United States v. Sell: involuntary administration of antipsychotic medication. Are you dangerous or not?

• Author: Single, Gregg

1. INTRODUCTION II. HISTORY OF CASES INVOLVING FORCED ADMINISTRATION OF ANTIPSYCHOTIC MEDICATION ON INDIVIDUALS A. Sell v. United States B. Washington v. Harper C. Riggins v. Nevada III. STANDARD OF REVIEW AND LEVEL OF SCRUTINY APPLIED BY VARYING COURTS A. U.S. Supreme Court in Harper B. Nevada Supreme Court in Riggins C. U.S. Supreme Court in Riggins D. Eighth Circuit Court of Appeals in Sell E. U.S. Supreme Court in Sell IV. ANALYSIS A. Dangerousness as the Dispositive Element and Chief Loophole B. State Interest Provides Second Loophole V. CONCLUSION I. INTRODUCTION

   Antipsychotic drugs "alter the chemical balance in a patient's brain and can cause irreversible and fatal side effects." (1) Furthermore, they "act at all levels of the central nervous system as well as on multiple organ systems. [They] can induce catatonic-like states, alter electroencephalographic tracings, and cause swelling of the brain. Adverse reactions include drowsiness, excitement, restlessness, bizarre dreams, hypertension, nausea, vomiting, loss of appetite, salivation, dry mouth, perspiration, headache, constipation, blurred vision, impotency, eczema, jaundice, tremors, and muscle spasms." (2) As well as these symptoms, they can also cause "tardive dyskinesia, an often irreversible syndrome of uncontrollable movements that can prevent a person from exercising basic functions such as driving an automobile, and neuroleptic malignant syndrome, which is 30% fatal for those who suffer from it. The risk of side effects increases over time." (3) In light of these daunting risks, it is no surprise that the person faced with the risk of forced administration of these drugs stated that he would rather die than take them. (4)

   The Supreme Court of the United States recently decided whether the state act of forcibly administering these antipsychotic drugs to criminal defendants solely for trial competency purposes is constitutional. (5) The Court previously held that the government could do so under certain circumstances, the most essential of which being that the person in custody pose a danger to himself or others. (6) This present case, however, marked the first time the Court ruled on whether the government could administer the drugs solely to render the defendant competent to stand trial. (7)

   In the decision, the Court crafted a 4-prong test which the government would have to pass in order to forcibly administer the drugs. (8) However, practically speaking, absent a showing of dangerousness, the delineated test will be difficult, if not impossible, to meet. Unfortunately, since this question of dangerousness is the dispositive issue and the Court has continually failed to outline a clear standard of scrutiny to be applied, the individuals fundamental fight to be free from unwanted antipsychofic medication remains in jeopardy, subject to less fundamental and compelling state interests.

   Part II of this note reviews the substance of the Sell decision, including the test it delineates. It also reviews the paramount cases upon which Sell was decided. Part III focuses on the different standards of scrutiny applied in each of those cases at the Supreme Court level, as well as the lower court's invoked standards of scrutiny. Part IV analyzes where the Court has left this doctrine in light of the Sell decision and why its effectiveness as a safeguard for an individual's significant liberty interest in remaining free from unwanted antipsychotic medication is in serious jeopardy.

2. HISTORY OF CASES INVOLVING FORCED ADMINISTRATION OF ANTIPSYCHOTIC MEDICATION ON INDIVIDUALS

   1. Sell v. United States

      The Sell decision dealt with a former dentist charged with submitting fictitious insurance claims for payment, which resulted in a grand jury indictment charging him with fifty-six counts of mail fraud, six counts of Medicaid fraud, and one count of money laundering. A few months later, the grand jury issued another indictment charging Sell with attempted murder of an FBI agent and a former employee at his dental practice. However, for purposes of his case in front of the Supreme Court, the charges of attempted murder were not an issue since they were not part of the original case. This was significant in that it could have potentially weakened the government interest in prosecuting him, since fraud charges are traditionally viewed as less serious than attempted murder charges and a finding of dangerousness is less likely.

