State v. Perry

The fundamental question raised by this case is whether the state can circumvent the centuries old prohibition against execution of the insane by medicating an incompetent death row prisoner against his will with antipsychotic drugs and carrying out his death sentence while he is under the influence of the drugs. After a hearing to determine whether the death row inmate was competent to be executed, the trial court, in effect, found that the inmate was insane but susceptible to being made able to understand the link between his crime and punishment by antipsychotic drugs. The trial court ordered the state to administer antipsychotic drugs to the prisoner for this purpose, without his consent if necessary. The prisoner did not consent to medication, but applied for review by this court, which denied writs, 543 So.2d 487 (La.1989), and by the United States Supreme Court, which granted certiorari. Perry v. Louisiana, 494 U.S. 1015, 110 S.Ct. 1317, 108 L.Ed.2d 492 (1990). After entertaining briefs and oral argument, the Supreme Court vacated the trial court’s order and remanded the case for further proceedings in light of Washington v. Harper, 494 U.S. 210, 110 S.Ct. 1028, 108 L.Ed.2d 178 (1990). Perry v. Louisiana, 498 U.S. 38, 111 S.Ct. 449, 112 L.Ed.2d 338 (1990). On remand, the trial court reinstated its order. We granted the prisoner’s application for a writ of certiorari and stayed the trial court’s forcible medication order. State v. Perry, 584 So.2d 1145 (La.1991).

We affirm in part and reverse in part. The trial court’s determination that Perry is not competent for execution without the administration of antipsychotic drugs is affirmed. The court’s order requiring the state to medicate Perry with antipsychotic drugs without his consent is reversed. The execution of the death sentence is stayed. The state may apply to this court for a modification of the stay of execution of the death sentence if Perry achieves or regains his sanity independently of and without the influence of antipsychotic drugs.

For centuries no jurisdiction has approved the execution of the insane. The state’s attempt to circumvent this well-settled prohibition by. forcibly medicating an insane prisoner with antipsychotic drugs violates his rights under our state constitution. La. Const.1974 Art. I, §§ 5, 20. First, it violates his right to privacy or personhood. Such involuntary medication requires the unjustified invasion of his brain and body with discomforting, potentially dangerous and painful drugs, the seizure of control of his mind and thoughts, and the usurpation of his right to make decisions regarding his health or medical treatment. Furthermore, implementation of the state’s plan to medicate forcibly and execute the insane prisoner would constitute cruel, excessive and unusual punishment. This particular application of the death penalty fails to measurably contribute to the social goals of capital punishment. Carrying out this punitive scheme would add severity and indignity to the prisoner’s punishment beyond that required for the mere extinguishment of life. This type of punitive treatment system is not accepted anywhere in contemporary society and is apt to be administered erroneously, arbitrarily or capriciously.

I. FACTS, PROCEDURAL HISTORY AND ISSUE

Michael Owen Perry was convicted and sentenced to death for murdering his mother, father, nephew and two cousins in a senseless criminal episode in 1983. Perry was 28 at the time of his offenses but had continued to live with his parents due to his long history of mental illness. At the age of 16, he was diagnosed as schizophrenic, and he was committed to mental institutions by his parents several times because of his psychotic symptoms. Although the record does not disclose any previous criminal conduct, he escaped from mental facilities twice and was made to sleep in a shed behind his parents’ house due to his disruptive conduct.

Perry’s mental illness raised legal issues throughout the criminal proceedings. Initially, two sanity commissions were convened to determine his competence to stand trial. State v. Perry, 502 So.2d 543, 547 (La.1986) cert. denied, 484 U.S. 872, 108 S.Ct. 205, 98 L.Ed.2d 156 (1987). Upon recommendation of the first commission, Perry was transferred to a state facility for treatment and psychiatric evaluation. Id. at 547-48. After being diagnosed as suffering from a long history of paranoid schizophrenia, Perry was placed on an anti-psychotic drug treatment program, primarily consisting of doses of the drug Haldol. Eighteen months later, he was determined to be competent to stand trial, as recommended by the second sanity commission. Id. at 548. Following this, Perry was allowed by the court, contrary to advice of his counsel, to withdraw his insanity plea and proceed to trial on a simple plea of not guilty. Id. at 547, 550.

Perry was convicted of five counts of murder in 1985 and sentenced to death. On appeal this court affirmed his convictions and sentence, but stated that a determination of his competency to be executed “might be in order.” State v. Perry, 502 So.2d 543, 564 (La.1987). Following the suggestion of this court, the trial court convened a sanity commission and conducted hearings. The medical experts reported that Perry suffers from an incurable schi-zoaffective disorder that causes his days to be a series of hallucinations, delusional and disordered thinking, incoherent speech, and manic behavior. These symptoms can be temporarily diminished with antipsychotic drugs, they testified, but his underlying insanity can never be permanently cured or quelled. After receiving this testimony, the court concluded that Perry was competent for execution only while he was being maintained by antipsychotic drugs in the form of Haldol. In effect, the trial court found that without the influence of antipsy-chotic drugs, Perry is insane and incompetent for execution. Accordingly, the court ordered the state to maintain Perry on this medication “as to be prescribed by the medical staff of said Department [of Corrections] and if necessary to administer said medication forcibly to defendant and over his objection.”

After this court denied his writ and appeal, Perry sought and was granted a writ of certiorari by the United States Supreme Court. Perry v. Louisiana, 494 U.S. 1015, 110 S.Ct. 1317, 108 L.Ed.2d 492 (1990). After full briefing and oral argument, the high court vacated the trial court order and remanded the case to that court for reconsideration in light of Washington v. Harper, 494 U.S. 210, 110 S.Ct. 1028, 108 L.Ed.2d 178 (1990). Perry v. Louisiana, 498 U.S. 38, 111 S.Ct. 449, 112 L.Ed.2d 338 (1990). After considering the Supreme Court’s remand, and without taking any additional evidence, the trial court reinstated its forcible medication order. Essentially, the trial court concluded that Washington v. Harper is inapplicable to a proceeding to determine competence for execution and does not require a different result from the trial court’s original determination. This court granted a writ to review the trial court’s action and issued a stay order to prevent the forcible medication of the prisoner. State v. Perry, 584 So.2d 1145 (La.1991).

This case hinges on whether the state constitutionally may forcibly medicate Perry and carry out his death sentence. There is no question but that Perry is incurably insane and incompetent for execution. Without the administration of antipsychotic drugs, Perry cannot pass any known test of competency. Nevertheless, when he is under the influence of antipsychotic drugs Perry sometimes is able to function at a minimum level of rationality. There is no contention by the state that Perry has consented to take the drugs. There is also no claim by Perry that the punishment would be unconstitutional if he were sane. The basic constitutional issue is, therefore, determinative and must be addressed.

The subsidiary issues raised are deferred because they will be rendered moot by our decision that the state’s dual objective of forcible medication and execution is unconstitutional. The issues deferred include whether the trial court applied the appropriate standard for measuring competence for execution and whether the evidence in the present record is sufficient to support the trial court’s finding that the inmate’s mental competence can be maintained predictably and consistently with antipsychotic drugs. Moreover, our decision of these subsidiary issues in favor of Perry would not be dispositive of this case because the basic constitutional question would still control whether or not the state on remand would be permitted to medicate Perry and demonstrate while following correct legal precepts that he can be maintained forcibly with drugs at a consistent level of competence for execution.

II. PROHIBITION AGAINST EXECUTION OF THE INSANE

In Ford v. Wainwright, 477 U.S. 399, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986) the United States Supreme Court held that the Eighth and Fourteenth Amendments prohibit a state from inflicting the death penalty upon a prisoner who is insane. The court recognized that the common law’s ancient prohibition of execution of the insane rested on multiple theories including moral, ethical and theological arguments together with the negligible deterrent and retributive value of executing the insane. Some authorities contended that the bar was justified as a way of preserving the defendant’s ability to make arguments on his own behalf. See 1 M. Hale, Pleas of the Crown, 35 (1736) (“if after judgment he became of non sane memory, his execution shall be spared; for were he of sound memory he might allege somewhat in stay of judgement or execution”). Accord 4 W. Blackstone, Commentaries 388-89; 477 U.S. at 407-09, 106 S.Ct. at 2600-02. Other authorities agreed with Sir Edward Coke, who argued that because execution was intended to be an “example” to the living, the execution of “a mad man” was such a miserable spectacle ... of extreme inhumanity and cruelty” that it “can be no example to others”. See 3 E. Coke, Institute 6 (1794).

Additional commentators postulated religious underpinnings: that it is uncharitable to dispatch an offender “into another world, when he is not of a capacity to fit himself for it,” Hales, Remarks on the Trial of M. Charles Basement, 11 HOW.St.T. 474, 477 (1685). It is also said that execution serves no purpose in these cases because madness is its own punishment. Blackstone, supra, at 395. More recent authorities declare that the community’s quest for “retribution” — the need to offset a criminal act by punishment of an equivalent “moral quality” — is not served by executing an insane person, which has a “lesser value” than that of the crime for which he is to be punished. See Hazard & Loui-sell, Death, the State and the Insane: Stay of Execution, 9 UCLA 381, 387 (1962). Faced with such a solid and widespread proscription, the Supreme Court concluded that, whether its aim is 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 prohibition against execution of the insane finds enforcement in the Eighth Amendment. 477 U.S. at 410, 106 S.Ct. at 2602.

Even before the Supreme Court constitu-tionalized the rule in Ford, no state in the union permitted the execution of the insane. At the time of its decision, 26 of the 41 death penalty jurisdictions had adopted statutes explicitly requiring the suspension of the execution of a prisoner who meets the legal test for incompetence. 477 U.S. at 408, n. 2, 106 S.Ct. at 2601 n. 2. Others had enacted more discretionary statutory procedures for suspension of sentence and transfer to mental facilities in such cases. Id. Still others, including Louisiana, had adopted the common law rule by judicial decision. Id.

For nearly a century it has been well-settled in Louisiana that one who has been convicted of a capital crime and sentenced to suffer the penalty of death, and who thereafter becomes insane, cannot be put to death while in that condition. State v. Parker, 80 So.2d 863 (La.1955); State v. Allen, 204 La. 513, 15 So.2d 870 (1943); State v. Migues, 194 La. 1081, 195 So. 545 (1940); State v. Cannon, 185 La. 395, 169 So. 446 (1936); State v. Burnham, 162 La. 737, 111 So. 79 (1926); State v. Brodes, 157 La. 162, 102 So. 190 (1924); State ex rel. Paine v. Judge, 49 La.Ann. 1500, 22 So. 738 (1897).

In Art. I, § 20 of the Louisiana Constitution of 1974, the people provided that “[n]o law shall subject any person to euthanasia, to torture or to cruel, excessive, or unusual punishment.” (emphasis added.) The framers of our state constitution clearly intended for this guarantee to go beyond the scope of the Eighth Amendment in some respects and to provide at least the same level of protection as the Bill of Rights and the Fourteenth Amendment in all others. State v. Sepulvado, 367 So.2d 762 (La.1979); Hargrave, The Declaration of Rights of the Louisiana Constitution of 1974, 35 La.L.Rev. 1, 63 (1974). Consequently, the practice of executing the insane is thrice barred in our state, i.e., by the state and federal constitutions and by the decisions of this court.

