistently set up in Vitek and Harper and Youngberg and--
Unknown Speaker: And you're arguing that the Louisiana court did not follow the Louisiana law?
Is that what you're arguing?
Mr. Nordyre: No, Your Honor.
We're saying we were denied the expectation that the Louisiana statute gave us.
Unknown Speaker: You're talking now about some sort of a liberty interest?
Mr. Nordyre: --Yes, Your Honor.
Yes, Your Honor.
I may... I may be saying it incorrectly.
I may be using the shorthand of talking about Louisiana law, but when I say that, what I'm discussing is the liberty interest.
Unknown Speaker: You're not making any argument that we should review this as a decision based on Louisiana law, that the court interpreted the statute incorrectly?
Mr. Nordyre: Oh, no, Your Honor, not at all.
Not at all.
Unknown Speaker: Well, the predicate for your argument, though, is what Louisiana does.
Louisiana does... you claim Louisiana set up a liberty interest and you claim that the trial court didn't follow it.
Mr. Nordyre: That's correct, Your Honor.
But that's no different than the liberty interest that was set up in Harper last term or set up in many of the due process cases that involve State statutes as long as it has the mandatory language in the... in the predicates.
Unknown Speaker: Did the trial court enter more than... what was its very final order about medication?
Mr. Nordyre: The precise wording, Your Honor, was--
Unknown Speaker: I mean one of the orders was stayed, but--
Mr. Nordyre: --Okay, Your Honor.
Yes, Your Honor.
There were two orders entered.
Unknown Speaker: --What does the last one say?
Mr. Nordyre: The last order is fairly lengthy.
Unknown Speaker: Right at the end it says about... doesn't it say that--
Mr. Nordyre: To be prescribed by the medical staff--
Unknown Speaker: --It says this order, the one that stayed in existence... to maintain treatment as prescribed by medical staff.
Mr. Nordyre: --Yes, Your Honor.
But I think that's... I don't think that solves the problem by any stretch of the--
Unknown Speaker: Oh, I didn't... do you think that requires a medical staff to prescribe treatment?
Mr. Nordyre: --I think it orders them to prescribe treatment as opposed to use medical judgment.
Unknown Speaker: Well, I know, but they wouldn't be in violation of the order if they said... if they decided that the patient didn't need it.
Mr. Nordyre: I'm not sure, Your Honor, because the preceding two sentences--
Unknown Speaker: Well, it doesn't say so.
It just says that whatever treatment the medical staff wants to prescribe, they are supposed to go ahead and do it.
That's just sort of--
Mr. Nordyre: --Well, that still denies the liberty interest that the statute that we've been discussing sets up.
The statute sets up, basically, the involuntary commitment statute that Justice Blackmun discussed last term in his concurring opinion in Harper as being sort of a cure-all to this problem of forcible medication.
And that's what this statute for criminals... the inmates does.
It sets up basically first an emergency procedure for the first 15 days and after that it sets up basically an involuntary commitment process.
Unknown Speaker: --Is it clear on the face of this statute that there's no exception to that when a prisoner has been condemned to execution--
Mr. Nordyre: None whatsoever, Your Honor.
Unknown Speaker: --and which exception can be made by the State's supreme court?
Mr. Nordyre: There is no exception whatsoever on the face of the statute.
And in addition, both 830.1 and title XXVIII, section 59, were amended subsequent to Ford v. Wainwright.
Unknown Speaker: But, you know, we have interpreted Federal statutes to permit some exceptions.
The case that we heard argued today urges exceptions from what is normally a general rule.
Why can't the State say that this statute which prohibits involuntary treatment except where the person is a danger to himself or others, why can't the State court say, well, as we interpret it it's not meant to apply to the case of a condemned prisoner, who so long as the treatment does not harm him and improves his condition is not entitled to refuse it simply because he doesn't want to be made healthy, because if he's made healthy, he'll be executed.
Seems a perfectly reasonable exception.
Why can't the State supreme court make it?
Mr. Nordyre: The State supreme court perhaps could, but they have not.
The Louisiana Supreme Court has never spoken on this statute.
They perhaps could make such an exception, but they haven't.
And the fact that they denied writs in this case means nothing.
They are completely a discretionary court.
Unknown Speaker: I don't--
Mr. Nordyre: A writ denial under Louisiana law has no--
Unknown Speaker: --What... the court of appeals couldn't make it?
The intermediate court couldn't or the trial court couldn't?
Mr. Nordyre: --Your Honor, I guess they could say that, but I'm not sure that it would be a valid expression of Louisiana law particularly coming out of the trial court.
The court of appeals perhaps could.
But this sort of case would not go to the court of appeals.
It goes on direct writs to the Louisiana Supreme Court.
Unknown Speaker: Well, why couldn't the trial court make it and the supreme court agree with it and simply turn down the appeal?
Mr. Nordyre: Because Louisiana law, as I say, Your Honor, does not consider a writ denial to be an expression of the law at all.
Unknown Speaker: And district courts in Louisiana have no power to pronounce the law?
Mr. Nordyre: Your Honor, under our civilian system of law in Louisiana... and I realize this is a criminal constitutional issue... but under our general proposition of how courts make law in Louisiana, we are a civilian system and we generally follow statutes, and if there is no statute, the court generally does not go forth and make law on it.
