1 Ford v. Wainright, 477 U.S. 399, 409-410 (1986) (holding that such an execution violates the Eighth Amendment's prohibition against cruel and unusual punishment).

2 Singleton v. Norris, 319 F.3d 1018 (8th Cir. 2003), cert. denied, 540 U.S. 832 (2003).

3 Id. at 1026.

4 Id. The State of Arkansas executed Singleton on January 7, 2004. Kane, Brian J., Note, The Charles Singleton Dilemma: Sane Enough to Die?, 28 LAW & PSYCHOL. REV. 149, 149 (2004)Google Scholar.

5 COUNCIL ON ETHICAL & JUDICIAL AFFAIRS, AM. MED. ASS’N, CODE OF MEDICAL ETHICS: CURRENT OPINIONS WITH ANNOTATIONS 18-24 (AMA Press 2004), available at http://www.amaassn.org/ama/pub/category/8419.html; AM. PSYCHIATRIC ASS’N, THE PRINCIPLES OF MEDICAL ETHICS WITH ANNOTATIONS ESPECIALLY APPLICABLE TO PSYCHIATRY 6 (2001), http://www.psych.org/psych_pract/ethics/ethics.cfm (2004).

6 Cantor, Julie D., Of Pills and Needles: Involuntarily Medicating the Psychotic Inmate When Execution Looms, 2 IND. HEALTH L. REV. 119, 156 (2005)Google Scholar.

7 Sell v. United States, 539 U.S. 166 (2003). This case was decided after the Eighth Circuit's decision in Singleton v. Norris.

8 Id. at 181-183.

9 Singleton, 319 F.3d at 1026.

10 See Miller-Rice, Rebecca A., Note, The “Insane” Contradiction of Singleton v. Norris: Forced Medication in a Death Row Inmate's Interest Which Happens to Facilitate His Execution, 22 U. ARK. LITTLE ROCK L. REV. 659, 671 n. 59 (2000)Google Scholar (quoting State v. Perry, 610 So.2d 746, 752-753 (La. 1992)).

11 See Jacobi, John V., Prison Health Public Health: Obligations and Opportunities, 31 AM. J. L & MED. 447, 455 (2005)Google Scholar. “A recent survey of mental health care provided in prisons and jails resulted in a damning report, documenting the following: poor intake screening of prisoners for mental health needs; lack of timely access to qualified mental health staff, in part due to the hostility of custody staff and the overattribution of symptomatic behavior to ‘malingering’; the inappropriate treatment of prisoners with serious psychiatric illnesses solely with drugs, which can render a prisoner docile, but do not advance the prisoner to wellness and recovery; and a dearth of appropriate facilities for crisis care.” (citing HUMAN RIGHTS WATCH, ILL EQUIPPED: U.S. PRISONS & OFFENDERS WITH MENTAL ILLNESS 101 – 130 (2003) and TERRY A. KUPERS, PRISON MADNESS: THE MENTAL HEALTH CRISIS BEHIND BARS & WHAT WE MUST DO ABOUT IT, at xv-xvi (Jossey-Bass 1999)).

12 PAULA M. DITTON, U.S. DEP't OF JUSTICE, MENTAL HEALTH AND TREATMENT OF INMATES AND PROBATIONERS 1, available at http://www.ojp.usdoj.gov/bjs/pub/pdf/mhtip.pdf. Prisoners were identified as mentally ill if they met one of two criteria: they reported a current mental or emotional condition, or they reported an overnight stay in a mental hospital or treatment program. Id. at 2.

13 Id. at 9.

14 Cantor, supra note 6, at 136 (citing ABC Online, Foreign Correspondent: U.S.A.-Death Row Medication, available at http://www.abc.net.au/foreign/stories/s894253.htm). See also American Civil Liberties Union, Mental Illness and the Death Penalty in the United States, available at http://www.aclu.org/capital/mentalillness/10617pub20050131.html?ht=death%20row%20mental%20illness%20death%20row%20mental%20illness (January 31, 2005) (estimating that 5-10% of death row inmates are mentally ill). As of October 2005, there were 3,383 death row inmates in the United States. DEATH PENALTY INFORMATION CENTER, FACTS ABOUT THE DEATH PENALTY, available at http://www.deathpenaltyinfo.org/FactSheet.pdf (February 1, 2006).

15 Washington v. Harper, 494 U.S. 210 (1990).

16 Id. at 213.

17 Id. at 223.

18 Id. at 220.

19 Id. at 223.

20 Id. at 227.

21 Riggins v. Nevada, 504 U.S. 127 (1992).

22 See id. at 135.

23 Id. at 128.

24 Id. at 138.

25 See id. at 131.

26 Sell v. U.S. 539 U.S. 166 (2003).

27 Id. at 181. Note that this was also a case from the Eighth Circuit, and the Supreme Court decision was rendered after Singleton v. Norris was decided by the Eighth Circuit.