III. DETERMINATION THAT STATE LAW IS APPLICABLE

The state’s proposed medicate-to-execute scheme raises issues pertaining to fundamental guarantees under both the Louisiana and federal constitutions. Principles of jurisprudence, efficiency and federalism dictate that the appropriate procedure for deciding such a case is to analyze state law, including state constitutional provisions, before reaching a federal constitutional claim.

Both the United States Supreme Court and this court adhere to the rule that the court will not pass upon a federal constitutional question, although properly presented by the record, if there is also present some other ground upon which the case may be disposed. See Webster v. Reproductive Health Services, 492 U.S. 490, 526, 109 S.Ct. 3040, 3060, 106 L.Ed.2d 410 (1989) (O’Connor, J., concurring), collecting authorities; Ashwander v. TVA, 297 U.S. 288, 346-347, 56 S.Ct. 466, 482-83, 80 L.Ed. 688 (1936) (Brandeis, J., concurring); Benson & Gold Chevrolet Inc. v. La. Motor Veh. Com’n, 403 So.2d 13 (La.1981) and authorities cited therein. Additionally, the Supreme Court has developed the Pullman doctrine, under which a federal court may decline to proceed though it has jurisdiction based on the federal constitution or statutes, in order to avoid decision of a federal constitutional question where the case may be disposed on questions of state law. Texas v. Pullman, Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941); See Wright, Law of Federal Courts, 302 et seq. (1983); see also La. Power & Light Co. v. City of Thibodaux, 360 U.S. 25, 79 S.Ct. 1070, 3 L.Ed.2d 1058 (1959); Leiter Minerals, Inc. v. U.S., 352 U.S. 220, 77 S.Ct. 287, 1 L.Ed.2d 267 (1957). Therefore, an improper by-pass of a state constitutional or legal question by this court may result in an unnecessary federal constitutional decision, a remand of the case by the Supreme Court, or both.

Greater judicial efficiency and coherence are promoted when we address state law issues first. See Large v. Superior Court, 148 Ariz. 229, 235, 714 P.2d 399, 405 (1986); City of Portland v. Jacobsky, 496 A.2d 646, 648 (Me.1985); State v. Chaisson, 125 N.H. 810, 486 A.2d 297, 301 (1984); Sterling v. Cupp, 290 Or. 611, 625 P.2d 123, 126 (1983); State v. Coe, 101 Wash.2d 364, 679 P.2d 353, 359 (1984); Developments in the Law: The Interpretation of State Constitutional Rights, 95 Harv. L.Rev. 1324, 1448 (1982). See also Massachusetts v. Upton, 466 U.S. 727, 736, 104 S.Ct. 2085, 2089, 80 L.Ed.2d 721 (1984) (Stevens, J., concurring). Because this court is the final arbiter of the meaning of the state constitution and laws, our disposition of a case on state grounds usually will terminate the litigation without the necessity of federal review. Furthermore, because our state Declaration of Rights incorporates or expands most of the federal Bill of Rights standards, a decision by this court upholding an individual’s state constitutional right rarely will call for further review by the Supreme Court. Because of our oaths to support the constitution and laws of our state as faithfully and diligently as those of the federal government, La. Const. Art. X, § 30 (1974), we are obliged to independently interpret and apply our state constitution in each case. As long as one party’s state rights are expanded without infringement on another individual’s federal right, our state constitution may be used to supplement or expand federally guaranteed constitutional rights. See Pruneyard Shopping Center v. Robins, 447 U.S. 74, 100 S.Ct. 2035, 64 L.Ed.2d 741 (1980); Linde, E. Pluribus—Constitutional Theory and State Courts, 18 Ga.L.Rev. 165, 179 (1984); Developments in the Law: The Interpretation of State Constitutional Rights, 95 Harv. L.Rev. 1324, 1334 (1982).

The very nature of our federal system and the vast differences between the federal and state constitutions and courts indicate that state law should be applied first. When the Founding Fathers assembled this nation, they recognized the primacy of the states in protecting individual rights. Mosk, State Constitutionalism: Both Liberal and Conservative, 63 Tex. L.Rev. 1081, 1083 (1985) citing The Federalist Nos. 14, 17, 32, 39, and 45. As Madison commented:

The powers delegated by the proposed Constitution to the Federal Government, are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce_ The powers reserved to the several States will extend to all the objects, which, in the ordinary course of affairs, concern the lives, liberties and properties of the people; and the internal order, improvement, and prosperity of the State.

The Federalist No. 45, at 313 (J. Madison) (J.E. Cooke ed. 1961).

Although not entirely proper, a state court’s failure to apply state law first might be understandable when well-settled, clearly applicable federal precedent is available. However, the Supreme Court’s remand of this case without decision evidences the unavailability of readily applicable dispositive federal precepts. Therefore, we set to one side, without deciding, the federal constitutional issues and proceed to resolve this case on state constitutional grounds.

IV. WASHINGTON v. HARPER DISTINGUISHED

Before applying the controlling state constitutional law, however, we consider the present case in light of Washington v. Harper, a case involving the forcible medical treatment of a mentally ill prisoner in his own best medical interest and for the safety of himself and others in the prison. We conclude that the present case is distinguishable for several reasons. First, forcing a prisoner to take antipsychotic drugs to facilitate his execution does not constitute medical treatment but is antithetical to the basic principles of the healing arts. Second, Harper held that due process requires the state to show that its prison regulation rationally seeks to further both the best medical interest of the prisoner and the state’s own interest in prison safety before it may inject a prisoner with antipsychotic drugs against his will. The state in Perry’s case has made neither showing but seeks forcible medication of a prisoner by court order as an instrument of his execution. Third, Harper not only fails to support the state’s position; it strongly implies that forced administration of anti-psychotic drugs may not be used by the state for the purpose of punishment.

A. Drugging For Execution: Punishment, Not Medical Treatment

I swear by Apollo the physician, by Aesculapius, Hygeia, and Panacea, and I take to witness all the gods, all the goddesses, to keep according to my ability and my judgment the following Oath: ... I will prescribe regimen for the good of my patients according to my ability and my judgment and never dp harm to anyone. To please no one will I prescribe a deadly drug, nor give advice which may cause his death ... I will preserve the purity of my life and my art ... In every house where I come I will enter only for the good of my patients, keeping myself far from all intentional ill-doing_

Hippocrates c. 460-400 B.C., Stedman’s Medical Dictionary 647 (4th Unabridged Lawyer’s Ed.1976).

Medical treatment does not consist merely of dispensing drugs; other ingredients are essential to the healing arts. The Hippocratic Oath, dating from the fifth century B.C., is the seminal source of the principles of medical ethics and the goals of medical treatment. Under the oath, the physician pledges to do no harm and to act only in the best medical interests of his patients. Consequently, medical treatment cannot occur when the state orders a physician to administer antipsychotic drugs to an insane prisoner in an attempt to render him competent for execution.

Because the physician is required by his oath both to alleviate suffering and to do no harm, the state’s order forces him to act unethically and contrary to the goals of medical treatment. If any physician administers drugs forcibly and thereby enables the state to have the inmate declared competent for execution, the doctor knowingly handles the prisoner harmfully and contrary to his ultimate medical interest. The physician’s abstention from dispensing the drugs, however, perpetuates suffering that ordinarily the physician is duty-bound to allay by treatment. If the drugs are forcibly administered by a person who is not a physician, what occurs is devoid of any pretense of medical treatment or compliance with the principles of medical ethics. Accord: Katz, Perry v. Louisiana: Medical Ethics on Death Row — Is Judicial Intervention Warranted?, 4 Geo.J.Leg.Ethics 707 (1991); Radelet & Barnard, Treating Those Found Incompetent for Execution: Ethical Chaos with Only One Solution, 16 Bull.Am.Acad.Psychiatry L. 297 (1988); Salguero, Medical Ethics and Competency to be Executed, 96 Yale L.J. 167 (1986); Evans, Perry v. Louisiana: Can a State Treat an Incompetent Prisoner to Ready Him for Execution?, 19 Bull.Am.Acad.Psychiatry L. 249 (1991); Ewing, Diagnosing and Treating Insanity on Death Row: Legal and Ethical Perspectives, 5 Behavioral Sciences and the Law 175 (1987). Therefore, the forcible medication of a prisoner merely to improve his mental comprehension as a means of rendering him competent for execution actually prevents the prisoner from receiving adequate medical treatment for his mental illness.

Several pernicious effects are caused by the forcible medicate-to-execute structure. First, the patient’s autonomy rights are violated because he is not permitted to weigh the benefits and risks of a proposed course of treatment in consultation with his physician as is required in seeking the patient’s best medical interest. See generally, E. Pellegrino & D. Thomasma, For the Patient’s Good 37-50 (1988). Second, the forcible nature and lethal repercussions of the state’s involuntary antipsychotic drug regimen preclude a trustful, communicative doctor-patient relationship that is essential to psychiatric therapy. Katz, supra, at 718. Third, since the physician cannot serve two masters, there is a substantial concern that the patient’s well-being may be subordinated to the duty the doctor owes the state. Evans, supra, at 261; Sal-guero, supra, at 176. Fourth, for all of the foregoing reasons, and because of the incompatibility of the interests of the state and the prisoner, both of which the physician is required to further, the death penalty is apt to be implemented arbitrarily and capriciously. The aggregate of conditions surrounding the physician’s determination of the prisoner’s mental capacity at the time of execution does not yield room for well-informed and dispassionate medical judgment. Consequently, there is no genuine assurance that the “barbarity of exacting mindless vengeance” abhorred for centuries by all civilized societies will not occur under a modern scientific facade. Fifth, a psychiatrist’s administration of involuntary medication may constitute being “a participant in a legally authorized execution” contrary to the ethical code of the American Medical Association, as adopted and interpreted by the American Psychiatric Association. APA, The Principles of Medical Ethics: With Annotations Especially Applicable to Psychiatry § 1, Annot. 4 (1989). Notably, the psychiatrist’s involvement in the restoration of competence through forcible drug treatment raises further ethical concerns because it is more closely tied to the execution itself in comparison with other functions performed by psychiatrists in death penalty cases, e.g., determinations of competence for trial. By the same token, the physician’s forcibly drugging an inmate for execution comes closer to being the cause of death in furthering the state’s punishment goal than to the practice of medicine or treatment in the patient’s best interest. See Katz, supra, at 715; Salguero, supra, at 176-77. Sixth, blurring the distinction between healing and punishing denigrates the “deep-seated social interest in preserving medical care, in actuality and in perception, as an unambiguously beneficent healing art.” Katz, supra, at 724.