They have to usually go from a statute and analogize from a statute.
You know, what Your Honor I think says is interesting and this is that if the court were to say the statute is silent and we're going to go ahead and allow this as an exception, then what it does, I think, is clearly make part of the punishment this medication.
And what we are doing is we are at this point adding a punishment not authorized by statute.
Unknown Speaker: It depends upon your reading of the court's order... what Justice White was asking you about as prescribed.
I don't think that must be read to say, you're going to get this treatment even if it isn't in your medical interest.
I read it as saying, if it's in your medical interest, you will get this treatment even though you want to turn it down because you know that if you get better you'll be executed.
I think it's perfectly reasonable, don't you, to read it the other way when it says as prescribed.
Mr. Nordyre: No, Your Honor, I don't, because the preceding two paragraphs... I guess two paragraphs back in the order... the trial court said that he doesn't waive Mr. Perry's interest, doesn't look at Mr. Perry's interest.
He says, whatever interests Mr. Perry has I find they are outweighed by the right of Louisiana to effectuate its jury verdict.
Unknown Speaker: I think he's talking about what Mr. Perry was arguing, and that is a right to turn down even beneficial treatment because he didn't want to get well.
That's what the issue, as I understood it, before the court was, and it's what you're arguing here that he has a right to turn down even beneficial treatment because he doesn't want to get well.
Don't you support that position that even if it is in his medical interest to get the treatment, he has a right to turn it down?
Is that not your position here?
Mr. Nordyre: Yes, sir, it is.
Unknown Speaker: And I think... and I understood it to be the position below and I understood that to be what the district judge was addressing.
Mr. Nordyre: But I have to qualify that.
As long as it's in his medical best interest and there's... showing that he's dangerous to self or others, then of course the State can do that under the statute and under Harper.
There's no showing--
Unknown Speaker: Well, there's no indication of any finding that he would be of danger to himself or others?
Mr. Nordyre: --The record is barren of that, Your Honor.
The record... the trial court's ruling is barren of that, of course.
And we think the record is barren of that also.
Unknown Speaker: So you think... why don't you win the case just on that basis, that the judge ordered treatment which was against his will without the proper findings?
Mr. Nordyre: Your Honor, we could.
We could under the liberty--
Unknown Speaker: Well, you just... forget about the State statute.
Mr. Nordyre: --If you're talking about the substantive Fourteenth Amendment due process, absolutely we could.
Unknown Speaker: Well, do you?
Mr. Nordyre: I think so, Your Honor.
We've argued in brief that we certainly have under the Fourteenth Amendment substantive due process problem.
Unknown Speaker: Do you think there was a duty under Louisiana law or any other law, including the constitutional law, for the doctors to treat this man?
Mr. Nordyre: If Your Honor is asking about what the State has raised, the Estelle v. Gamble 1983 problem, I think that there is a statutory duty under Louisiana revised statutes where physicians... for the State Penitentiary to provide proper care for Mr. Perry.
But there is a concomitant ability of Mr. Perry to turn down that treatment if he wishes to under the same statutes, under the same statutory scheme.
Unknown Speaker: Isn't it a fair... Isn't it a fair inference from the record that the only reason the medication was turned down was so that he could not be well enough to be executed?
Mr. Nordyre: Your Honor--
Unknown Speaker: In fact, isn't that the reason that counsel ordered him not to take the medication?
Mr. Nordyre: --Not the first time, Your Honor.
The first time that I wrote the letter to request that he not take medication, which was in March of 1988, the reason that was done was that Mr. Perry was having discomfort.
He was feeling really bad on the medication.
The first time that I ever met this client was in January of 1988, and he was agitated and having the side effect of... the intense agitation of this medication and I looked at the statute and found 830.1 and wrote a letter saying, let's discontinue him from the medication.
The second time I didn't discontinue him from the medication.
I wrote a letter to the State Penitentiary asking that they not medicate him absent compliance with 830.1.
And the final time that Your Honor might be talking about is when there was a last hearing, I believe, and one of the doctors made some comment about what I said.
I didn't say that.
That may be Mr. Perry's auditory delusions, but I didn't say that.
Unknown Speaker: Well, there's nothing in this record to indicate that medication is against his medical best interest, is there?
Mr. Nordyre: Yes, there... well, yes, there is, if you consider the fact that if he takes the medication under the trial court's findings, that it will kill him, that will inevitably and inexorably lead to his death.
Unknown Speaker: I'm talking about his condition prior to his execution.
Mr. Nordyre: We don't know, because his best interests were not a focus of any of the hearings.
None of the hearings that we had focused on what Mr. Perry... what was good for Mr. Perry, what was bad for Mr. Perry, how much was good, how much was bad.
The problem is that we didn't use the medical model throughout.
As Your Honor knows from the Harper case last term, this sort of medication has got problems with it.
It's got side effects.
It's got dangers.
And the use of these medications, as dangerous as they are, may be good for inmates under some circumstances.
But it's a constant push and pull and a tension, a medical risk reward analysis, that the physicians need to undertake and that wasn't done.
