Washington v. Harper/Concurrence Stevens

Justice STEVENS, with whom Justice BRENNAN and Justice MARSHALL join, concurring in part and dissenting in part.

While I join the Court's explanation of why this case is not moot, I disagree with its evaluation of the merits. The Court has undervalued respondent's liberty interest; has misread the Washington involuntary medication Policy and misapplied our decision in Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987); and has concluded that a mock trial before an institutionally biased tribunal constitutes "due process of law." Each of these errors merits separate discussion.

* The Court acknowledges that under the Fourteenth Amendment "respondent possesses a significant liberty interest in avoiding the unwanted administration of antipsychotic drugs," ante, at 221, but then virtually ignores the several dimensions of that liberty. They are both physical and intellectual. Every violation of a person's bodily integrity is an invasion of his or her liberty. The invasion is particularly intrusive if it creates a substantial risk of permanent injury and premature death. Moreover, any such action is degrading if it overrides a competent person's choice to reject a specific form of medical treatment. And when the purpose or effect of forced drugging is to alter the will and the mind of the subject, it constitutes a deprivation of liberty in the most literal and fundamental sense.

"The makers of our Constitution undertook to secure     conditions favorable to the pursuit of happiness.  They      recognized the significance of man's spiritual nature, of his      feelings and of his intellect.  They knew that only a part of      the pain, pleasure and satisfactions of life are to be found      in material things.  They sought to protect Americans in      their beliefs, their thoughts, their emotions and their      sensations.  They conferred, as against the Government, the      right to be let alone-the most comprehensive of rights and      the right most valued by civilized men." Olmstead v. United     States, 277 U.S. 438, 478, 48 S.Ct. 564, 572, 72 L.Ed. 944     (1928) (Brandeis, J., dissenting).

The liberty of citizens to resist the administration of mind altering drugs arises from our Nation's most basic values. The record of one of Walter Harper's involuntary medication hearings at the Special Offense Center (SOC) notes: "Inmate Harper stated he would rather die th[a]n take medication." That Harper would be so opposed to taking psychotropic drugs is not surprising: as the Court acknowledges, these drugs both "alter the chemical balance in a patient's brain" and can cause irreversible and fatal side effects. The prolixin injections that Harper was receiving at the time of his statement exemplify the intrusiveness of psychotropic drugs on a person's body and mind. Prolixin acts "at all levels of the central nervous system as well as on multiple organ systems." It can induce catatonic-like states, alter electroencephalographic tracings, and cause swelling of the brain. Adverse reactions include drowsiness, excitement, restlessness, bizarre dreams, hypertension, nausea, vomiting, loss of appetite, salivation, dry mouth, perspiration, headache, constipation, blurred vision, impotency, eczema, jaundice, tremors, and muscle spasms. As with all psychotropic drugs, prolixin may cause tardive dyskinesia, an often irreversible syndrome of uncontrollable movements that can prevent a person from exercising basic functions such as driving an automobile, and neuroleptic malignant syndrome, which is 30% fatal for those who suffer from it. The risk of side effects increases over time.

The Washington Supreme Court properly equated the intrusiveness of this mind-altering drug treatment with electroconvulsive therapy or psychosurgery. It agreed with the Supreme Judicial Court of Massachusetts' determination that the drugs have a " 'profound effect' " on a person's " 'thought processes' " and a " 'well-established likelihood of severe and irreversible adverse side effects,' " and that they therefore should be treated " 'in the same manner we would treat psychosurgery or electroconvulsive therapy.' " 110 Wash.2d 873, 878, 759 P.2d 358, 362 (1988) (quoting In re Guardianship of Roe, 383 Mass. 415, 436-437, 421 N.E.2d 40, 53 (1981)). There is no doubt, as the State Supreme Court and other courts that have analyzed the issue have concluded, that a competent individual's right to refuse such medication is a fundamental liberty interest deserving the highest order of protection.

Arguably, any of three quite different state interests might be advanced to justify a deprivation of this liberty interest. The State might seek to compel Harper to submit to a mind-altering drug treatment program as punishment for the crime he committed in 1976, as a "cure" for his mental illness, or as a mechanism to maintain order in the prison. The Court today recognizes Harper's liberty interest only as against the first justification.