Accordingly, we conclude that a physician’s prescription and administration of antipsychotic drugs to a prisoner against his will, pursuant to the order of a state court or other government official, for the purpose of carrying out the death penalty, does not constitute medical treatment but forms part of the capital punishment sought to be executed by the state. As Professor Opton succinctly put it:

“[T]he difference between a violent punishment and a medical treatment lies not in the act itself, but in the intent of the actor. When a medical procedure is done at the request of the patient and for his benefit, it is a treatment. When the identical medical procedure is done against a person’s interest or will, it is either a battery, if lacking legal sanction, or a punishment, if imposed by legal authority.”

Opton, Psychiatric Violence Against Prisoners: When Therapy Is Punishment, 45 Miss.L.J. 605, 608 (1974).

B. Harper Does Not Authorize Medication For Punishment

In Washington v. Harper, the Supreme Court considered a state prisoner’s substantive and procedural due process challenges to the State of Washington’s 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. Washington v. Harper, supra, 494 U.S. at 201 n. 8, 110 S.Ct. at 1024 n. 8.

The Supreme Court held that the forcible injection of medication into a nonconsent-ing person’s body represents a substantial interference with that person’s liberty, but that, taking into account the state’s unique interest in prison safety and security, substantive due process allows a mentally ill inmate to be treated involuntarily with anti-psychotic 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, — U.S. -, 112 S.Ct. 1810, 1815, 118 L.Ed.2d 479 (1992), quoting and interpreting Washington v. Harper, supra, 494 U.S. at 227, 110 S.Ct. at 1039. Therefore, under Harper, “forcing antipsychotic drugs on a convicted prisoner is impermissible absent a finding of overriding justification and a determination of medical appropriateness.” Id.

The Supreme Court’s holding in Washington v. Harper is inherently inapposite to the present case. The state’s object here is to forcibly administer antipsychotic drugs to a prisoner in order to implement his execution. In contrast, the state’s object in Harper was to require a prisoner to accept appropriate medical treatment that was in his own best medical interest. Therefore, in the present case, the state’s involuntary use of drugs on Perry must be vindicated if at all as a procedure that legitimately forms part of his capital punishment. It cannot be justified under Harper because forcible administration of drugs to implement execution is not medically appropriate.

But even if we overlook the incongruity of applying a medical treatment precedent in a capital punishment context, Harper still cannot be applied to yield the result desired by the state. In Harper, the Supreme Court developed a substantive due process standard that requires the state to show that the prisoner is dangerous to himself or others and that the antipsychotic drug medical treatment is appropriate medically and in his best medical interest. The state’s proof in the present case simply does not measure up to this due process standard. This, of course, is not surprising because the Harper standard has nothing to do with the issues with which the trial court and the parties dealt with below, viz., whether Perry was competent for execution and whether he could be consistently maintained with drugs at a level of competency and executed in that condition.

The present case, in which the state is represented by the prosecutorial arm of government, began as a proceeding to determine whether Perry was mentally competent to proceed with his execution and ended with a court determination that his competence could be maintained only by medication and an order authorizing and directing the state to forcibly medicate him for that purpose. In contrast, Harper was a proceeding initiated by medical doctors pursuant to a regulation carefully drawn by prison administrators governing forcible medical treatment of prisoners in the interest of their medical welfare and prison safety and security. The regulation forbade the use of antipsychotic drugs for any purpose other than by a psychiatrist for medical treatment. In the present case, the parties and the trial court directed the expert medical witnesses’ attention and testimony to the subjects of whether Perry was sane without drugs and whether his ability to understand his punishment and its connection with his crimes could be maintained predictably and consistently with antipsychotic medicine. It is obvious that none of the participants considered that prison safety or the long term best medical interests of Perry were significant or determinative issues in the proceeding. Having conducted this proceeding with the single-minded purpose of forcibly medicating Perry in order to execute him, even in the United States Supreme Court, the state cannot now contend that it genuinely seeks to uphold the trial court’s forced medication order merely to further Perry’s best medical interest and the safety of Perry and others in the prison setting.

Furthermore, the majority opinion in Harper suggests that the substantive protections of the Due Process Clause prohibit the forced administration of antipsychotic drugs to any state prisoner whose best medical interest would not be advanced thereby. As Justice Stevens observed, the Court did not suggest that psychotropic drugs, any more than transfer for medical treatment, see Vitek v. Jones, 445 U.S. 480, 100 S.Ct. 1254, 63 L.Ed.2d 552 (1980), may be forced on prisoners as a necessary condition of their incarceration or as a disciplinary measure. Washington v. Harper, supra, 494 U.S. at 241-42, 110 S.Ct. at 1047-48 (Stevens, J., concurring and dissenting in part). The majority repeatedly noted and seemed to consider it crucial to its due process standard that the Washington prison policy required that the 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.” Id. at 227,110 S.Ct. at 1039. From this Justice Stevens concluded that “[fjorced administration of antipsychotic medication may not be used as a form of punishment.” Id. at 241, 110 S.Ct. at 1047. This inference seems to have been confirmed by the court’s subsequent conclusion in Riggins v. Nevada, — U.S. -, 112 S.Ct. 1810, 1815, 118 L.Ed.2d 479 (1992) that “[ujnder Harper, forcing anti-psychotic drugs on a convicted prisoner is impermissible absent a finding of overriding justification and a determination of medical appropriateness.”

Consequently, we conclude that Washington v. Harper, which is inherently inap-posite and should not be applied to the present case, also sets forth a due process standard that the state has failed to meet, and strongly implies that antipsychotic drugs absolutely may not be used as a tool for punishment. For the reasons stated in the previous section of this opinion, however, we rest our decision not on inferences drawn from Harper, but on the state constitutional rights of privacy or personhood and humane treatment.

V. PRIVACY OR PERSONHOOD

The state’s plan to force an insane prisoner to take antipsychotic drugs against his will as a necessary and integral antecedent to his execution infringes on several related interests protected by the right of privacy and personhood guaranteed by Art. I, § 5 of the 1974 Louisiana Constitution: the right to decide what is to be done medically with one’s brain and body; the right to control one’s own mind and thoughts; and the freedom from unwarranted physical interference with one’s person. There is no compelling state interest that would be furthered measurably by the state’s medicate-to-execute scheme. Therefore, the execution plan is unconstitutional and must be set aside.

The decisions of this court indicate that the Declaration of Rights (Article I) of the 1974 Louisiana Constitution embody and often amplify the protection of certain individual rights afforded by the pre-exist-ing United States Supreme Court interpretations of the Fourteenth Amendment and Bill of Rights. We have, for instance, held that the Louisiana Constitution provides greater protection of individual rights than does the federal constitution with respect to state rights phrased identically to federal counterparts, State v. Church, 538 So.2d 993 (La.1989); State v. Hernandez, 410 So.2d 1381 (La.1982), State v. Breaux, 329 So.2d 696 (La.1976); state rights phrased more specifically or broadly than the corresponding federal rights, e.g., Sibley v. Board of Sup’rs of La. State Univ., 477 So.2d 1094 (La.1985), State v. Sepulvado, 367 So.2d 762 (La.1979); and state rights that have no explicit federal analog, e.g., State v. Spooner, 520 So.2d 336 (La.1988); Title Research Corp. v. Rausch, 450 So.2d 933 (La.1984). See Devlin, Privacy and Abortion Rights Under the Louisiana State Constitution: Could Roe v. Wade be Alive and Well in the Bayou State? 51 La.L.Rev. 685, 688-689 (1991); Comment, The Declaration of Rights of the Louisiana Constitution of 1974: The Louisiana Supreme Court and Civil Liberties, 51 La.L.Rev. 787 (1991) (authored by Richard Bullock). The consensus of the justices of this court has been that “our state constitution’s declaration of individual rights ... represents] more specific ... [and] broader protection of the individual,” Guidry v. Roberts, 335 So.2d 438, 448 (1976) (Tate, J.); and is “far broader and more definitely articulated than corresponding rights in the Federal Constitution.” Id. 452, citing examples (Summers, J., dissenting). Moreover, there does not appear to have been a single instance in which this court has held that the Declaration of Rights affords less protection of individual liberties than did the Bill of Rights or other provisions of the federal constitution under the pre-existing Supreme Court interpretations.

A. Protected Privacy or Personhood Interests

Article I, § 5 of the 1974 Louisiana Constitution expressly guarantees that every individual shall be secure in his “person” against “unreasonable searches, seizures, or invasions of privacy.” Since 1974, this court and our courts of appeal have interpreted the right to privacy declared in Article I, § 5 to incorporate protection for several different categories of privacy interests. In the area of invasion of privacy by unreasonable searches or seizures, this court has interpreted the right of privacy to afford even more stringent protection of individual liberty than the Fourth Amendment. State v. Church, 538 So.2d 993 (La.1989); State v. Hernandez, 410 So.2d 1381 (La.1982); State v. Kinnemann, 337 So.2d 441 (La.1976). One Louisiana court of appeal has held that the “privacy” guarantee affords protection against the unreasonable compilation or disclosure of information about individuals. Trahan v. Larivee, 365 So.2d 294 (La.App. 3rd Cir.1978). See Devlin, supra, at 691-92; Hargrave, supra, at 21; Note, Toward a Right of Privacy as a Matter of State Constitutional Law, 5 Fla.St.U.L.Rev. 632 (1977).

In Hondroulis v. Schuhmacher, 553 So.2d 398, 410 (La.1989) this court held that Art. I, § 5 also establishes an affirmative right to privacy that impacts more than criminal search and seizure law, incorporates the principles of the United States Supreme Court privacy decisions in explicit statement, and includes the recognition of a patient’s right to decide whether to obtain or reject medical treatment and what shall or shall not be done with his body. Relying principally on Carey v. Population Services International, 431 U.S. 678, 97 S.Ct. 2010, 52 L.Ed.2d 675 (1977) as containing a succinct statement of the privacy principles developed prior to the adoption of our state constitution we concluded: Although the federal constitution does not explicitly mention any right of privacy, the Supreme Court has recognized that one aspect of “liberty” protected by the Due Process Clause of the Fourteenth Amendment is a right of personal privacy or a guarantee of certain areas or zones of privacy. This right of personal privacy includes the interest in independence in making certain kinds of important decisions. While the outer limits of this aspect of privacy have not been marked by the Court, it is clear that among the decisions that an individual may make without unjustified government interference are personal decisions relating to marriage, procreation, contraception, family relationships, and child rearing and education. Hondroulis v. Schuhmacher, supra, at 414 (quoting and citing authorities).

