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January 01, 2003

Forced Medication of Legally Incompetent Prisoners: A Primer

by Kathy Swedlow

As a general matter, most of us are free to refuse unwanted medical treatment, even when such treatment may be in our best medical interests; in most circumstances, we may choose to decline blood transfusions, refuse to accept lifesaving cancer treatments, and decide not to vaccinate our children.

In the context of the criminal justice system, however, incarcerated individuals-even those who are awaiting trial and still retain the presumption of innocence-have a reduced right to refuse unwanted medical treatment. Within prison walls the rights of the state must be balanced with the prisoner's right to refuse treatment. Thus, the state may offer a variety of medical and legal reasons to forcibly administer medical treatment to a prisoner, including the need to quell the spread of disease within prison walls; to ensure the physical safety of prisoners and prison personnel; and to "restore" competency to an incompetent defendant so that he may stand trial or even be executed.

It is the latter class of cases-those in which the state seeks to medicate solely or partially for prosecutorial reasons-that are the most troubling of the forced medication cases. Showings by the state that forced medication is medically or penologically appropriate is only part of the equation; the request also is prompted by the state's wish to bring about a legal proceeding. In some cases, an incompetent criminal defendant awaits trial and, without restoration of competency, may be incarcerated indefinitely until competency returns. In others, the defendant is sentenced to death but later deemed incompetent to be executed, and the state seeks to restore competency through forced medication-solely to then execute the prisoner.

Legal Background

In the early 1990s, the U.S. Supreme Court issued two opinions addressing the issue of when, and under what circumstances, mentally ill individuals within the criminal justice system may be forced to take psychotropic medication, either as part of a medical treatment plan or to restore competency to stand trial.

In the 1990 case of Washington v. Harper, 494 U.S. 210, the Court was confronted with a mentally ill incarcerated man who did not want to be medicated by prison psychiatrists. The state made a showing that forced administration of the antipsychotic drug at issue was medically appropriate and that, absent the medication, Harper represented a danger to himself and others. The Court clearly recognized Harper's liberty interest in avoiding the forced administration of antipsychotic medication, as well as the "substantial interference" posed by forcible medication and the tremendous dangers associated with such drugs. It nonetheless held that Harper could be involuntarily medicated given the state's demonstration that the drug regimen was necessary. Further, the Court rejected Harper's claim that the decision to forcibly medicate necessarily had to be made by a judicial decision maker. Instead, the Court reasoned that Harper's interests might well be better served when the decision to medicate was made by a medical professional rather than a judge.

Two years later, in Riggins v. Nevada, 504 U.S. 792, the Court was faced with the issue of involuntarily medicating a mentally ill prisoner. However, in Riggins, the defendant had not been convicted at the time he was involuntarily medicated; rather, the trial court refused to allow Riggins to discontinue his medication despite his arguments that its continuation would affect both his demeanor at trial and his ability to meaningfully assist in his own defense. As in Harper, the Court again recognized the serious and sometimes fatal side effects associated with the administration of antipsychotic medications. However, the Court held that he could not be involuntarily medicated absent any showing by the state that less intrusive means were available to restore his competency and that he was a danger to himself or others-which had not ever been made.

Today, in early 2003, the Court is again faced with the involuntary medication issue, this time in the case of United States v. Sell, No. 02-5664. Sell, which was argued before the Court on March 3 and which had not been decided at the time of printing, presents a twist on Harper and Riggins: namely, the Court is asked whether an incompetent pre-trial detainee, facing felony insurance fraud charges, may be forcibly medicated to restore his competency. (For the opinion below, see United States v. Sell, 282 F.3d 560 (8th Cir. 2002)).

The government had made some demonstration that the proposed drug regimen was medically appropriate for Sell's condition, although it did not allege that Sell presented a danger to himself or others or that the administration of antipsychotic medication would definitively restore his competency. Nonetheless, the government argued that its interest in bringing Sell to trial overrides any liberty interest he may have in refusing the medication. In response to the concerns expressed by the Court in both Harper and Riggins regarding the powerful and sometimes fatal side effects of antipsychotic medications, and the express concern in Riggins that these side effects might prejudice the defendant at trial, the government argued that new antipsychotics-developed after Harper and Riggins were decided-present fewer and less severe side effects.

