Forced Medication And The Need To Protect The Rights Of The Mentally Ill Criminal Defendant

• Position: B.A., 2003, McGill University; J.D., Benjamin N. Cardozo School of Law, 2007
• Pages: 479-507

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B.A., 2003, McGill University; J.D., Benjamin N. Cardozo School of Law, 2007.

Introduction

Over the past twenty-five years, mentally ill criminal defendants have received a lot of much-needed attention.¹ Often, the first question that arises when a defendant is detained for trial is whether or not the defendant is competent to stand trial. Either the prosecutor or defense counsel may file a motion for a hearing to determine competency.² If a court finds that the defendant is not competent to stand trial, the question of whether or not the individual should be medicated arises.³ If medication is required, certain rights at trial could be affected.⁴ If medication is refused, forced medication may not be appropriate,⁵ particularly where it jeopardizes a defendant`s liberty interests.⁶ Given the gravity of what is at stake, reviewing courts have adopted a strict scrutiny standard of review.

Sections I and II of this Note will discuss the process by which a defendant`s competency is determined and under what circumstances medication may be administered. Section I discusses the relevant statutes, while Section II discusses Supreme Court decisions that have influenced the process. The most recent Supreme Court decision discussed is United States v. Sell, in which the Court dealt with forcibly medicating pre-trial detainees for the purpose of restoring competency to stand trial.<sup>7</sup> The Court`s test for constitutionality was necessarily strict because of the fundamental individual interests at stake.⁸ However, the Sell court also suggested that courts should look for other reasons to Page 480 forcibly medicate-namely dangerousness-before trying to forcibly medicate solely for restoring competency to stand trial.⁹

Unfortunately, the standard for forcibly medicating on the basis of dangerousness is significantly easier to meet than the test for medicating solely for the purpose of restoring competency.¹⁰ The threshold for determining "dangerousness" has become so low that it currently does little, if anything, to protect the constitutional interests of the mentally ill pre-trial detainee.¹¹ Section III will discuss problems with using dangerousness as the criterion for forcing medication. Predicting dangerousness is difficult in and of itself and the frequent use of possibly misleading information only exacerbates the problem. Section IV will discuss the constitutional interests implicated by forcibly medicating. The tension between individual liberties and existing states procedures underscores the need for change. Section V will propose changes in the laws, which seek to more fairly balance state interests and individual liberties when forcibly administering medication becomes necessary.

I An Overview Of The Process

Incompetence is determined via statutory criteria and triggered on motion by either prosecutor or defense counsel.¹² The court is required to either grant the competency motion or order a hearing related to the motion if "there is reasonable cause to believe that the defendant may presently be suffering from a mental disease or defect rendering him mentally incompetent to the extent that he is unable to understand the nature and consequences of the proceedings against him or to assist properly in his defense."¹³ The court also has the discretion to order a psychiatric or psychological report before a hearing transpires.¹⁴ If the court finds the defendant incompetent, the defendant is court ordered into the Attorney General`s custody.<sup>15</sup> The Attorney General is then equipped with statutory authority to take measures that may restore the defendant`s competency, which can involve hospitalizing the defendant for up to four months.¹⁶ Motions to forcibly medicate typically occur Page 481 during the Attorney General`s custody and are usually submitted so that the defendant, by way of medication, may regain competency¹⁷ or cease endangering himself or others.¹⁸

Counsel may apply to the court to extend the duration of the Attorney General`s custody.<sup>19</sup> The court may grant this application if the additional time is likely to result in the defendant regaining competence to stand trial or if the government is considering dropping the charges due to the defendant`s incompetence.²⁰ If the defendant is adjudged incompetent to stand trial when the custody period elapses, 18 U.S.C. ß 4246 applies.²¹