28 Id. at 182-183.

29 Ford, 477 U.S. at 399.

30 Id. at 409-410.

31 Id. at 406 (for centuries, the common law and numerous legal scholars recognized the moral implications of executing the insane).

32 Id.

33 Id. at 407.

34 Id.

35 Id.

36 Id. at 422.

37 Bruce J. Winick, Competency for Execution, in THERAPEUTIC JURISPRUDENCE APPLIED 289, 299-304 (1997).

38 State v. Perry, 610 So. 2d 746 (La. 1992).

39 Id. at 747.

40 Id. at 748.

41 Id. at 751.

42 Id. at 761.

43 Id. at 752-753 (noting that there was a conflict in a physician's duties to the state and to a patient, the forced medication negatively impacts the patient-physician relationship, the patient cannot weigh the risks and benefits of the treatment with his physician, and prescribing the medication in this situation may violate the ethical provisions of some professional organizations).

44 Id. at 771.

45 Singleton v. State, 437 S.E.2d 53 (S.C. 1993).

46 Id. at 62.

47 ABA CRIMINAL JUSTICE MENTAL HEALTH STANDARDS, Standard 7-5.6 (2d ed. 1989), available at http://www.abanet.org/crimjust/standards/mentalhealth_blk.html#7-5.5.

48 Singleton, 437 S.E.2d at 58.

49 Id.

50 Id.

51 But see Winick, supra note 37, at 298 (arguing that in Penry v. Lynaugh, 492 U.S. 302 (1989), the court's discussion of Powell's concurrence in Ford and the ability of a mentally retarded defendant to assist counsel implies that the ability to assist counsel may be indicative of Supreme Court's assumption that competency requires ability to assist counsel).

52 Singleton, 437 S.E.2d at 61.

53 Singleton, 319 F.3d at 1023.

54 Id. at 1030-1031 (Healy, J., dissenting).

55 Id.

56 Id. at 1023.

57 U.S. v. Sell, 282 F.3d 560 (8th Cir. 2002). This is the lower court companion to Sell v. U.S.

58 Singleton, 319 F.3d. at 1026. Moreover, the Eighth Circuit's decision in U.S. v. Sell was overturned by the Supreme Court, as discussed above, in Sell v. U.S., 539 U.S. at 123.

59 Perry, 610 So.2d at 747.

60 Singleton, 310 F.3d at 1027. Singleton was medicated in 1997 because he posed a danger to himself and others. Id. at 1022.

61 Woodson v. North Carolina, 428 U.S. 280, 303-04 (1976).

62 See Jones, Lisa N., Case Note, Singleton v. Norris: The Eighth Circuit Maneuvered Around the Constitution by Forcibly Medicating Insane Prisoners to Create an Artificial Competence for Purposes of Execution, 37 CREIGHTON L. REV. 431, 469–70 (2004)Google Scholar.

63 Indeed, it is unlikely that death row inmates will ever pose a danger to other inmates, since they are often isolated up to 23 hours a day and have very little contact with anyone else at the prison. See Sergent, Holland, Comment, Can Death Row Inmates Just Say No?: The Forced Administration of Drugs to Render Inmates Competent for Execution in the United States and Texas, 35 TEX. TECH. L. REV. 1299, 1314 (2004)Google Scholar.

64 THE AMERICAN COLLEGE OF PHYSICIANS ET AL., BREACH OF TRUST: PHYSICIAN PARTICIPATION IN EXECUTIONS IN THE UNITED STATES, 9-10 (The American College of Physicians et al. eds., 1994).

65 Id. at 31.

66 See Sergent, supra note 63, at 1317.

67 See THE AMERICAN COLLEGE OF PHYSICIANS ET AL., supra note 64, at 13.

68 Id. at 11.

69 Id.

70 Id. at 17. As of February 1, 2006, thirty-eight states allow executions. Death Penalty Information Center, supra note 14.

71 THE AMERICAN COLLEGE OF PHYSICIANS ET AL., supra note 64, at 12.

72 Id. at 15.

73 Singleton, 319 F.3d at 1021.

74 Id. at 1031 (Heaney, J., dissenting).

75 Id.

76 Id.

77 Id. at 1031-32.

78 Id. at 1032.

79 See THE AMERICAN COLLEGE OF PHYSICIANS, supra note 64 at 31.

80 See Id. at 38.

81 Id. at 10.

82 Id. at 13.

83 COUNCIL ON ETHICAL AND JUD. AFFAIRS, AM. MED. ASS’N, supra note 5.

84 COUNCIL ON ETHICAL AND JUD. AFFAIRS, AM. MED. ASS’N, Opinions on Social Policy Issues, in CODE OF MEDICAL ETHICS, available at http://www.amaassn.org/apps/pf_new/pf_online?f_n=browse&doc=policyfiles/HnE/E2.06.HTM&&s_t=&st_p=&nth=1&prev_pol=policyfiles/HnE/E-1.02.HTM&nxt_pol=policyfiles/HnE/E-2.01.HTM&.

