                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 00-1492
                                    ___________

Charles Laverne Singleton,                *
                                          *
            Appellant,                    *
                                          *   Appeal From the United States
            v.                            *   District Court for the
                                          *   Eastern District of Arkansas.
Larry Norris, Director, Arkansas          *
Department of Correction,                 *
                                          *
             Appellee.                    *


                             Submitted: March 7, 2001

                                   Filed: October 12, 2001


Before WOLLMAN, Chief Judge, HEANEY and BRIGHT, Circuit Judges.


HEANEY, Circuit Judge.

       Charles Laverne Singleton appeals the district court’s order denying his
petition for a stay of execution. We reverse and remand to the district court with
directions to grant Singleton’s petition, enter a permanent stay of execution, and
reduce Singleton’s sentence to life imprisonment without the possibility of parole.
                                 I. BACKGROUND

A. Procedural History From 1979-2000

       Singleton, a black male, was convicted in Arkansas state court in 1979 of the
capital felony murder of Mary Lou York, a white female, and of aggravated robbery.
He was sentenced to death for the murder and to life imprisonment for the robbery.
Singleton’s conviction and sentence for capital felony murder were affirmed by the
Arkansas Supreme Court in November 1981, but the aggravated robbery conviction
and sentence were vacated on double jeopardy grounds. Singleton v. State, 623
S.W.2d 180 (Ark. 1981). Singleton unsuccessfully sought post-conviction relief
under Arkansas Rule of Criminal Procedure 37, and the United States Supreme Court
denied certiorari. Singleton v. Arkansas, 459 U.S. 882 (1982). Arkansas later set an
execution date of June 4, 1982, and the Arkansas Supreme Court denied Singleton’s
request for a stay.

       Singleton promptly filed a motion for a stay of execution in the United States
District Court for the Eastern District of Arkansas, claiming, inter alia, that (1) he was
not competent to be executed under Ford v. Wainwright, 477 U.S. 399 (1986); (2)
he was denied his constitutional right to a jury selected from a venire representing a
fair cross-section of the community where he was tried; and (3) he was denied his
constitutional right to effective assistance of counsel. On June 1, 1982, the district
court granted a stay of execution. After an evidentiary hearing, the district court
granted Singleton’s petition for a writ of habeas corpus, holding that Singleton’s
death sentence was invalid under the Eighth Amendment because the State had relied
on an invalid aggravating factor, namely, that Singleton had acted for pecuniary gain.
Citing Collins v. Lockhart, 754 F.2d 258 (8th Cir. 1985), the court held that pecuniary
gain was not a valid aggravating factor because it was also an element of the robbery-
murder charge. The district court sustained the conviction, prohibited the State from
retrying the penalty phase of Singleton’s case, and required the State to reduce his

                                           -2-
sentence to life without parole. Singleton v. Lockhart, 653 F. Supp. 1114, 1144 (E.D.
Ark. 1986).

       Both Singleton and the State appealed from the district court’s order. Singleton
raised the issues that had been decided adversely to him in the district court, including
the Ford claim. The State argued the district court erred in retroactively applying
Collins and prohibiting the State from retrying the penalty phase of Singleton’s trial.
This court affirmed the district court’s ruling upholding the conviction but reinstated
the death sentence, holding that Collins had been overruled by a subsequent decision
of this court.1 Because the district court did not reach the merits of Singleton’s Ford
claim, we did not address the issue. Singleton v. Lockhart, 871 F.2d 1395 (8th Cir.),
cert. denied, 493 U.S. 874 (1989).

       On remand, Singleton challenged the reinstatement of the death sentence and
raised other issues. On July 12, 1990, the district court dismissed Singleton’s petition
and dissolved the stay of execution. Singleton v. Lockhart, No. 82-165, slip op.
(E.D. Ark. July 12, 1990). Singleton appealed, arguing he received ineffective
assistance of counsel during the penalty phase of his trial, and the Arkansas death
penalty statute was unconstitutional. We affirmed the district court’s denial of
Singleton’s petition. Singleton v. Lockhart, 962 F.2d 1315 (8th Cir.), cert. denied,
506 U.S. 964 (1992).

      In December 1992, Singleton filed an action in state court claiming he was
incompetent to be executed, citing the Arkansas Constitution and Ford. He requested
an order that the State cease administration of antipsychotic drugs and conduct a
psychiatric examination in accordance with Ford. Singleton also sought a declaratory
judgment that he was not competent to be executed and that Arkansas violated his


      1
      Perry v. Lockhart, 871 F.2d 1384, 1393 (8th Cir. 1989) (holding that Collins
was implicitly overruled by Lowenfeld v. Phelps, 484 U.S. 231 (1988)).

