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Forced Medication Involving Mentally Ill Defendants

By Hon. Stephen S. Goss, Superior Courts of Georgia

4/11/2008

Being mentally ill is not a criminal offense. However, at times persons suffering from mental illness act out and run afoul of the law. Issues involving the mental health condition of a criminal defendant arise in a variety of ways. The mental status of an accused at the time of the alleged offense is critical to the issue of mens rea. Whether the defendant at the time of the act was able to distinguish right from wrong or was acting under a delusional compulsion that overmastered his will goes to the heart of a possible insanity defense. Due process protects a person not currently mentally competent from being tried and convicted in a criminal case.¹ Mental health and mental retardation issues are central to mitigation evidence and sentencing decisions.

A body of law is evolving around the issue of court-ordered administration of anti-psychotic medicines to mentally ill criminal defendants. The United States Supreme Court has addressed three related topics. In Washington v. Harper, ² the Court focused on the involuntary medication of a convicted criminal defendant in the context of whether he was a danger to himself or others. Riggins v. Nevada ³ addressed the involuntary medication of a defendant during his criminal trial. Sell v. United States⁴ addressed the issue of involuntary medication of a defendant for the sole purpose of restoring mental competency in order to proceed to trial on the merits. All of these cases have been decided in light of a clear and consistent holding that a defendant possesses a significant liberty interest in avoiding the unwanted administration of antipsychotic drugs under due process rights afforded by the Fifth and Fourteenth Amendments to the United States Constitution.⁵

A Danger to Self and Others

In Harper,⁶ a mentally ill state inmate filed a civil lawsuit challenging a prison policy authorizing involuntary treatment with antipsychotic drugs without any hearing.⁷ The defendant served a prison sentence for robbery and consented to the administration of psychotropic medicines. He was paroled with a condition of continued treatment. His parole was revoked after he assaulted two nurses. At this point, he was diagnosed with schizophrenia but refused treatment. “The extent of a prisoner’s rights under the [Due Process] Clause to avoid the unwanted administration of antipsychotic drugs must be defined in the context of the inmate’s confinement.” ⁸ Noting a prison has an interest in the security of its facility, the Court held the Due Process Clause permits a state to treat a prison inmate who has a serious mental illness with antipsychotic drugs against his will if the inmate is dangerous to himself or others and the treatment is in the inmate’s medical interest.⁹ Under Harper, the key analysis is the defendant’s dangerousness to himself or others.

The issue of involuntary medication of a defendant prior to conviction was addressed in Riggins v. Nevada. ¹⁰ The defendant was convicted in a state prosecution for murder and sentenced to death. His physician prescribed the antipsychotic drug Mellaril to treat complaints of hearing voices and difficulty sleeping. The court found him competent to stand trial. The defendant wanted to suspend his medication therapy at trial so the jury could see his true mental condition when he offered an insanity defense. The United States Supreme Court reversed the conviction and remanded the case. The Court held it was error for the trial court to order the defendant to be administered antipsychotic drugs during the course of trial over his objection without three findings: (1) There were no less intrusive alternatives; (2) the medicine was medically appropriate; and, (3) it was essential for the sake of the defendant’s safety and that of others. The Court also specifically noted the lack of written findings by the trial court to support the forced administration of the prescription drugs. The Court questioned the impact the drug may have had on the defendant’s testimony and his demeanor in front of the jury as well as his ability to assist counsel during trial.¹¹

Medication Solely to Restore Trial Competency

In Sell,¹² the United States Supreme Court addressed issues surrounding that of forcing a defendant to take mental health prescription medicines for the sole purpose of restoring mental competence to stand trial. ¹³ The defendant had a long, well-documented history of mental illness. He had been a practicing dentist but suffered psychotic episodes requiring hospitalizations.¹⁴ He was arrested on federal fraud charges stemming from submission of fictitious insurance claims. An initial psychological examination made a finding that Dr. Sell was competent to stand trial. He was indicted on multiple charges of mail fraud, Medicaid fraud, and money laundering.

The government moved to revoke the defendant’s bail based on allegations he was seeking to intimidate witnesses. At the bail hearing, he was erratic and “out of control” – he spit on the judge. Bail was revoked. A new indictment added charges that he attempted to murder the arresting FBI agent and a material witness in the fraud case.