In concluding that the decision to obtain or reject medical treatment should be recognized as falling within this cluster of constitutionally protected rights, this court noted that one federal court and numerous states had held that the right to privacy is broad enough to grant an individual the right to chart his or her own medical treatment plan. Id. citing Rasmussen by Mitchell v. Fleming, 154 Ariz. 207, 741 P.2d 674 (1987); Bouvia v. Superior Court, 179 Cal.App.3d 1127, 225 Cal.Rptr. 297 (1986); Foody v. Manchester Memorial Hospital, 40 Conn.Supp. 127, 482 A.2d 713 (1984); Severns v. Wilmington Medical Center, Inc., 421 A.2d 1334 (Del.1980); Satz v. Perlmutter, 362 So.2d 160 (Fla. App. 4th Dist.1978); Brophy v. New England Sinai Hospital, Inc., 398 Mass. 417, 497 N.E.2d 626 (1986); Superintendent of Belchertown State School v. Saikewicz, 373 Mass. 728, 370 N.E.2d 417 (1977); In Matter of Farrell, 212 N.J.Super. 294, 514 A.2d 1342 (1986); Matter of Quinlan, 70 N.J. 10, 355 A.2d 647 (1976), cert. denied sub nom. Garger v. New Jersey, 429 U.S. 922, 97 S.Ct. 319, 50 L.Ed.2d 289 (1976); Leach v. Akron General Medical Center, 68 Ohio Misc. 1, 426 N.E.2d 809 (1980); Matter of Welfare of Colyer, 99 Wash.2d 114, 660 P.2d 738 (1983); Andrews v. Ballard, 498 F.Supp. 1038 (S.D.Texas 1980). Cf. In re P.V.W., 424 So.2d 1015 (La.1982).

Moreover, we concluded that the choice of whether to undergo surgery or other medical treatment is to an extraordinary degree an intrinsically personal decision. The patient alone must live with his disorder, encounter the risks of therapy, or reap the consequences of treatment. By the same token, the choice will profoundly affect his or her development or life. It may mean the difference between life and death, pain and pleasure, poverty and economic stability. 553 So.2d at 414-415, citing Rasmussen by Mitchell v. Fleming, supra; Andrews v. Ballard, supra. Accordingly, this court concluded that the Louisiana Constitution’s right to privacy also provides for a right to decide whether to obtain or reject medical treatment. 553 So.2d at 415.

We have no doubt that this and other interests that Perry has in avoiding the forcible administration of antipsychotic drugs are protected by Art. I, § 5 despite his status as a prisoner. It is generally accepted that conviction of a crime and incarceration, while limiting an inmate’s right to freedom from confinement, do not extinguish his right to liberty altogether. Vitek v. Jones, 445 U.S. 480, 100 S.Ct. 1254, 63 L.Ed.2d 552 (1980); Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). Subject to the legitimate requirements of prison discipline and security, prison inmates retain their fundamental constitutional rights and protections. Hudson v. Palmer, 468 U.S. 517, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984); Brown v. State, 117 Ariz. 476, 573 P.2d 876 (1978); Moen v. Wilson, 189 Colo. 85, 536 P.2d 1129 (1975); Roque v. Warden, 181 Conn. 85, 434 A.2d 348 (1980); State v. Holmes, 109 N.J.Super. 180, 262 A.2d 725 (1970); Bush v. Canary, 286 N.W.2d 536 (S.D. 1979); Matter of Sinka, 92 Wash.2d 555, 599 P.2d 1275 (1979).

In the evolution of the state constitution’s Declaration of the Right of Due Process of Law, Art. I, § 2, the scope and nature of due process were understood not solely in terms of state jurisprudence under the prior due process clause, but also in light of the much broader contemporary federal due process developments. Also sought to be continued was the “fundamental fairness” analysis by which due process grows organically. Hargrave, supra, at 4. In view of this safeguard and the expanded protections of privacy and personhood afforded by Art. I, § 5, we conclude that the generally accepted principles regarding prisoners’ retention of fundamental rights despite incarceration have been adopted by our state constitution.

Accordingly, because the involuntary medication was ordered as an integral and essential part of Perry’s punishment and not because of any legitimate requirement of prison security or medical interest of Perry, we conclude that the medicate-to-execute scheme infringes on Perry’s constitutionally protected interest in deciding whether to obtain or reject medical treatment and what shall be done medically with his mind and body.

It is a matter of first impression whether Art. I, § 5 also affords protection against the government’s unjustified physical invasion of a person’s body and brain or the government’s control by any means of a person’s mind and thoughts. However, the United States Supreme Court recognized that these types of interests were protected under the Bill of Rights and the Fourteenth Amendment well before the adoption of our state constitution. See Henkin, Privacy and Autonomy, 47 Co-lum.L.Rev. 1410 (1974).

The concept of constitutional privacy as protecting an individual in the security of his or her body was first articulated long ago. In U. Pacific R. Co. v. Botsford, 141 U.S. 250, 11 S.Ct. 1000, 35 L.Ed. 734 (1891), the Court held that civil litigants could not be forced to submit to a surgical examination because “no right is held more sacred, or is more carefully guarded at common law, than the right of every individual to the possession and control of his own person ... ‘to be let alone.’ ” Id. at 251, 11 S.Ct. at 1001. See also Olmstead v. U.S., 277 U.S. 438, 478, 48 S.Ct. 564, 572, 72 L.Ed. 944 (1928) (Brandeis, J., dissenting). Governmental invasion of the body by stomach pumping “shocks the conscience” and was held to be a flagrant violation of substantive due process in Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952). Certain other governmental invasions have been treated as intrusions of a protected interest of privacy or person-hood, although they eventually were upheld on a showing of clear necessity, procedural regularity, and lack of risk, trauma or pain to the individual. Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966) (blood tests); Jacobson v. Massachusetts, 197 U.S. 11, 25 S.Ct. 358, 49 L.Ed. 643 (1905) (compulsory vaccinations); see L. Tribe, American Constitutional Law, § 15-9, 1331-32 (2d ed. 1988). Indeed, “[c]ontrol over the body is the first form of autonomy and ... [a]ny plausible definition of privacy, then, whatever the sources of its normative commitments, must take the body as its first and most basic reference....” Gerety, Redefining Privacy, 12 Harv.Civ.Rts. — Civ.Lb.L.Rev. 233, 266 (1977).

An individual’s constitutionally protected interest in his mind, thoughts and mental processes was also recognized by the Supreme Court prior to the adoption of our state constitution. The operations of the mind are absolutely beyond the power of government to control. See Stanley v. Georgia, 394 U.S. 557, 565-66, 89 S.Ct. 1243, 1248-49, 22 L.Ed.2d 542 (1969) (Government does not have “the power to control men’s minds” or “the right to control the moral content of a person’s thought.” “[A]lso fundamental is the right to be free ... from unwarranted governmental intrusions into one’s privacy.”); Paris Adult Theatre I v. Slaton, 413 U.S. 49, 67, 93 S.Ct. 2628, 2640, 37 L.Ed.2d 446 (1973) (“The fantasies of a drug addict are his own and beyond the reach of government [unlike] regulation of drug sales....”); Tribe, supra, §§ 15-5 et seq. Although these cases involved governmental attempts to usurp mental control by nonphysical means, the decisions necessarily prohibit mind or thought control by physical or chemical means authorized or directed by the state.

For all of these reasons, we conclude that the state’s plan to medicate and execute Perry would violate his bodily integrity, chemically alter his mind and will, and usurp his fundamental right to make decisions regarding his health or medical treatment. Each of these interests is protected from unwarranted governmental intrusion by Art. I, § 5’s right of privacy or personhood. Moreover, these invasions are particularly intrusive because the forcible administration of antipsychotic drugs creates a substantial risk of permanent injury and premature death.

B. Interference By Forcible Injection Of Antipsychotic Drugs

When antipsychotic drugs are forcibly administered to further the state’s interest in carrying out capital punishment, and therefore not done in the prisoner’s best medical interest, the intrusion represents an extremely severe interference with that person’s liberty. The object of the intrusion is hostile in the utmost instead of beneficent, and the trustful, communicative doctor-patient relationship essential to the effective humane administration of antipsy-chotic drugs cannot exist. Under these circumstances, the nonconsenting recipient of antipsychotic drugs is much less likely to receive adequate protection from severely burdensome side effects.

As the Supreme Court has recognized, the forcible injection of antipsychotic drugs into a nonconsenting person’s body, even when done in his medical interest with medical appropriateness, represents a particularly severe interference with that person’s liberty. Riggins, supra, — U.S. at -, 112 S.Ct. at 1814; Harper, supra, 494 U.S. at 229, 110 S.Ct. at 1040. The Supreme Court summarized some of the potential effects of antipsychotic drugs as follows:

The purpose of the drugs is to alter the chemical balance in a patient’s brain, leading to changes, intended to be beneficial, in his or her cognitive processes. While the therapeutic benefits of antipsy-chotic drugs are well-documented, it is also true that the drugs can have serious, even fatal side effects. One such side effect identified by the trial court is acute dystonia, a severe involuntary spasm of the upper body, tongue, throat, or eyes. The trial court found that it may be treated and reversed within a few minutes through use of the medication Cogentin. Other side effects include akathesia (motor restlessness, often characterized by an inability to sit still); neuroleptic malignant syndrome (a relatively rare condition which can lead to death from cardiac dysfunction); and tardive dyskinesia, perhaps the most discussed side effect of antipsychotic drugs. Tardive dyskinesia is a neurological disorder, irreversible in some cases, that is characterized by involuntary, uncontrollable movements of various muscles, especially around the face_ [T]he proportion of patients treated with antipsy-chotic drugs who exhibit the symptoms of tardive dyskinesia ranges from 10% to 25%. According to the American Psychiatric Association, studies of the condition indicate that 60% of tardive dyskinesia is mild or minimal in effect, and about 10% may be characterized as severe.

Riggins, supra, — U.S. at -, 112 S.Ct. at 1814 (quoting Washington v. Harper, supra, 494 U.S. at 229-30, 110 S.Ct. at 1040-41). Furthermore, even when anti-psychotic drugs are administered purely as part of appropriate medical treatment, the drugs do not cure the mental disorder. Horton, Restoration of Competency For Execution: Furiosus Solo Furane Punitur, 44 Southwestern Law Journal 1191, 1204 (1990); Kenna, Current Status of Institutionalized Mental Health Patients’ Right to Refuse Psychotropic Drugs, 6 J.Legal Med. 107, 110 (1985). They merely calm and mask the psychotic symptoms which usually return to debilitate the patient when medication is discontinued. Horton, Id.; Gutheil & Appelbaum, “Mind Control”, “Synthetic Sanity”, “Artificial Competence”, and Genuine Confusion: Legally Relevant Effects of Antipsychotic Medication, 12 Hofstra L.Rev. 77, 99-101 (1983).

The interference by forcible injection of antipsychotic drugs is even more severe and dangerous when done for purposes of capital punishment. Therefore, further elaboration on the potential effects of the drugs is called for, including the description and detail of additional side effects not contained in the Supreme Court’s summary.

Antipsychotic drugs regularly produce a variety of disorders in the control of posture, muscle tone and movement, presumably as a result of dysfunction of the extra-pyramidal nervous system. R. Baldessari-ni, Chemotherapy in Psychiatry: Principles and Practice, 37 (1985). Accordingly, these side effects are often termed extrapyrami-dal syndrome or “EPS”. The medical experts who examined Perry for the sanity hearing attested to these potential harms. The toxicity of antipsychotics on the central nervous system is manifested by several of these characteristic motor disorders. Another such disorder, akinesia, causes lethargy, drooling, rigidity of facial muscles, lessening of spontaneity, apathy, and a disinclination to initiate activity. Note, Antipsychotic Drugs and the Incompetent Defendant: A Perspective on the Treatment and Prosecution of Incompetent Defendants, 47 Wash. & Lee L.Rev. 1059, 1061 (1990). Other regularly occurring effects include feelings of heaviness, sluggishness, weakness, faintness, dry mouth, blurred vision, insomnia, anxiety, euphoria, agitation, drowsiness, depression, headache, confusion, vertigo, grand mal seizures, impaired liver function, hallucinations, jaundice, breast engorgement, impotence, constipation, diarrhea, nausea, vomiting, and anorexia. See, Physician’s Desk Reference 1375 (42d ed. 1989) (hereinafter PDR); Baldessarini, supra, at 68-74.