Unknown Speaker: Do you think under this order, the physician said, boy, we have to pump the medication into this fellow no matter what it does to him?
Mr. Nordyre: I think--
Unknown Speaker: Do you really think that that's how that order would have read by a medical doctor?
Mr. Nordyre: --Your Honor, I don't know how a medical doctor would have read it, but the import of the order--
Unknown Speaker: But don't you have to know to base your argument on that, and to assert as you've asserted in your brief that the whole purpose of treatment was not at all to make him well, although that would kill him as you say, because if he got well, he could be executed.
But that wasn't the purpose.
The purpose was simply to have him, even if it hurt him enormously, to have him rational for one brief instance so he could be executed.
I don't see anything in the record that justifies that.
Mr. Nordyke, in that respect there has been discussion up here about the wording of the order.
It is the order of October 21, '88, isn't it?
Mr. Nordyre: --Yes, Your Honor.
Unknown Speaker: Well, I don't see that it reads,
"as prescribed by the medical staff. "
"as to be prescribed by the medical staff. "
I think that's susceptible of a very different connotation.
Mr. Nordyre: I agree, Your Honor.
I think it is.
And I think, Justice Scalia, the answer is basically what was just proposed.
The order, as I understand it and reading it as a whole in pari materia, basically says they go forth and medicate him.
Unknown Speaker: To be... as to be prescribed means as to be prescribed contrary to all sound medical practice if necessary.
That's... do you thing a reasonable--
Mr. Nordyre: I can't read it any other way simply because the trial court, knowing about 830.1, having had it briefed to him, didn't go through any of the things that one needs to go through under 830.1.
He didn't look at any of the issues.
This simply wasn't that sort of hearing.
Unknown Speaker: --Was there testimony that any doctor treating him interpreted the order that way?
Mr. Nordyre: Well, Your Honor, the trial court... excuse me, the trial court stayed his order after entry, so we don't know.
Now, Mr. Perry has been medicated since then, but under whose authority or why, I don't know.
But theoretically this order is stayed even through today.
Unknown Speaker: So the medical staff is probably doing what they thought they should be doing to him.
Mr. Nordyre: I don't know.
As of 2 weeks ago--
Unknown Speaker: And he hasn't been refusing them?
Mr. Nordyre: --They are forcibly injecting him, we understand.
Unknown Speaker: Of course, Mr. Nordyke, it never really makes much sense, does it, in some respects, to cure a man only to execute him.
Mr. Nordyre: Your Honor, we claim it's fundamentally wrong.
Unknown Speaker: And the problem, of course, is the old rule that you don't execute a man when he's incompetent.
Mr. Nordyre: It goes back to Ford.
It goes back to Ford in the common law rule.
And the same reasons that this Court decided in Ford are equally applicable here.
The medicines don't cure Mr. Perry.
They may mask his insanity for a short period of time so that we may feel better about executing Mr. Perry, but they don't cure Mr. Perry.
And the insanity that underlies those medications is still there.
You would still be sending--
Unknown Speaker: The trouble may be with the old rule.
But there it is, engraved in stone, I suppose.
Why shouldn't we execute a man when he's incompetent?
Mr. Nordyre: --Well, the answers to that are varied.
First of all, under Ford v. Wainwright, Your Honor, we constitutionally don't do so.
And secondly, under Louisiana law, perhaps even more importantly if Ford were to disappear, under Louisiana law there's a liberty interest that has been created both by State v. Allen a number of years ago and State v. Perry where, in the Perry case itself, the Louisiana Supreme Court said that Louisiana does not execute the insane.
They cited Ford v. Wainwright further down in the opinion, but that was not the basis for which they made the decision that Louisiana does not execute the insane.
Unknown Speaker: When a case comes to us, don't we judge it on the basis that this treatment would make him at least temporarily competent?
I know you challenge that.
But as the case comes to us, isn't that--
Mr. Nordyre: Your Honor, I agree that we have to pay due deference to the findings of fact to the trial court and I cannot tell you that's not the law.
That is the law.
Unknown Speaker: --But that's just the beginning of the argument.
Mr. Nordyre: The very, very beginning.
And I had a question from you and I got pulled aside.
In addition to the Fourteenth Amendment argument that we have been discussing here, we believe that it's unconstitutional under the Eighth that Mr. Perry be executed.
We also believe that it's fundamentally wrong to do so.
Unknown Speaker: Mr. Nordyke, before you go to the Eighth Amendment--
Mr. Nordyre: Yes, Your Honor.
Unknown Speaker: --I want to be sure I understand your position.
You contend that there's a liberty interest created by Louisiana law, I understand.
Do you also contend independently of Louisiana law that there's a liberty interest in not being subjected to this medication?
Mr. Nordyre: Absolutely, Your Honor.
We think it's the Harper interest of last term.
Unknown Speaker: You didn't seem to mention it and I was--
Mr. Nordyre: I apologize, but we do believe it's the Harper interest of last term.
Unknown Speaker: --Did you make that argument in the trial court?
Mr. Nordyre: Harper was not decided at the time.
Unknown Speaker: Did you make the argument even though Harper was not decided?
Mr. Nordyre: Yes, Your Honor.
