Vol. 10, No. 37	Covering Cases Published in the Advance Sheets through Sept. 15, 2003

The Death Penalty: Administering Antipsychotic Drugs to Make One Sane Enough to be Executed

• On its first day back from its summer holiday, the Supreme Court denied certiorari in more than 1,800 cases - a hefty average of more than 200 cases of heavy vacation reading for each Justice. One of the cases that was summarily dismissed involved Charles Singleton, an African-American inmate who has been on Arkansas’ death row since 1979. Everyone admits that, without being administered antipsychotic drugs, Singleton is simply not competent enough to be executed. However, prison officials want to change that by forcibly pumping him full of drugs so he can be rendered sufficiently competent to be executed. A divided Eighth Circuit had previously ruled that such a course of action would not violate Singleton’s constitutional rights or constitute cruel and unusual punishment (although the dissenting judges did describe that ruling as “the barbarity of exacting mindless vengeance”). Without comment, the nine Justices unanimously decided not to intervene. Thus, Arkansas is now free to restore Singleton’s sanity with mind-altering drugs so he can be executed.

Guidelines

• In Washington, the Fifth Circuit reversed the district court’s refusal to grant a sentence reduction based on acceptance of responsibility because the defendant had filed a motion to suppress the evidence against him and then refused to waive his right to appeal the suppression ruling. The Court held that neither ground was a proper basis for withholding a sentence reduction under U.S.S.G. § 3E1.1.
  
  
• In both Lauersen and Jackson, the Second Circuit suggested that an accumulation of substantially overlapping sentencing enhancements, particularly when imposed on a defendant whose adjusted offense level translates to a high sentencing range, can constitute a valid basis for a downward departure, even if the enhancements themselves do not constitute impermissible double counting.
  
  

Fourth Amendment: "Terry" Stops and Anonymous Tips

• In Patterson, a divided panel from the Sixth Circuit held that to allow an anonymous tip alone to establish a reasonable suspicion to stop and frisk a person would allow officers “carte blanche” to search every person in the vicinity. The majority also concluded that it is “impossible” for a combination of wholly innocent factors to combine into a suspicious conglomeration unless there are concrete reasons for such an interpretation.” Judge Kennedy dissented on the grounds that the totality of circumstances provided a reasonable basis for the police to suspect that a drug crime was about to be committed by eight men standing on a street corner in a “hot spot” for drug activity.

Withdrawal of Guilty Pleas under New Rule 11(d) of the Fed.R.Crim.P.

• The Head case from the Eighth Circuit is noted for its discussion of new Rule 11(d) of the Fed.R.Crim.P., which the Court concluded now gives defendants “an absolute right” to withdraw their pleas “for any reason or for no reason” - so long as they move to do so before the court accepts the pleas.

Singleton v. Norris, No. 02-10605 (U.S. Sup. Ct. 10/06/2003) (Per Curiam)

In 1979, Charles Singleton, an African-American, killed Mary Lou York, an elderly white grocery clerk. He was tried, convicted and sentenced to death for that crime later that same year; and he has been on the Arkansas death row ever since.

Singleton has spent much of his time in prison on psychotropic medication. Shortly after he entered prison, Singleton was diagnosed as a paranoid schizophrenic with severe anxiety. By July 1987, Singleton began to experience visual hallucinations and complain that his cell was possessed by a demon. He believed that a prison doctor had placed an implement in his ear and that his thoughts were taken from him when he read the Bible; and he claimed that his brother would come into his locked cell and take him out for walks. He also lost a good deal of weight.

To control those conditions, the State began to order that Singleton be forced to take various antipsychotic drugs - which some of the judges in this case have described as “powerful.” The drugs did help: they put Singleton’s condition in a state of remission, but only for a temporary period of time. Each time Singleton got better, he would object to the drug regimen - and the State would stop administering the drugs. Then, after a while, Singleton would revert back to a state of insanity, and the whole cycle would start over again. This cycle went on for some ten years.

Finally, in response to a Federal habeas petition, Singleton was sent to the Federal Medical Center (FMC) in Springfield, MO to determine whether he was competent to be executed and, if so, whether he would remain competent if his medication was discontinued. The clinical psychiatrist at FMC concluded that Singleton was legally competent to be executed at that time; and that, if the State discontinued Singleton’s medication, he “might remain competent for some period of time without medication before becoming psychotic.”

Based on that advice, the State ultimately scheduled Singleton’s execution. Singleton then filed a pro se motion for the appointment of counsel and a petition to file a successive writ of habeas corpus. When both of those motions were denied, Singleton filed a petition pursuant to 28 U.S.C. § 2241, arguing that the Supreme Court’s decision in Ford v. Wainwright, 477 U.S. 399 (1986) barred the State from involuntarily medicating him to achieve competency and then executing him for his crime.

