It doesn't pass the Sell test: focusing on 'the facts of the individual case' in involuntary medication inquiries.

• Author: McMahon, Susan A.

In November 2002, Herbert J. Evans, a 74-year-old with a long history of paranoid schizophrenia, walked into a United States Department of Agriculture Service Center in Wytheville, Virginia, to complain about a past due notice on his USDA loan. (1) Evans quickly became angry and, after ranting about the United States' descent into Communism, told the USDA employee that he had lived his life and "would not 'mind taking a few with me.'" (2) Evans was arrested and charged with forcibly assaulting, intimidating and interfering with an employee of the United States while the employee was engaged in her official duties. (3) After his arrest and a mental evaluation, the court determined he was incompetent to stand trial. (4) The only hope for restoring him to competency was the administration of antipsychotic medications, which Evans refused. (5) The government moved to have him medicated against his will. (6)

Thus began Evans' long and circuitous route through the criminal justice system. For the next four years, Evans was held at a prison medical facility while his case proceeded through several district court hearings and two appeals. During his time of confinement, he allegedly threatened to kill the federal judge hearing his case and was charged with that additional crime. (7) At some point, the courts decided the government interest in prosecuting Evans for these crimes was "important" because the crimes with which he was charged were "serious." (8) At no point did the courts consider whether Evans' lengthy history of mental illness or the fact that his crime was likely intimately intertwined with this illness undermined this government interest.

Criminal defendants who are incompetent to stand trial have a significant liberty interest in refusing the antipsychotic medication that could restore their competency. Intrusion upon that right is "a deprivation of liberty in the most literal and fundamental sense." (9) However, as with all constitutional rights, an individual's interest in making autonomous decisions concerning medical treatment can be outweighed when important government interests are at stake. In Washington v. Harper, the Supreme Court held the government interest in medicating inmates who pose a danger to themselves or others was sufficiently important to overcome a prisoner's right to refuse the medication. (10) Riggins v. Nevada applied the same reasoning to criminal defendants. Even though they had not been convicted of any crime, as the inmates in Harper had, defendants in pretrial detention could be medicated against their will when they posed a danger to themselves or others. (11)

Sell v. United States applied the Harper and Riggins reasoning well beyond the context of dangerous individuals. In Sell, the Court held that an incompetent, non-dangerous defendant could be medicated for the sole purpose of bringing him to trial. (12) To do so, the government must show: (1) important government interests are at stake; (2) involuntary medication will significantly further those interests; (3) involuntary medication is necessary to further those interests; and (4) the administration of the drugs is medically appropriate. (13) These factors, drawn from Harper and Riggins, require courts to evaluate the potential side effects of a proposed drug, the likelihood of restoration to competency with the medication, the availability of any alternate courses of action, the seriousness of the charged crime, and the special circumstances of the individual case. (14)

Given these criteria, the Supreme Court cautioned that instances where a defendant was medicated solely for the purpose of prosecuting him "may be rare." (15) However, that has not turned out to be the case. Since Sell, lower courts have approved the involuntary medication of incompetent defendants in over sixty-three percent of cases, including many cases in which the defendant was charged with a crime involving no physical damage to people or property or a crime that was indisputably a manifestation of the individual's mental illness. (16) The involuntary medication of non-dangerous defendants, predicted to be a "rare" occurrence, has instead become routine.

The problem rests with the structure of the test, consisting of four separate threshold factors, and its tilt in favor of the government. For example, with the government interest factor, a court's only task is to decide whether this interest is important. If it is, that box on the four-factor list is checked. The court does not then balance that government interest against the defendant's countervailing interest in refusing medication. The use of a checklist comprised of threshold factors favors the issuance of involuntary medication orders because the court need not consider the defendant's interest in avoiding what the government seeks to do, "which necessarily involves physically restraining defendant so that she can be injected with mind-altering drugs." (17)

Moreover, the final three boxes on the checklist, which compel the court to answer medical questions about the efficacy of the antipsychotics and the risk of side effects, will be met in the vast majority of cases. The medical community has concluded that antipsychotic medication is the "gold standard" for patients with psychotic symptoms, and statistical studies have shown the medication works and side effects can be managed. (18) Barring unusual circumstances, these three boxes will be checked.

Therefore, the first factor--whether the government interest at stake is important--is often the only barrier between a defendant and involuntary medication. To show that a government interest is important, the government must prove the alleged crime is "serious." (19) Federal courts have found alleged crimes ranging from illegal reentry to credit card fraud to qualify as serious. (20) It is the rare federal crime that falls outside this category.

Yet the seriousness of the crime is not the only criterion. A court must also consider "the facts of the individual case" when evaluating the importance of the interest. (21) For example, the government may have less of an interest in prosecuting a defendant who has already been confined for a significant amount of time or likely will be confined to an institution for the mentally ill. (22) Some courts have also looked to the nature of the crime, whether violent or nonviolent, (23) as well as the government's likelihood of success on the underlying criminal charge (24) when assessing the government interest.

The "facts of the individual case" analysis therefore provides an opportunity for the defendant to push the importance of the government interest below the threshold for satisfying the first factor of the Sell test. If warranted by the individual circumstances, the defendant can erase the checkmark usually placed there by default because he committed a "serious" crime. However, this consideration has largely gone unrecognized in the lower courts. Courts have instead become mired in discussions about drug dosages, treatment plans, and side effects. Because resolving these questions of medication specifics usually results in a finding that the drugs will be effective in restoring the defendant to competency with few severe side effects, the medication of incompetent criminal defendants has become commonplace.

In this Article, I explore the contours of the overmedication problem and offer as the solution a more robust assessment of the facts of the individual case under the government interest factor. Part I summarizes in broad strokes the medical and legal background of involuntary administration of antipsychotic medication, including the current state of medical knowledge about the treatment of psychotic disorders and the Supreme Court's series of decisions on involuntary medication of inmates and defendants. These decisions led to Sell v. United States, the controlling authority on the involuntary medication of defendants for the purpose of standing trial, which I analyze in Part II. Part III demonstrates the medication of defendants often takes place despite looming questions about the strength of the government's interest in prosecuting the defendant, due to the structure of the legal test and the misunderstandings surrounding the important government interest factor. Part IV proposes placing a new emphasis on this factor and its individualized assessments to identify those exceptional cases where involuntary medication is warranted.

1. MEDICAL AND LEGAL FRAMEWORK FOR INVOLUNTARY MEDICATION

   1. Medical Background

      Patients deemed incompetent to stand trial suffer from a wide array of mental illnesses, many of which are classified as "psychotic disorders." (25) Mental illnesses that fall into this category include schizophrenia, brief psychotic disorder, and delusional disorder. (26) Studies have shown that medications can successfully control the psychotic symptoms of many of the disorders in this category. (27) These medications can be generally categorized into two groups--the first-generation typical antipsychotics and the second-generation atypical antipsychotics--and, while their efficacy rates are generally the same, their side effect profiles differ significantly. (28) Whether a defendant is involuntarily medicated with a typical or atypical antipsychotic usually depends on the availability of injectable forms of the medication, the defendant's past experiences with particular medicines, and the treating psychiatrist's personal preferences. (29)

      1. Psychotic Disorders

         The constellation of disorders considered "psychotic" includes symptoms such as delusions, hallucinations, catatonic behavior, disorganized speech, and negative symptoms, such as diminished emotional expression. (30) The specific diagnosis depends on which combination of symptoms a patient presents and how long a patient has had active symptoms. (31) With schizophrenia, for example, the patient must show some...