Apr. 15, 2002  

Mentally ill on death row pose quandary for the law

One inmate fights state-ordered medication to make him sane enough to be executed. Another fights an appeal while he is unfit.

By Emilie Lounsberry

Inquirer Staff Writer

No one disputes this essential fact: Thavirak Sam is mentally ill. He wiped out three members of his wife's family in South Philadelphia nearly 13 years ago and lives in a dark world of despair and delusion.

He has been on Pennsylvania's death row since 1991, and at varying points Sam has imagined that the U.S. Supreme Court ordered him freed and that a Cambodian prince interceded on his behalf.

 What's in dispute, though, is whether Sam, 45, should be forced to take drugs to improve his mental condition.

 The Philadelphia District Attorney's Office wants him medicated so he can be competent enough to decide whether he wants to continue his appeal or be put to death.

 Sam's lawyer contends that forcing him to take medicine for his psychosis is unconstitutional and opposes the effort.

 The unusual legal conflict has left Sam in a peculiar situation: He could remain psychotic. Or he could receive medication that may improve his condition but may also bring him closer to death.

 The U.S. Supreme Court decided in 1986 that convicted murderers cannot be executed if they are so mentally ill that they cannot understand why they face a death sentence and what that sentence means.

 The question of what to do with such severely mentally ill prisoners is vexing for the American legal system.

 The Pennsylvania Supreme Court is considering whether the state - which has 242 death-row cases - can force another death-row inmate, Randy Haag, to litigate his appeal while he is mentally incompetent.

 Haag and Sam are among a handful of mentally incompetent people awaiting execution in the state, which has the fourth-largest death-row population in the nation.

 Haag, convicted of a Berks County murder in 1986, is a paranoid schizophrenic and is delusional, believing that an imposter committed the crime and that his case has been dismissed. He also has talked of being electronically controlled and sterilized by his food.

 The U.S. Supreme Court in December refused to consider whether a defendant could be forcibly medicated to make him fit to stand trial; it has not considered whether the Constitution allows states to medicate inmates against their will to make them competent to be executed.

 On the other hand, the high court has held that defendants have a right to be free of unwanted medication unless it is in their best interest, or unless they pose a danger to themselves or others.

 David Ferleger, a Bala Cynwyd lawyer and an expert on mental issues, said "synthetic sanity" was probably "not what the U.S. Supreme Court was expecting to see when it ruled that it is unconstitutional to execute a mentally incompetent person."

 Robert Dunham, a federal public defender who specializes in death-penalty cases, said at least two states, South Carolina and Louisiana, had decided that inmates could not be executed if forcibly medicated.

 "The death penalty has to be taken off the table," said Dunham, who called it "ghoulish" to try restoring an inmate's mental competence to execute him.

 While a challenge for the criminal justice system, such cases also pose an ethical dilemma for medical professionals who treat death-row prisoners: How can a doctor who takes an oath to preserve life prescribe medication that might lead to an execution?

 "There's no question this is a very difficult problem," said Richard J. Bonnie, director of the University of Virginia's Institute of Law, Psychiatry and Public Policy, who said it had caused debate in the psychiatric community.

 "It's almost like asking the doctor to give the nod to permit an execution to go forward."

 Robert L. Sadoff, a nationally recognized forensic psychiatrist from Montgomery County, said some doctors believe they must try to relieve mental anguish - regardless of circumstances. There's also a chance, he said, that improving inmates' mental health could produce information leading to exoneration.

 "It's very difficult," Sadoff said, "and many psychiatrists would choose not to work on death row because they don't want to be faced with that conundrum."

 Thavirak Sam was 33 when he shot and killed his mother-in-law and 2-year-old niece in a South Philadelphia rowhouse and his brother-in-law in the street in July 1989.

 The ethnic Chinese family had arrived from Cambodia about six years earlier. Sam, distraught after the shootings, fled to a friend's house and swallowed sleeping pills in an apparent suicide attempt.

 The shootings followed a long-running argument over Sam's disciplining of his son and niece.

 During the trial, one psychologist concluded that Sam was not mentally competent to stand trial. Philadelphia Common Pleas Judge Albert F. Sabo, who has sent more than a dozen people to death row, ordered another evaluation. That time a psychiatrist concluded that Sam was competent - an evaluation the judge accepted.

 After he was convicted of first-degree murder, Sam told his lawyer that he didn't want any arguments to save his life. Sam wanted to die, his lawyer told Sabo, who obliged by sentencing Sam to death.

 The Pennsylvania Supreme Court upheld his conviction and sentence in 1993; the U.S. Supreme Court refused to hear his appeal in 1994. Dunham intervened on Sam's behalf three years later, contending that Sam was mentally incompetent and seeking the appointment of a new lawyer to represent him.

 Center City lawyer Jules Epstein, who was then appointed to represent Sam and is fighting the effort to forcibly medicate him, declined to comment on the case.

 Christopher Diviny, who is handling the case for the District Attorney's Office, said the state - to complete the case - needed to determine whether Sam wanted to pursue an appeal or be put to death.

 "It may well come to pass," he said, that by the time there is an execution warrant, Sam "may not wish to contest" the death sentence. Medication also could help alleviate Sam's mental anguish, Diviny said.

 In documents filed in Philadelphia Common Pleas Court, Epstein contended that the prosecution's effort to medicate Sam should not be allowed.

 Sam is not a danger to himself or to others, he said, and should be left to live out his life on death row.

 "Whether the sentence of death is formally carried out, Sam has been identified as a murderer and punished in a manner that is extreme - confinement to death row," Epstein wrote. A hearing has not been scheduled.

 Sam, meanwhile, is housed in a 90-square-foot cell in the capital-case unit at Graterford Prison in Montgomery County, home to 49 other death-row inmates.

 At one point, court documents show, Sam had two hand-lettered signs in his cell, proclaiming that the U.S. Supreme Court had overturned his conviction.

 It has not.