Sell v. United States: is competency enough to forcibly medicate a criminal defendant?

• Author: Hayes, John R.

Sell v. United States, 123 S. Ct. 2174 (2003)

1. INTRODUCTION

   In Sell v. United States, the United States Supreme Court found that the Constitution allows for governmental administration of antipsychotic drugs involuntarily to a mentally ill criminal defendant in order to render the defendant competent to stand trial for nonviolent but serious crimes, in limited circumstances. (1) The Supreme Court examined whether the forcible administration of antipsychotic drugs to render a defendant competent to stand trial is constitutional, specifically whether the defendant was deprived of an important "liberty" guaranteed by the Fifth Amendment. (2) The Court vacated the Eighth Circuit's decision upholding the decision of the District Court allowing the administration of antipsychotic drugs involuntarily to a mentally ill patient. (3)

   This Note criticizes the decision in Sell in light of the precedents set forth in Harper (4) and Riggins. (5) The Court should have completely prohibited involuntary medication of a mentally ill criminal defendant with antipsychotic drugs solely to render the defendant competent to stand trial. An individual has a constitutionally protected liberty interest to be free from any unwanted bodily intrusion that will override a state's interest in bringing a defendant to trial. The decision was wrong because a criminal defendant also has a constitutionally guaranteed right to a fair trial that is undermined by forcible administration of antipsychotic drugs due to their significant and harmful side effects. Furthermore, Sell's crimes were not serious enough to warrant forcible administration of antipsychotic drugs, assuming that forcible administration of medication should be allowed at all. Finally, the dissent by Justice Scalia will be criticized for its failure to adhere to the collateral order doctrine and its narrow interpretation of the final judgment rule, thereby depriving a criminal defendant of his right to a fair trial.

2. BACKGROUND

   1. ANTIPSYCHOTIC MEDICATION

      Two broad general categories of antipsychotic drugs exist: the older "conventional" drugs, and the more recently developed "atypical" drugs. (6) Common side effects of conventional antipsychotic drugs include extrapyramidal reactions along with the extremely serious tardive dyskinesia. (7) Extrapyramidal reactions can include nervous ticks, tremors, spasms, and the need to be in constant motion. These reactions have been found to occur in fifty to seventy-five percent of patients treated with conventional antipsychotic drugs. (8) Tardive dyskinesia is a vicious form of an extrapyramidal reaction and is characterized by involuntary and jerky movement of the facial and oral muscles, along with the upper and lower extremities and trunk. (9) Furthermore, the seriousness of this condition is demonstrated by the fact that it often manifests itself after treatment with the antipsychotic drugs has ceased and is potentially irreversible. (10) Even the Supreme Court has observed that the proportion of patients treated with antipsychotic drugs who exhibit the symptoms of tardive dyskinesia ranges from ten to twenty-five percent. (11) In addition to these extrapyramidal reactions, conventional antipsychotic drugs can often produce other harmful side effects such as sedation, interference with an individual's concentration, blurred vision, dry mouth and throat, constipation, urine retention, weakness, and dizziness. (12)

      The newer "atypical" antipsychotic drugs have been reported to have a more favorable side effect profile than conventional antipsychotic drugs. (13) The American Psychiatric Association noted that major progress had been made, particularly in reducing the traditionally most troublesome side effects through the introduction of the newer atypical medications in the last decade. (14) However, these atypical antipsychotic drugs have their own side effects. (15) These side effects can include the potentially fatal disappearance of white blood cells, extrapyramidal effects, cataracts, heart rhythm irregularities, sedation, seizures, hypotension, and weight gain. (16) It should also be noted that due to the relatively short time period that these atypical antipsychotic drugs have been in use, there may still be some late-developing side effects that have not yet been discovered. (17)

      Until very recently, only conventional antipsychotic drugs had been approved for intramuscular injection, and as a result these were the only drugs available for involuntary administration. (18) Consequently, conventional antipsychotics, with their more harmful side effects, were the drugs used to forcibly medicate a criminal defendant. (19) However, one atypical drug, ziprasidone, was recently approved for intramuscular injection, and it has a much more favorable side effect profile than the conventional antipsychotic drugs. (20) Potentially, this could significantly alter a trial court's analysis of forcible administration of antipsychotic medication, but as these drugs are still new there needs to be more clinical data available in order for a court to consider atypical drugs free from serious side effects. (21)

