Sell v. United States
Prisoners Can Be Forced To Take Anti-Psychotic Drugs: Commentary on Sell v. United States
In Sell v. United States, the Supreme Court affirmed the authority to administer anti-psychotic drugs to a criminal defendant solely for purposes of rendering him competent to stand trial. This 6-3 opinion authored by Justice Breyer describes the criteria that the government has to satisfy to gain such court authority. Because the lower court in the present case had failed to satisfy itself that all the appropriate criteria for such an order had been met, the specific order in this case was reversed. The dissenting opinion, by Justice Scalia and joined by Justices O’Connor and Thomas, did not take issue with these criteria. Instead, Justice Scalia argued that it was improper to hear the matter on an interlocutory appeal, which prevented the trial from going forward.
Sell, a dentist, had been charged with multiple counts of mail and Medicaid fraud, and a later count of attempted murder aimed at the FBI arresting officer. He had a previous history of mental illness. After his arrest, Sell’s mental condition was examined several times for different purposes. After one hearing, a magistrate ordered his bail revoked. A subsequent magistrate’s hearing resulted in an order authorizing the involuntary administration of anti-psychotic drugs to render Sell non-dangerous to others and competent to stand trial. The district court heard an appeal from that order and reversed the magistrate’s finding of dangerousness, but upheld the order on the grounds of competency to stand trial. In a divided decision, the court of appeals affirmed.
The Supreme Court held that involuntary administration for reasons of competency to stand trial can be an appropriate accommodation of the state’s interest in bringing individuals to trial for serious crimes and the individual’s liberty interest in avoiding forced medication, but that specific criteria must be satisfied. First, there must be an important governmental interest at stake. While the interest in prosecution of serious crimes is an important interest, a case by case inquiry is necessary to see if that interest is mitigated in any particular case by the prospect of long civil confinement for the psychiatric condition, or because of long periods of confinement already served, which would be subtracted from any eventual sentence. (In Sell’s case, his lawyer had argued that Sell had already been confined for a longer period than the sentence he would receive from conviction on the original indictment.) Second, the medication must be substantially likely to render the defendant competent without offsetting side effects. Third, the medication must be necessary to achieve this result, and alternative, less intrusive procedures must be unlikely to produce substantially the same results. Fourth, the drugs must be medically appropriate.
The federal criminal justice system makes considerable use of anti psychotic drugs — a Bureau of Prisons 12 month study showed 285 cases of anti psychotic drug administration in that period — but it is unclear how significantly the Sell decision will affect this practice. On the one hand, the government’s brief argued that current uses are medically appropriate, highly efficacious, with minor or manageable side effects, and that improved medications continue to be developed. (As for efficacy, several studies cited in the brief show success rates of 75-90%. In the BoP study, the 226 cases of voluntary administration showed an 88% success rate, while the 59 cases of involuntary administration were 76% successful.) Thus, cases where involuntary orders are sought under existing practice may be able to meet the Sell criteria. On the other hand, Justice Breyer thought that the instances in which involuntary administration would be justified “may be rare,” and the procedure outlined by the Court will put the government to its proof on all the criteria. Beyond the federal situation, this constitutional ruling applies to all criminal proceedings, state as well as federal.
The issue focused on by the dissent — the interlocutory appeal of the involuntary administration order under the collateral order doctrine — might end up being of greater moment than the holding on the validity of such orders. Justice Scalia predicts that appeals from such pre-trial orders, as well as from other orders in which a defendant can claim that appeal from a conviction will not adequately protect the loss of a constitutional right, will enable defendants to engage in delaying tactics that will impair the ability of the government to get cases to trial. Such concerns form the basis for prohibiting appeals from most pre trial rulings. Justice Breyer replies that several factors serve to limit the scope of the of the interlocutory appeal dimension of the decision — perhaps extending it no further than to appeals of this issue. These include the “severity of the intrusion and corresponding importance of the constitutional issue,” the fact that the involuntary administration issue is completely distinct from any questions of trial procedure, and the further fact that a constitutional deprivation — administering the drug without sufficient justification — is impossible to undo once the drug has been administered.
The author, Christopher H. Schroeder, is the director of the Program in Public Law.