Forcible antipsychotic medication and the unfortunate side effects of Sell v. United States, 539 U.S. 166, 123 S.Ct. 2174 (2003).

• Author: Breneman, Debra A.

The right to refuse medical treatment is a constitutionally protected liberty which has long been recognized in the common law as an important element of individual autonomy. (1) Yet the exercise of this right has traditionally been limited to individuals "of adult years and in sound mind." (2) As such, the degree to which mentally ill individuals--particularly those within the criminal justice system (3)--also have the right to refuse treatment, such as the administration of antipsychotic medications, has long lacked clear definition. (4)

In 1990, the Supreme Court held that a mentally ill inmate may be forcibly medicated as long as an administrative hearing with sufficient procedural safeguards yields the finding that he poses a serious danger to himself or others and that antipsychotic drugs are substantially likely to reduce that risk. (5) Two years later, in Riggins v. Nevada, the Court specifically reaffirmed the right of a mentally ill criminal defendant to avoid antipsychotic medication, but held that the right could be overcome by a compelling governmental interest. (6) Harper and Riggins, however, left unresolved whether a mentally ill defendant may ever be involuntarily medicated only to restore trial competence--that is, where the medication's exclusive purpose is to enable the government to proceed with prosecution.

Last term, in Sell v. United States, the Supreme Court held that, as long as four conditions are satisfied, the Constitution permits the involuntary administration of antipsychotic medication to a mentally ill defendant in an attempt to render him competent to stand trial for serious criminal charges. (7) Sadly, the Court's well-intentioned attempt to protect mentally ill defendants by delineating the conditions under which the government may forcibly administer antipsychotic drugs contains two prominent flaws.

First, it directly undermines its own holding--that, in limited circumstances, a defendant can be forced to ingest antipsychotic medication against his will--by inviting the government to sidestep its deliberately stringent requirements. Since Sell's four-part test only applies to incompetent defendants who are not dangerous, the government can likely proceed under the less stringent Harper/Riggins standard by merely labeling a specific defendant "dangerous." Justice Breyer, writing for the majority, also suggests several other practices which, if adopted literally, may prove to marginalize rather than protect the rights of mentally ill criminal defendants.

Second, in its eagerness to reach the merits, the Court ignored the traditional interpretation of the collateral order doctrine, under which the Court lacks jurisdiction. Although the Court has "repeatedly stressed" that the collateral order exception must be construed narrowly to prevent it from "swallow[ing] the general rule" that a party's appeal must be deferred until final judgment has been entered, (8) it relaxed those conditions here without a clearly-defined justification for so doing. As such, the Court created an incentive for other defendants to obstruct justice by filing inappropriate interlocutory appeals. (9)

1. RELEVANT FACTS AND PROCEDURAL HISTORY

   In May 1997, Charles Thomas Sell, a dentist with a "long and unfortunate history of mental illness," (10) was charged with making false representations regarding payment for medical services. In mid-July 1997, the district court adopted, without objection, a psychiatric evaluation finding Sell "currently competent" and agreed to release Sell on bail. (11) Two weeks later, Sell was indicted on fifty-six counts of mail fraud, six counts of Medicaid fraud, and one count of money laundering, all derived from a scheme to submit hundreds of false claims to Medicaid and private insurance companies between 1989 and 1997. (12)

   In January 1998, the government alleged witness intimidation and sought to revoke bail. At the bail hearing which followed, Sell shouted, swore, and spat in the judge's face when she attempted to advise him of his rights. (13) Given this and other evidence that Sell's mental condition was deteriorating, the court revoked bail and ordered detention. In April 1998, the government brought yet another indictment against Sell for conspiracy and attempted murder of a FBI agent (Sell's arresting officer) and a federal witness (a former employee expected to testify against Sell on the initial fraud charges).

   In early 1999, at his request, Sell was sent by the court to the United States Medical Center for Federal Prisoners in Springfield, Missouri ("the Center"), for another psychiatric examination, after which Sell was deemed mentally incompetent to stand trial. (14) Sell was subsequently committed to the Center for up to four months of treatment "to determine whether there was a substantial probability that he would attain the capacity to allow his trial to proceed." (15) Medical personnel recommended antipsychotic drugs as a likely means to restore competence, but Sell refused such medication. The Center then sought authorization for involuntary medication.