85 Id.

86 AM. PSYCHIATRIC ASS’N, supra note 5, at 6. See also AM. PSYCHIATRIC ASS’N, OPINIONS OF THE ETHICS COMMITTEE ON THE PRINCIPLES OF MEDICAL ETHICS (2001), available at http://www.psych.org/psych_pract/ethics/ethics_opinions52201.pdf (“[T]he physician-psychiatrist is a healer, not a killer, no matter how well purposed the killing may be”)(2001).

87 NATIONAL ALLIANCE FOR THE MENTALLY ILL, THE PUBLIC POLICY PLATFORM OF NAMI (June 2001), available at, http://www.nami.org/Content/NavigationMenu/Inform_Yourself/Local_and_National_Issues/Policy_Platform/9__CRIMINAL_JUSTICE_AND_FORENSIC_ISSUES.htm.

88 NATIONAL ALLIANCE FOR THE MENTALLY ILL, THE CRIMINALIZATION OF PEOPLE WITH MENTAL ILLNESS (2002), available at, http://www.nami.org/Content/ContentGroups/Policy/WhereWeStand/Convention_2002_Fact_Sheets/Criminalization_Fact_Sheet.htm (2002).

89 NATIONAL MENTAL HEALTH ASSOCIATION, DEATH PENALTY AND PEOPLE WITH MENTAL ILLNESS (March 10, 2001), available at http://www.nmha.org/position/deathpenalty/deathpenalty.cfm.

90 Keyes, W. Noel, The Choice of Participation by Physicians in Capital Punishment, 22 WHITTIER L. REV. 809, 810 (2001)Google ScholarPubMed.

91 THE AMERICAN COLLEGE OF PHYSICIANS ET AL., supra note 64, at 25-27.

92 As of 1994, no licensing board had taken disciplinary action against any physician who had participated in an execution, though twelve of the thirty-four death penalty states surveyed said they would take action in such a situation because it violates medical ethics. See id. at 29.

93 Brett Barrouquere, Death Penalty, Medical Ethics Collide in Kentucky, BOSTON GLOBE, November 19, 2004, available at http://www.boston.com/news/nation/articles/2004/11/19/death_penalty_medical_ethics_collide_in_kentucky?mode=PF.

94 Id.

95 THE AMERICAN COLLEGE OF PHYSICIANS, supra note 64, at 45.

96 Id. at 42.

97 See id.

98 Singleton v. Norris, 319 F.3d 1018, 1024 (8th Cir. 2003), cert. denied, 124 S. Ct. 74 (2003) (quoting U.S. v. Sell, 282 F.3d 560, 567 (8th Cir. 2002), cert. granted, 537 U.S. 999 (2002)).

99 Brief for the American Psychiatric Ass’n and the American Medical Ass’n as Amicus Curiae in Support of Petitioner at 5, Perry v. Louisiana, 498 U.S. 38 (1990) (No. 89-5120).

100 See Douglas Mossman, New Law, Policy, and Medicine of Involuntary Treatment: A Comprehensive Case Problem Approach to Criminal and Civil Aspects: Is Prosecution “Medically Appropriate?,” 31 NEW. ENG. J. ON CRIM. & CIV. CONFINEMENT 15, 43 (2005).

101 Stone, T. Howard, Therapeutic Implications of Incarceration for Persons with Severe Mental Disorders: Searching for Rational Health Policy, 24 AM. J. CRIM. L. 283, 306 (1997)Google Scholar.

102 GARY J. MAIER & LOUIS FULTON, Inpatient Treatment of Offenders with Mental Disorders, in TREATMENT OF OFFENDERS WITH MENTAL DISORDERS 126, 151 (Robert M. Wettstein ed., 1998).

103 Id. at 134. To increase the level of trust, this author recommends that prisons develop small mental health treatment units.

104 See Winick, supra note 37, at 311.

105 See MAIER & FULTON, supra note 102, at 151.

106 C. Robert Showalter, Death Row Inmates: Evaluation and Treatment, in 173 REVIEW OF CLINICAL PSYCHIATRY & THE LAW 175 (Robert I. Simon, ed. 1991).