Unknown Speaker: And will you furnish us a transcript?
Mr. Nordyre: We'll furnish it.
We believe it's fundamentally wrong under the Eighth and that the Eighth prohibits this sort of use of forcible medication.
We also think that there's a consensus against the use of forcible medication that is created by the States.
No State has authorized the use of this medication for purposes of punishment.
And we think that the fact that no State has authorized it is important.
Secondly, the amicus in this case, the American Medical Association and the American Psychiatric Association, have filed a brief saying that from their perspective it's fundamentally wrong and ethically wrong.
And I think that that second element of a consensus starts with those two organizations.
They are the organizations that will have to carry out this order and they have to know more about this sort of thing than any other group.
Unknown Speaker: You know, there's a consensus against killing people, too.
But when a State has authorized capital punishment, why is it so outrageous as to be unconstitutional to say an individual may not turn down normal treatment that he would otherwise receive?
Not treatment that wouldn't otherwise be justified but treatment which doctors would normally recommend.
A person may not turn that down solely in order to escape the electric chair.
Why is that so outrageous?
Mr. Nordyre: Your Honor, I'm not sure it is outrageous and my position is not as far as the amicus position on this point.
The amicus claim that it is unconstitutional under all circumstances.
The position that we have taken in this case and taken in brief is that first we believe it unconstitutional under the Eighth.
But if it's not, then under the Fourteenth, then, there is a possibility that if this case is handled under the medical model and this competency is some byproduct, then there may be... the State may extract its retribution.
Unknown Speaker: Well, what do you mean by handled under the medical model?
Do you mean that the State would have to adopt a rule that all prisoners, and not merely those who have been condemned to death, can be forcibly medicated?
Mr. Nordyre: I may have missed your hypothet, Your Honor, but the hypothet that I understood you to give me was that we not medicate him outside of the realm of the Harper best interest--
Unknown Speaker: I'm saying that if the State makes a determination on the basis of expert medical advice that it is in the interest of this patient because of his mental condition to be medicated, and that they would normally advise an individual in private life outside of prison to obtain medication, that thereafter that medication may be forcibly administered to someone who is under sentence of death, whether or not he wants to turn it down.
Just as a normal citizen acting reasonably would take the medication, he should have to take it and not be able to avoid it merely in order to avoid the death penalty that's been duly imposed.
Mr. Nordyre: --Your Honor, that would make the medicine, then, effectually working towards the purposes of punishment.
Unknown Speaker: Of course, but he's been condemned to punishment.
Mr. Nordyre: --That's right.
But the fact that a person has been condemned to punishment does not justify anything that the State may in its imagination might wish to do to them.
Unknown Speaker: --It's not doing to him anything except what normal medical advice would justify being done.
Mr. Nordyre: And people ignore medical advice all day.
Unknown Speaker: I guess the issue is whether someone who's been condemned to death continues to have that luxury.
Mr. Nordyre: --I think that's probably the bottom issue in this case.
Unknown Speaker: Do you agree it's a luxury?
Mr. Nordyre: Do I agree it's a luxury to be able to refuse medication?
No, Your Honor, I think it's an absolute fundamental right that bottoms out in human dignity.
Unknown Speaker: Refuse healthful medication?
I mean that's the condition on all my questions.
That it's indeed in his good and it would be recommended to the normal patient.
Mr. Nordyre: My answer remains the same.
I'd like to reserve my time.
Unknown Speaker: Very well, Mr. Nordyke.
Mr. Salomon, we'll hear now from you.
Argument of Rene' I. Salomon
Mr. Salomon: Chief Justice Rehnquist, and may it please the Court:
I'd like to begin first by making note in response to a few questions tendered to my colleague in this case in regard to Justice White's question about what does the order in this case say, it's very clear that the order says, as to be prescribed by the physicians of the medical staff of the Department of Public Safety and Corrections.
Simply put, those words have to mean something, and we suggest that the court in this matter chose those words to afford to the physicians the opportunity to determine what is in the medical interests of this particular inmate.
Unknown Speaker: Did you draw the order?
Mr. Salomon: No, sir, I did not.
Unknown Speaker: Who did?
Mr. Salomon: Pardon me?
Unknown Speaker: Who did?
Mr. Salomon: The court.
Unknown Speaker: Himself?
Mr. Salomon: The judge himself.
Unknown Speaker: That is your Louisiana practice?
Mr. Salomon: --Yes, it is, Your Honor.
Unknown Speaker: Attorneys never draw an order?
Mr. Salomon: On criminal cases they occasionally do, but it was not done on this particular case.
Unknown Speaker: You know that of your own knowledge?
Mr. Salomon: Certainly.
I represented the State not only at the trial in this matter, but in the hearing on competency of this matter also.
Unknown Speaker: Was there ever a finding here that the forcible medication was in the best interest of the prisoner, and was there ever a finding here to the effect that the prisoner would be a danger to himself or others without it?
Mr. Salomon: The court did specifically find, by asking questions of the individual doctors, whether this medication was good for him.
The doctors, including Cox, Jimenez, and Vincent collectively said, this medication is in his medical interest because it is one, rational.
Two, it is appropriate.
