Medicating the Mentally Ill for Trial and Execution:
What Are the Implications of the Supreme Court's Recent Decision?

By ELAINE CASSEL

Thursday, Jul. 03, 2003

What are the standards for forcibly medicating a criminal defendant in order to render him mentally competent to stand trial when he resists treatment? The Supreme Court recently considered this question in its end-of-term decision in Sell v. United States.

Previously, in a concurring opinion in Riggins v. Nevada, Justice Anthony Kennedy wrote that "absent an extraordinary showing by the State, the Due Process Clause prohibits prosecuting officials from administering involuntary doses of antipsychotic medicines for purposes of rendering the accused competent for trial."

But what counts as an "extraordinary showing"? Sell answered the question, in a sensible opinion that set out the criteria for forced medication.

Interestingly, though, the Sell decision may have a limited reach, due to its atypical facts - for reasons I will explain later in this column. But before addressing Sell's implications, it's important first to review some of the legal background relating to competence and forced psychotropic medication.

Background: The Competence Standards

To begin, a criminal defendant must be mentally competent at all stages of the proceedings--from arraignment to sentencing. That means he must understand the nature of the charges against him, and be able to assist the attorney in their defense.

A death row inmate must also be competent when he is executed. But in that context, what he must understand is different: He must understand, for instance, that he is being executed, and why he is being executed. In Ford v. Wainwright, the Court held that executing a person who is incapable of comprehending what is happening to him and why violates the Eighth Amendment's prohibition against cruel and unusual punishments.

In practice, the competence standards - both for defendants facing trial, and for inmates facing execution - turn out to be quite low. Even plainly disturbed defendants and inmates may still be found competent.

If a defendant is found incompetent, he is typically sent to a state mental hospital to be "restored" to competency. Most defendants ill enough to be found incompetent are typically suffering from some type of delusional disorder, such as schizophrenia. Accordingly, treatment typically involves the administration of psychotropic medications to treat symptoms like hallucinations (most often involving hearing voices) and delusions (disordered thoughts - for instance, that one is on a mission from God).

In the Sell case, in particular, the defendant, Dr. Charles Sell, is suffering from a delusional disorder.

Background: Legal Issues Regarding Forcible Medication

But what if a defendant - or inmate - resists taking the medication? Can he be forced to do so against his will, or best medical or other interests?

Outside of the criminal justice system, when a person is "civilly committed" to a mental health facility, he or she cannot be medicated against his or her will unless necessary to keep him from harming himself or others.

Inside the criminal justice system, until the Sell opinion, the standard for when medication can be administered against the patient's will, to render a defendant competent to stand trial, was in doubt. Indeed, the Court likely accepted review in Sell in order to resolve a split among the federal Circuits on this issue.

The Circuits had disagreed as to whether the government is allowed to involuntarily administer antipsychotic medication solely to render a defendant competent to stand trial - that is, when doing do is not necessary to keep him from harming himself or others, but only necessary for the government to continue its prosecution.

Sell resolved that question. However, the Court has yet to resolve whether the state can medicate a condemned man in order to make him competent to be executed. This issue was addressed in an earlier column by Sherry Colb. Colb wrote about a case, Singleton v. Norris, that the Court has since agreed to hear next Term.

Meanwhile, a similarly - if not even more - disturbing questions persists. Recently, a Texas man, Greg Long, attempted suicide a few days before his scheduled execution. He would have died - had the state not taken extraordinary measures to save him.

Five days after his suicide attempt, Long was placed on a ventilator, flown to the execution chamber with medical personnel, and executed. The Court must still address the issue his terrible experience raises: Can dying condemned prisoners receive forcible medical treatment in order to keep them alive for execution?

When Medication May Be Administered Against a Defendant's Will

To return to Sell, however, it's worth noting that even if the Court did not say as much as it might have, at least what it did say was thoughtful and sensible.

In an opinion penned by Justice Breyer, the Court held that Dr. Sell has a "liberty interest" in avoiding unwanted antipsychotic medication. But it also held that the Constitution permits the government to administer antipsychotic drugs against the will of a mentally ill defendant, in order to render him competent to stand trial on serious criminal charges - under three important conditions.

First, the treatment must be medically appropriate. This requirement aims to ensure that the defendant is not harmed by the medication that is supposed to improve his mental state.

Second, the treatment must be substantially unlikely to have side effects that may undermine the trial's fairness. For instance, will the defendant appear to the jury to be in a "drugged state"? Will the medication affect his ability to render assistance to his trial counsel?