Tardive Dyskinesia may develop even after relatively brief periods of treatment, even at low dosage levels. PDR at 1374. Tardive dyskinesia can in some cases seriously impair skills in self-care, feeding, and swallowing. There is no known treatment. The only way to effectively reduce the risk of tardive dyskinesia is to thoughtfully and conservatively use antipsychotic drugs and attempt to use alternative treatments. Baldessarini, supra, at 78. However, it is likely that such measures would be inconsistent with and impossible under a scheme of preparation for execution which considers only the remission of psychotic symptoms to a level at which the prisoner would be considered competent for execution. Also, recipients of antipsychotic medication run the danger of developing neuroleptic malignant syndrome, a potentially fatal condition manifested by hyperpyrexia, muscle rigidity, catatonia, and autonomic instability, including irregular pulse or blood pressure, tachycardia, and cardiac dys-rhythmia. PDR at 1374.

Acute dystonia typically occurs early in treatment and usually with high-potency neuroleptics. Baldessarini, supra, at 69. This condition as a rule causes severe anxiety. Id. It is manifested by sustained uncontrollable excessive movement of the muscles of the neck, jaw, and tongue, as well as the eyes and trunk. Other symptoms may include trismus (lockjaw), opis-thotonos (a condition of tetanic spasm of the muscles of the hack, causing the head and lower limbs to bend backward and the trunk to arch forward), or tonic oculogyric movements or deviations of the eyes (“ocu-logyric crisis”). Facial grimacing, perioral spasms, protrusions or torsion of the tongue, sweating, fever and dysphagia are common. Laryngeal or pharyngeal spasm with dyspnea or life-threatening respiratory distress may develop, and a few fatalities have occurred. Id. These reactions are more likely to occur in young adult male patients.

Because of the many potentially harmful effects of antipsychotic drugs, the state’s use of them to infringe upon a person’s mind, body and medical autonomy as an instrument of capital punishment is far more invasive than other governmental interferences which have been held to be violative of the right of privacy or its forerunner, the right of substantive due process of law. In Hondroulis v. Schuh-macher, supra, the state statute at issue, as interpreted by the lower courts, imper-missibly interfered with a person’s right to decide what is to be done with his body by creating legal obstructions to his access to medical information from physicians. In Griswold v. Connecticut, supra, and the cases leading to Griswold’s recognition of a separate, independent right to privacy implied by principles within the Bill of Rights, the state statutes at issue were held unconstitutional because they unduly interfered with an individual’s right to make important decisions affecting himself, such as choices concerning contraception, procreation, marriage, family relationships, and child rearing and education. See authorities cited in Hondroulis v. Schuh-macher, supra, at 414. If the state is permitted to carry out its plan, Perry not only would be deprived of his right to make important medical choices affecting his mind, body and well-being, but he also would be forced to submit to the physical intrusion of powerful, dangerous and unpredictable drugs into his body and brain, and compelled to yield control of his thoughts and will to the state for the purpose of implementing his execution.

C. Application of the Compelling State Interest Test

Although the right to privacy or person-hood is not absolute, we indicated in Hondroulis v. Schuhmacher, supra, that where a decision as fundamental as those included within the right of personal privacy is involved, state action imposing a burden on it may be justified only by a compelling state interest, and the state action must be narrowly confined so as to further only that compelling interest. Id. at 415. Only such strict judicial scrutiny is sufficiently protective of a person’s right of privacy or personhood to avoid unwarranted governmental interference with his body, mind, and medical autonomy. Id.; accord: Kramer v. Union Free School Dist., 395 U.S. 621, 89 S.Ct. 1886, 23 L.Ed.2d 583 (1969); Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969); Aptheker v. Secretary of State, 378 U.S. 500, 84 S.Ct. 1659, 12 L.Ed.2d 992 (1964); Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213 (1940); Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963); Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965); People v. Medina, 705 P.2d 961, 975 (Colo.1985); Guardianship of Roe, 383 Mass. 415, 421 N.E.2d 40 (1981).

We see no reason for the state’s proposed action in the present case to be measured by a less rigorous standard or receive less than strict scrutiny simply because it is sought to be implemented by the state through a court order rather than by legislative enactment. We turn to question, therefore, whether the court order directing that the prisoner be forcibly medicated and maintained with antipsychotic drugs at a certain level of competency for purposes of execution, is necessary to promote a compelling state interest, and is narrowly drawn to further only that interest.

First, the state attempts to bring the involuntary drugging at issue in this case under the aegis of Washington v. Harper, supra, by arguing that although the forcible medication of Perry will further the state interests to be served by his execution, it will also advance Perry's medical interest and promote the state’s interest in prison safety because his mental illness causes him to be a danger to himself and others. We believe these purposes were manufactured with the benefit of hindsight and did not in fact motivate the challenged court order. As we explained in distinguishing Harper above, the record reflects that the present proceeding was initiated by the trial court solely for the purpose of determining Perry’s competence for execution, that the forcible medication was ordered solely to implement his execution and that forcible injection of antipsychotic drugs into his body to remove the obstacle to his execution is not in his ultimate medical interest.

Furthermore, even if prison safety and Perry’s medical welfare were the state’s true objectives, the trial court’s order sweeps unnecessarily broadly and thereby invades the area of protected freedoms. See Aptheker v. Secretary of State, 378 U.S. at 508, 84 S.Ct. at 1664 and authorities cited therein. The state has within its power less drastic means of achieving the objectives of medically treating Perry for his own best interests and protecting others at the prison. La.R.S. 15:803.1 provides an example. Under this statute, a mentally ill prisoner may be medically treated involuntarily when “necessary to prevent harm or injury to the inmate or to others”. Also he may be judicially committed to a treatment facility after a hearing at which the inmate is represented by counsel. Thus, the state action proposed in the present case is not narrowly confined to the interests of prison safety and the inmate’s medical interest even if these were the state’s objectives as asserted in argument.

Second, the state suggests alternatively that it has a compelling interest in medicating Perry in order to further the social goals to be advanced by the death penalty, i.e., the retribution and deterrence of capital crimes. For the reasons assigned in the next section of this opinion, however, we conclude that the execution of a forcibly medicated insane prisoner will not contribute to the goal of either retribution or deterrence of capital offenses. Consequently, the state has failed to demonstrate that its proposed infringement upon Perry’s protected rights of privacy and person-hood is outweighed by a compelling state interest that would be measurably advanced by carrying out the death sentence. The state’s plan to use forcible medication as a means of effecting punishment is therefore unconstitutional and must be disallowed. However, because Perry’s right of personhood and privacy is also protected under our state constitution’s cruel, excessive and unusual punishment clause and cannot be adequately discussed without its consideration, we do not base our decision on Art. I, § 5 alone.

VI. HUMANE TREATMENT

The specific issue we address here is whether death, combined with forcible administration of antipsychotic drugs, is punishment that subjects an insane capital offender to cruel, excessive or unusual punishment, that consequently, by virtue of Art. I, § 20 of the 1974 Louisiana Constitution, is beyond the power of the state to inflict. We conclude that the death penalty as applied to an insane offender under these circumstances is unconstitutional. The punishment is cruel because it imposes significantly more indignity, pain and suffering than ordinarily is necessary for the mere extinguishment of life, excessive because it imposes a severe penalty without furthering any of the valid social goals of punishment, and unusual because it subjects to the death penalty a class of offenders that has been exempt therefrom for centuries and adds novel burdens to the punishment of the insane which will not be suffered by sane capital offenders.

Article I, § 20 was derived from the Eighth Amendment and similar guarantees appearing in earlier state constitutions. La. Const.1921, Art. I, § 12; La. Const. 1913, Art. 12; La. Const.1898, Art. 12; La. Const.1879, Art. 9; La. Const.1868, Art. 8; La. Const.1864, Arts. 94, 107. It adds, however, that no law shall subject any person to, “euthanasia”, “torture”, or “excessive punishment”, broadening the prior prohibition against “excessive fines ... cruel and unusual punishment”. La. Const.1921, Art. I, § 12; State v. Sepulvado, 367 So.2d 762 (La.1979). These additions expand in several instances the precepts that had evolved from the United States Supreme Court’s interpretation of the Cruel and Unusual Punishments Clause of the Eighth Amendment. Hargrave, The Declaration of Rights of the Louisiana Constitution of 1974, 35 La.L.Rev. 1, 63 (1974); Jenkins, “The Declaration of Rights,” 31 Loy.L.Rev. 9, 39-40 (1975).

The most significant example of expansion is the deliberate inclusion of a prohibition against “excessive” punishment, which has been interpreted to add a protection of individual liberty surpassing that provided by the Eighth Amendment. Because of this provision, a person is protected not only from punishment that is cruel, excessive or unusual per se or as applied to particular categories of crimes or classes of offenders, but also from any excessive feature of a particular sentence produced by an abuse of the sentencer’s discretion, even though the sentence is otherwise within constitutional limits. State v. Telsee, 425 So.2d 1251 (La.1983); State v. Sepulvado, 367 So.2d 762 (La.1979).

The enhancement of the safeguards in several particulars and the convention history in general indicate that Article I, § 20 affords no less, and in some respects more, protection than that available to individuals under the Cruel and Unusual Punishments Clause of the Eighth Amendment at the time of the adoption of our state constitution. Accordingly, this court has considered the United States Supreme Court opinions and other jurisprudence preexisting the adoption of the 1974 Louisiana Constitution as the threshold, but not the determinant, of the right to humane treatment declared by Art. I, § 20. See State v. Sepulvado, supra, at 746-66; see also Hargrave, supra, at 63.

In the leading case, State v. Stetson, 317 So.2d 172 (La.1975), this court was called upon to decide whether mandatory life imprisonment for the crime of distribution of heroin was cruel, excessive or unusual punishment. The court reviewed the concurring opinions of the Justices in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972) (Douglas, J., concurring); id. 408 U.S. at 257, 92 S.Ct. at 2735 (Brennan, J., concurring); id. at 306, 92 S.Ct. at 2760 (Stewart, J., concurring); id. at 310, 92 S.Ct. at 2762 (White, J., concurring); id. at 314, 92 S.Ct. at 2764 (Marshall, J., concurring) and other jurisprudence and derived four principles or generalized criteria for assessing the constitutional validity of punishments under Art. I, § 20: the punishment must not be (1) degrading to the dignity of human beings; (2) arbitrarily inflicted; (3) unacceptable to contemporary society; or (4) excessive, i.e., disproportionate to the crime or failing to serve a penal purpose more effectively than a less severe punishment. Id. at 177. Applying these principles, this court concluded that the penalty was constitutional. Id.