And three, it is beneficial.
Unknown Speaker: Where do I find the court's determination?
Mr. Salomon: I think that it would be found in the court's order itself where the judge recognizes that Mr. Perry has an interest in refusing the medication.
Unknown Speaker: You can't point to any specific language?
Mr. Salomon: It would be the language on the second-to-last page of the court's order where the court recognized--
Unknown Speaker: Second order?
Mr. Salomon: --The order of October 21st, 1988, where the court basically found an interest of the inmate, an interest of the State, and the inmate's interest was overridden.
Unknown Speaker: And it's the finding that the defendant would be a danger to himself or others without the medication?
Mr. Salomon: I don't think there was a finding that he will be a danger without the medication.
But the State's position in this case is when you examine this title XV, section 830.1, the State need not prove that he is dangerous to himself in order to justify medication in this particular example.
What we respond to my colleague's argument here is that 830.1 is not the particular statute that governs this particular case, as was in the case of, I believe, Kentucky v. Thompson in dealing with visitation privileges.
We have a scenario where a State statute specifically says, you can do medication where the inmate is dangerous, and that is a sufficient condition on which the State may choose to exercise its ability to medicate.
Unknown Speaker: So it is your position that the statute 830.1 is inapplicable?
Mr. Salomon: That's correct, Your Honor.
Unknown Speaker: Is it your position also that the court's findings in all respects comply with the case handed down by this Court last term, the Harper case?
Mr. Salomon: Well, I believe that it does comply with Harper and in the State's view, Harper indicates the appropriate result in this case.
If, for example in Harper, mental illness can justify involuntary medical treatment in order to prevent dangerousness to the individual, to others, or to even their property, then certainly the State's interest in this case is at least that great if not greater.
Unknown Speaker: But there's no specific finding that he would be dangerous to himself or others?
Mr. Salomon: --That's correct, Your Honor, there is not--
Unknown Speaker: But you are saying that even if there isn't, the State's interest in executing him is sufficient to override his denial of the medication?
Mr. Salomon: --That's correct.
Unknown Speaker: That's certainly what the judge said, isn't it?
Mr. Salomon: Absolutely.
That is correct what the judge said.
And what we are saying, Justice O'Connor, is basically that Harper, once again, if you can medicate a person who's mentally ill to protect property, you certainly should be able to do it to enforce the court's interest in its laws and in obtaining its punishment.
To respond to a point made by Mr. Nordyke also, we believe that in this particular case there is less of an interest on behalf of the inmate for the simple reason in Harper there was an individual who one day was going to get out of jail, who had a long-term interest of the effects that might result from the administration of the medication.
In this particular case, because this man is sentenced to death, his opportunity to live the number of years in which he will be alive are limited, not as if the matter in Harper, where we have an infinite number of years where the individual may stay alive.
Unknown Speaker: Mr. Salomon, did the court specifically hold that as a matter of Louisiana law, 830.1 was inapplicable?
Mr. Salomon: It did not.
And I don't think that the court was clear to be very frank that it did or it did not apply.
The court was somewhat in a vague area whether or not this statute, 830.1, applied in this particular case.
As Mr. Nordyke said, at one juncture he used a part of 830.1 to stay the medication.
At another juncture he said, no, my interests are different and conducted a somewhat different analysis.
Unknown Speaker: Do you appoint that the only purpose of this medication is to put him in condition to be killed?
Mr. Salomon: I would say there are two purposes.
One is that as you state, basically, so that the State can satisfy its interest, and, number two, because the State has a duty to provide treatment to a person that needs treatment.
And in this particular case, if this man is truly incompetent, then he's not in a position to know to refuse medicine and make that decision competently.
And for the State to deny him that treatment--
Unknown Speaker: But the primary purpose is to kill him?
Mr. Salomon: --I would say, yes sir, that's correct.
It is basically to execute him, in this case because the State has an interest.
Unknown Speaker: In your second purpose, let me be sure I have it correct.
Is it not correct that when he is receiving the medication, he is competent to make a decision?
Mr. Salomon: That's correct.
Unknown Speaker: And that while he was competent he did indicate a desire not to receive further medication?
Mr. Salomon: That is in dispute.
It depends on where you can draw the line as to he has a blood serum level that allows him the opportunity to make such a decision.
Some of the doctors have said that it will take 3 months of consistent treatment, that is, one injection every 4 weeks, for him to reach a plateau where he would be able to act as if he were not hallucinating or having delusions or showing symptoms of psychosis.
Unknown Speaker: The finding in October of whatever it was, the 18th or 21st, that he was competent to understand the punishment, of course, execution, is not equivalent of a finding he was competent to decide whether or not he wanted further treatment in your view?
Mr. Salomon: Perhaps I'm misunderstanding.
Would you repeat it?
Unknown Speaker: Well, I had the impression that there were times when he was competent to make rational decisions.
And one of which would be to understand the execution.
The other would be whether or not he wanted further treatment or to object to it.
And I thought that the finding by the judge that he was competent for execution would implicitly indicate that he also found him competent to decide whether he wanted further treatment or not.
Mr. Salomon: I think in some circumstances that's correct.