                                          -3-
rights by medicating him to make him appear competent. The state court concluded
that Singleton had satisfied state exhaustion requirements by seeking an evaluation
of his mental condition pursuant to Ark. Code Ann. § 16-90-506(d)(1) (Supp. 1999),2
but denied his motion. On appeal, the Arkansas Supreme Court held that § 16-90-
506(d)(1) was not unconstitutional and that Singleton had not been improperly denied
a competency examination. The court noted that Singleton sought the same relief in
a pending federal habeas petition. See Singleton v. Endell, 870 S.W.2d 742 (Ark.
1994), cert. denied, 513 U.S. 960 (1994).

      Singleton filed the 28 U.S.C. § 2254 petition referred to by the Arkansas
Supreme Court in 1993, raising claims of double counting, actual innocence, and
Ford incompetency. The district court held Singleton’s petition in abeyance while the


      2
          The relevant portions of § 16-90-506(d)(1)(B) provide:

             (d)(1) When the Director of the Department of Correction is
      satisfied that there are reasonable grounds for believing that an
      individual under sentence of death is not competent, due to mental
      illness, to understand the nature and reasons for that punishment, the
      director shall notify the Deputy Director of the Division of Mental
      Health Services of the Department of Human Services. The Director of
      the Department of Correction shall also notify the Governor of this
      action. The Division of Mental Health Services shall cause an inquiry
      to be made into the mental condition of the individual within thirty (30)
      days of receipt of notification. The attorney of record of the individual
      shall also be notified of this action, and reasonable allowance will be
      made for an independent mental health evaluation to be made. . . .

               ....

             (B) If the individual is found incompetent due to mental illness,
      the Governor shall order that appropriate mental health treatment be
      provided. The director may order a reevaluation of the competency of
      the individual as circumstances may warrant.

                                          -4-
state court litigation proceeded. After the Arkansas Supreme Court handed down its
decision in 1994, the district court held two hearings on Singleton’s petition in May
and July 1995. Thereafter, the district court dismissed his petition, concluding that
Singleton–who was at that time voluntarily taking antipsychotic medication–was
competent to be executed. It also rejected his double-counting and actual-innocence
claims. Singleton appealed the district court’s decision with regard to the double-
counting claim. Although Singleton raised the possibility that he might have a claim
of incompetency in the future, he conceded he had no support for such a claim at that
time because he was voluntarily taking his antipsychotic medication and was
competent while medicated. Singleton did not appeal the denial of his actual-
innocence claim. We affirmed the district court, stating:

      Singleton makes no claim that he is currently incompetent to be
      executed. Accordingly, the district court’s ruling on that stands
      unchallenged and is thus affirmed. Our ruling on this issue does not
      foreclose Singleton from raising a future claim of incompetence based
      upon conditions different from those that led to the district court’s ruling
      in the present case, subject, of course, to whatever procedural objections
      the State may raise to such a claim.

Singleton v. Norris, 108 F.3d 872, 874 (8th Cir.), cert. denied, 522 U.S. 840 (1997).

B. Singleton’s Medical History From 1979-2000

       Singleton has spent much of his time in prison on psychotropic medication.
Shortly after Singleton entered prison, the State placed him on medication primarily
to control his anxiety and depression and to help him sleep. In 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, that
his thoughts were taken from him when he read the Bible, and that other inmates
knew what he was reading. He also lost a good deal of weight. Singleton’s


                                          -5-
psychiatrist, Dr. W. R. Oglesby, believed Singleton was schizophrenic3 and placed
him on antipsychotic medication. Singleton’s condition improved, but in October
1987, Singleton refused to take his medication, and Oglesby ordered that he be
involuntarily medicated.

       Singleton remained involuntarily medicated until June 1988. At that point,
Oglesby noted an improvement in Singleton’s condition and discontinued his
medication. Singleton’s psychosis did not stay in remission for long, however, and
by October of that year, Singleton was again delusional and experiencing visual and
auditory hallucinations. Oglesby ordered Singleton involuntarily medicated, which
continued until June 1991, when Oglesby discontinued the medication “to see how
long [Singleton] could go without having any further mental symptoms.” (Mrad
Report of 8/14/00, at 7.) Within five months, Singleton was delusional and stripping
off his clothes, talking loudly, and accusing the prison staff of using “subliminal
suggestions” on him. (Id.) Once again, the State placed Singleton on an involuntary
medication regime.

