Friday, September 20, 2013
Susan A. McMahon (Georgetown University Law Center) has posted It Doesn't Pass the Sell Test: Focusing on 'The Facts of the Individual Case' in Involuntary Medication Inquiries (American Criminal Law Review, Vol. 50, pp. 387-416, 2013) on SSRN. Here is the abstract:
Criminal defendants who are incompetent to stand trial have a significant liberty interest in refusing the antipsychotic medication that could restore their competency. The Supreme Court cautioned that instances of intrusion upon that right "may be rare," and, in Sell v. United States, it laid out what it believed to be stringent criteria for when a defendant could be medicated against his will. Yet, since Sell, trial courts have ordered over sixty-three percent of defendants involuntarily medicated. These individuals did not pose a danger to themselves or others, and they were rarely accused of crimes that involved damage to individuals or property. But the medication of these defendants, once predicted to be "rare," has instead become routine.
In this article, I argue that the overmedication of non-dangerous defendants is a result of the structure of the Sell test and its tilt in favor of the government. The use of a checklist of four threshold elements favors the issuance of medication orders because the court need not balance the defendant’s liberty interest in avoiding medication against the government’s interest in administering it. In addition, three of the four boxes on the checklist concern medical questions about the efficacy and side effects of antipsychotic medication that will fall in the government’s favor in the vast majority of cases.
However, while the Sell test contains the seeds of the overmedication problem, it also contains the solution. The first factor of the test requires courts to consider whether the government interest at stake is "important," and it mandates that courts assess the "facts of the individual case" to determine if the government interest crosses that bar. While few courts have delved deeply into this factor, some have looked to the nonviolent nature of the crime or the government’s minimal likelihood of success on the underlying criminal charge in concluding that the government interest in prosecuting the defendant was not important. I argue that more courts can and should follow this path. Such an approach would limit the involuntary medication of defendants to those exceptional cases where it is truly warranted.