Medicating Incompetent Defendants against Their Will
to Restore Competency:
Sell v. United States Changes Current Practice
By Brett Trowbridge, Ph.D., J.D.
Originally published in Washington Criminal Defense, November
2003, vol. 18, no. 4
Introduction
When I began working at the forensic unit at Western State Hospital in the
late 1970s, defendants committed to the hospital for 15-day evaluations for
assessment of their competency to stand trial were routinely medicated with
anti-psychotic drugs involuntarily even before a judicial determination was
made as to their competency to stand trial. Indeed, when notified by a jail
that a psychotic patient was being transported to the hospital, Western State
Hospital staff was routinely instructed to meet the new patient at the door
with a loaded syringe.
Medications were given involuntarily whenever the ward psychiatrist ordered
them and in whatever dosages he deemed appropriate. No special procedures or
hearings were required beforehand, even in cases involving relatively minor
crimes. In most cases once the medications took effect the patients became more
rational and were deemed to be competent to stand trial. Just as occurs now,
defendants routinely were involuntarily medicated right up until or even during
their trials.
Decisions by the U. S. Supreme Court have clarified that such practices are
unconstitutional. Indeed, in a very recent decision the supreme court has imposed
important new requirements. This case, Sell v. United States, represents a sea-change
for how the question of involuntary medication of defendants must be handled
in Washington courts.
State v. Lover
Let me start this discussion by chronicling the evolution of this issue in
Washington. In State v. Lover, 41 Wn. App 685 (1985), a man convicted of second
degree assault appealed the decision to medicate him against his will during
trial, arguing that his attitude, appearance, and demeanor were important factors
for the jury to consider. Arguably, because of the medication, his appearance
at the time of trial was not the same as it was at the time of the assault.
The trial court had, over defense objections, ordered that the defendant medicated
against his will in order to maintain his competency. The trial court found
that the State’s interest in bringing an accused to trial was a compelling
State interest and that no less intrusive method for achieving this goal had
been suggested by the defendant.
Accordingly, Division One held that “medication is allowable when, as
here, the effect of the drugs and the defendant’s typical behavior without
drugs can be fully explained to the jury.” After this holding in Lover,
a hearing had to be held, at which the court would decide whether medications
were necessary to restore competency, and whether there were less restrictive
alternatives to involuntary medication.
Harper v. State
In 1988 the Washington Supreme Court addressed a similar issue in Harper v.
State, 110 Wn.2d 873 (1988). Harper was incarcerated at the Special Offenders
Center (SOC) in Monroe, a mental hospital for Department of Corrections inmates.
When Harper declined to take his medications voluntarily, a hearing committee
was convened at his physician’s request in accordance with then existing
SOC policy. The committee (which consisted of a psychiatrist, a psychologist,
and the SOC associate superintendent) found that as a result of a mental disease
or disorder, Harper was a danger to others. Harper’s appeal to the SOC’s
superintendent was denied. The committee reviewed his case every two weeks for
three years, always continuing the involuntary medication, although sometimes
changing the drug and/or the dosage.
Harper eventually filed an action for relief that the Superior Court dismissed,
and he appealed to the Washington Supreme Court.
The supreme court agreed with the trial court’s conclusion that Harper
had a protected liberty interest under the United States Constitution in refusing
anti-psychotic drug treatment, pointing out that there could be adverse side
effects. The Court found that the SOC policy was inadequate, because it did
not allow for representation by counsel, the rules of evidence did not apply,
and a judicial hearing was not required. The Court stated:
At the threshold, we hold that a judicial hearing must be held to determine
whether the State can treat a prisoner with anti-psychotic drugs against his
will. A court may order imposition of anti-psychotic drug treatment upon a non-consenting
prisoner when the State proves (1) a compelling state interest to administer
anti-psychotic drugs, and (2) the administration of the drugs is both necessary
and effective for furthering that interest.
The decision maker was further required to make written findings regarding
either the inmate’s desires or a “substituted judgment” for
the inmate analogous to the medical treatment decision for an incompetent person.
Immediately after Harper was decided, state hospitals began holding hearings
in front of court commissioners at the State hospitals to determine whether
involuntary medication would be necessary and effective in restoring competency
in those who had been deemed incompetent to stand trial. It was thought that
those who were merely accused of crimes should have at least as many constitutional
safeguards as those who were already convicted.
I participated in a number of these so-called “Harper” hearings
as an expert witness for the State and the defense and as a defense attorney.