        The State continued to involuntarily medicate Singleton from November 1991
to March 1995. Nevertheless, in June and July 1993, Singleton complained of seeing
his food turn into worms and his cigarettes turn into bones, and asked to be castrated
for religious reasons. The response was to increase his antipsychotic medication, and
by the end of July, he was no longer experiencing hallucinations.

       In response to Singleton’s 1993 federal habeas petition and with the agreement
of the parties, the district court entered an order directing that Singleton be sent to the
Federal Medical Center (FMC) in Springfield, Missouri in February and March 1995


      3
        Singleton was diagnosed as paranoid schizophrenic with anxiety as early as
August 1983. He was placed on antipsychotic medication, but the record does not
reflect the length of time he remained on the antipsychotic drugs.

                                           -6-
to determine whether he was competent to be executed and, if so, whether he would
remain competent if his medication was discontinued. The FMC’s clinical
psychiatrist, Dr. David Mrad, conducted the evaluation. He concluded that Singleton
was Ford competent to be executed, and that if the State discontinued Singleton’s
medication, he “might remain competent for some period of time without medication
before becoming psychotic.” (Mrad Report of 8/14/00, at 8.) Mrad could not,
however, determine exactly when that would be.

      Singleton returned to prison in March 1995 and was placed on a voluntary
medication regime until September 1996, when he asked to discontinue his
medication. A prison psychiatrist agreed. By April 1997, however, Singleton had
become withdrawn and unintelligible and had lost weight. Oglesby, believing
Singleton was psychotic, again prescribed medication, which the records indicate he
took only half the time. When Oglesby evaluated Singleton two months later, he
determined Singleton was not taking the medication. Notwithstanding this fact,
Oglesby did not place him on an involuntary medication regime because Singleton
did not appear delusional or a danger to himself or others.

       By the end of July 1997, Oglesby’s opinion had changed. Singleton told a
prison doctor that he was on a mission from God to kill Oglesby and the President,
and that this court and the United States Supreme Court had set him free. The doctor
also reported Singleton refused to take his medication. Singleton continued to display
eccentric behavior and expressed a belief that he was God and had been set free in
early August 1997. Oglesby believed Singleton was psychotic and recommended that
the prison’s Medication Review Panel evaluate Singleton so the State could medicate
him.

      Singleton continued to display eccentric behavior, indicating he believed he
was God and the Supreme Court. On August 13, the prison doctor reported that
Singleton had shredded his mattress and stuffed it in the toilet, sink, and air vents;

                                         -7-
Singleton was also not eating. On August 14, Oglesby opined that Singleton was
possibly suicidal and a danger to himself and the security of the prison. On
August 15, Singleton flooded his cell.

        The Medication Review Panel held a hearing on August 18. At the hearing,
Singleton told the panel that he did not want to take medication and that he had
consented to taking his medication in the past only to avoid a fight with the prison.
Singleton also told the panel that his sentence had been overturned, that the State was
holding him illegally, and that there was a conspiracy to execute him. After
considering Singleton’s history and demeanor, as well as his weight loss and refusal
to eat, the panel concluded that “some of [Singleton’s] behavior during the interview
suggest[ed] he could represent a danger to others” and that “[h]is ongoing weight loss
and reported refusal to eat could [have] pose[d] a threat to his well being.”
(Appellant’s App. at 63.) The panel unanimously agreed to involuntarily medicate
Singleton.

       Oglesby immediately placed Singleton on an involuntary medication regime.
For the next two months Singleton remained delusional and continued to believe his
sentence had been overturned; however, his mood improved, he was eating more, and
he was not hostile or aggressive. Oglesby’s November and December 1997
evaluations indicate that Singleton’s psychosis was in remission except for a period
in early December when Singleton experienced visual hallucinations.

      On the scant record before this court, it appears that under involuntary
medication Singleton’s mental condition slowly improved over the next thirteen
months. Although Singleton had problems sleeping and was restless and nervous, he
did not have a psychotic episode until February 1999, when the prison staff reported
he was withdrawn and had an exaggerated speech pattern. Singleton’s medication
was increased, but he reported hearing voices and was aggressive toward the staff in



                                         -8-
April 1999. Oglesby gave Singleton additional medication, and by August 1999, he
believed Singleton’s psychosis was in remission.

