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Last month the Supreme Court handed down Sell v. United States, a case that raised the question of how a court should decide when to forcibly medicate a mentally incompetent criminal defendant. At first glance, the opinion seems consistent with the other unexpected liberal-leaning decisions that the Court handed down this term, on affirmative action and gay rights. However, on a closer look, it seems that the Court has avoided a turn to the left on this important issue of defendants’ rights. In Sell, Justice Stephen Breyer, writing for a six-justice majority, vacated a lower court order mandating forcible medication. Breyer wrote that, before a criminal defendant is forcibly administered psychotropic medications to render him competent to stand trial, a court must find that the treatment is medically appropriate, is substantially unlikely to have side effects that may undermine the trial’s fairness, and is necessary significantly to further important governmental trial-related interests. As balanced a test as this seems, the Court expressly limited its use to situations where the government seeks to restore a defendant’s mental competency. In so doing, it created a loophole. Now, it’s possible that lower courts can allow defendants to be medicated on another ground — that they are dangerous to themselves or to others. That means that the essential constitutional rights of pretrial defendants may still remain in jeopardy. RIGHTS AND MENTAL ILLNESS The symptoms of severe mental illness can at times cause a criminal defendant to become incompetent to stand trial. As far back as 1966, the Supreme Court in Pate v. Robinson recognized that it is a denial of the right to a fair trial to allow an incompetent person to stand trial. The defendant’s mental illness also might manifest itself in behavior that is bizarre, threatening, or arguably dangerous. The Supreme Court has found that the state has a legitimate interest in the safety of penal institutions and the community such that it can employ measures to prevent the mentally ill from harming themselves or others. Mental health professionals often recommend the use of anti-psychotics in such situations. The issue of forced medication can become more complicated because of the strong effects that anti-psychotic drugs produce. While these drugs often relieve the positive symptoms of some major mental illnesses, such as hallucinations and delusions, they also impose significant side effects that can infringe upon a defendant’s ability to receive a fair trial. Many practicing trial lawyers have noted that defendants who are on such drugs as Melaril, Elavil, and Valium may appear to be “out of it.” I have had several clients who were restless, pacing back and forth, not motivated, forgetful, constantly rocking back and forth, anxious, falling asleep, and seemingly unaware of the events happening around them, even in the courtroom. This behavior can significantly interfere with the defendant’s ability to exercise procedural rights. Such clients often are not able to meaningfully discuss the case or evidence with counsel, to make suggestions or comments on the evidence or testimony, or to decide whether to testify. Additionally, a defendant’s affect, demeanor, and responsiveness are so compromised by some of these drugs that jurors and judges may ascribe negative connotations to the behavior that they observe in the courtroom. This works to compromise the defendant’s credibility and presumption of innocence at trial. CONFUSION IN THE COURTS Prior to the Court’s ruling in Sell, many lower federal courts and state courts applied inconsistent standards and tests to determine when to force medication. These courts looked for guidance from two Supreme Court decisions, Washington v. Harper and Riggins v. Nevada. In Harper, a 1990 case, the Court solidly recognized the personal liberty interest of a criminal defendant to avoid forcible medication with anti-psychotics. But the Court only focused on the procedural protections that should be in place when these questions arise. It held that due process requires that the defendant be given notice of a hearing, counsel at the hearing, and the ability to present evidence. Two years later, in Riggins, the Court confronted the issue in a case where a defendant, asserting an insanity defense, who had been found competent because he was forcibly administered psychotropic medication, wanted to discontinue the treatment in order to show the jury the true extent of his mental illness. The Court found that the right to refuse medication was fundamental, but declined to specify what standard should govern decisions about forcible medication. The Court relied on a balancing test — weighing the fundamental right of the accused to refuse medication against the state interest in medicating the defendant. Left with vague direction from the Supreme Court, lower courts took different paths. Some courts have found that a forcible medication decision by medical professionals can be upheld when there is only an administrative finding of dangerousness. Other courts have found that the government’s interest in proceeding to trial was all that was necessary to justify forcibly