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staff reporter Washington-The Supreme Court’s decision on forcible medication of mentally ill criminal defendants could create significant practical problems in the criminal justice system as well as more litigation over who can be medicated, defense lawyers and other experts say. And, they add, the ruling also may have important implications for a still-unresolved question: whether a mentally ill death row inmate can be forcibly medicated to make him competent to be executed. The court on June 16 held that the Constitution permits the government to administer anti-psychotic drugs to an unwilling, mentally ill defendant to make him competent to stand trial. But the justices set out conditions that a court must find before permitting what Justice Stephen G. Breyer, author of the 6-3 opinion, wrote should be the “rare” case of involuntary administration of drugs solely for trial competency purposes. Sell v. U.S., No. 02-5664. “The opinion makes it harder for involuntary medication to occur, even though it establishes that involuntary medication in this situation is constitutional,” said David M. Siegel of New England School of Law, an ex-public defender and author of a recent law review article on involuntary medication. Most courts faced with the trial competency question have held that it is permissible to medicate, said Christopher Slobogin of the University of Florida College of Law, a consultant to mental health organizations. “If Sell is interpreted to reverse that strong line of cases and results in a significant reduction of cases in which forcible medication occurs, I think we’re going to have pandemonium in the forensic mental health system,” he said. Forcible medication is not an esoteric topic, said Siegel, because “a very significant proportion of jail and prison inmates are undergoing psychotropic treatment.” In a 2001 article, Siegel reviewed studies on the rates of mental illness and psychotropic medication in prisons and jails. He found that roughly 16% of inmates qualified as mentally ill: 283,000 in state and local jails; 7,900 in federal prisons; and 500,000 on probation. About 5% were receiving psychotropic treatment, he said, and that same percentage applies to inmates detained while awaiting trial. Roughly 75% of qualified inmates refuse anti-psychotic drugs, added Slobogin, compared to 15% of qualified civilians. The high court’s decision last week built upon two earlier rulings on forced medication. In Washington v. Harper, 494 U.S. 210 (1990), the court held that the Constitution permits the state to medicate an unwilling inmate with a serious mental illness who is dangerous to himself or others, when treatment is in the inmate’s best interest. In Riggins v. Nevada, 504 U.S. 127 (1992), the justices reaffirmed that a person has a constitutionally protected liberty interest to avoid forced medication and that only an essential or overriding state interest can overcome it. The ‘Sell’ case Charles Sell, an ex-dentist with a long history of mental illness, was charged with mail fraud, money laundering and Medicaid fraud in 1997, and with attempted murder in 1998. He has been held since 1999 in the U.S. Medical Center for Federal Prisoners in Missouri, where he has refused to take anti-psychotic medication. A district court and the 8th U.S. Circuit Court of Appeals found him not dangerous. The appellate court affirmed an order to medicate him to make him competent for trial. Vacating and remanding the 8th Circuit ruling, the high court held that forcible medication for trial competency purposes is constitutional “only if the treatment is medically appropriate, is substantially unlikely to have side effects that may undermine the fairness of the trial, and, taking account of less intrusive alternatives, is necessary significantly to further important governmental trial-related interests.” “If a defendant is found to be dangerous, then the standard of Harper and Riggins applies,” said Denise D. Lieberman, legal director of the American Civil Liberties Union of Eastern Missouri. “But if he is not dangerous, this whole other paradigm needs to be worked through.” The Sell standard is tougher than the Harper standard and will rarely result in more forced medication, mental health law scholar Bruce Winick of the University of Miami School of Law said. By putting the spotlight on this issue, he said, the court’s opinion will increase the incidents of cases in which defendants refuse medication in order to avoid trial. “Criminal defense lawyers who are any good will read it and say, ‘Aha, this is another game to play.’ “ Defense lawyers caution that prosecutors may try to avoid the more rigorous standard by having defiant defendants declared dangerous. If that were allowed to happen, it would “swallow the rule” in Sell, said Joshua Dratel of New York, who filed an amicus brief for the National Association of Criminal Defense Lawyers. He said he sees “a general acceptance that it’s OK to medicate against a person’s will.” Slobogin said he fears that refusals to take needed medication will increase if defendants know it means they will not face a courtroom. “The only option at that point is to keep them in a hospital, but you can’t keep them there unless you’re making progress to restoring them to competency,” he said. “You can civilly commit them if they’re mentally ill and dangerous. For those nondangerous, mentally ill people refusing medication, you have to let them go. Maybe the definition of dangerous will grow.” The high court currently has pending a petition challenging the government’s decision to medicate a death row inmate to make him competent to be executed. Singleton v. Norris, No. 02-10605. Sell may be applicable in the capital context, said New England’s Siegel. “On the one hand, the court recognizes it is constitutional to involuntarily medicate someone, so that would not augur well for capital defendants opposing medication for execution purposes,” he said. “On the other hand, the court makes clear: circumstances in which this should occur ought to be rare. The considerations the court identifies, such as medical appropriateness, are things that don’t seem apt when the purpose of medicating somebody is to execute.” The court faced the medication-execution question in 1990 but sent the case back to the lower court for review in light of Harper. Perry v. Louisiana, 498 U.S. 38. “It’s a very, very difficult issue,” said Winick. “The court may do the same thing with Singleton that it did with Perry: remand it to the lower court for reconsideration in light of Sell. Let the issue percolate a little more up through the lower courts. I frankly think that’s a wise thing to do.” Coyle’s e-mail address is [email protected].

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