C. Current Litigation

       It appears Singleton’s psychosis remained in remission into January 2000.
Sometime during that month, the State scheduled Singleton’s execution for March 1,
2000. On February 10, 2000, Singleton filed a pro se motion for the appointment of
counsel and a petition for permission to file a successive writ of habeas corpus with
this court; both were denied. Shortly thereafter, Singleton filed a petition pursuant
to 28 U.S.C. § 2241 arguing that Ford prevented the State from involuntarily
medicating him to achieve his competency and then executing him for his crimes.
The district court disagreed and denied his petition, stating:

      Mr. Singleton is presently being involuntarily medicated in accordance
      with the substantive and procedural requirements of the law. As this
      Court said in 1995, it does not have authority to order Mr. Singleton off
      of his medically prescribed drugs. To do so would be contrary to his
      medical best interests. And the Court concludes that under the law there
      is no need to order the defendant to stop medicating him. Why?
      Because the current law only prohibits medicating an incompetent death
      row inmate when the sole purpose is to make him competent so that the
      State can execute him. . . . There’s no evidence in this record that the
      actions and decisions of the medical personnel involved were in any
      degree motivated by the desire, purpose or intent to make Mr. Singleton
      competent so that he could be executed.

(Tr. of 2/16/00 Hr’g, at 94-95.)

       With the district court’s permission, Singleton appealed to this court and we
stayed his execution. On appeal, Singleton reargued the merits of his petition, but the
State refused to concede that Singleton would become Ford incompetent if he did not


                                         -9-
receive his medication. We determined that underlying the parties’ arguments were
two unanswered questions of fact. First, was Singleton Ford competent at the time
the State began to medicate him? Second, assuming medication rendered Singleton
Ford competent, if the State stopped involuntarily medicating him, would Singleton
regress into psychosis and become incompetent to be executed once the effects of his
medication had fully dissipated? To resolve these questions, we remanded the case
to the district court.

       Before the district court could respond to our order of remand, in March 2000,
Singleton’s counsel informed the court that Singleton had just discovered that the
State was no longer involuntarily medicating him. Apparently in January 2000, a
prison psychiatrist had decided not to return Singleton to the Medication Review
Panel for another involuntary medication order, but instead recommended allowing
Singleton to take his medication voluntarily. However, neither the psychiatrist nor
the panel informed Singleton of this change. The parties stipulated that Singleton had
received his medication in January, February, and March 2000, but that he had
refused to take his April 2000 medication once he learned he was no longer required
to take it. He did, however, receive his May 2000 injection. Nevertheless, we
directed the district court to comply with our order of remand. With the parties’
consent, the district court returned Singleton to the FMC for an evaluation designed
to answer the questions posed by our order of remand.

      Singleton remained at the FMC from June 29 to August 14, 2000 and was
evaluated by Mrad. Singleton told Mrad that he experienced hallucinations as early
as ages twelve and fourteen. His mother told him he needed to see a psychiatrist, but
instead Singleton used drugs and alcohol to feel better. Singleton also told Mrad that
he heard voices in 1978 telling him he could resurrect his deceased brother and sister




                                        -10-
if he had “incest with the family” and that he heard a voice just days before the
murder telling him he was going to go to prison.4 (Mrad Report of 8/14/00, at 4.)


      4
          We detailed Singleton’s medical history in a previous opinion:

       Prior to trial, [Singleton’s counsel] requested that Singleton be given a
      psychiatric examination. Accordingly, Singleton was sent to the
      Arkansas State Hospital, where he was administered a battery of tests
      and was examined by a psychologist and a psychiatrist. The results of
      the tests and the examination revealed that Singleton has a full scale IQ
      of 83, which places him within the dull normal range of intellectual
      functioning. He appeared to be reading at nearly a seventh grade level.
      ...
      The examining psychiatrist’s report concluded that:

               It is the opinion of the examining psychiatrist that Charles Lavern
               Singleton is not mentally ill to the degree of legal irresponsibility
               at the time of this examination and probably was not at the time
               of the commission of the alleged offense.

               It is further the opinion of the examining psychiatrist that Mr.
               Singleton has the mental capacity to understand the proceedings
               aginist [sic] him and has the mental capacity to assist effectively
               in his own defense; and, that he was probably not suffering from
               mental disease or defect of such degree as to make him unable to
               appreciate the criminality of his conduct or to conform his
               conduct to the requirments [sic] of the law.

      The examining psychiatrist’s report showed Singleton’s diagnosis to be:
      “1) Without psychosis 2) Habitual Excessive Drinking 3) Antisocial
      Personality, Severe.”

Singleton v. Norris, 962 F.2d at 1318.

