Forced Medication of Defendants to Achieve Trial Competency: An Update on the Law After Sell

Georgetown Journal of Legal Ethics, The, Summer 2004 by Hilgers, Kelly, Ramer, Paula

I. INTRODUCTION AND FRAMEWORK

An attorney representing a defendant who is or may be mentally incompetent faces a series of ethical dilemmas. First, the attorney may have to ascertain whether her client is, in fact, mentally incompetent, without revealing that client's confidential information and while protecting the attorney-client relationship. The attorney will then have to balance her client's need for treatment against the possibility that such treatment may make her client competent to stand trial. In order to protect her client from legal harm, she may have to argue her client's right to live in a delusional state, even when the client desperately needs antipsychotic medication.1 Conversely, a prosecutor may find herself representing a defendant's medical interests so that she can proceed with the prosecution.2 Dealing with a mentally incompetent defendant places attorneys in precarious ethical positions. These issues came to light in the Supreme Court's recent decision, Sell v. United States.3

This Note will first review the cases decided before Sell and how they shaped the law regarding involuntary medication of mentally incompetent defendants. Next, the Note will review the decision and reasoning of Sell as well as several of its implications. The Note will then describe the rules regarding and relating to an attorney's obligations in dealing with a mentally incompetent defendant, specifically, whether to argue against or accede to forcible medication and the ways in which the forcible administration of antipsychotic medications may affect a defendant.

II. CASES BEFORE SELL, SELL V. UNITED STATES, AND ITS IMPLICATIONS

Prior to Sell, it was well-established doctrine that an incompetent defendant could not be tried or convicted of a crime.4 The Supreme Court's previous cases had failed to clarify, however, how far a court might go to restore the trial competency of a mentally ill defendant.5

A. SELL'S PRECEDENTS

In 1990, the Court held in Washington v. Harper6 that prisoners have a liberty interest, protected by the Due Process Clause of the Fourteenth Amendment, in avoiding the involuntary administration of antipsychotic drugs.7 However, the Court made clear that this liberty interest could be overridden by the legitimate penal interests of the government.8 Finally, the Court determined that the prisoner's interest in avoiding forcible medication could be overcome "if the inmate is dangerous to himself or others and the treatment is in the inmate's medical interest."9

Two years later, in Riggins v. Nevada,10 the Court faced more squarely the issue of whether forced medication compromises a defendant's right to a fair trial. The defendant asserted that both his Fourteenth Amendment liberty interests and his right to a fair trial were violated by the state court's decision to force him to continue antipsychotic drug therapy during trial.11 The Court reversed Riggins's conviction, holding that, like convicted inmates, pretrial detainees have a due process right to avoid forced psychotropic medication.12 Because the state courts had made no findings that the treatment was medically appropriate, necessary for the safety of the defendant or others,13 or that the State could not try the defendant with less intrusive means,14 the case was remanded.15

In his concurring opinion, Justice Kennedy expressed concern that the potential side effects of the medication could prejudice a defendant both by changing his demeanor in ways that would make an unfavorable impression on a jury and by making him unable or unwilling to help his attorneys and participate in his own defense.16 As a result, Justice Kennedy suggested that "absent an extraordinary showing by the State, the Due Process Clause prohibits prosecuting officials from administering involuntary doses of antipsychotic medicines for purposes of rendering the accused competent for trial."17 If courts used a more lenient standard, the "integrity of the trial process" would be compromised.18

Although the majority opinion in Riggins also noted that the administration of psychotropic drugs could lead to trial prejudice due to the drugs' impact on the defendant's demeanor and ability to communicate,19 the Court reserved judgment on crucial questions implicated by Kennedy's concurrence. Riggins left unanswered the question of how much potential trial prejudice is constitutionally permissible. Nor did the Court determine when, if ever, medication could be administered for the sake of trial competency alone. Those questions would be left for Sell to resolve.

B. SELL V. UNITED STATES

On June 16, 2003, the Supreme Court rendered its verdict in Sell v. United States.20 The case dealt with the question of "whether the Constitution permits the Government to administer antipsychotic drugs involuntarily to a mentally ill criminal defendant-in order to render that defendant competent to stand trial for serious, but nonviolent, crimes."21 Petitioner Charles Sell, who had a long history of mental illness, was indicted for submitting fictitious insurance claims for payment and later for attempted murder.22 The Court of Appeals affirmed a District Court order forcing Sell to take medication in order to become competent to stand trial.23