107 Mossman, Doug, The Psychiatrist and Execution Competency: Fording Murky Ethical Waters, 43 CASE W. RES. L. REV. 1, 27 (1992)Google Scholar (quoting Brief for the American Psychiatric Ass’n and the American Medical Ass’n as Amicus Curae in Support of Petitioner at 25, Perry v. Louisiana, 498 U.S. 38 (1990)(No. 89-5120)).

108 See MAIER & FULTON, supra note 102, at 152.

109 Jeffrey L. Metzner et. al., Treatment in Jails and Prisons, in TREATMENT OF OFFENDERS WITH MENTAL DISORDERS 211, 225 (Robert M. Wettstein ed., 1998).

110 Id. at 226.

111 Shaivitz, Daniel S., Medicate-to-Execute: Current Trends in Death Penalty Jurisprudence and the Perils of Dual Loyalty, 7 J. HEALTH CARE L. & POL’Y 149, 169 (2004)Google ScholarPubMed(quoting reference omitted).

112 Id. at 170-171.

113 Id. at 171.

114 Id.

115 Id. See also Jones, Cameron J., Note, Fit to be Tried: Bypassing Procedural Safeguards to Involuntarily Medicate Incompetent Defendants to Death, 10 ROGER WILLIAMS U. L. REV. 165, 194-195 (2004)Google Scholar(noting a similar effect of the Sell decision, which “does nothing to dissuade prison psychiatrists from conspiring with prosecutors to jeopardize a mentally ill patient's long-term mental condition by prescribing a particular drug for the sole and immediate purpose of hauling that person into a courtroom”).

116 MAIER & FULTON, supra note 102, at 152.

117 Seymour L. Halleck, Psychiatry and the Death Penalty: A View From the Front Lines, in THE EVOLUTION OF MENTAL HEALTH LAW 181, 185 (Lynda E. Frost & Richard J. Bonnie eds., 2001).

118 Showalter, supra note 106, at 178.

119 Id.

120 Mossman, supra note 107, at 28.

121 THOMAS L. HAFEMEISTER, Legal Aspects of the Treatment of Offenders with Mental Disorders, in TREATMENT OF OFFENDERS WITH MENTAL DISORDERS 44, 58 (Robert M. Wettstein ed., 1998).

122 Id.

123 Id. (quoting Bowring v. Godwin, 551 F.2d 44, 47 (4th Cir. 1977)).

124 See id. at 60.

125 Mossman, supra note 100, at 45.

126 Id. The Hippocratic Oath is cited as one of the main reasons why physicians should not prescribe medications to make inmates competent to be executed.

127 Grabo, Michael D. and Sapoznikow, Michael, Current Development Note, The Ethical Dilemma of Involuntary Medication in Death Penalty Cases, 15 GEO. J. LEGAL ETHICS 795, 796 (2002)Google Scholar.

128 Kacie McCoy Daugherty, Comment, Synthetic Sanity: The Ethics and Legality of Using Psychotropic Medications to Render Death Row Inmates Competent for Execution, 17 J. CONTEMP. HEALTH L. & POL’Y 715, 716 (2001).Google Scholar

129 Id.

130 See Singleton v. State, 437 S.E.2d at 56. See also Winick, supra note 37 at 298.

131 Ford, 477 U.S. at 422 (Powell, J. concurring).

132 American Bar Association, supra note 47. See also Singleton, 437 S.E.2d at 58. Note that this and the other requirements of the ABA competency standard are an adaptation of Justice Frankfurter's dissent in Solesbee v. Balkcom. Winick, supra note 37, at 297 (referring to Solesbee v. Balkcom, 339 U.S. 9, 20 n.3 (1950)). In Solesbee, the Supreme Court decided that a Georgia statute allowing its Governor to determine the competency of death row inmates did not violate due process. Solesbee, 339 U.S. at 13-14. This case was overruled by the Supreme Court's decision in Ford.

133 See Kursten B. Hensl, Restored to Health to be Put to Death: Reconciling the Legal and Ethical Dilemmas of Medicating to Execute in Singleton v. Norris, 49 VILL. L. REV. 291, 301 (2004).

134 Singleton, 319 F.3d at 1025.

135 E.g. Kevin Drew, Executed mentally ill inmate heard voices until end, CNN, January 6, 2004, at http://www.cnn.com/2004/LAW/01/06/singleton.death.row/.

136 See Jones, supra note 62, at 466.

137 Singleton, 319 F.3d at 1033 (Heaney, J., dissenting).

138 Perry, 610 So.2d at 748.

139 Winick, supra note 37, at 290.

140 See Sergent, supra note 63, at 1319.

141 See Shaivitz, supra note 111, at 172.