The Ford court actually ruled that the Eighth Amendment’s edict against cruel and unusual punishment prohibits the State from inflicting the death penalty upon a prisoner who is insane. However, until the instant case, neither the Supreme Court nor any Circuit court had ever ruled on whether a prisoner could be forcibly medicated to be made sane enough to qualify for an execution.

In Singleton v. Norris, 267 F.3d 859 (8th Cir. 2001) (Singleton I), a divided panel concluded that because Singleton was unable to retain lucidity and because he needed to be medicated with antipsychotic medication, he lacked the understanding necessary to permit the state to execute him. Accordingly, the panel granted a permanent stay of execution and reduced Singleton’s sentence to life imprisonment without the possibility of parole.

The State asked for an en banc rehearing and, in a decision reported at 319 F.3d 1018 (8th Cir. 2003) (Singleton II), the full court ruled, by a vote of 6 to 5, that the Constitution's prohibition against cruel and unusual punishment would not be violated if the authorities forcibly administered antipsychotic medication to Singleton. In that case the Court specifically rejected arguments by Singleton's lawyers that giving him the drugs was not medically useful to him, as the only purpose would be to facilitate the ending of his life.

The eleven judges were in sharp disagreement over what should be done. Judge Wollman, writing for the majority, said that the court had a choice "between involuntary medication followed by execution and no medication followed by psychosis and imprisonment."

In his dissent, Judge Heaney said the authorities should have allowed Singleton to be medicated without the consequence of execution. "I believe that to execute a man who is severely deranged without treatment, and arguably incompetent when treated, is the pinnacle of what Justice Marshall called `the barbarity of exacting mindless vengeance.' " (Singleton II, id., at 1030) (Internal citations omitted.).

He then continued: “The question for our court is whether [our legal precedent] is satisfied where the consequence of forcibly medicating the inmate will be his execution. The majority believes that its analysis should focus on the State's intent in medicating the inmate, and concludes that it is constitutional for the State to forcibly medicate Singleton into a state of competency because the State's motive in medicating Singleton is to improve his well-being.” (Sic!) (Id., at 1035.) (Emphasis added).

“Based on the medical history in this case, I am left with no alternative but to conclude that drug-induced sanity is not the same as true sanity. Singleton is not ‘cured’; his insanity is merely muted, at times, by the powerful drugs he is forced to take. Underneath this mask of stability, he remains insane.” (Id., at 1034).

“Charles Singleton is an insane death row inmate. He is forced to submit to a treatment regime that includes powerful, mind-altering drugs. As a result of his treatment, he sometimes appears lucid and rational; other times he does not. The fact is, however, that he remains insane. I believe that we must continue to abide by the Supreme Court's prohibition on executing the insane, particularly in this case, where the State is motivated to medicate a person into competence in order to carry out its punishment. I am gravely concerned that the majority has created a serious ethical dilemma for the medical community as a result of its opinion. I would hold that the State may continue to medicate Singleton, voluntarily or involuntarily, if it is necessary to protect him or others and is in his best medical interest, but it may not execute him.” (Id., at 1037).

Apparently, none of those arguments were persuasive enough even to evoke a single dissent from a single Supreme Court Justice. The Supreme Court’s failure to act in this case leaves little doubt that any meaningful reform of our death penalty jurisprudence is still a long way off in the future.

U.S. v. Patterson, 340 F.3d 368 (6th Cir. 2003) (Judge Martin)

Once in a great while, a decision comes down that dramatically highlights the enormous disparity that exists in the judicial community about what constitutes “reasonable suspicion” under the Fourth Amendment. This is such a case. Here, the judges debated whether the police had a sufficiently reasonable suspicion to stop and search a group of black males based on an anonymous tip - given some five and a half hours earlier - that some people were conducting a drug transaction on a street corner that the police considered a “hot spot” for drug activity.

In Terry v. Ohio, 392 U.S. 1 (1968), the Supreme Court held that officers have the right under the Fourth Amendment to stop and temporarily detain and conduct a warrantless search of citizens if they have a “reasonable suspicion” of criminal activity. The Court later expounded on that concept in U.S. v. Cortez, 449 U.S. 411, 417 (1981), when it emphasized that “[a]n investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity. . . . The totality of the circumstances -- the whole picture -- must be taken into account. Based upon that whole picture the detaining officers must have a particularized and objective basis for suspecting the particular person stopped of criminal activity.”