Forced administration of antipsychotic medication may not be used as a form of punishment. This conclusion follows inexorably from our holding in Vitek v. Jones, 445 U.S. 480, 100 S.Ct. 1254, 63 L.Ed.2d 552 (1980), that the Constitution provides a convicted felon the protection of due process against an involuntary transfer from the prison population to a mental hospital for psychiatric treatment. We explained: "Appellants maintain that the transfer of a prisoner to     a mental hospital is within the range of confinement      justified by imposition of a prison sentence, at least after      certification by a qualified person that a prisoner suffers      from a mental disease or defect.  We cannot agree.  None of      our decisions holds that conviction for a crime entitles a      State not only to confine the convicted person but also to      determine that he has a mental illness and to subject him      involuntarily to institutional care in a mental hospital.      Such consequences visited on the prisoner are qualitatively      different from the punishment characteristically suffered by      a person convicted of crime.  Our cases recognize as much and      reflect an understanding that involuntary commitment to a      mental hospital is not within the range of conditions of      confinement to which a prison sentence subjects an      individual. Baxstrom v. Herold, 383 U.S. 107, 86 S.Ct. 760,     15 L.Ed.2d 620 (1966);  Specht v. Patterson, 386 U.S. 605, 87      S.Ct. 1209, 18 L.Ed.2d 326 (1967); Humphrey v. Cady, 405      U.S. 504, 92 S.Ct. 1048, 31 L.Ed.2d 394 (1972); Jackson v.      Indiana, 406 U.S. 715, 724-725, 92 S.Ct. 1845, 1851-1852, 32     L.Ed.2d 435 (1972). A criminal conviction and sentence of     imprisonment extinguish an individual's right to freedom from      confinement for the term of his sentence, but they do not      authorize the State to classify him as mentally ill and to      subject him to involuntary psychiatric treatment without      affording him additional due process protections."  Id., 445      U.S., at 493-494, 100 S.Ct., at 1264.

The Court does not suggest that psychotropic drugs, any more than transfer for medical treatment, may be forced on prisoners as a necessary condition of their incarceration or as a disciplinary measure. Rather, it holds:

"[G]iven the requirements of the prison environment, the Due     Process Clause permits the State to treat a prison inmate who      has a serious mental illness with antipsychotic drugs against      his will, if the inmate is dangerous to himself or others and      the treatment is in the inmate's medical interest.  Policy      600.30 comports with these requirements;  we therefore reject respondent's      contention that its substantive standards are deficient under      the Constitution." Ante, at 227 (emphasis added).

Crucial to the Court's exposition of this substantive due process standard is the condition that these drugs "may be administered for no purpose other than treatment," and that "the treatment in question will be ordered only if it is in the prisoner's medical interests, given the legitimate needs of his institutional confinement." Ante, at 226, 222. Thus, although the Court does not find, as Harper urges, an absolute liberty interest of a competent person to refuse psychotropic drugs, it does recognize that the substantive protections of the Due Process Clause limit the forced administration of psychotropic drugs to all but those inmates whose medical interests would be advanced by such treatment.

Under this standard the Court upholds SOC Policy 600.30, determining that this administrative scheme confers, as a matter of state law, a substantive liberty interest coextensive with that conferred by the Due Process Clause. Ante, at 221-222, 227. Whether or not the State's alleged interest in providing medically beneficial treatment to those in its custody who are mentally ill may alone override the refusal of psychotropic drugs by a presumptively competent person, a plain reading of Policy 600.30 reveals that it does not meet the substantive standard set forth by the Court. Even on the Court's terms, the Policy is constitutionally insufficient.

Policy 600.30 permits forced administration of psychotropic drugs on a mentally ill inmate based purely on the impact that his disorder has on the security of the prison environment. The provisions of the Policy make no reference to any expected benefit to the inmate's medical condition. Policy 600.30 requires:

"In order for involuntary medication to be approved, it must     be demonstrated that the inmate suffers from a mental      disorder and as a result of that disorder constitutes a      likelihood of serious harm to himself or others and/or is gravely disabled." Lodging, Book 9, Policy 600.30,     p. 1.

"Likelihood of serious harm," according to the Policy,

"means either (i) A substantial risk that physical harm will     be inflicted by an individual upon his own person, as      evidenced by threats or attempts to commit suicide or inflict      physical harm on one's self, (ii) a substantial risk that      physical harm will be inflicted by an individual upon another      as evidenced by behavior which has caused such harm or which      places another person or persons in reasonable fear of      sustaining such harm, or (iii) a substantial risk that      physical harm will be inflicted by an individual upon the      property of others as evidenced by behavior which has caused      substantial loss or damage to the property of others."