     The district court observed in its June 2, 1995 opinion that “Mr. Singleton’s
medical history and his own testimony suggest[ed] that he may have had mental

                                           -11-
     Turning to the question of whether Singleton was Ford competent prior to
August 1997, Mrad reported that Singleton’s medical records from that time indicated
he had not received medication for eleven months, was displaying psychotic
symptoms, and believed he was God and his conviction had been overturned by the
Supreme Court. Based on this, Mrad concluded:

      According to the Ford criteria, a prisoner must be aware of the
      punishment they are about to receive (execution) and the reason for it.
      Prior to his involuntary medication in August 1997, it appears Mr.
      Singleton was acutely psychotic and believed he was God. Given that
      belief, it is unlikely he is capable of frequently appreciating that he
      could be executed. Even more specifically, Mr. Singleton had
      frequently expressed the belief his sentence had been overturned and he
      had been set free by the Supreme Court. He further expressed the belief
      that he was being held as a result of a conspiracy in spite of that court
      mandate. If Mr. Singleton truly believed those delusional ideas, which
      is likely given his psychotic state at the time, then it does not appear he
      would have been able to appreciate the reason for his being executed at
      that time.

      Based on the above information, it is my opinion that in August 1997
      prior to the imposition of involuntary medication, Mr. Singleton was not
      competent to be executed under the Ford v. Wainwright criteria in that
      he was unable to appreciate that he was going to be executed and unable
      to appreciate the reason for the execution, believing that he was no
      longer being held for the robbery-murder of Mary Lou York, but as the
      result of a conspiracy to execute him.

 (Mrad Report of 8/14/00, at 14-15.)




problems, and even psychotic episodes, as early as age twelve.” Singleton v. Norris,
No. PB-C-93-425, slip op. at 8 (E.D. Ark. June 2, 1995).

                                         -12-
       In responding to the second question posed by our order of remand, Mrad
stated:

      The question of whether Mr. Singleton would become incompetent to
      be executed if his medication were to be discontinued assumes the
      premise that Mr. Singleton is presently competent. Based on the clinical
      presentation he has displayed during the current evaluation, I am
      uncertain that Mr. Singleton would be considered to currently meet the
      Ford criteria. Unlike his presentation in 1995, Mr. Singleton’s thinking
      is much more disorganized, and he is preoccupied with religious themes.
      Although some of his ideas may simply reflect traditional religious
      beliefs about an afterlife or reincarnation, he also appears to be
      displaying thoughts of a much more pathological nature. He believes in
      a parallel universe. He has repeatedly expressed unusual ideas about
      death, referring to it as simply stopping breathing and then being
      brought back somewhere else (a power he seemed to attribute to judges).
      He has repeatedly referred to himself as the Holy Spirit. He has
      expressed some bizarre ideas about the purpose of the death of Mary
      Lou York (the victim of the crime for which he has been sentenced).
      Although the court has not specifically requested an opinion concerning
      Mr. Singleton’s present competency to be executed, it appears this issue
      must be addressed in the context of the question of whether he would
      become incompetent without medication.

(Id. at 15-16.) Mrad reported that Singleton was also difficult to follow and described
himself as being a marionette and God was moving his strings. He believed that he
and St. John were tasked with fighting homosexuals, and that Sylvester Stallone and
Arnold Schwartzenegger were somewhere between this universe and another universe
and were trying to save him. In addition, Singleton told Mrad he was not concerned
with death because death was nothing, and that during a 1997 suicide attempt (which
no one witnessed), he had cut his jugular three times but it spontaneously stopped
bleeding. (Id.)




                                         -13-
      Mrad stated that while Singleton’s medical history indicated he would become
psychotic if he did not take his medication, he was uncertain how much time would
elapse before Singleton became psychotic or incompetent to be executed, nor would
he speculate how much time would pass before the effects of the medication
dissipated from Singleton’s system. Singleton’s medical records reflected that on one
occasion he became psychotic within four months of discontinuing his medication,
while on another he became psychotic within five months of discontinuing his
medication. Singleton’s 1997 medical records indicated that he had not received his
medication for eleven months before the State began to involuntarily medicate him,
but he had begun to display psychotic symptoms within seven months of his
medication. Mrad noted a period of time in 1993 when Singleton was psychotic even
while he was on medication.

        Mrad closed his report by noting that Singleton had failed to take his April
2000 medication, and that it was “possible that following an extended period of
consistent adequate medication, Mr. Singleton will once again display the level of
improvement and rationality he demonstrated during his previous evaluation.” (Id.
at 16.)