Little attention was usually given to whether there was a “compelling
state interest,” as it seemed to be a given that the State had a compelling
interest in bringing defendants to trial. But the hearings did focus on whether
the specific medications proposed would likely be effective.
In cases where the proposed medications had already been tried on that individual
without beneficial effect, the State would usually lose, and involuntary medications
would not be ordered. Some very mentally ill defendants had some very serious
charges dismissed, since under RCW 10.77 an incompetent defendant’s case
must be dismissed after he has been incompetent for a year, although after the
year had expired such defendants still almost always remained at the state hospitals
under civil commitments as “dangerous to others.”
The State appealed Harper to the U. S. Supreme Court in Washington v. Harper,
494 U.S. 210 (1990). Justice Kennedy, writing for the majority, found that there
is a protected liberty interest to be free of arbitrary administration of anti-psychotic
medication under the due process clause of the Fourteenth Amendment. The U.S.
Supreme Court found, however, that the SOC policy met the demands of the due
process clause, holding that the proper standard for determining the validity
of a prison regulation claimed to infringe on an inmate’s constitutional
rights is to ask whether the regulation is “reasonably related to legitimate
penological interests.” The SOC policy was reasonable under that standard.
After this decision, Harper hearings were no longer held. Instead, Washington
trial courts resumed deciding when involuntary medication was necessary to restore
competency.
Riggins v. Nevada
Meanwhile the next important case on forced medication of incompetent defendants
was working its way through the courts, and in 1992 the U.S. Supreme Court decided
it.
The defendant in Riggins v. Nevada, 112 S. Ct. 1810 (1992) was accused of stabbing
a man to death. Although he had asked to take the anti-psychotic drug Mellaril
before his trial and was found competent after taking it, he later asked for
an order suspending administration of the drug until the end of his trial, arguing
that the drug’s effect on his demeanor and mental state during trial would
deny him due process. The trial court held an evidentiary hearing at which four
psychiatrists gave three different opinions. Riggins’ motion was denied
with a one-page order that gave no indication of the Court’s rationale.
Riggins continued to receive 800 milligrams of Mellaril each day throughout
a jury trial at which he presented an insanity defense and testified on his
own behalf. Found guilty, he was sentenced to death. Upon appeal the Nevada
Supreme Court affirmed the convictions and sentence, holding that expert testimony
presented at trial “was sufficient to inform the jury of the effect of
the Mellaril on Riggins’ demeanor and testimony.”
The U.S. Supreme Court accepted certiorari. In the majority opinion by Justice
O’Connor, the court assumed that administration of Mellaril was medically
appropriate. The court held that pre-trial detainees should have at least the
same constitutional rights as convicted prisoners, citing Harper for what these
rights were. Because Riggins had not contended that he had the right to be tried
without Mellaril if its discontinuation would have rendered him incompetent,
the question “whether a competent criminal defendant may refuse anti-psychotic
medication if cessation of medication would render him incompetent at trial”
was not before the court.
It was significant to the court that the record contained no finding that might
support a conclusion that administration of anti-psychotic medication was essential
to accomplish an essential state policy. The trial court had permitted forced
medication of Riggins without taking into account his “liberty interest,”
with a consequent possibility of trial prejudice. Therefore the conviction had
to be reversed and remanded for further proceedings.
In a concurring opinion, Justice Kennedy wrote: “If the State cannot
render the defendant competent without involuntary medication, then it must
resort to civil commitment, if appropriate, unless the defendant becomes competent
through other means.” Thus, although Riggins v. Nevada is not clear as
to what issues need to be considered at hearings at which decisions are made
about involuntary medication, it was clear that to comply with Harper courts
must make findings sufficient to support forced administration of the drug.
Sell v. United States
Now, in a very recent case, Sell v. United States, decided June 16, 2003, the
U. S. Supreme Court has clearly addressed what factors need to be considered
on the record before a defendant can be medicated against his will in order
to render him competent to stand trial.
Sell, a dentist, had a long history of mental illness. He was charged in Federal
Court with submitting fraudulent insurance claims for payment and, under a separate
indictment, with attempting to murder both an FBI agent who had arrested him
and a former employee who planned to testify against him in the fraud case.
The attempted murder and fraud cases were joined for trial. The U. S. Medical
Center for Federal Prisoners at Springfield, Missouri, found Sell incompetent
to stand trial and recommended he take medication, but he refused to do so.
The staff then sought permission to administer the medication against Sell’s
will.