Thus, the Policy authorizes long-term involuntary medication not only of any mentally ill inmate who, as a result of a mental disorder, appears to present a future risk to himself, but also of an inmate who presents a future risk to other people or mere property.

Although any application of Policy 600.30 requires a medical judgment as to a prisoner's mental condition and the cause of his behavior, the Policy does not require a determination that forced medication would advance his medical interest. Use of psychotropic drugs, the State readily admits, serves to ease the institutional and administrative burdens of maintaining prison security and provides a means of managing an unruly prison population and preventing property damage. By focusing on the risk that the inmate's mental condition poses to other people and property, the Policy allows the State to exercise either parens patriae authority or police authority to override a prisoner's liberty interest in refusing psychotropic drugs. Thus, most unfortunately, there is simply no basis for the Court's assertion that medication under the Policy must be to advance the prisoner's medical interest.

Policy 600.30 sweepingly sacrifices the inmate's substantive liberty interest to refuse psychotropic drugs, regardless of his medical interests, to institutional and administrative concerns. The State clearly has a legitimate interest in prison security and administrative convenience that encompasses responding to potential risks to persons and property. However, to the extent that the Court recognizes "both the prisoner's medical interests and the State's interests" as potentially independent justifications for involuntary medication of inmates, it seriously misapplies the standard announced in Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987). In Turner, we held that a prison regulation that impinges on inmates' constitutional rights is valid "if it is reasonably related to legitimate penological interests." Id., at 89, 107 S.Ct., at 2261. Under this test, we determined that a regulation barring inmate-to-inmate correspondence was adequately supported by the State's institutional security concerns. Id., at 93, 107 S.Ct., at 2263-64. We also unanimously concluded that a regulation prohibiting inmate marriage, except with consent of the prison superintendent made upon proof of compelling circumstances, was an "exaggerated response" to the prison's claimed security objectives and was not reasonably related to its articulated rehabilitation goal. Id., at 97-98, 107 S.Ct., at 2266.

The State advances security concerns as a justification for forced medication in two distinct circumstances. A SOC Policy provision not at issue in this case permits 72 hours of involuntary medication on an emergency basis when "an inmate is suffering from a mental disorder and as a result of that disorder presents an imminent likelihood of serious harm to himself or others." Lodging, Book 9, Policy 600.30, p. 2 (emphasis added). In contrast to the imminent danger of injury that triggers the emergency medication provisions, a general risk of illness-induced injury or property damage-evidenced by no more than past behavior allows long-term, involuntary medication of an inmate with psychotropic drugs under Policy 600.30. This ongoing interest in security and management is a penological concern of a constitutionally distinct magnitude from the necessity of responding to emergencies. See Whitley v. Albers, 475 U.S. 312, 321-322, 106 S.Ct. 1078, 1085-1086, 89 L.Ed.2d 251 (1986). It is difficult to imagine what, if any, limits would restrain such a general concern of prison administrators who believe that prison environments are, " 'by definition,' . . . made up of persons with 'a demonstrated proclivity for antisocial criminal, and often violent, conduct.' " Ante, at 225 (quoting Hudson v. Palmer, 468 U.S. 517, 526, 104 S.Ct. 3194, 3200, 82 L.Ed.2d 393 (1984)). A rule that allows prison administrators to address potential security risks by forcing psychotropic drugs on mentally ill inmates for prolonged periods is unquestionably an "exaggerated response" to that concern.

In Turner we concluded on the record before us that the marriage "regulation, as written, [was] not reasonably related to . . . penological interests," and that there were "obvious, easy alternatives" that the State failed to rebut by reference to the record. 482 U.S., at 97-98, 107 S.Ct., at 2266. Today the Court concludes that alternatives to psychotropic drugs would impose more than de minimis costs on the State. However, the record before us does not establish that a more narrowly drawn policy withdrawing psychotropics from only those inmates who actually refuse consent and who do not pose an imminent threat of serious harm would increase the marginal costs of SOC administration. Harper's own record reveals that administrative segregation and standard disciplinary sanctions were frequently imposed on him over and above forced medication and thus would add no new costs. Lodging, Book 1. Similarly, intramuscular injections of psychotropics, such as those frequently forced on Harper, id., Book 7, entail no greater risk than administration of less dangerous drugs such as tranquilizers. Use of psychotropic drugs simply to suppress an inmate's potential violence, rather than to achieve therapeutic results, may also undermine the efficacy of other available treatment programs that would better address his illness.