In contrast, Sell argued that his right to refuse medication should be deemed fundamental because, as a person not yet convicted of a crime, he has fundamental rights to privacy, bodily integrity, and freedom of thought and expression. Sell argued that these fundamental rights to refuse treatment necessarily outweigh the government's interest in medicating him and bringing him to trial, especially because he faces charges for a nonviolent offense. Sell also maintained that the medications available to treat his mental illness still pose severe and potentially long-lasting side effects, and that the risk of harm to him through their forced administration outweighs the government's right to bring him to trial.

Regardless of how the Court rules, Sell obviously will come down to balancing the parties' respective interests. However, because the government has not alleged that Sell presents a danger to himself or others-a critical issue in both Harper and Riggins-this case will present the Court with the opportunity to confront several issues left undecided by its previous rulings.

Authentic versus Artificial Competency

Mental health issues pervade the criminal justice system. A mentally ill defendant may be excused partially or entirely from criminal responsibility, depending on how the mental illness manifested itself at the time of the offense. She may be unable to confer with counsel and/or understand the proceedings against her; and her mental illness may interfere with her ability to make knowing, voluntary, and intelligent decisions about her defense.

Not too surprisingly, criminal law has carved out legal standards for the assessment of the criminal defendant's capacity at every turn, and these standards are regularly employed in criminal proceedings. However, none of the competency standards utilized in the criminal courts-e.g., competency to stand trial, competency to waive rights, competency to be executed-explore the issue whether competency can truly be restored through artificial means.

Many have argued that medically restored competency is "artificial" and that an individual whose competency is restored through medication is no more competent than he was before the administration of the medication. This perspective is based on the view that antipsychotic medications simply mask the more florid symptoms of psychosis, leaving the patient uncured, and his incompetency merely "muted" for the duration of his treatment. Under such a view, antipsychotics interfere with the individual's ability to think and express himself-potentially implicating First and Sixth Amendment concerns-and the competency that accompanies their administration is false. (For the most recent judicial expression of this perspective, see Judge Heaney's dissent in Singleton v. Norris, __ F.3d __, 2003 WL 261795 (8th Cir. Feb. 10, 2003) (en banc)).

It is questionable whether this debate actually can be resolved satisfactorily within a legal arena. In Sell the American Psychiatric Association took the position that "the mental health produced by antipsychotic medication is no different from, no more inauthentic or alien to the patient than, the physical health produced by other medications, such as penicillin for pneumonia." Brief of Amici Curiae American Psychiatric Association (APA) and American Academy of Psychiatry and the Law. Such a comparison is problematic: penicillin offers a cure for the bacteria that cause pneumonia, but there is no such corollary for antipsychotic medication. Instead, antipsychotic medications work only when they are taken; when the patient's drug regimen concludes, psychosis returns.

Medication and Competency Restoration

The process of competency restoration is hardly easy: the drugs most often at issue in the forced medication cases-antipsychotic drugs-have substantial and debilitating side effects. As the Court explained in Harper, "the purpose of the drugs is to alter the chemical balance in a patient's brain, leading to changes, intended to be beneficial, in his or her cognitive processes." But, the Court went on to explain, the side effects to these drugs can be fatal and include a variety of motor control disorders, some treatable and some permanently disabling. The United States and the APA as amici in Sell did not concede this point but argued that medical research in the 1990s-i.e., drugs created after Harper and Riggins were decided-created a new class of antipsychotic medications that have fewer side effects. Even assuming this argument is factually true, it is unclear whether it is legally relevant, as the following points demonstrate:

1. If a prisoner has a liberty interest in avoiding the forced administration of drugs, violation of that interest occurs at the moment medication is forced upon the prisoner-and does not depend on the classification or efficacy of the medication in question, or its side effects.

2. The issue whether administration of newer antipsychotic drugs results in fewer side effects does not respond to one of the concerns raised by Sell and others in his position: the administration of an antipsychotic drug-old or new-changes the way individuals actually think and express themselves, thereby invoking First Amendment concerns.