A. Background of the Principles of Humane Treatment

The principles recognized by this court in the Stetson case as being appropriate for evaluating punishment under Art. I, § 20 were distilled by the Furman court’s opinions from a rich background of jurisprudence. We refer to pertinent parts of that development for insight with which to apply the principles of humane treatment to the present case.

As this court stated in Stetson, the primary principle of the right to humane treatment is that a punishment must not be degrading to the dignity of human beings. This basic principle deals with society’s obligation to itself and its members to treat each individual as a human being. The other three principles of humane treatment banning excessive, arbitrary and socially unacceptable punishment pertain to specific indicia of inhumane treatment and to the state’s obligation to treat each individual or class of persons humanely in comparison with its treatment of others. We will describe each of these principles generally before applying them one by one to the circumstances of the present case.

The principal hallmark of any punishment that is degrading to the dignity of human beings is that it treats members of the human race as non-humans. This results when a person is treated as a thing or as a means to the state’s ends, rather than as a fellow human, resulting in extremely degrading physical or mental suffering. Trop v. Dulles, 356 U.S. 86, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958) (expatriation); Weems v. U.S., 217 U.S. 349, 30 S.Ct. 544, 54 L.Ed. 793 (1910) (cadena temporal); Wilkerson v. Utah, 99 ,U.S. 130, 25 L.Ed. 345 (1878). The barbaric punishments condemned by history, “punishments which inflict torture, such as the rack, the thumbscrew, the iron boot, the stretching of limbs and the like,” are, of course, “attended with acute pain and suffering.” O’Neil v. Vermont, 144 U.S. 323, 339, 12 S.Ct. 693, 699, 36 L.Ed. 450 (1892) (Field, J., dissenting). The true significance of the unconstitutionality of these punishments, however, is their inconsistency with the fundamental premise of the Cruel and Unusual Punishments Clause that even the vilest criminal remains a human being both possessed and deserving of common human dignity. Furman v. Georgia, 408 U.S. 238, 273, 92 S.Ct. 2726-27, 33 L.Ed.2d 346 (1972) (Brennan, J., concurring). For example, in Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 464, 67 S.Ct. 374, 376, 91 L.Ed. 422 reh’g denied, 330 U.S. 853, 67 S.Ct. 673, 91 L.Ed. 1295 (1947), the Court concluded that it was not unconstitutional to force a prisoner to undergo a second effort to electrocute him after a mechanical malfunction thwarted the first attempt. The unsuccessful electrocution, although it caused mental anguish and physical pain, was the result of “an unforeseeable accident.” Had the failure been intentional rather than a mishap, the punishment would have been, like torture, so degrading and indecent as to amount to a refusal to accord the offender human status. Id. 329 U.S. at 471-72, 67 S.Ct. at 380-81 (Frankfurter, J., concurring).

A state also may not constitutionally inflict punishment for the mere status one assumes in life, for to do so is to treat an individual as a thing rather than a fellow human being. Consequently, a state may not lawfully punish a person for being “mentally ill, or a leper, or ... afflicted with a venereal disease,” or for being addicted to narcotics. Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962). Furthermore, punishment may be degrading simply by reason of its enormity. A prime example is expatriation, a “punishment more primitive than torture,” Trop v. Dulles, 356 U.S. at 101, 78 S.Ct. at 598; such punishment was held to be unconstitutional because it necessarily involves a denial by society of the individual’s existence as a member of the human community. Furman v. Georgia, 408 U.S. at 273-74, 92 S.Ct. at 2743-44 (Brennan, J., concurring).

The remaining principles are complementary of the primary concept of human dignity. They prohibit the three archetypes of punishment that degrade the dignity of human beings i.e., excessive, arbitrary and socially unacceptable punishment. Frequently, they have been applied to prevent the state’s application of a type of punishment to a particular class of offenders that would be inhumane in comparison with its treatment of others.

The second principle is that the state must not arbitrarily inflict a severe punishment. The very words “cruel and unusual punishment” imply condemnation of the arbitrary infliction of severe punishment. The state does not respect human dignity when it inflicts upon a person or a class of persons a severe punishment that it does not inflict on others for committing the same act or offense. Furman v. Georgia, supra 408 U.S. at 274, 92 S.Ct. at 2744 (Brennan, J., concurring).

While fear of torture was the central concern of the Framers of the Eighth Amendment, its English background indicates that the concern for regularity and generality in the imposition of severe punishment also underlies the Clause. A. Goldberg and A. Dershowitz, Declaring the Death Penalty Unconstitutional, 83 Harv. L.Rev. 1773, 1789 (1970). The incident which prompted inclusion of the cruel and unusual punishment protection in the 1688 English Bill of Rights was the prosecution and punishment of Titus Oates, a minister of the Church of England, for two counts of perjury in 1686. Oates was convicted on both counts and sentenced to (1) pay a substantial fine, (2) life imprisonment, (3) whippings, (4) pilloring four times a year, and (5) to be defrocked. Id. Although none of these punishments was considered torture at that time, the English Parliament called for his release, calling the penalty “inhumane and unparalleled.” Therefore, “cruel and unusual” seems to have originally meant a severe punishment unauthorized by statute and not within the jurisdiction of the court to impose. A. Grannuci, Nor Cruel and Unusual Punishments Inflicted: The Original Meaning, 57 Calif.L.Rev. 839, 859 (1969). See Furman v. Georgia, supra, 408 U.S. at 428, 92 S.Ct. at 2823 (Burger, C.J., dissenting).

By its attention to the use of a particular penalty outside of the jurisdiction involved, the United States Supreme Court implicitly affirmed the principle that for a punishment to withstand scrutiny under the Eighth Amendment, it must not be arbitrary. See Wilkerson, supra; Weems, supra; Trop, supra. Judicial scrutiny in this context reflects not only a measurement of evolving standards of decency but also a reference to the anomaly of the punishments in question. When an individual is singled out because of an accident of geography for unusually severe treatment, it seems particularly cruel. Moreover, as the Court observed in Trop v. Dulles, supra, 356 U.S. at 100-01 n. 32, 78 S.Ct. at 597-98 n. 32, “[i]f the word ‘unusual’ is to have any meaning apart from the word ‘cruel’ ... the meaning should be the ordinary one, signifying something different from that which is generally done.” Goldberg & Dershowitz, supra 1789. Neither the cade-na temporal in Weems nor the expatriation in Trop was authorized elsewhere. In Wilkerson the Court reviewed various treatises on military law in order to demonstrate that under “the custom of war,” shooting was a common method of inflicting the punishment of death. 99 U.S. at 133-34.

The constitutional protection against arbitrary punishments was explicitly recognized in Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 67 S.Ct. 374, 91 L.Ed. 422 (1947). Focusing on the manner in which the first abortive attempt to electrocute Francis had been conducted, the Court spoke of the “[prohibition against wanton infliction of pain [that] has come into our law from the Bill of Rights of 1688.” Id. 329 U.S. at 463, 67 S.Ct. at 376. In the Court’s opinion, Francis had not been subject to the wanton or arbitrary infliction of pain; the extra pain he suffered was unavoidably accidental. See also Goldberg & Dershowitz, supra at 1791.

The third principle inherent in the guarantee of humane treatment is that a severe punishment must not be excessive. The inquiry into “excessiveness” has two aspects. First, the infliction of a severe punishment by the state cannot comport with human dignity when it is unnecessary and nothing more than the pointless infliction of suffering. A particular punishment, therefore, is unconstitutionally excessive if it does not make any measurable contribution to the goals that such punishment is intended to achieve. Furman v. Georgia, 408 U.S. 238, 279-80, 92 S.Ct. 2726, 2747, 33 L.Ed.2d 346 (1972) (Brennan, J., concurring); id. 408 U.S. at 311-12, 92 S.Ct. at 2763 (White, J., concurring); id. at 342-57, 92 S.Ct. at 2778-87 (Marshall, J., concurring); id. at 392-93, 92 S.Ct. at 2805-06 (Burger, C.J., dissenting); Weems v. U.S., supra, 217 U.S. at 381, 30 S.Ct. at 554; Wilkerson v. Utah, 99 U.S. at 136. Second, the punishment must not be grossly out of proportion to the severity of the crime. Trop v. Dulles, supra, 356 U.S. at 100, 78 S.Ct. at 597 (plurality opinion); Weems v. U.S., supra, 217 U.S. at 367, 30 S.Ct. at 549.

In Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976) the Supreme Court discussed the “excessiveness” inquiry with respect to the death penalty. Although Gregg was decided after the adoption of Art. I, § 20, the lead opinion relied primarily on decisions pre-existing our state constitution and therefore may be considered as an indication of the minimum level of protection afforded by the state constitutional right to humane treatment. The Gregg plurality stated that the death penalty is said to serve two principal social purposes: retribution and deterrence of capital crimes by prospective offenders. 428 U.S. at 183-84, 96 S.Ct. at 2929-30 (citing Furman v. Georgia, 408 U.S. at 394-95, 92 S.Ct. at 2806-07 (Burger, J., dissenting); id., at 452-54, 92 S.Ct. at 2835-36 (Powell, J., dissenting)); Powell v. Texas, 392 U.S. 514, 531, 88 S.Ct. 2145, 2153, 20 L.Ed.2d 1254 (1968). Therefore, when a particular application pf the death penalty fails to measurably contribute to either of these goals it clearly is unnecessary and involves the wanton infliction of pain.

The final principle of humane treatment is that a severe punishment must not be unacceptable to contemporary society. As the Supreme Court has noted, the Cruel and Unusual Punishments Clause “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.” Trop v. Dulles, supra, 356 U.S. at 101, 78 S.Ct. at 597. Rejection by society is a strong indication that a particular severe punishment does not comport with human dignity. In practice, most of the Supreme Court opinions prior to 1974 tended to rely upon objective indicia of attitudes actually prevailing among civilized people: historic usage of particular punishments, Wilkerson v. Utah, supra, (firing squad usage in Utah Territory and the Army); statutory authorization in other jurisdictions, Weems v. U.S., supra (cadena temporal had no equivalent in the United States); Trop v. Dulles, supra, (expatriation unused by other civilized nations); general public opinion, Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 471, 67 S.Ct. 374, 380, 91 L.Ed. 422 (1947) (Frankfurter, J., concurring); and a combination of present acceptance with past usage, Trop v. Dulles, supra, 356 U.S. at 99, 78 S.Ct. at 597. See also Robinson v. Calif., 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962); Weems v. U.S., 217 U.S. 349, 30 S.Ct. 544, 54 L.Ed. 793 (1910). Goldberg & Dershowitz, supra, at 1780-82.