In the instant case, the police received an anonymous tip that a group of men were conducting a drug sale on a street corner. Five and a half hours later, two police officers approached that street corner in an unmarked car, where they spotted eight black males standing on the sidewalk. When the two officers got out of their car and identified themselves, the eight individuals put their hands in their pockets and began walking away. At that point, the police ordered all eight men to stop and to put their hands on the police car. The police then conducted a pat down search of all eight men. During that search, the police discovered a revolver in the waistband of the defendant in this case, Michael Patterson.

Patterson was handcuffed and arrested and later charged with possession of a gun by a felon. He moved to suppress the evidence of the gun; and, when that motion was denied, he entered into a conditional plea of guilty, reserving the right to appeal the denial of the suppression motion.

On appeal, a divided panel from the Sixth Circuit reversed. The majority concluded that “to allow the tip alone to establish reasonable suspicion would allow officers carte blanche to search every person in the vicinity.” (Id., at 371) (Emphasis added). While the majority recognized the “difficulty in fighting drug crimes,” it also stated: “We believe that Patterson walking away from the police when they got out of their unmarked car constitutes a factor to be outrightly dismissed. Patterson's behavior is innocent and insufficient to provide the police with reasonable suspicion.” (Id., at 372).

Then, citing U.S. v. Smith, 263 F.3d 571, 593 (6th Cir. 2001), the majority wrote: “This Court is aware that under the totality of the circumstances test it is possible that ‘objective facts, meaningless to the untrained’ can provide the basis for reasonable suspicion. . . . But we think it impossible for a combination of wholly innocent factors to combine into a suspicious conglomeration unless there are concrete reasons for such an interpretation.”

At the other extreme, Judge Kennedy wrote: “I believe that under the totality of circumstances test the officers' decision to stop Patterson was supported by a reasonable suspicion that Patterson was engaged, or about to be engaged in, drug sales. . . . The majority dismisses the import of the citizen complaint that brought the officers to the intersection . . . . While I agree that the tip alone would not support stopping Patterson, the officers were not acting only on the tip.” (Id., at 372). Then, citing the police officers’ long experience in law enforcement and their testimony from the suppression hearing that the street corner where the arrest took place was a “hot spot” of drug activity, she concluded that the evidence “makes clear that the officers reasonably suspected that the men, Patterson included, were engaged in street drug sales because the men were loitering after dark in a location that was both generally known for street level drug sales and the subject of a recent drug sales complaint, the men attempted to evade police detection of their activity by concealing their hands and walking away . . . .” (Id., at 373).

It’s hard to bridge a difference of beliefs of that magnitude; and it appears, more and more, that many Fourth Amendment decisions are based on political beliefs rather than on the Constitution.

The proposed amendments take up 54 pages of text, and they include, inter alia, extensive revisions to the text and commentary of the following Guideline provisions: §§ 4A1.1, 4A1.3, 5H1.4, 5H1.6, 5H1.7, 5H1.8, 5K2.10, 5K2,12, 5K2.13 and 5K2.20.

In its accompanying press release, the Commission specifically noted the following measures:

• Departures based solely on the existence of a plea agreement are henceforth prohibited;

• A number of existing grounds for downward departures will now be prohibited, including acceptance of responsibility, minor role in the offense, gambling addiction, and legally required restitution (e.g., repayment of victims of white collar offenses);

• Departures based on family ties and responsibilities, aberrant behavior, and similar circumstances will henceforth be much more restricted; and

• Both the availability and the extent of departures permissible for certain offenders with substantial criminal history will henceforth be much more restricted.

There is little doubt that these changes will have a substantial impact on sentencing. A complete red-lined copy of the new amendments has been posted on the Bulletin Board section of our Web site at www.ussguide.com/.

On October 7, 2003, the Commission also released a Special Report on proposed revisions to Chapter 8 of the Guidelines, dealing with the sentencing of corporations and other organizations. Those guidelines provide incentives for organizations to report violations, cooperate in criminal investigations, discipline responsible employees, and take the steps needed to prevent and detect criminal conduct by their agents. They also mandate high fines for organizations that have no meaningful programs to prevent and detect criminal violations or in which management was involved in the crime.

The Commission had previously appointed an Ad Hoc Advisory Committee to study “the general effectiveness” of Chapter 8. After 18 months of review, the Committee has now released its 143 page report, which includes specific recommendations for a major overhaul of Chapter 8, including greater incentives for organizations and individuals to report violations and cooperate in criminal investigations.

A complete copy of this Report and the proposed changes to the Guidelines have been posted on our Web site. For those interested, we also recommend Attorney Mark H. Allenbaugh’s detailed analysis of the Special Report, entitled “A New Era for Corporate Ethics, Reform and Responsibility?,” dated October 9, 2003, which can be found on FindLaw’s Web site, under its Legal Commentary - Writ Section.

Copyright © 2003 Punch and Jurists, Ltd.