3. The mere fact of contradictory opinions regarding the operation and consequences of antipsychotics underscores the validity of Sell's concerns that their administration will interfere with more than just his liberty interest to refuse unwanted medications.

The issue of side effects encompasses more than the actual effect of the drug on the individual. If the medication in question changes the individual's outward affect, a risk exists that this changed affect might prejudice the defendant at trial. This was precisely the argument accepted by the Court in Riggins: the forced administration of antipsychotic medication interfered with Riggins's comprehension of the trial proceedings and his ability to confer with counsel and to testify in his own defense, and adversely affected his demeanor in front of his capital jury.

A Question of Constitutional Balance

Sell also presents issues regarding the status of the prisoner the state seeks to medicate and, assuming his status is relevant, the nature of the charges against him. Sell is awaiting trial for insurance fraud-a nonviolent felony. Absent a showing that a pretrial detainee poses a danger to himself or others within the prison, how should the Court balance the interests of the parties in such a case? Quite obviously Sell argues that the balance tips in his favor; and the government argues the opposite. As with any balancing test, the results depend on the perspectives of those who perform the actual balancing.

Court Jurisdiction

Although neither party in Sell addressed the jurisdiction of a court of appeals or the Supreme Court to review the case, the Court after oral argument requested that the parties brief the issue of whether the district court's forcible medication order is appealable.

Is a pretrial order allowing or refusing forced medication a final, appealable order? At first blush, probably not: the collateral order doctrine is rarely applied in criminal cases. An order forcing medication on a psychotic defendant is however inherently different from other pretrial orders regularly issued in a criminal case, because its consequences are "effectively unreviewable on appeal." Midland Asphalt Corporation v. United States, 489 U.S. 794, 798-799 (1989).

For example, when a trial judge denies a defendant's motion to suppress and the contested evidence is introduced at trial, a reviewing court can assess the record to determine the propriety of the suppression order and determine its effect on the resulting trial. In contrast, when the defendant is forcibly medicated throughout the trial, the record on appeal is not complete because the medication necessarily affected the defendant both internally and externally. This was precisely Justice O'Connor's point in Riggins: the forced administration of antipsychotic medication affected not only Riggins's demeanor but also his ability to comprehend the proceedings. Riggins. Although Sell argues that forcible medication would violate his First Amendment right to freedom of thought, the Court need not even recognize a fundamental right in order to assume jurisdiction here. Riggins explains why the effects of forced administration of antipsychotic medication extend far beyond the routine appellate review of criminal cases.

Medicating to Execute

Where the state seeks involuntarily medication of an incompetent capital prisoner, there is not and cannot be a claim that the forced medication rests on medical necessity or even prison safety. In such cases the state argues simply that its rights to carry out a criminal sentence outweigh any rights of the mentally ill individual to refuse treatment. Such cases are grisly and, for those who principally oppose the death penalty, underscore virtually every aspect of what is wrong with the American capital punishment system.

This issue may well be before the Court shortly; the Eighth Circuit sitting en banc recently held that the State of Arkansas may forcibly medicate an incompetent capitally sentenced prisoner in order to execute him. Singleton v. Norris, __ F.3d __, 2003 WL 261795 (8th Cir. Feb. 10, 2003). The prisoner was originally involuntarily medicated pursuant to the dictates set forth in Washington v. Harper. When Singleton's execution date was set, he argued that claims by the state that his involuntary medication was in his best medical interests evaporated. The en banc court rejected Singleton's argument and instead accepted the state's claim that its interest in executing a convicted murderer outweighed any interest of Singleton's in refusing medication.

For those who oppose capital punishment, Singleton represents merely one of many reasons why capital punishment is inherently wrong. Many of those who do not regularly adopt an abolitionist view, however, find the holding in Singleton disquieting. Even assuming Singleton's guilt, the forcible medication and execution of an incompetent defendant demonstrate the sort of prosecutorial rigidity that, in 2003-after two state moratoriums on executions, the demonstration of significant error rates in capital cases, and repeated demonstrations of racial bias in capital sentencing-should no longer be permitted.

Kathy Swedlow

Kathy Swedlow is an assistant professor at The Thomas M. Cooley Law School in Lansing, Michigan, and co-director of the Cooley Innocence Project.