Thus, whether there are objective factors from which a court can conclude that contemporary society considers a severe punishment unacceptable is the issue. Moreover, the acceptability of a severe punishment is measured by its actual use, not its availability, for it might become so offensive as never to be inflicted. Furman v. Georgia, 408 U.S. at 278-79, 92 S.Ct. at 2746-47 (Brennan, J., concurring). Objective evidence of contemporary notions of humanity and decency must be viewed, however, only as a threshold inquiry or the principle of humane treatment would merely legitimize advances already made and opinions already conventional. Goldberg & Dershowitz, supra, at 1782.

The four principles or generalized criteria provide the means by which a court can determine whether a challenged punishment is consistent with human dignity. They are, therefore, interrelated, and in most cases it will be their convergence that will justify the conclusion that a punishment is “cruel, excessive or unusual”. The test, then, is a cumulative one: If a punishment is unusually degrading, if there is strong probability that it is inflicted arbitrarily, if it is substantially rejected by contemporary society, and if there is no reason to believe that it serves any valid goal of punishment more effectively than some less severe punishment, then the continued infliction of that punishment violates the command that the state may not inflict inhuman and uncivilized punishments upon those convicted of crimes. Furman v. Georgia, 408 U.S. at 282, 92 S.Ct. at 2748 (Brennan, J., concurring).

B. Application of Principles of Humane Treatment

The Stetson principles or generalized criteria of humane treatment, when applied to the punishment proposed by the state in the present case, converge to compel the conclusion that the forcible administration of antipsychotic drugs to induce competence for execution, compounded by execution itself, would be cruel, excessive, and unusual punishment. The state’s medicate-for-execution scheme is thus unconstitutional.

The punishment intended for Perry is severely degrading to human dignity. It will involve far more than the mere extin-guishment of human life. Unlike other death row prisoners, Perry will be forced to yield to the state the control of his mind, thoughts and bodily functions, ingest or absorb powerful toxic chemicals, and risk or suffer harmful, possibly fatal, drug side effects. He will not be afforded a humane exit but will suffer unique indignities and degradation. In fact, he will be forced to linger for a protracted period, stripped of the vestiges of humanity and dignity usually reserved to death row inmates, with the growing awareness that the state is converting his own mind and body into a vehicle for his execution. In short, Perry will be treated as a thing, rather than a human being, and deliberately subjected to “something inhuman, barbarous” and analogous to torture.

The punishment the state plans for Perry is arbitrary in its conception and is apt to be arbitrary in practice. The punishment is anomalous, irregular and without general application. No insane offender has been executed in the civilized world for centuries. There is no statute in this or any other jurisdiction authorizing the execution of an insane offender or the involuntary medication of a prisoner for this purpose. Moreover, the trial court by ordering the state to medicate Perry forcibly if necessary has created an opportunity for further arbitrariness in application. The trial court’s order places any physician having a duty to treat Perry for his mental illness in a severe conflict of interest, as we have noted in distinguishing forcible medication for execution from forcible medical treatment for safety and health. In short, whether the doctor prescribes and administers antipsychotic drugs or refuses to do so, he must act contrary to his patient’s best medical interests either by promoting the execution of his patient or by failing to alleviate suffering. In this ambiguous situation there is great risk that physicians who choose to forcibly administer drugs may pursue the clear goal of execution more vigorously than the vaguer duty of protecting the inmate from drug side effects; and there is danger that the involuntary dispensation may be removed effectively from physicians’ hands altogether. Under these circumstances there will be increased danger of arbitrariness and capriciousness in both the forcible administration of drugs and the determination of competence for execution.

The punishment that the state seeks to carry out on Perry is excessive because it makes no measurable contribution to the acceptable goals of capital punishment and hence is nothing more than the purposeless and needless imposition of pain and suffering. Of the social goals of criminal punishment, the death penalty may be said to further only two, viz., retribution and deterrence of capital crimes. See Gregg v. Georgia, supra (restating principles advanced by members of the Court in Fur-man v. Georgia, supra, and prior decisions). Executing insane offenders after violating their rights of personhood by forcibly administering antipsychotic drugs to them against their wills, however, does not measurably further either the goal of deterrence or retribution.

The Supreme Court has noted that statistical attempts to evaluate the worth of the death penalty as a deterrent to crimes by potential offenders have been inconclusive. Gregg v. Georgia, supra, 428 U.S. at 184, 96 S.Ct. at 2930 (citations omitted). The Gregg plurality assumed that for some offenses and offenders the death penalty is a significant deterrent, viz., carefully contemplated murders, such as murder for hire, and murder by a life prisoner. Id. at 185-86, 96 S.Ct. at 2930-31. However, it is highly unlikely that the deterrent value of the death penalty will be increased measurably by including within the class of convicted offenders who may be executed a category that has been exempt from execution for centuries, viz., the insane. The likelihood is remote at best that a capital offender, capable of the kind of cost-benefit analysis that would make him susceptible to being deterred by the possibility of execution, would attach crucial weight to the fact that he cannot be executed should he become insane after being apprehended, convicted and sentenced to death. Cf. Thompson v. Oklahoma, 487 U.S. 815, 108 S.Ct. 2687, 101 L.Ed.2d 702 (1988); Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989) (Brennan, J., dissenting); Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982). Under these circumstances, the threat of execution is too attenuated to be of substantial service to criminal justice. See Furman v. Georgia, supra, 408 U.S. at 391, 92 S.Ct. at 2804 (White, J., concurring).

Furthermore, the state’s execution of insane prisoners by means of forcible medication does not measurably contribute to the social goal of retribution. The pursuit of retribution, like that of any single social aim, has its restrictive qualifiers. H.L.A. Hart, Responsibility and Punishment, 10 (1968). The principles limiting the unqualified pursuit of retribution include respect for human dignity and equivalence between crime and punishment. Because the punishment planned by the state in the present case would violate these restrictive principles we conclude that the state cannot legitimately further the goal of retribution by this means. See J.G. Murphy, Retribution, Justice, and Therapy 227 (1979) (citing I. Kant, The Philosophy of Law (W. Hastie trans. 1887)); H.L.A. Hart, Punishment and Responsibility: Essays in the Philosophy of Law 231 (1968).

The retributory theory of punishment presupposes that each human being possesses autonomy, a kind of rational freedom which entitles him or her to dignity and respect as a person which is morally sacred and inviolate, but that an original social contract was entered by which the people constituted themselves a state. Murphy, supra at 68, 65; Murphy, Kant: The Philosophy of Right, Ch. 4 (1970); Kant, The Philosophy of Law (1887). Accordingly, in order to enjoy the benefits that a legal system makes possible, each person must make the sacrifice of obeying the law even when it is personally undesirable. If the system is to remain just, therefore, it must be guaranteed that those who disobey will not gain unfair advantage over those who abide by the law. Criminal punishment is used to maintain the proper balance by insuring that the law breaker derives no profit from wrongdoing. The criminal who chooses not to sacrifice by exercising self-restraint and obedience elects, in effect, to sacrifice in another way — namely, by paying the prescribed penalty. Murphy, supra at 83, citing Kant, Metaphysische Anfangsgrunde der Re-chtslehre, 331, 332, 335 (1797).

In strictest or most severe form the theory of retribution asserts, among other things, that a person’s punishment must in some way match, or be the equivalent of, the wickedness of his offense. H.L.A., Punishment and Responsibility, 231 (1968). To many this is the most perplexing feature of the strict model of retributory theory. The simple equivalencies of an eye for an eye or a death for a death seem either repugnant or inapplicable to most offenses. Therefore, instead of equivalence between particular punishments and particular crimes, modern retributive theory is concerned with proportionality. Id. 233-34.

Because retribution is a theory which respects human dignity, regards human beings as responsible agents and not merely as things or resources to be manipulated for the social good, however, even strict retributivists agree that there are some things which should not be done to a criminal even if he has done them to others. Murphy, supra, 85, 90, citing Rechtslehre at 363. Immanuel Kant, the leading defender of the severe form of retribution, argued that the state should never do anything to a criminal that humiliates and degrades his dignity as a human being. Id.

Speaking of the death penalty, in a passage having great significance to the present case, Kant argued that, while a murderer must forfeit his life as a match or equivalent to his crime, the state cannot inflict suffering more than necessary to take his life: “[wjhoever has committed murder must die_ His death, however, must be kept free from all maltreatment that would make the humanity suffering in his person loathsome or abominable.” Kant, The Philosophy of Law, supra, at 198. Consequently, we conclude that even the strictest retributivist would disapprove of the forcible administration of antipsy-chotic drugs to implement prisoners’ executions because this would violate the cardinal principle of retribution that the state cannot degrade human dignity or maltreat any criminal.

As members of the Supreme Court have noted, “retribution is not inconsistent with our respect for human dignity.” Furman v. Georgia, 408 U.S. at 394-395, 92 S.Ct. at 2806-07 (Burger, C.J., dissenting); id., at 452-454, 92 S.Ct. at 2835-36 (Powell, J. dissenting); Powell v. Texas, 392 U.S. 514, 531, 535-536, 88 S.Ct. 2145, 2153, 2155-56, 20 L.Ed.2d 1254 (1968) (plurality opinion). Indeed, the opinions of the Court have, in effect, adhered strongly to the concept that to exact significantly more punishment than death simpliciter from a capital offender would be maltreatment or torture demeaning his dignity and not a proportionate or even an equivalent punishment. See Louisiana ex rel. Francis v. Resweber, supra; Wilkerson v. Utah, supra; In re Kemmler, 136 U.S. 436, 10 S.Ct. 930, 34 L.Ed. 519 (1890). Moreover, if retribution could serve as justification for heaping an extra amount of indignity and suffering on a murderer because his crime was particularly vile, the “cruel, excessive and unusual” language would be read out of the Constitution; torture and atrocities would be permissible despite their being historically the clearest cases of forbidden inhumane punishment. Furman v. Georgia, supra, 408 U.S. at 408-10, 92 S.Ct. at 2813-14 (Marshall, J., concurring).

In light of these principles, we are convinced that the regime of punishment proposed by the trial court’s order does not measurably contribute to the goal of retribution. Rather than calling upon Perry to suffer only the extinguishment of his life in a humane manner, the state would have him undergo a course of maltreatment that is inherently loathsome and degrading to his dignity as a human being. Unlike sane death row prisoners who retain dignity until the end, Perry would be forced to endure the usurpation of control of his body and mind by the state and the deprivation of medical treatment in his best interests before he is dispatched by the lethal injection. He must experience an indefinite period of indignity, anxiety and fear, assimilating unwanted antipsychotic drugs into his brain and body against his will at the risk of harmful and fatal side effects. He will go through this painful test involving his intimate mental and bodily processes without the aid of a trusted physician acting in his welfare and in whom he can confide. There is in this process of executing the death sentence no match, equivalence or proportionality. These circumstances amount to more than the mere extinguishment of life; they degrade human dignity and reach a sum in which there is something inhuman, barbarous, and analogous to torture.

Finally, we conclude that the compound of forcible medication and death that the state seeks to impose on Perry is a severe punishment unacceptable to contemporary society. After taking into account objective evidence of contemporary values, it is evident that the punishment would offend civilized standards of decency.