       On the basis of Mrad’s opinion, the district court found that Singleton was not
Ford competent to be executed when the State began to involuntarily medicate him
in August 1997, and would regress into psychosis without the medication; however,
it stated it could not be certain when Singleton would become psychotic or if
Singleton would also become Ford incompetent. The court did not make a factual
finding as to whether Singleton was currently competent to be executed because it
was not asked to do so in the order of limited remand.




                                        -14-
                                    II. Discussion

      At the outset, we note that the State of Arkansas believes that this controversy
is moot because Singleton is currently taking his medication voluntarily. It believes,
however, that Singleton’s petition should be considered on the merits and resolved
once and for all in light of an exception to the mootness doctrine, an exception it
believes exists in this case because it is highly probable that Singleton will not
continue to take his medication voluntarily. See Murphy v. Hunt, 455 U.S. 478, 482
(1982) (per curiam) (holding case is not moot if there is “reasonable expectation” or
“demonstrated probability” that same controversy will arise at some point in future)
(quoting Weinstein v. Bradford, 423 U.S. 147, 149 (1975) (per curiam)).

        The State argues that this appeal nevertheless presents no justiciable case or
controversy, and asks this court to dismiss Singleton’s appeal on this basis in light of
the findings entered on remand that it cannot be known at this time whether Singleton
will be Ford incompetent in the future. The State asserts that Singleton will have to
raise that issue if he becomes incompetent under the dictates of Ford. The State adds
that if we decide the case on the merits, we should affirm the district court and permit
Singleton’s execution to go forward.

      For the reasons that follow, we agree with the State that the issue should be
decided on the exception to the mootness doctrine. Contrary to the State’s view,
however, we conclude that the issue is justiciable and that the State should be
enjoined from executing Singleton now or in the future.

       In reaching our opinion, we are guided by the Supreme Court’s decisions in
Ford and Washington v. Harper, 494 U.S. 210 (1990). In Ford, the Court was
presented with the question of whether the Constitution places a substantive
restriction on the State’s power to execute an insane prisoner. 477 U.S. at 405. The
Court recognized that the Eighth Amendment’s ban on cruel and unusual punishment

                                         -15-
prohibited not only those punishments that the common law considered cruel and
unusual at the time the Bill of Rights was adopted, but also those punishments that
violate “evolving standards of decency that mark the progress of a maturing society.”
Id. at 406. The Court reviewed the common law, and determined that it uniformly
condemned the execution of the insane as inhumane, savage, and having no deterrent
or retributive value; and that contemporary society has embraced these common law
principles by enacting laws that prohibit the execution of the insane:

      Today, no State in the Union permits the execution of the insane. It is
      clear that the ancient and humane limitation upon the State’s ability to
      execute its sentences has as firm a hold upon the jurisprudence of today
      as it had centuries ago in England. The various reasons put forth in
      support of the common-law restriction have no less logical, moral, and
      practical force than they did when first voiced. For today, no less than
      before, we may seriously question the retributive value of executing a
      person who has no comprehension of why he has been singled out and
      stripped of his fundamental right to life. Similarly, the natural
      abhorrence civilized societies feel at killing one who has no capacity to
      come to grips with his own conscience or deity is still vivid today. And
      the intuition that such an execution simply offends humanity is evidently
      shared across this Nation. Faced with such widespread evidence of a
      restriction upon sovereign power, this Court is compelled to conclude
      that the Eighth Amendment prohibits a State from carrying out a
      sentence of death upon a prisoner who is insane. Whether its aim be to
      protect the condemned from fear and pain without comfort of
      understanding, or to protect the dignity of society itself from the
      barbarity of exacting mindless vengeance, the restriction finds
      enforcement in the Eighth Amendment.

Id. at 409-10 (citations omitted). In his concurring opinion, Justice Powell articulated
the test for competency to be execution: “[T]he Eighth Amendment forbids the
execution only of those who are unaware of the punishment they are about to suffer
and why they are to suffer it.” Id. at 422 (Powell, J., concurring); see also Rector v.
Clark, 923 F.2d 570, 572 (8th Cir. 1991) (in determining prisoner’s competency to

                                         -16-
be executed, court must assess (1) whether prisoner understands that he is to be
punished by execution, and (2) whether prisoner understands why he is being
punished).

       In Harper, the Supreme Court considered a state prisoner’s substantive and
procedural due process challenges to a state prison regulation governing the forced
medical treatment of inmates with antipsychotic drugs. Under the contested
regulation, such medical treatment could be forced on a prisoner only when it was in
his best medical interest and in the interest of his or others’ safety in the prison. The
regulation further provided that antipsychotic medication could be administered for
no purpose other than medical treatment and then only under the direction of a
licensed psychiatrist. See Harper, 494 U.S. at 222 n.8.