Section 4246 is triggered when a defendant is due for release, either because of dropped charges or a failure to regain competency, but may be dangerous.²² The statute directs the court to order a hearing to determine "[w]hether the person is presently suffering from a mental disease or defect as a result of which his release would create a substantial risk of bodily injury to another person or serious damage to property of another."²³ As in ß 4241, the court has the discretion to order a psychiatric or psychological report.²⁴ If adjudged dangerous, the defendant is returned to the Attorney General`s custody until his release is deemed safe.²⁵

While in the Attorney General`s custody pursuant to either statutory section, care providers often determine that antipsychotic medication may help in managing the defendant`s illness, and this determination is often extra-judicial. 28 C.F.R. ß 549.43 sets forth a number of procedures to be followed when consent cannot be obtained from a person within the custody of the Attorney General for treatment or medication, but the administration deems medication necessary.26 The regulation states that, upon hospitalization, no further application to the court is necessary to administer forced medication;²⁷ however, Page 482 certain administrative procedures must be followed.²⁸ The statute requires that patients be given advance notice of an administrative hearing,²⁹ during which the patient has a right to appear, present evidence, request witnesses and have a staff representative.³⁰ The hearing is conducted by an independent psychiatrist, though the treating psychiatrist`s presence is also required.³¹ The impartial psychiatrist must decide whether the treatment or medication is "necessary in order to attempt to make the inmate competent for trial or is necessary because the inmate is dangerous to self or others, is gravely disabled, or is unable to function in the open population of a mental health referral center or a regular prison."³²

Although this regulation aims to protect patients` due process rights,<sup>33</sup> certain parts of the statutorily-mandated process-for instance the lack of standards for determining danger, clarity in the appeals process and judicial oversight of the quasi-legal determinations (psychiatrists make the hearing`s quasi-legal determination of whether medication will restore competency)³⁴-fall short.³⁵ Moreover, the regulation does not even require that the defendant be represented by counsel but merely a "staff representative."³⁶ These shortcomings necessitate judicial intervention, of which there has been some though not enough.

II Relevant Supreme Court Decisions

The Supreme Court has decided three cases in the last fifteen years that provide the primary guidance for forcibly medicating detainees pre- trial.³⁷ United States v. Sell is the most pertinent, but cannot be fully understood without Washington v. Harper and Riggins v. Nevada.

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In Harper, the Court had to decide what process was necessary, if any, prior to forcible medication of prisoners.³⁸ The Court recognized that there is "a significant liberty interest in avoiding the unwanted administration of antipsychotic drugs under the Due Process Clause of the Fourteenth Amendment."³⁹ Ultimately, the Court decided that the State may treat a prisoner involuntarily if he is a danger to himself or others and if the treatment is in his medical interest.⁴⁰ Further, the Court stated that a judicial hearing was not required before the decision to involuntarily medicate, since "an inmate`s interests are adequately protected... by allowing the decision to medicate to be made by medical professionals."⁴¹

In Riggins, the Court confronted the same issue but in the context of pre-trial detainees.⁴² The Court recognized that pre-trial detainees must be given at least the same protections as inmates;⁴³ therefore, medicating requires a justification that trumps an individual`s liberty interest and limits the use of drugs to what is medically appropriate.<sup>44</sup> Since these findings were not made for Mr. Riggins, the Court found that there was a substantial probability of trial prejudice, especially in light of the serious side effects that can often accompany antipsychotic drugs.45 The Court also stressed the need to look into less intrusive alternatives when weighing the pre-trial detainees` liberty and trial interests against the justifications offered by the State.⁴⁶ The Court noted that due process requirements might have been satisfied if the district court made a finding that no less intrusive alternatives were available to ensure the safety of either Riggins or others, if the State could not otherwise obtain an adjudication of guilt or innocence.⁴⁷ The latter justification became the subject of the controversy in United States v. Sell.⁴⁸

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In Sell, the Court had to decide whether a pre-trial detainee could be involuntarily medicated solely for the purpose of rendering the detainee competent to stand trial.⁴⁹ The Court relied on its past decisions in concluding that the Constitution permits the Government involuntarily to administer antipsychotic drugs to a mentally ill defendant...