The Court's careful differentiation in Turner between the State's articulated goals of security and rehabilitation should be emulated in this case. The flaw in Washington's Policy 600.30-and the basic error in the Court's opinion today-is the failure to divorce from each other the two justifications for forced medication and to consider the extent to which the Policy is reasonably related to either interest. The State, and arguably the Court, allows the SOC to blend the state interests in responding to emergencies and in convenient prison administration with the individual's interest in receiving beneficial medical treatment. The result is a muddled rationale that allows the "exaggerated response" of forced psychotropic medication on the basis of purely institutional concerns. So serving institutional convenience eviscerates the inmate's substantive liberty interest in the integrity of his body and mind.

The procedures of Policy 600.30 are also constitutionally deficient. Whether or not the State ever may order involuntary administration of psychotropic drugs to a mentally ill person who has been committed to its custody but has not been declared incompetent, it is at least clear that any decision approving such drugs must be made by an impartial professional concerned not with institutional interests, but only with the individual's best interests. The critical defect in Policy 600.30 is the failure to have the treatment decision made or reviewed by an impartial person or tribunal. See Vitek, 445 U.S., at 495, 100 S.Ct., at 1264-65.

The psychiatrists who diagnose and provide routine care to SOC inmates may prescribe psychotropic drugs and recommend involuntary medication under Policy 600.30. The Policy provides that a nonemergency decision to medicate for up to seven consecutive days must be approved by a special committee after a hearing. The committee consists of the Associate Superintendent of SOC, a psychologist, and a psychiatrist. Neither of the medical professionals may be involved in the current diagnosis or treatment of the inmate. The approval of the psychiatrist and one other committee member is required to sustain a 7-day involuntary medication decision. Lodging, Book 9, Policy 600.30, p. 2, § 3.B. A similarly composed committee is required to authorize "long term" involuntary medication lasting over seven days. Policy 600.30 does not bar current treating professionals or previous committee members from serving on the long-term committee. This committee does not conduct a new hearing, but merely reviews the inmate's file and minutes of the 7-day hearing. Long-term approval, if granted, allows medication to continue indefinitely with a review and report by the treating psychiatrist every 14 days. Id., Book 9, Policy 600.30, p. 2, § 3.C.

These decisionmakers have two disqualifying conflicts of interest. First, the panel members must review the work of treating physicians who are their colleagues and who, in turn, regularly review their decisions. Such an in-house system pits the interests of an inmate who objects to forced medication against the judgment not only of his doctor, but often his doctor's colleagues. Furthermore, the Court's conclusion that "[n]one of the hearing committee members may be involved in the inmate's current treatment or diagnosis," ante, at 233, overlooks the fact that Policy 600.30 allows a treating psychiatrist to participate in all but the initial 7-day medication approval. This revolving door operated in Harper's case. Dr. Petrich treated Harper through 1982 and recommended involuntary medication on October 27, 1982. Lodging, Book 8, Oct. 27, 1982. Dr. Loeken, staff psychologist Giles, and Assistant Superintendent Stark authorized medication for seven days after a 600.30 hearing on November 23, 1982. Dr. Petrich then replaced Dr. Loeken on the committee, and with Giles and Stark approved long-term involuntary medication on December 8, 1982. Solely under this authority, Dr. Petrich prescribed more psychotropic medication for Harper on December 8, 1982, and throughout the following year.

Second, the panel members, as regular staff of the Center, must be concerned not only with the inmate's best medical interests, but also with the most convenient means of controlling the mentally disturbed inmate. The mere fact that a decision is made by a doctor does not make it "certain that professional judgment in fact was exercised." Youngberg v. Romeo, 457 U.S. 307, 321, 102 S.Ct. 2452, 2461, 73 L.Ed.2d 28 (1982). The structure of the SOC committee virtually ensures that it will not be. While the initial inquiry into the mental bases for an inmate's behavior is medical, the ultimate medication decision under Policy 600.30 turns on an assessment of the risk that an inmate's condition imposes on the institution. The prescribing physician and each member of the review committee must therefore wear two hats. This hybrid function disables the independent exercise of each decisionmaker's professional judgment. The structure of the review committee further confuses the objective of the inquiry; two of the committee members are not trained or licensed to prescribe psychotropic drugs, and one has no medical expertise at all. The trump by institutional interests is dramatized by the fact that appeals of committee decisions under the Policy are made solely to the SOC Superintendent.