      The first prong of the Sell test requires a court to "find that important governmental interests are at stake." (9) Generally speaking, this is always satisfied when the government is seeking to administer drugs to a criminal defendant. By prosecuting him, the government is serving its role of protecting society's basic need for human security. (10)

      While this interest in adjudication of the charges is always present, it can be mitigated by other factors. For instance, an incompetent defendant who refuses to take medication voluntarily will be confined for a significant period of time. (11) While this effect will not provide the per se equivalent benefit on society that adjudication of criminal charges would, it nonetheless confers some benefit to society by keeping potentially-criminal individuals off the streets. Also, the government interest can be dissipated by the length of confinement a defendant will have already experienced as a result of refusing the drugs. (12) Lastly, the government's interest in adjudication is not an absolute one, as the government itself has a "concomitant, constitutionally essential interest in assuring that the defendant's trial is a fair one." (13) Therefore, while the government always has a certified interest in adjudication of the charges against the defendant, that interest can be reduced by other factors.

      The second prong of the Sell test requires "the court [to] conclude that involuntary medication will significantly further those concomitant state interests." (14) To satisfy this prong, the government must prove two things. First, it must show that medication is "substantially likely to render the defendant competent to stand trial." (15) Second, it must show that the medication is "substantially unlikely to have side effects that will interfere significantly with the defendant's ability to assist counsel in conducting a trial defense, thereby rendering the trial unfair." (16) Justice Kennedy pointed out the possible detrimental effects of the drugs on a defendant's ability to receive a fair trial by altering his demeanor in the courtroom, thus prejudicing the presentation of his defense or leaving him unable or unwilling to assist his counsel in presenting a defense. (17) Therefore, any administration of antipsychotic medication must avoid either of these side effects to pass this prong.

      The third prong of the Sell test requires the "court to conclude that involuntary medication is necessary to further those interests." (18) This requires the court to consider alternatives, both substantive and procedural, to forcible administration of the drugs. For substantive alternatives, while there is no consensus among the scientific community as to the effectiveness of alternatives to medication, the court must still consider them. (19) Also, the court must consider procedural alternatives to forcible medication, such as court orders backed with the threat of a contempt finding. (20) After consideration of these alternatives, the court must find that forcible medication is the only means by which the government can achieve its interests.

      The fourth prong of the Sell test requires that "the court must conclude that administration of the drugs is medically appropriate." (21) To satisfy this prong, the government must show that administration of the drugs is medically appropriate for each individual defendant and, moreover, his specific symptoms. (22) This prong seeks to ensure that whatever side effects the defendant may suffer (and considering the available medications, dangerous side effects are very possible), they will be outweighed by the benefits available to the defendant.

      The Sell decision came more than a decade after the Court gave permission to the government to forcibly administer drugs to inmates who were found to be dangerous to themselves or others. (23) However, Sell is distinguishable from these earlier cases because of the government interest involved: making the defendant competent to stand trial. (24) This asserted government interest can be differentiated from the earlier cases authorizing forced medication because it lacks a characteristic which was a focal point of those earlier decisions: a finding that the defendant was dangerous.

   2. Washington v. Harper

      In Harper, the Court was confronted with the question of whether the government could forcibly administer antipsychotic drugs to a prison inmate and under what circumstances it would be constitutional to do so. (25) In resolving the issue, the Court held that an inmate's right to be free from forced medication had to be viewed in light of "the State's interest in prison safety and security." (26)

      Harper dealt with a prison inmate who was originally convicted of robbery in 1976. Until 1980, he spent most of his time in the mental health unit of the Washington State Penitentiary, where he voluntarily took the prescribed antipsychotic medication, but eventually refused to continue taking it. (27) His treating physician then sought to forcibly administer the drugs pursuant to state policy. (28) The policy required that a psychiatrist determine whether an inmate should be medicated with antipsychotic drugs. If the inmate refused to consent, he could only be "subjected to involuntary treatment with the drugs if he (1) suffers from a 'mental disorder' and (2) is 'gravely disabled' or poses a 'likelihood of serious harm' to himself, others, or their property." (29)

      Under the state policy, "gravely disabled" was summarily defined...