Appellate Court Procedural Rules Committee

Pennsylvania Judicial Center

601 Commonwealth Avenue, Suite 6200

PO Box 62635

Harrisburg, PA 17106

 

Criminal Procedural Rules Committee

Pennsylvania Judicial Center

601 Commonwealth Avenue, Suite 6200

PO Box 62635

Harrisburg, PA 17106

 

Via Facsimile: (717) 231-9556 and  (717) 231-9521

Via E-mail: appellaterules@pacourts.us

Re: Proposed recommendations for additions and amendments to the Rules of Criminal Procedure relevant to the competency of persons to be executed

 

Dear Members of the Committee:

Human Rights Watch submits this comment to the proposed recommendations from the Committee for additions and amendments to the Rules of Criminal Procedure (RCP) relating to the competence of persons to be executed. Specifically, this comment addresses the proposed recommendations relating to RCPs 861 and 862.

Human Rights Watch is the largest international human rights organization based in the United States. We monitor compliance with human rights standards in more than 80 countries around the world, including the U.S., where we regularly report on conditions that fail to meet this country's obligations under international human rights law. In our view, the Committee's proposed recommendations for additions and amendments to RCPs 861 and 862 are not consistent with international rights and protections guaranteed to persons in prison and persons with disabilities. [i] Specifically, the proposed provisions insufficiently protect defendants from forced medical or psychiatric treatment without their consent. The provisions also raise serious questions of medical ethics for medical and mental health personnel who may be subject to an order of the court to administer treatment without consent.

Proposed RCP 861, paragraph (e) (3) provides that if the defendant is determined incompetent to be executed, "the judge shall order that the defendant receive appropriate mental health treatment." (emphasis added) 

Proposed RCP 862 (A) provides that following a determination that the defendant is incompetent to be executed, the Department of Corrections treating psychiatrist and any other mental health expert "shall monitor the defendant's competency to be executed." RCP 862 (B) provides that every six months these experts shall issue a written report to the judge on "defendants' progress toward competency restoration."

If enacted, these new rules would require the court to order mental health professionals to treat defendants without their consent for the purpose of restoring them to competence for execution. Although the Committee notes on page 59 that they have chosen not to include a requirement that the defendant be forced to take psychiatric medication, the inclusion of the word "shall" in RCP 861 indicates otherwise and is wholly insufficient to protect against this interpretation of the rule.

The scenario of forced mental health treatment and ongoing monitoring set forth in RCPs 861 and 862 is problematic under human rights law in several respects. First, the right to make decisions about personal life and health based on informed consent is a bedrock principle of medical ethics and an integral part of international human rights law. [ii] This right is not forfeited upon entry to prison or conviction of a capital offense[iii] nor is it forfeited by persons with disabilities. [iv] Indeed, a recent report by the United Nations Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment addresses the practice of involuntary medication for persons with disabilities:

Whereas a fully justified medical treatment may lead to severe pain or suffering, medical treatment of an intrusive and irreversible nature, when they lack a therapeutic purpose, or aim at correcting or alleviating a disability, may constitute torture and ill-treatment if enforced or administered without the free and informed consent of the person concerned. [v]

The procedures contemplated in RCPs 861 and 862 not only lack a therapeutic purpose but are expressly designed to permit the state to take the life of the person whose right to consent has been violated. This perverse action by the State is unacceptable under human rights standards and is inconsistent with the fundamental principle of medical ethics to "do no harm." [vi] Violation of the right of consent to medical or mental health care for the purpose of rendering a person competent for execution is incompatible with human rights treaties ratified by the United States that prohibit torture, cruel and inhuman or degrading treatment or punishment. [vii] Moreover, as a signatory to the Convention on the Rights of Persons with Disabilities, the United States has an obligation to refrain from actions that undermine the intent and purpose of the treaty. Central to that treaty are the principles that persons with disabilities have the right to dignity, the right to free and informed consent and the right to accept or deny medical and mental health services.[viii]

For these reasons, Human Rights Watch urges the Committee to reconsider its recommendations for additions and amendments to RCPs 861 and 862. We appreciate the opportunity to submit comments. If you require additional information or would like to discuss these issues further please do not hesitate to contact us.

 

Sincerely,

Megan McLemore, J.D.,L.L.M.

Senior Researcher

 

Shantha Rau Barriga

Disability Rights Researcher/Advocate

Health and Human Rights Division

Human Rights Watch


[i] The limitation of this comment to RCP 861 and 862 does not imply an endorsement by Human Rights Watch of other recommendations set forth by the Committee in relation to determinations of competence for execution, other procedures related to the rights of defendants convicted of capital offenses in the state of Pennsylvania, or the death penalty itself.

[ii] International Covenant  on Civil and Political Rights (ICCPR), adopted December 16, 1966, G.A. Res. 2200A (XXI), 21 GAOR Supp. (No. 16) at 52, UN Doc. A/6316 (1966), 999 UNTS 171, entered into force March 23, 1976, ratified by the U.S. on June 8, 1992, article 12; International Covenant on Economic, Social and Cultural Rights (ICESCR),adopted December 16, 1966, G.A. Res. 2200A (XXI), 21 UN GAOR (no. 16) at 49, UN Doc. A/ 6316 (1966), 99 UNTS 3,art. 12, entered into force January 3, 1976, signed by the US on October 5, 1977;  Convention on the Rights of Persons with Disabilities (CRPD) adopted December 13, 2006, UN DOC A/61/611, entered into force May 3, 2008, signed by the United States on July 30, 2009; Committee on Economic, Social and Cultural Righs, General Comment No. 14, The Right to the Highest Attainable Standard of Health, UN Doc. E/C.12/2000/4, adopted August 11, 2000, para.34;United Nations Educational, Scientific, and Cultural Organization (UNESCO), Universal Declaration on Bioethics and Human Rights, adopted October 2005, SHS/EST/05/CONF.204/3 REV, arts. 6and 9.

[iii] UN Committee on Human Rights, General Comment 21, Article 10, Humane Treatment of Prisoners Deprived of their Liberty, UN Doc. HRI/Gen/Rev.1 at 33 (1994), para. 3. 

[iv] CRPD, Articles 3,12,25; Interim Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, UN Doc A/63/75, 28 July 2008, paras. 40-44.

[v] Interim Report, para. 47.

[vi] J. Metzner and J. Fellner, "Solitary Confinement and Mental Illness in US Prisons: A Challenge for Medical Ethics", Journal of the American Academy of Psychiatry and the Law, 38: 104-8, 2010.

[vii] ICCPR, articles 7,10;  Convention against Torture and other Cruel Inhuman or Degrading Treatment or Punishment (CAT), adopted December 10, 1984, G.A. Res. 39/46, annex, 39 UN GAOR Supp. (no. 51) at 197, UN Doc A/39/51 (1984), entered into force June 26, 1987, ratified by the U.S. on October 14, 1994.

[viii] CRPD, Articles 3, 12, 25