administering medications, even when a defendant had not been found to be dangerous. Some courts have applied a strict scrutiny standard of review, finding that, because a fundamental right of the defendant was implicated, the governmental interest justifying forcible medication must be compelling and narrowly tailored to achieve that interest. Others have applied a heightened standard of review, finding that the government interest in proceeding to trial was important or essential, but not compelling. And in the ongoing litigation involving Russell Weston Jr., the federal judges handling the case have also noted the lack of clarity. Weston is awaiting trial on charges that he killed two Capitol Police officers and injured others in an incident at the U.S. Capitol in 1998. He has also been diagnosed as a paranoid schizophrenic. The D.C. Circuit found that the Riggins opinion “suggests some form of heightened scrutiny,” and that the focus needed to be on “essential” state interests. Although the case seems to present the same or similar issues as in Sell, the Supreme Court denied certiorari in December 2001. So does the Supreme Court’s decision in Sell clear up all the confusion? As we used to say in grade school: Kinda sorta, but not really. The Court creates a loophole for lower federal and state courts that may result in the same inconsistent approach to these types of issues. A COMPLICATED CASE Sell, a dentist with a 20-year history of mental illness, was indicted by the government on 56 counts of mail fraud, six counts of Medicare fraud and one count of money laundering. He was initially adjudged competent and released on bail, but was eventually returned to pretrial detention after his mental status deteriorated and the government lodged allegations of witness intimidation. Sell was later indicted for the attempted murder of an FBI agent. The magistrate judge found Sell incompetent and ordered hospitalization to determine if he would regain competency. The treating physicians recommended anti-psychotic medication, and when Sell refused the drugs, a hospital administrative hearing officer found that Sell was dangerous and that the drugs were medically necessary. On appeal, the magistrate judge found that the government had made a substantial showing that Sell was a danger to himself and others, and that taking anti-psychotic medication was the only way to render him less dangerous. The court found that there was a substantial probability that the drugs would make Sell competent and that the benefits far outweighed the risks to his health. The district court subsequently found error in the dangerousness finding, but upheld the magistrate’s decision to medicate, holding that the drugs were medically appropriate and the only viable hope of getting Sell competent. Both the government and the defense appealed the ruling to the 8th Circuit, which affirmed, finding that Sell was not dangerous, but that the government had an essential interest in getting the case to trial. Enter the Supreme Court. Relying on Riggins and Harper, the Court reiterated that the right to refuse forcible medication is a constitutionally protected liberty interest that requires due process protections. The Court’s newly crafted test is to be used “solely” in cases where a defendant is incompetent to stand trial. The Court also found that the forcible medication has to be substantially unlikely to have side effects that would significantly compromise the ability of the defendant to assist his lawyer in conducting a trial defense. This latter holding is important. In support of it, the opinion cites to a concurrence that Justice Anthony Kennedy wrote in Riggins, which described the full panoply of trial rights that can be compromised by anti-psychotic medication. But Sell only specifically refers to the defendant being able to assist his lawyer in presenting a defense. The Court left unclear whether it recognized the extreme danger to all of the fair trial rights of medicated criminal defendants. STILL A LOOPHOLE Perhaps most troubling about Sell is its statement that the case does not apply to those instances where dangerousness, rather than competence, is the driving force behind the desire to compel medication. Justice Breyer takes great pains in the opinion to “emphasize” that if the issue is raised for a “different purpose,” such as dangerousness, then the Sell test need not be applied. In other words, despite the Court’s comprehensive standard required for competency, the government or court can simply justify forcible medication on dangerousness grounds. One wonders if, on remand, all the prosecution has to do is present new evidence they are seeking forcible medication because Sell is dangerous to himself or others. The Court’s end-of-term opinion in Sell seems to set forth a better standard for lower courts to determine if forcible medication with anti-psychotic drugs is permissible when competency is at issue. However, whether it will be used remains to be seen. By its very words, the Court may have made its own test obsolete. Tamar M. Meekins is associate professor and acting clinic director at Howard University School of Law in Washington, D.C.

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