This second condition is especially wise - and important. Consider a recent case: When Andrea Yates killed her children, she was deranged and distraught. But for several months prior to and during the trial, Yates was treated with psychotropic medications that left her in a zombie-like state. Unsurprisingly, the jury commented on the fact that she seemed "undisturbed" by the details of her acts when they were presented at the trial. To them, she looked like a calm, deliberate killer.

Third, taking into account less intrusive alternatives, the treatment must be necessary to further important governmental trial-related interests. This requirement suggests that the government must opt for the least debilitating medication that will render the defendant competent, a decision that involves medical skill and deliberation as to what is appropriate for this patient.

The Limits of the Sell Decision: Two Defendants Who May Not Be Helped

Dr. Sell was charged with fraud--a white-collar crime. Attorneys for defendants in such cases may be able to persuade a judge that their clients are not dangerous to themselves or others - and thus that the Sell conditions apply.

But what about defendants charged with violent crimes? Courts may be reluctant to find them non-dangerous, and therefore to apply Sell.

And what about defendants who fail, after long periods of time, to regain competence? Sell does not directly address their plight - though it could have, adding a fourth condition, such as that the medication must restore competence in a reasonable time period.

Medication that was initially justified may not be justified when it is proven to be both deleterious and unhelpful; the Court should have acknowledged that. In the end, civil commitment must be the answer for a defendant who cannot, even when forcibly drugged, become competent enough to stand trial

Consider the case of Russell Weston - which the Court declined to review. Weston is the schizophrenic man who stormed the U.S. Capitol in 1998, killed two police officers, and was charged with two counts of capital murder. The Court of Appeals for the District of Columbia ultimately held that Weston could be medicated simply because he was a danger to himself and others.

That seems odd, for Weston is now literally chained to his bed in a solitary hospital room - so he's hardly a danger to others, or himself. But the prison psychiatrist convinced the court that Weston's deteriorating mental condition was itself a danger to him. (Of course, this logic would allow forcible medication of any civilly committed person judged to be on a downward trajectory, as well - and that is not the law.)

Two years into forced medication, Weston still has not regained competence. Meanwhile, reports are that he is suffering from some of the devastating effects of long-term psychotropic medication, including weight gain and neurological dysfunction. If Sell were applied, he would presumably be taken off medication. Weston's attorneys may be well advised to seek a review of his case in light of Sell.

Also, consider the case of Gregory Murphy, a paranoid schizophrenic charged with brutally murdering a young boy in front of his grandparent's home in Alexandria, Virginia. Murphy punched his court-appointed defense attorney at a preliminary stage of the case, and he has subsequently had violent outbursts. A Virginia trial court found him incompetent and dangerous, and ordered forced psychotropic medications (which he resists, sometimes violently). The Virginia Supreme Court upheld the order.

That may have been the right decision at the time; Murphy was dangerous to others. But like Weston, Murphy has been medicated for almost two years now, without any hope of being restored to competency in the near future. One must ask, how long can a defendant be forced to take medication if no improvement is in sight? But one week after Sell, the court rejected Murphy's appeal.

The Court Needs to Follow the Rationale of Sell, and Go Further Still

In sum, while Sell's standards are well-intentioned and well-designed, they still leave room for evasion. They also leave entirely unaddressed whole categories of suffering and injustice of which the Court must by now be well aware, yet which it has repeatedly declined to review.

Abuses and inequities will continue. Defendants charged with violent acts may be drugged into oblivion when, if tried, they may be found innocent. The sicker the defendant, the more likely he will be acquitted on insanity grounds. For instance, if Weston and Gregory go to trial, they are likely to be found not guilty by reason of insanity, so severe are their mental illnesses.

Confined, restrained defendants may still be deemed "dangerous" when they plainly are not, in order to justify continued medication that would not otherwise be permitted under Sell. A man in a padded, locked room is dangerous to no one; if he is medicated, it should be to prevent physical danger to self and others.

Meanwhile, defendants who have been violent in the process of trial proceedings - defendants who, after all, might be angry precisely because they are both innocent and mentally ill - may be punished by forcible medication administered for an indeterminate period of time, despite harmful side effects and the lack of medical necessity.

And finally, death row inmates will still live - and be forcibly medicated - in an atmosphere of legal uncertainty. The grim and ethically and medically questionable practices of reviving suicidal inmates and drugging delusional ones, only to execute them, may continue unchecked.

Given this state of the law and administration of justice, we need to hear more from the Court on issues like these - issues in which pain, misery, sanity and even life itself hang in the balance.


Elaine Cassel practices law in Virginia and the District of Columbia and teaches law and psychology. She is the chair of the American Bar Association's Behavioral Science Committee of the Science and Technology Law Section, and authors a web log, Civil Liberties Watch.

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