The prohibition against executing a prisoner who has lost his sanity has impressive historical and contemporary credentials. After being observed in the common law for centuries, it took root in America where it is followed unanimously today. Of the 36 death penalty jurisdictions, more than 20 have enacted statutory provisions prohibiting the execution of insane capital offenders. See Ala.Code § 15-16-23 (1982); Ariz. Rev.Stat.Ann. § 13-402 (1982); Ark.Code Ann. § 16-90-506 (1987); Cal.Penal Code §§ 3700-3704 (West 1982); Colo.Rev.Stat. § 16-8-110 (1986); Conn.Gen.Stat. § 54-101 (1985); Fla.Stat.Ann. § 922.07 (West 1985); Ga.Code Ann. § 17-10-61 to -63 (Harrison 1990); Ill.Rev.Stat. ch. 38, II1005-2-3 (1982); Kan.Stat.Ann. § 22-4006 (1988); Ky.Rev.Stat. § 431.240 (1985); Md.Code Ann. art. 27, § 75A(a)(2)(ii) (1990); Mass.Gen.Laws Ann. ch. 279, § 62 (West Supp.1992); Miss.Code Ann. § 99-19-57 (Supp.1985); Mo.Ann.Stat. § 552.060 (Vernon 1989); Mont.Code Ann. §§ 46-19-201 to -202 (1985); Neb.Rev.Stat. § 29-2537 to -2538 (1978); Nev.Rev.Stat. §§ 176.415 to 455 (1986); N.M.StatAnn. § 31-14-4 to 31-14-7 (1984); N.Y.Correct.Law §§ 655-57 (McKinney 1987); Ohio Rev.Code Ann. §. 2949.28-30 (Baldwin 1992); Okla. StatAnn. tit. 22 §§ 1005-1008 (1986); Utah Code Ann. § 77-15-3 to -5 and § 77-19-8 to -13 (1990); Wyo.Stat. §§ 7-13-901 to - 903 (1987). Other states provide for the transfer of all mentally incompetent prisoners to the state hospital. See Del.Code Ann. tit. 11, § 406 (1987); Ind.Code Ann. § 11-10-4-1 to 11-10-4-5 (Burns 1988); N.C.Gen.Stat. § 15A-1001 to 1002 (1988); S.C.Code Ann. § 44-23-210 (Law.Co-op. 1985); Va.Code § 19.2-177.1 (1990). Pour states have adopted, by case law, the common law rule prohibiting the execution of the insane. State v. Allen, 204 La. 513, 15 So.2d 870 (1943); Commonwealth v. Moon, 383 Pa. 18, 117 A.2d 96 (1955); Jordan v. State, 124 Tenn. 81, 135 S.W. 327 (1911); State v. Davis, 6 Wash.2d 696, 108 P.2d 641 (1940) (dictum). Idaho has a statute that provides for the adoption of the common law absent an explicit statutory provision. Idaho Code § 73-116 (1989). In sum, the overwhelming weight of objective evidence of contemporary values in state statutes and common law indicates that society will not tolerate any exception to the widely and deeply held prohibition against executing the insane.

The ethical standards of the medical profession reinforce this view and constitute further objective evidence of this standard of decency. Both the American Medical Association and the American Psychiatric Association have strongly urged physicians not to participate in legalized state executions. See Ewing, Diagnosing and Treating “Insanity” on Death Row: Legal and Ethical Perspectives, 5 Behav.Sci. & L. 175, 176 (1987). Like the use of lethal injections, forcible medication in an attempt to restore competency constitutes a part of capital punishment that inherently conflicts with medical ethics. Horton, 44 S.W.L.J. at 1213; Sargent, Treating the Condemned to Death, Hastings Center Report at 6 (Dec. 1986); Salguero, Medical Ethics and Competency to be Executed, 96 Yale L.J. 167 at 178, n. 64.

Furthermore, the state cannot avoid contending with the force of this objective evidence by invoking the deferential judicial review standards adopted by the United States Supreme Court in assessing the constitutionality of a state’s particular statutory punishment under the Eighth Amendment. In such cases, the Supreme Court has said that it will presume the validity of the statute and that a heavy burden rests on those who challenge the statute. Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976). The reasons cited for these rules were the deference the court owes to state legislatures under our federal system, its reluctance to become the arbiter of the standards of criminal responsibility throughout the country, and the difficulty of changing the high court’s interpretations through constitutional amendment. Id.

The present case is clearly distinguishable from those in which the United States Supreme Court announced its Eighth Amendment review standards. Perry does not attack a death penalty statute in this case on the grounds of newly evolved standards of decency. Instead, Perry seeks to uphold the prohibition against executing the insane that was jurisprudentially adopted by this court and has been part of our law for nearly a century. Because the prohibition has not been expressly modified by the legislature, it must be presumed to have been tacitly approved by the lawmakers. Therefore, the state’s role in the present case is not that of a defender of a statute but a proponent of a novel interpretation of this court’s jurisprudential rule. Furthermore, we do not consider Perry’s Eighth Amendment attack in this opinion but resolve this case on state grounds alone. Accordingly, this case does not bring into play the deference that the United States Supreme Court owes to the state legislatures under the principles of federalism.

Considering that it is the state, and not the prisoner, that seeks a change in the status quo, in the form of a novel interpretation of the law and the recognition of a new exception to a well-established norm, we conclude that the burden of justifying the proposed new legal precept must be allocated to the state, as its proponent and potential beneficiary. Accordingly, the state has the duty to present objective, persuasive evidence that it would not offend civilized standards of decency for a jurisdiction to medicate an insane prisoner against his will with antipsychotic drugs and use his involuntarily controlled mental condition as the means of his execution.

• The state does not present any unequivocal objective evidence to show that the execution of the insane via forcible medication is acceptable to society. The state mainly begs the question by basing its conclusion that forcible medication renders the execution acceptable upon its own unproven assumption that only the insane prisoner’s lack of comprehension stands in the way of an execution comporting with standards of decency. However, the state’s invasion of the inmate’s body, mind and autonomy in order to chemically alter his mental condition for execution is in itself inhumane treatment violating his right of personhood and privacy and has not been proven to be acceptable to society. Moreover, the insane prisoner’s lack of understanding of his punishment is only one of the civilized qualms about executing the insane. The prohibition stems as well from other concerns, such as religious atonement, lack of deterrence and retribution, the insane person’s inability to report exculpatory or mitigating evidence or to assist counsel, madness viewed as its own punishment, and the dignity of society itself. In the absence of objective proof to the contrary, we cannot say that these concerns are no longer important to society or that they can be dispelled by the forcible administration of an-tipsychotic drugs.

The evidence adduced by the state is equivocal and fails to prove that contemporary values have changed so as to require us to create an exception to the solid ban against executing the insane. The state first argues that the laws of other states permit the forcible administration of drugs to insane prisoners as a means of implementing executions. Specifically, the state relies on the provisions of some state statutes that reinstate the execution of the death penalty when an incompetent prisoner regains his sanity. We disagree with the state’s interpretation of those statutes. The clear legislative intent of such laws is simply to adopt the common law rule under which an incompetent inmate may be executed if he should ever regain genuine sanity. The statutes do not authorize forcible drugging or the execution of an inmate during a temporary abatement of his psychotic symptoms by chemical means. The common law rule and many of its statutory adoptions antedate the use of antipsychotic drugs for the medical treatment of the mentally ill in this country. Therefore, the lawmakers could not have contemplated that the statutes would be used for such purpose. No state court has ever approved such a statutory interpretation or usage. In our opinion, these statutes do not constitute objective evidence of society’s acceptance of forcible administration of antipsy-chotic drugs as a tool of capital punishment.

Secondly, the state relies on a Maryland statute which provides that “[a]n inmate is not incompetent merely because his or her competence is dependent upon continuing treatment, including the use of medication” but also states that “[i]f the court finds the inmate to be incompetent it shall revoke the warrant to execute the death sentence and remand the case to the court in which the sentence of death was imposed, which shall strike the sentence of death and enter in its place a sentence of life imprisonment without the possibility of parole.” Md. Code Ann. art. 27, 75(l)(a)(2)(ii) (1990). Reading the Maryland statute as outsiders without special competence in Maryland law, we have little confidence in our interpretation and application of that law in particular situations. However, under the statute, it is clear that once an inmate is found to be incompetent his death sentence must be converted to a sentence of life imprisonment and that his sentence cannot be changed again to capital punishment. It is also clear that the statute does not expressly authorize the state to medicate an inmate forcibly in an attempt to make an insane prisoner competent for execution. In the absence of an explicit authorization we have grave doubts that a court could or should read such a meaning into the statute. Therefore, the Maryland law can hardly be considered objective evidence that the people of that state approve of the practice of forcible administration of anti-psychotic drugs to prisoners as a means of implementing their executions. Furthermore, there is no indication that Maryland has ever attempted to use the statute to medicate an inmate forcibly for execution purposes. The acceptability of a severe punishment is measured by its use, not by its availability, for it might be so offensive to society as never to be inflicted. Furman v. Georgia, 408 U.S. at 279, 92 S.Ct. at 2746 (Brennan, J., concurring). Finally, no matter how the single Maryland statute is interpreted, the current judgment with respect to execution of the forcibly medicated insane would still weigh overwhelmingly on the side of rejecting the death penalty under such circumstances as being inhumane punishment. Cf. Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989); Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982).

The execution of the insane, merged with the invasions of personhood inherent in the forcible administration of antipsychotic drugs for this purpose, therefore, is inconsistent with all four principles of humane treatment under our state constitution. Death under these circumstances is an unusually degrading and severe punishment. There is a strong probability that it will be inflicted arbitrarily. Its rejection by contemporary society is total. Such punishment is excessive because it does not serve either retribution or deterrence of potential capital offenses, the only recognized goals of capital punishment.

When this nation began death was not a unique punishment but was imposed as the penalty for numerous crimes. Execution of the insane, however, had been considered inhumane for centuries and was forbidden. Since that time, successive restrictions on the death penalty, imposed against the background of a continuing moral controversy, have drastically curtailed the use of capital punishment. For a state at this stage of the history of the usage of the death penalty to subject insane prisoners to execution under the pretense that they can be made “sane” by forcibly invading their minds, bodies and personhood with antipsy-chotic drugs, clearly would constitute cruel, excessive and unusual punishment.

VII. CONCLUSION

The trial court’s determination and order are affirmed in part and reversed in part. The trial court’s effective determination that Perry is insane and incompetent for execution is affirmed. The trial court’s order authorizing and requiring the state to administer antipsychotic drugs to Perry against his will for purposes of execution is reversed. The execution of the death sentence upon Perry is stayed. In order to modify this stay order the state must demonstrate to this court that Perry has achieved or regained his sanity and competence for execution independently of the effects or influence of antipsychotic drugs.

IT IS SO ORDERED.

WATSON, J., joins the opinion and adds brief additional reasons.

LEMMON, J., concurs and assigns reasons.

HALL, J., concurs to note that he joins in the opinion but does not fully subscribe to all that is said in Section V of the opinion.

MARCUS, J., dissents and assigns reasons.

COLE, J., dissents for reasons to be assigned.