       The Court acknowledged that the forcible injection of medication into a
nonconsenting person’s body represents a substantial interference with that person’s
liberty, but held that given the state’s unique interest in prison safety and security,
substantive due process permits a mentally ill inmate to be treated involuntarily with
antipsychotic drugs where there is a determination that “the inmate is dangerous to
himself or others and the treatment is in the inmate’s medical interest.” Riggins v.
Nevada, 504 U.S. 127, 135 (1992) (quoting and interpreting Harper). Therefore,
“[u]nder Harper, forcing antipsychotic drugs on a convicted prisoner is impermissible
absent a finding of overriding justification and a determination of medical
appropriateness.” Id.

      While instructive, neither case answers the question of whether a state can
involuntarily medicate an otherwise incompetent prisoner to protect him from
harming himself or others and then execute the prisoner if the medication renders him
Ford competent. The State and the district court believe the State’s intent in
medicating Singleton should control the case. They concede it would be
unconstitutional for the State to involuntarily medicate Singleton for the express

                                          -17-
purpose of rendering him competent to be executed, but they do not believe it is
unconstitutional for the State to execute Singleton if he has achieved his competency
through the involuntary medication administered to protect Singleton from harming
himself or others.

       Although we question whether Harper’s framework applies in this case, the
problem with pinning the constitutionality of a prisoner’s execution to the State’s
intent in involuntarily medicating him is that it will often be difficult to determine
whether the State is medicating a prisoner to protect him from harming himself or
others or whether the State is medicating the inmate to render him competent for
execution. In such cases, the State can be expected to claim that it is medicating the
inmate to protect him from harming himself and others, and the prisoner will almost
certainly argue the State’s proffered reasons are a pretext for rendering him competent
to be executed. Once the parties reach this point, it is unclear whether due process
would entitle the inmate to a hearing to challenge the State’s proffered reasons for
medicating him, and if so, whether an administrative or judicial tribunal will oversee
the hearing. By the time this process works itself out, the inmate may have become
incompetent to be executed, and the entire process will have to start again.

       Regardless of whether we accept the State’s position, we do not believe the
State’s intent in medicating Singleton is dispositive to the outcome of this case. The
facts here are unique. Since 1987, the State has medicated Singleton with
antipsychotic medication. While Singleton has occasionally consented to taking
medication, the State has spent a majority of this time medicating Singleton against
his will. The State, however, has not always administered Singleton’s medication to
him consistently. There have been numerous times over the last eighteen years when
the State has discontinued Singleton’s involuntary medication regime or permitted
Singleton to stop taking his medication even though his medical history is clear that
he will become psychotic without his medication. During these periods–and there
have been many–Singleton slips from lucidity and Ford competence to psychosis and

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Ford incompetence, and it is difficult to assess when he is Ford competent and when
he is Ford incompetent. At his post-examination deposition, Mrad was asked to give
an opinion as to whether Singleton would become psychotic if removed from his
medication. He responded:

             I do have an opinion that based on his past history of several years
      now Mr. Singleton would become psychotic if we were off medication.
      It’s much more difficult to try to accurately predict when exactly that
      would be. Looking through his record there was one period when he
      became--the records reflect that he was noticeably psychotic four
      months after medication was discontinued. There was another time
      when it was five months. In this particular instance, the ‘97 episode, it
      was actually--he was actually off medication for about 11 months, but
      there was evidence in his record that he was first showing changes in his
      mood and later showing psychotic symptoms by April of ‘97, which
      would have been 7 months after the medication was discontinued, so it’s
      difficult to predict, and in addition to that there were [sic] at least one
      episode in his record--I believe in ‘93--when the records reflect he
      became psychotic even while he was taking the medication.

            And so that issue of the relationship between competency and his
      medication, particularly trying to predict when he would not only
      become psychotic but more specifically when he would become
      incompetent under the Ford criteria off medication, is fairly difficult. I
      don’t know that I or anyone could accurately predict that, but it’s not
      hard to predict based on past experience that if he’s off medication for
      an extended period of time he will again be psychotic.

(Mrad Depo. of 10/24/00, at 27-28.)