A reviewing psychiatrist held a hearing at which he authorized involuntary
administration of drugs. This decision was upheld upon appeal to a Bureau of
Prisons official. Sell then appealed to the same federal magistrate who had
ordered Sell sent to the Medical Center. At a hearing in front of that magistrate,
Medical Center doctors explored the question of the medication’s effectiveness
and testified about an incident that had happened after the administrative hearings
were completed in which Sell had suggested to a Medical Center nurse that he
was in love with her. Based on that incident, the doctors opined that Sell was
dangerous even within the institution.
The magistrate found that, the government had shown that Sell is a danger to
himself and others at the institution, that anti-psychotic medication is the
only way to render Sell less dangerous, that newer drugs and/or changing drugs
would ameliorate any serious side-effects, that the benefits to Sell far outweighed
any risks, and that there was a substantial probability that drugs would return
Sell to competency. The magistrate concluded that, “the government has
shown in as strong a manner as possible, that anti-psychotic medications are
the only way to render the defendant not dangerous and competent to stand trial.”
Sell appealed to the federal district court, which, noting that Sell had “been
returned to an open ward,” held that the magistrate’s dangerousness
finding had been “clearly erroneous.” The court, nonetheless, affirmed
the magistrate’s order allowing Sell’s involuntary medication, holding
that anti-psychotic drugs were “medically appropriate,” that “they
represent the only viable hope of rendering defendant competent to stand trial,”
and that “administration of such drugs appears necessary to serve the
government’s compelling interest in obtaining an adjudication of defendant’s
guilt or innocence.”
The parties appealed to the Eight Circuit Court of Appeals, where a divided
panel affirmed the district court’s judgment. The majority affirmed the
lower court’s determination that Sell was not dangerous to himself or
others in the context of the Medical Center. The majority, focusing exclusively
on the fraud charges, stated that “the government has an essential interest
in bringing a defendant to trial,” adding that the district court had
“correctly concluded that there were no less intrusive means” than
forced medication, which they found “medically appropriate.” Indeed,
the “medical evidence presented indicated a reasonable probability that
Sell will fairly be able to participate in his trial.”
The U.S. Supreme Court granted certiorari to determine whether the Eighth Circuit
erred in rejecting Sell’s argument that allowing the government to administer
anti-psychotic medication against his will solely to render him competent to
stand trial violated the constitution. Justice Breyer wrote the opinion for
the six-justice majority, with Scalia, Thomas and O’Connor dissenting.
Breyer, citing Harper and Riggins, stated that “the constitution permits
the government involuntarily to administer anti-psychotic drugs to a mentally
ill defendant facing serious criminal charges in order to render that defendant
competent to stand trial, but only if the treatment is medically appropriate,
is substantially unlikely to have side-effects that may undermine the fairness
of the trial, and, taking into account of less intrusive alternatives is necessary
significantly to further important governmental trial-related interests.”
This standard would permit involuntary administration of such drugs solely for
trial competence purposes in certain instances, but, as Breyer noted, those
instances may be rare for four reasons.
First, a court must find that important government interests are at stake—that
is, it must consider whether the defendant who is not brought to trial would
likely remain in a mental institution, and/or whether the defendant who had
already spent such a large amount of time in a mental institution would, if
convicted, likely be sentenced to time served.
Second, the court must conclude that involuntary medication will significantly
further concomitant state interests. Administration of the drugs must be substantially
likely to render the defendant competent to stand trial and, at the same time,
be substantially unlikely to have side effects interfering significantly with
the defendant’s ability to assist counsel in conducting a trial defense.
Third, the court must conclude that involuntary medication is necessary to
further these interests. Any alternative, less intrusive treatments must be
unlikely to achieve substantially the same results. And less intrusive means
for administering the drugs must be considered—e.g., a court order to
the defendant backed by the contempt power—before employing more intrusive
methods.
Fourth, the court must conclude that administration of the drugs is medically
appropriate, i.e., in the patient’s best medical interest in light of
his medical condition.
Before a court decides to order involuntary administration of medications solely
to render the defendant competent to stand trial, it should first decide whether
“forced medication is warranted for any different purpose, such as the
purposes set forth in Harper related to the individual’s dangerousness,
or purposes related to the individual’s own interests where refusal to
take drugs put his health gravely at risk.” Thus, Breyer seems to be saying
that civil commitment should be considered as a less restrictive alternative.