The Court asserts that "[t]here is no indication that any institutional biases affected or altered the decision to medicate respondent against his will" and that there is no evidence that "antipsychotic drugs were prescribed not for medical purposes, but to control or discipline mentally ill patients." Ante, at 233, and 234, and n. 13. A finding of bias in an individual case is unnecessary to determine that the structure of Policy 600.30 fails to meet the due process requirements of the Fourteenth Amendment. In addition, Harper's own record illustrates the potential abuse of psychotropics under Policy 600.30 for institutional ends. For example, Dr. Petrich added Taractan, a psychotropic drug, to Harper's medication around October 27, 1982, noting: "The goal of the increased medication to sedate him at night and relieve the residents and evening [sic] alike of the burden of supervising him as intensely." A 1983 examination by non-SOC physicians also indicated that Harper was prophylactically medicated absent symptoms that would qualify him for involuntary medication.

The institutional bias that is inherent in the identity of the decisionmakers is unchecked by other aspects of Policy 600.30. The committee need not consider whether less intrusive procedures would be effective, or even if the prescribed medication would be beneficial to the prisoner, before approving involuntary medication. Findings regarding the severity or the probability of potential side effects of drugs and dosages are not required. And, although the Policy does not prescribe a standard of proof necessary for any factual determination upon which a medication decision rests, the Court gratuitously advises that the "clear, cogent, and convincing" standard adopted by the State Supreme Court would be unnecessary.

Nor is the 600.30 hearing likely to raise these issues fairly and completely. An inmate recommended for involuntary medication is no more capable of " 'speaking effectively for himself' " on these "issues which are 'complex or otherwise difficult to develop or present' " than an inmate recommended for transfer to a mental hospital. Vitek, 445 U.S., at 498, 100 S.Ct., at 1266-67 (Powell, J., concurring in part). Although single doses of some psychotropic drugs are designed to be effective for a full month, the inmate may not refuse the very medication he is contesting until 24 hours before his hearing. Policy 600.30 also does not allow the inmate to be represented by counsel at hearings, but only to have present an adviser, who is appointed by the SOC. Lodging, Book 9, Policy 600.30, pp. 3-4. These advisers, of questionable loyalties and efficacy, cannot provide the "independent assistance" required for an inmate fairly to understand and participate in the hearing process. 445 U.S., at 498, 100 S.Ct., at 1266-67. In addition, although the Policy gives the inmate a "limitable right to present testimony through his own witnesses and to confront and cross-examine witnesses," in the next paragraph it takes that right away for reasons that "include, but are not limited to such things as irrelevance, lack of necessity, redundancy, possible reprisals, or other reasons relating to institutional interests of security, order, and rehabilitation." Lodging, Book 9, Policy 600.30, p. 3. Finally, because Policy 600.30 provides a hearing only for the 7-day committee, and just a paper record for the long-term committee, the inmate has no opportunity at all to present his objections to the more crucial decision to medicate him on a long-term basis.

In sum, it is difficult to imagine how a committee convened under Policy 660.30 could conceivably discover, much less be persuaded to overrule, an erroneous or arbitrary decision to medicate or to maintain a specific dosage or type of drug. See Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976). Institutional control infects the decisionmakers and the entire procedure. The state courts that have reviewed comparable procedures have uniformly concluded that they do not adequately protect the significant liberty interest implicated by the forced administration of psychotropic drugs. I agree with that conclusion. Although a review procedure administered by impartial, nonjudicial professionals might avoid the constitutional deficiencies in Policy 600.30, I would affirm the decision of the Washington Supreme Court requiring a judicial hearing, with its attendant procedural safeguards, as a remedy in this case.

I continue to believe that "even the inmate retains an unalienable interest in liberty-at the very minimum the right to be treated with dignity-which the Constitution may never ignore." Meachum v. Fano, 427 U.S. 215, 233, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976) (dissenting opinion). A competent individual's right to refuse psychotropic medication is an aspect of liberty requiring the highest order of protection under the Fourteenth Amendment. Accordingly, with the exception of Part II, I respectfully dissent from the Court's opinion and judgment.