     Thus, even if we assume Singleton is Ford competent while on his
medication–an assumption we hesitate to make–it appears that there is no way of
knowing how long he will remain competent once the medication is discontinued or
how long it will take him to regain Ford competency once he begins taking


                                         -19-
medication. In short, there is no way for us to know whether Singleton will be
competent on the day he is executed. This fact is made all the more troubling given
the State’s inconsistent administration of medication and its admission at oral
argument that ninety days will elapse between the time an execution date is set and
the date of execution.

      Of even greater concern to us is Singleton’s inability to retain lucidity and Ford
competency even while he is medicated. The record reflects that at one point
Singleton complained of visual hallucinations and requested castration even though
he had been consistently medicated for twenty months; on another, he experienced
hallucinations and exhibited psychotic symptoms after being on medication for
seventeen months. In addition, Singleton experienced hallucinations while on
medication even when Oglesby reported that his psychosis was in remission. The
psychotic symptoms Singleton exhibited during these episodes are similar to the
symptoms he exhibited when Mrad classified him as Ford incompetent in August
1997 and lead us to seriously doubt whether Singleton can be competent to be
executed even while he is on his medication.

       To summarize, we know that Singleton was Ford incompetent in 1997, and we
know that he has been Ford incompetent much of the time that he has been confined
in prison. This is not a simple case in which an inmate has been administered
antipsychotic medication that has resulted in his reachieving competency and
maintaining that status over a long period of time. In that circumstance, it could be
said, consistent with the Supreme Court decision in Ford, that the inmate was aware
of the punishment he was about to suffer and why he was about to suffer it. However,
that cannot be said in this case. There is only one conclusion to be drawn from
reading this entire record, and that is that Singleton does not have the understanding
necessary to permit the State to execute him. It is therefore time to bring this case to
an end and grant a permanent stay of execution. To do otherwise under the



                                         -20-
circumstances of this case would, in the words of Justice Marshall, subject Singleton
to “the barbarity of exacting mindless vengeance.” Ford, 477 U.S. at 410.

       Of course, the State may continue to medicate Singleton voluntarily or
involuntarily as necessary to protect him and others, but it may not execute him in the
future.

                                 III. CONCLUSION

      We reverse the district court and direct it to grant Singleton’s petition for a writ
of habeas corpus and to enter a permanent stay of execution. The district court shall
also reduce Singleton’s sentence to life imprisonment without the possibility of
parole.



WOLLMAN, Chief Judge, dissenting.

       The Court’s opinion spells out in thorough detail the lengthy procedural history
of this case and explains the reasons why it is that Singleton has been on death row
now for one month short of twenty-two years.

       No one can dispute that Singleton has had a record of confused, delusional
thinking and bizarre behavior during the nearly quarter-century that his case has
wended itself through the state and federal judicial systems, marked by the State’s
need to from time to time involuntarily medicate him for his own safety and well-
being.

       That aside, what is at issue before us now is the answer to the question that we
failed to ask the district court to address when we remanded the case to it in March



                                          -21-
of 2000, which is whether Singleton is currently Ford-competent. Having failed to
pose that question to the district court, we now answer it ourselves.

       I acknowledge that the Court’s answer has a certain appeal, for it brings to a
conclusion what might seem to be an endless round of competency hearings made
necessary by the inevitable delay between a post-hearing finding of competency and
a subsequently set execution date. Had we asked the district court to answer the
question we now answer ourselves, the outcome of this case may very well have been
the same. Loath as I am to see any further delay in this case, and as tempting as it is
to join the Court in concluding that it is time to bring the case to an end, I do not
believe that it is properly within our province to do so.

       One further thought. As I read the Court’s opinion, it does not purport to
answer the difficult constitutional question whether a state may execute someone who
is Ford-competent only as a result of the forcible administration of psychotropic
drugs. Cf. United States v. Weston, 255 F.3d 873 (D.C. Cir. 2001), petition for cert.
filed (Sept. 5, 2001) (No. 01-6161).

       With all due respect to the Court’s careful analysis of the history of this long-
drawn-out case, I cannot join in the conclusion it reaches. Much as I dislike the
prospect of even more delay, I believe that we should attempt to secure a more
definitive answer to the question that we should have asked. If the answer to that
question is that there can be no definitive answer, then the State will have failed to
satisfy its Ford v. Wainwright burden. Unattractive as further delay might appear to
be, I do not believe that further proceedings that might enable the State to impose in
a constitutionally permissible manner the punishment that its judicial system has
deemed to be the appropriate sanction for Mary York’s senseless death would
constitute the exaction of mindless vengeance. Accordingly, I respectfully dissent.




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A true copy.

      Attest.

            CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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