   In a June 1999 hearing, a Center psychiatrist authorized Sell's involuntary medication on the grounds that (a) Sell was "mentally ill and dangerous, and medication is necessary to treat the mental illness," and (b) such medication would likely render Sell competent for trial. The psychiatrist noted that he considered Sell dangerous if unconfined, but not necessarily so within a prison or other restitution. (16) Officials from the Bureau of Prisons reviewed and upheld that decision in a subsequent administrative proceeding, finding that (a) antipsychotic medication was the treatment "most likely" to succeed in Sell's case, (b) "less restrictive interventions" promised little success, and (c) Sell would benefit from such medication. (17)

   Sell moved for a judicial hearing in which to challenge the Center's authority to administer antipsychotic drugs against his will. (18) The federal magistrate judge conducted such a hearing in September 1999, reviewing the evidence presented at the administrative proceedings as well as testimony about subsequent incidents which had resulted in Sell's transfer to a locked cell. Center staff now testified that Sell had become "a safety risk" inside the institution. (19) In August 2000, the magistrate judge found that (a) Sell was in fact a danger to himself and others, (b) antipsychotic medication was "the only way" to render Sell less dangerous, and (c) such medication also had a "substantial probability" of restoring Sell's trial competence. (20) Although judicial authorization for involuntary administration of antipsychotic medication was therefore granted, the order was stayed so Sell could appeal to federal district court.

   In April 2001, in an unpublished decision, the District Court for the Eastern District of Missouri labeled the prior finding of dangerousness as clearly erroneous, given that Sell had been returned to an open ward within the Center. (21) Yet the district court affirmed the order authorizing involuntary medication, finding that antipsychotic drugs were (a) medically appropriate, (b) "the only viable hope" to restore Sell's competence to stand trial, and (c) necessary to achieve the government's compelling interest in adjudicating Sell's guilt or innocence regarding numerous and serious charges. (22) Both parties appealed.

   In March 2002, a split panel of the Court of Appeals for the Eighth Circuit (23) affirmed the district court's findings that Sell was not dangerous but that involuntary medication was constitutionally permissible to render him competent to stand trial. (24) Relying heavily on Riggins v. Nevada, the court outlined three requirements for involuntary medication:

   First, the government must present an essential state interest that outweighs the individual's interest in remaining free from medication. Second, the government must prove that there is no less intrusive way of fulfilling its essential interest. Third, the government must prove by clear and convincing evidence that the medication is medically appropriate. (25) The split panel held that the government's interest in prosecuting sixty-two counts of fraud and one count of money laundering was sufficiently "serious" to satisfy the first prong. (26) As to the second prong, each expert who testified at the initial hearing indicated that antipsychotic medication was the only means by which Sell could be expected to ever regain competence to stand trial. (27) Finally, the Eighth Circuit found no reversible error in the district court's finding that involuntary medication was "medically appropriate." (28)

2. THE SUPREME COURT DECISION

   The Supreme Court granted certiorari (29) and subsequently vacated and remanded the Eighth Circuit's ruling by a 6-3 decision. (30) Justice Breyer, writing for the majority, first held that the district court's order authorizing Sell's involuntary medication fit within the collateral-order doctrine such that appellate jurisdiction existed (for both the Eighth Circuit Court of Appeals and the Supreme Court). (31) Yet Sell's appeal arose from a pretrial order which, by definition, failed to qualify as a "final order" as required by 28 U.S.C. [section] 1291. (32) After summarily outlining the established three-part test for collateral orders, (33) the Court concluded that the district court's order authorizing Sell's involuntary medication satisfied all three prongs: it conclusively determined a disputed question, resolved an important issue separate from the merits of the action, and was "effectively unreviewable" on appeal from a final judgment. (34)

   Second, the Court held that the government may, under certain conditions, administer antipsychotic medication to a mentally ill defendant against his will solely to render him competent to stand trial. Relying on Washington v. Harper and Riggins v. Nevada, Justice Breyer stressed an individual's...