The judge did find that he's competent to be executed when maintained on the regimen of medication, and so that would lead to your result--
Unknown Speaker: But is it not correct that during one of these periods of competency under medication, he made it clear that he did not want further medication?
Mr. Salomon: --I'm not certain of that.
I don't think the record exactly states through any doctor or any medical record that he was competent as a determination at the moment that he decided that he didn't want--
Unknown Speaker: I don't know.
I can't imagine why the judge would go to the trouble of saying that the State's interest overrode his decision, his interest in refusing treatment, if that weren't the case.
Mr. Salomon: --Well, I agree with you in basic--
Unknown Speaker: At least I would think that's the way we would judge this case.
Mr. Salomon: --I think you're correct, Justice White.
I'm not trying to quibble with you, Justice Stevens.
But it's just you're asking specifically about the record and it doesn't so clearly demonstrate as you're asking me for, but I'm willing to state for you that definitely that he's got... he might have a lucid moment where he can decide that he does not want the medication.
And I think in this case the judge recognized that fact and then conducted this sort of weighing and balancing--
Unknown Speaker: If we assume that we take the case as we've discussed in acknowledging that maybe the record isn't as clear as it should be, would it be your view that at that time he had the kind of liberty interest independent of Louisiana law that was discussed in Harper to say no unless sufficient overriding State interests are present?
Mr. Salomon: --I believe that he does.
And our brief acknowledges such and makes two arguments to that effect.
And in this particular case, we feel that an examination of the facts and the law according to Turner v. Safley, as was applied in Washington v. Harper, is appropriate.
And if you do this testing a standard of reasonableness, that is, whether the court's order is reasonably related to a legitimate penalogical interest, the State of Louisiana submits that this court order is appropriate in this case, because it is related to a legitimate penalogical interest.
Unknown Speaker: So you're prepared, really, to have us judge the case on the assumption that there is a constitutionally protected liberty interest at stake, but that it's overcome by the countervailing interest that you rely on?
Mr. Salomon: That's correct, Your Honor.
Now, there was also--
Unknown Speaker: Then why do you say 830.1 isn't applicable?
I didn't quite get it.
Mr. Salomon: --Well, basically for the same reason that the statute in Kentucky v. Thompson didn't mandate that visitation privileges were some protected liberty interest.
My point is that 830.1 does not apply to a scenario where the State of Louisiana seeks to involuntarily medicate an inmate for the purpose of establishing competency to carry out its punishment.
Now, it says--
Unknown Speaker: But the 830.1 sort of conditions involuntary treatment on--
Mr. Salomon: --dangerousness.
Unknown Speaker: --the basis of dangerousness.
Mr. Salomon: Well, I would suggest to you that that--
Unknown Speaker: And is quite consistent with the constitutional rule.
Mr. Salomon: --And I think that is correct to the extent that 830.1 is a statutory expression of what the State can do and that is a sufficient basis on which the State may involuntarily treat.
But it is not the sole or only basis is what the State now contends.
Unknown Speaker: At least that's your submission?
Mr. Salomon: That's my submission, Your Honor.
Now there were some other statements to the effect that treatment in this case is not in his medical interest, and I have already suggested and would further state that it is an appropriate, beneficial, rational course of action.
Three doctors have stated such in the record of this particular case.
Unknown Speaker: Mr. Attorney General, is this medicine given by injection or by the mouth?
Mr. Salomon: Both.
In this particular case, Mr. Perry--
Unknown Speaker: Well, if all you say is true in the interest of Louisiana, while you're giving him the injection, why don't give him enough to kill him then?
Mr. Salomon: --Well, because I think--
Unknown Speaker: It would be cheaper for the State.
Mr. Salomon: --Right, but I think the State of Louisiana is limited by the Eighth Amendment and other provisions that we can't do things that are cruel or unusual or excessive in nature.
And I think that we have to meet some minimal due process guidelines here procedurally in what we can and cannot do.
Now this particular inmate has previously to go to trial been treated.
And he has been medicated at the forensic facility in order to establish competency for trial.
Louisiana, like several other States, does allow for the treatment of incompetent defendants in order to establish competency for trial.
We submit that if Louisiana can establish competency for a defendant to go to trial when that individual's presumption of innocence and other rights are at its zenith, then the State of Louisiana should be allowed to establish competency in order to carry out its sentence in this particular case.
Unknown Speaker: You say that a prisoner who isn't dangerous involuntarily be treated in order to make him competent to go to trial?
Mr. Salomon: I have no cases, but I think Appendix J, which sets forth the statutes of 20-some-odd States, does indicate that at least in Louisiana you don't need the element of dangerousness in order to treat someone to establish competency to go trial.
Unknown Speaker: Well, are there any decisions under Federal law that... are there any decisions saying that this is consistent with Federal and constitutional law?
Mr. Salomon: I'm not able to answer your question, because I have not researched the Federal aspect of what a Federal court could order an incompetent defendant to undergo.
But I would pleased to submit something, if that would be your desire.
Unknown Speaker: You don't think that the Harper case is applicable in the pretrial situation?
Mr. Salomon: I don't think Harper said that it is applicable in the pretrial situation.
Unknown Speaker: You don't think it is logically?