Both the district court and the Eight Circuit had concluded that Sell was not
dangerous to himself or others in the institutional setting and had rested their
decision to allow forced medication solely on trial competency grounds. At the
hearing before the magistrate, however, the experts had focused mainly on the
dangerousness issue. Breyer noted that this failure to focus upon trial competence
could well have mattered, because the effects of medication upon the defendant
are matters important in determining the permissibility of medication.
Breyer’s final point was that the lower courts did not consider that
Sell has already been confined at the Medical Center for a long period of time,
and that his refusal to take anti-psychotic drugs might result in further lengthy
confinement. The case was remanded for further proceedings consistent with the
opinion.
Implications and Recommendations
It seems clear that in some cases such as Harper the decision as to forced
medication can be made by a psychiatrist instead of a judge. In other cases
in which the sole argument is that involuntary medication is necessary to render
the defendant competent to stand trial, a judicial hearing will be required,
for the Sell criteria are mostly legal, not medical in nature.
The court will have to decide whether the case is important enough that forced
medication can be justified. Misdemeanors and minor felonies will probably not
qualify, especially if the defendant has already been incarcerated on the charge
for any substantial period. The court will then have to hear expert testimony
on the following issues:
- Whether the specific medication proposed at the specific dosage proposed
is likely to restore the defendant’s competency to stand trial.
- Whether the side-effects of that specific medication at that dosage will
interfere significantly with the defendant’s ability to assist counsel
under the facts of the case as charged.
- Whether any alternative, less intrusive treatments could likely restore
competency, including ordering the defendant to take the drugs under threat
of contempt.
- Whether the specific drug proposed is medically appropriate.
- Whether there exist any other ways of allowing forced medication, including
civil commitment and/or the appointment of a guardian.
- Whether the need for involuntary medication is sufficiently important to
overcome the individual’s protected interest in refusing it in light
of factors relevant to this particular defendant such as his religious beliefs
and his approach to medical treatment in general.
Given the complexity of the criteria to be considered, it would seem unlikely
that any court would find that the defendant can be forced to go through such
a hearing without representation by counsel. Further, it would seem that the
defendant would have to be present for the hearing so that the court would have
an opportunity to consider his demeanor and appearance and any testimony he
cared to give, although he would undoubtedly retain the right to remain silent.
It seems obvious, moreover, that the defendant, if indigent, would have to be
provided services of expert witnesses to challenge the testimony of government
witnesses, and that the rules of evidence would have to apply. Finally, because
it is clear that the defendant would have the right to appeal, the court’s
decision would have to be written, and all the Sell factors would have to be
mentioned in that decision.
Such hearings will be a significant departure from current practice in Washington.
Before Sell if the state hospital found that a defendant was incompetent to
stand trial, it would ask in its formal report to the trial court that it be
given permission to medicate the defendant involuntarily. Generally the specific
medication and dosage proposed was not set forth.
Although sometimes hearings occurred at which expert testimony was offered,
rarely did defense experts participate in such hearings. Indeed, usually there
was not a hearing, as the defense attorney typically waived the hearing on behalf
of the presumably incompetent defendant and stipulated to any order requiring
forced medication. Under Sell such procedure will not pass constitutional muster
unless the defendant himself agrees to take medication voluntarily.
Finally, the amount of time already served or likely to be served has not previously
been taken into account.
In this post-Sell era defense lawyers should meet state hospital requests for
permission to involuntarily medicate by asking for the appointment of an expert
psychologist or psychiatrist whenever the defendant found incompetent is resisting
the taking anti-psychotic medication.
That expert would review records to determine whether the drug proposed at
the dosage proposed had been documented to be effective in the past in restoring
rationality and/or determine whether other less restrictive means could restore
competency. The expert would research potential side effects of the medication
at the proposed dosage. Indeed, the expert would address whether the drug could
sedate the defendant, interfere with his communication with counsel, prevent
rapid reaction to trial developments, or diminish the ability to express emotions.
The expert would have access to the state hospital chart to review whether
civil commitment and/or guardianship had been attempted. The expert could testify
as to what the likely consequences would be of dismissal, i.e., whether the
defendant would likely remain in the hospital anyway.
The expert would also address the “seriousness” of the alleged
offense and look at what the likely sentence would be if the defendant were
medicated involuntarily, found competent and convicted.
It would be the prosecution’s job to see to it that all of these factors
were mentioned in any order the court issued allowing forced medication, so
that the order would withstand appeal.
Forensic psychologist and lawyer Brett Trowbridge is the Executive Director
of The Trowbridge Foundation. This article is a report for The Trowbridge Foundation.
