Compelling Choice: Forcibly Medicating Death Row Inmates to Determine Whether They Wish to Pursue Collateral Relief

It is unclear exactly how many of the 3,228 inmates on death row are mentally incompetent. A BBC report placed the number at approximately 10%. Some clinical studies have found as many as 40% or even 70% of surveyed inmates are psychotic. Whether the actual number of death row inmates suffering from mental illness is 10% or 70%, mentally ill inmates represent a considerable portion of the death row population and pose unique challenges for the criminal justice system. In July 2008, the Pennsylvania Supreme Court ruled that two of these mentally ill death row inmates, Thavirak Sam and Herbert Watson, could be forcibly medicated to render them competent to determine whether they wished to pursue collateral relief under Pennsylvania’s Post Conviction Relief Act (PCRA). This appears to be the first time a court of last resort has resolved the issue raised by Sam and Watson. This comment analyzes whether forcibly medicating an incompetent death row inmate for this limited purpose is permissible, under existing federal law. Part II provides a brief background to legal issues related to the treatment of mentally ill prisoners including executing the mentally ill, forcibly medicating a non-consenting inmate, and forcibly medicating death row inmates to render them competent to execute. Part III describes the Pennsylvania Supreme Court’s decisions in Commonwealth v. Sam and Commonwealth v. Watson. Part IV analyzes Sam and Watson in light of the United States Supreme Court’s decisions in Washington v. Harper, Riggins v. Nevada, and Sell v. United States. Finally, Part V considers some possible alternatives to Pennsylvania’s treatment of death row inmates who, like Thavirak Sam and Herbert Watson, are not competent to determine whether they wish to pursue collateral relief.