Mr. Salomon: Well, I think that it may be, to be very candid, Justice O'Connor, but I don't think that you always have to establish dangerousness in order to justify the involuntary or some other administration of medication in order to establish competency.
I think the statutes that are set forth in Appendix J reveal that some States do require dangerousness in order to justify the involuntary administration.
And there are some States that do not.
And Louisiana is one of a handful that do.
Unknown Speaker: Isn't it true that in that situation one of the factors that would be considered would be, if appropriate in the case, the potential permanent side effects of the first medication?
I guess these things affect different people in different ways.
And if the doctors felt it would cause permanent side effects, you wouldn't then argue that the mere fact they wanted to make him competent to stand trial would necessarily overcome his liberty interest, would you?
Mr. Salomon: Well, I think as it stands in Louisiana you can make that argument.
And whether there is dangerousness or not, you can.
Unknown Speaker: Right.
Mr. Salomon: And that is not the case here, but I'm citing it as a premise of sorts to say that we have done it in this particular case, and because we have done it... that is, an involuntary administration of medication to establish competency to go to trial... we can do it for competency to exact our sentence.
That is a validly obtained matter.
The trial court in this matter in basic terms identified--
Unknown Speaker: In a way competency to go to trial is harder, isn't it.
I mean here you have a person who has not been convicted of anything, and you're enforcing involuntary medication.
In the other case, you have someone who's already been convicted of a crime and thereby loses some of his liberties, including physical liberty to move about.
Mr. Salomon: --Absolutely, I mean because the punishment... the whether determination has already been made what his sentence will be.
Many of his rights are greatly diminished, his freedom from confinement.
We know that his freedom from bodily restraint to be physically strapped into that electric chair is reduced as well as his ability to determine his fate.
Unknown Speaker: Saying, likewise is reduced his ability to turn down beneficial medical treatment.
Mr. Salomon: That's exactly right.
Many of his rights, as I have said, have been limited, and that includes, for example, his right to life and his right to self-determination of sorts.
To honor Mr. Perry's request in this case, that is his refusal of medication and beneficial medical treatment, I might add, would be to be contrary to several valid interests.
First, I think that it's correct to say that the inmate's right to some sort of self-determination has been greatly diminished by the fact that he has been convicted of a capital murder and that he has been sentenced to death.
And I think also that once that right of the State to impose punishment is established, that we recognize in some sort of inferential way that the State is the entity that chooses what a punishment shall be.
And if we in this case honor Mr. Perry's right to refuse medical treatment as indicated in the record, then I think we give, in a way, to Perry the opportunity to choose his punishment.
Unknown Speaker: Let me just interrupt, if I may.
Mr. Salomon: Fine.
Unknown Speaker: You seem to make a point earlier that it was relevant that this treatment was beneficial to him.
What if it wasn't beneficial?
You'd have the same State interest in carrying out the punishment.
Mr. Salomon: Right.
But I still think that that interest would not be, then, legitimate, possibly under a Turner v. Safley analysis, or potentially it could walk into the prohibition on cruel and unusual punishment.
Unknown Speaker: I can understand your argument if you don't rely on the benefit.
But it's a rather strange sort of benefit to say the benefit is you may now be executed.
Mr. Salomon: Well, but there are medical benefits.
Unknown Speaker: He's not particularly interested in those when he is weighing the various alternatives.
Mr. Salomon: I understand that.
But there are other rights that he has.
For instance, this freedom from confinement and these other steps like medicating him to establish the competency to go to trial, which are basically steps on the road to execution which are not beneficial to him--
Unknown Speaker: I know medication to go to trial, Justice Scalia has already demonstrated, that's a harder case than this one.
Mr. Salomon: --Correct.
Unknown Speaker: You're relying on one that hasn't been decided yet, at least by this Court.
Mr. Salomon: That's true, but I still say that even though the State might have an interest in seeing its penalty satisfied, that a Turner v. Safley analysis says that you have to have a legitimate penalogical interest.
And possibly in your hypothetical, the State's interest would be reduced if there is not beneficial medication.
Because there's a benefit to the individual.
There is an interest of the State to carry out its punishment bottom line.
But it's limited.
And it's limited by things like what's legitimate and what's going to be cruel and unusual.
Unknown Speaker: It isn't the State's interest is heightened.
It's that his interest is.
The interest in turning down harmful medication is certainly something much greater than the interest in turning down otherwise beneficial medication, and as... the punishment authorized by this judgment against the defendant was execution, right?
Mr. Salomon: Correct.
Unknown Speaker: And not any other physical torture or harm beyond execution or prior to execution.
Mr. Salomon: That's correct, Justice Scalia.
Unknown Speaker: And if you medicated him against his will in a way that was harmful to him that could be considered to be something beyond the judgment of execution that had been pronounced.
Mr. Salomon: That is correct.
Unknown Speaker: The State's sole interest was to kill him?
Mr. Salomon: Well, the State's primary interest is just that.
Unknown Speaker: Well, it seems... for example, if he had been sentenced to life, the State wouldn't be interested, would they?
Mr. Salomon: Well, the State would still be interested to the extent of providing beneficial medical treatment to a person that's ill.
Unknown Speaker: They would?