      In sum, antipsychotic drugs cover a wide array of medications, each producing different and serious side effects. These drugs have different physical and chemical properties and potential side effects and are effective for treating a wide range of specific mental disorders. (22) These drugs are not "panaceas" and a court should take into consideration all these factors when determining their effectiveness in rendering a defendant competent to stand trial. (23)

   2. THE LAW PRIOR TO SELL

      The law in the area of forcible administration of antipsychotic medication to individuals generally fell into two categories: that of defendants awaiting trial, (24) and that of inmates already convicted. (25) To forcibly administer antipsychotic medication to a defendant awaiting trial, the governmental interests must have outweighed the interests of the defendant. (26) Similarly, the interests of the government must outweigh the liberty interests of an inmate to allow the forcible administration of antipsychotic medication. (27) Prior to Sell the Court had never dealt with the issue of forcible medication solely to render a defendant competent to stand trial. The law had focused on the issue of dangerousness to one's self and to others as the reason for administration of the drugs. (28)

      The Supreme Court first examined the forcible administration of prison inmates in Washington v. Harper. (29) The Court concluded that the Due Process Clause permits the state to treat a prison inmate who has a serious mental illness with antipsychotic drugs against his will, if the inmate is found to be dangerous to himself or others and the treatment is in the inmate's best medical interest. (30) In Harper, the Court considered a Washington state policy that authorized forced administration of antipsychotic drugs to mentally ill inmates who are gravely disabled or who represent a significant danger to themselves or others. (31) The Court held that an individual has a significant constitutionally protected liberty interest in avoiding unwanted administration of antipsychotic drugs. (32) That liberty interest, however, is subject to state concerns as well. (33) The governmental interest in forcibly administering the medication was found to be both legitimate and important. (34) The Court found the state regulation permitting forcible administration of antipsychotic drugs to an inmate to be permissible under the Constitution. (35) The regulation was found to be an "accommodation" between the inmate's liberty interest and the State's interest in reducing the danger a mentally ill inmate may pose to himself or others. (36)

      In a lengthy dissent, Justice Stevens pointed out that the majority undervalued Harper's liberty interest. (37) His argument centered on the different dimensions of a person's liberty interest. (38) A violation of a person's bodily integrity is an invasion of that person's liberty. (39) Justice Stevens stated that the liberty of citizens to resist the involuntary administration of mind-altering drugs is rooted in the Nation's "most basic values." (40) He also focused on the dangerous side effects of these antipsychotic drugs and the fact that they can be both irreversible and fatal. (41) He found that a competent individual's right to refuse antipsychotic medication is a fundamental liberty interest demanding the highest possible level of protection. (42)

      Justice Stevens also argued that the state regulation "sweepingly sacrifices the inmate's substantive liberty interest ... to institutional and administrative concerns." (43) While he admitted that security concerns were a legitimate state interest, he concluded that the regulation allowing prison administrators to address these concerns by forcibly administering psychotropic drugs to mentally ill inmates for prolonged periods was without a doubt an "exaggerated response" to those concerns. (44) This contention went to Justice Stevens' main point: the forcible administration of drugs solely to suppress an inmate's potential for violence, rather than to achieve therapeutic results, should not be considered on its own. (45) This reasoning results in a "muddled rationale" that allows the forced administration of psychotropic medication solely on the basis of institutional concerns, and consequently "eviscerates the inmate's substantive liberty interest in the integrity of his body and mind." (46)

      In Riggins v. Nevada, the Court reiterated that an individual has a constitutionally protected liberty interest to avoid involuntary administration of antipsychotic medication. (47) Riggins differed from Harper in that it involved the forced administration of antipsychotic drugs to a defendant in a criminal trial as opposed to a prison inmate. (48) The Court, in an opinion by Justice O'Connor, overturned...