They would insist on it?
Mr. Salomon: Well, I think that the State could insist on it if you--
Unknown Speaker: Do you think they would?
Mr. Salomon: --Well, you asked me to predict, and I think that they may.
And the reason--
Unknown Speaker: In this case it's solely to kill him?
Mr. Salomon: --That's correct.
Now, beyond the trial court's analysis in this particular case--
Unknown Speaker: I don't mean to be a pest here.
I really don't.
But I want to be sure I have got a thought in mind.
Reading the trial court's order, there has been a lot of discussion of as to be prescribed by the medical.
We're talking about the order of page 148 I think of the--
Mr. Salomon: --October 21, '88.
Unknown Speaker: --October 21.
And it says the Department of Public Safety and Corrections is further ordered to maintain the defendant on the above medication as to be prescribed by the medical staff of the Department of if necessary administers that medication forcibly to defendant over his objection.
Are you arguing that as to be prescribed means if the medical staff thinks it's beneficial?
Mr. Salomon: Yes, sir.
Unknown Speaker: You think that's implicit in the order?
Mr. Salomon: Yes, sir, I do.
Unknown Speaker: Thank you.
Mr. Salomon: Beyond the trial court's analysis in this particular case, the trial court did not conduct any national consensus search, but we submit to this Court today that there is no State legislation that exists anywhere prohibiting involuntary medication for a competency to execute.
In fact we suggest that one State, the State of Maryland, does specifically allow competency to be based on the involuntary administration of medication.
In fact, of 37 States which have the death penalty, 24 of those States contemplate in one fashion or another that treatment can occur.
And it's basically premised upon a finding that executions cannot be carried out until competency is established, restored, or regained.
If on the one hand, we know that we can't or cannot execute those who are incompetent and on the other hand, we can, if they are restored to sanity, the State suggests something happens between those two points.
And the something that happens is these 24 States basically permit the administration of medication to establish competency for execution.
Unknown Speaker: You don't really know that.
You don't really know that those laws apply when the patient refuses and he's not dangerous.
Mr. Salomon: No, I do not.
My colleague in this case has spent some time in his brief talking in terms of procedural due process was violated in this matter and we would submit to the Court again that the court, the trial court, utilized far beyond the procedures required in Ford v. Wainwright to determine the interests of Mr. Perry, the interests of the State, and whether the State's interests would supersede.
In Ford, the court was basically required to afford an opportunity to be heard, a neutral decision maker, and those things were in fact provided to Mr. Perry, in addition to many other matters.
If the Court would have any further questions on any of these matters, I'd be pleased to answer them.
Unknown Speaker: Is the defendant being forcibly medicated now, Mr. Salomon?
Mr. Salomon: Difficult question.
I checked as recently as yesterday and it depends how you define what is forcible medication.
The scenario that has occurred as of June the 20th or so of 1990 was that the doctors determined that Mr. Perry was in some kind of episode where he was dangerous and they said to him, we want to give you medicine.
Are you willing to take it?
And if you're not willing to take it, we're going to make you take it and basically he said, yes, I'll take it.
And he has taken the medicine in June, August, and September, and as recently as a week ago, one of the supervising physicians did in fact enter another standing order for 3 months' worth of treatment, which would be one injection every 4 weeks of approximately 200 milligrams of the medication known as Haldoldeconate, which is a long-acting and lasting medication.
Unknown Speaker: Thank you, Mr. Salomon.
Mr. Nordyke, you have rebuttal.
You have 2 minutes remaining.
Rebuttal of Keith B. Nordyre
Mr. Nordyre: First let me address the Maryland statute that counsel addressed.
The Maryland statute, if one would examine the legislative history of that statute, as we have, would indicate that the Maryland legislature was very concerned about the ethics of doctors.
They adopted exactly the approach that the AMA would suggest in this case.
There is a legislative task force history of that statute that is available and subsequent to Ford v. Wainwright, that statute was reenacted and they commute after one opportunity at a hearing.
The statute does say that a person is not incompetent merely because of the continued administration of psychotropic medication.
But what I suggest that suggests is somebody that would otherwise be sane even without the medication.
Secondly, turning to the Turner v. Safley analysis that counsel suggested, Turner simply doesn't apply.
Turner is a method of analysis that applies to a prison regulation.
This is a statute that we're talking about.
And if it's not a statute it's certainly the Eighth Amendment.
Justice Marshall asked about the injections.
They are in fact injections and the Haldoldeconate is a large enough injection where they have to be broken down into several shots each time in order to give them.
The question of whether it was good for him and it doesn't appear anywhere in the record.
I still think it doesn't.
And the reason that I think counsel says that it appears in the record is that the questions that were posed were, can you make him competent to be executed?
The questions that were directed to the physicians on the witness stand had to do with competency to be executed and not whether or not any of these medications were in Mr. Perry's best interest.
We likewise have spoken to Mr. Perry, not the physicians, in the last 2 weeks.
He believes that the monthly shots he's getting are lethal injections.
Chief Justice Rehnquist: Thank you, Mr. Nordyke.
The case is submitted.
Unknown Speaker: The Honorable Court is now adjourned until tommorow at ten o'clock.