Prior to trial, counsel moved for a reconsideration of the defendant’s competency to stand trial. He was reexamined and found to be currently incompetent to stand trial. The treatment professionals recommended antipsychotic prescriptions, but the defendant refused to take the medicine. After a hearing, the federal magistrate found the government had shown Dr. Sell was a danger to himself and others when not taking his medicines. Involuntary administration of the medicine was ordered.

The district judge agreed with the magistrate’s involuntary administration order— although disagreeing with the finding that Dr. Sell was a danger. The Eighth Circuit affirmed, agreeing that dangerousness was not an issue. Focusing on the fraud charges only, the Eighth Circuit held the government had an essential interest in bringing the case to trial.

The United States Supreme Court granted certioirari to consider whether forced administration of antipsychotic drugs to render a defendant competent to stand trial deprived him of a liberty interest to reject medical treatment. The Court held that while involuntary administration of those drugs may be permitted in certain instances, those may be rare. The Court outlined the following four factors to apply when the question of involuntary medication is to further the particular governmental interest of competency to stand trial:

1. A court must find important governmental interests are at stake;

2. The court must conclude that involuntary medication will significantly further those state interests; ¹⁵

3. The court must conclude the involuntary medication is necessary to further those interests, without less intrusive means to obtain trial competency; and

4. The court must conclude the administration of drugs is medically appropriate;¹⁶ in the defendant’s best medical interests in light of his medical condition.

This four-step test does not apply to determine if forced medications are required for a different purpose such as dangerousness of a defendant to self or others. The test is very fact-driven in each case.

After the decision in Sell, concerns were voiced that the factors were not well defined. ¹⁷ Decisions in lower federal courts and state courts are now starting to frame the specifics on some of these questions. Courts have clarified the standard of review on these Sell factors. The Second Circuit Court of Appeals in United States v. Gomes held that findings as to the Sell factors must be by clear and convincing evidence. ¹⁸ In U.S. v. Valenzuela-Puentes, ¹⁹ the Tenth Circuit Court of Appeals held that the first two factors (important governmental interest and if involuntary medication would significantly further such interest) are legal issues to be reviewed de novo by the appellate court. ²⁰ The trial court’s clear and convincing evidence findings on the last two factors (necessity and medical appropriateness) will be reviewed for “clear error.” ²¹ The court did point out that since a Sell analysis focuses solely on the need to restore competency, a trial court should first determine if medication is required under Harper if the defendant is dangerous to himself or others. ²² In Valenzuela-Puentes, the Court of Appeals reversed the district court’s grant of a motion to involuntarily medicate on Sell grounds. There was expert testimony that the defendant was suffering from psychosis but was not a danger to himself or others. In addition to his psychosis, he suffered from poor intellectual and cognitive abilities. The defendant scored in the bottom one percent on IQ testing. The treatment professionals disagreed whether medication could get the defendant to a state of trial competency based on these cognitive deficits. The Court of Appeals held that the third prong of the Sell analysis requires a finding by clear and convincing evidence that medications are substantially likely to render a defendant competent.

In U.S. v. Bradley, the defendant had pending explosives and weapons charges. He was declared mentally incompetent to stand trial. After a Sell hearing, the district court ordered the defendant involuntarily medicated. Affirming this decision, the Tenth Circuit Court of Appeals summarized the analysis as whether “the government, in light of the efficacy, the side effects, the possible alternatives, and the medical appropriateness of a particular course of antipsychotic drug treatment, [has] shown a need for that treatment sufficiently important to overcome the individual’s protected interest in refusing it[]”. ²³

In reviewing these case developments, it is necessary for the trial judge to recognize how the medication issue is raised. If it is in the context of safety of the defendant and those around him, the Harper and Riggins cases should be reviewed. An evidentiary hearing should be conducted and a record made as to the circumstances, with medical testimony outlining the medication plan and whether other less intrusive means are available. If dangerousness is not an issue and the medication order is sought solely to restore trial competency, a Sell hearing must be held. There needs to be an evaluation as to the gravity of the charge, the amount of time the defendant will be detained pre-trial to restore competency versus the likely sentence, and whether civil commitment is a viable option. Further, there will have to be medical testimony about the medication plan and the likelihood of success; whether the defendant has retardation or other cognitive deficits unresponsive to medicines; and how the medications will impact the defendant’s overall health. The court will have to hear evidence and evaluate whether the medicines will impact the defendant’s ability to communicate and assist effectively in his defense. In these Sell competency cases, these findings are to be made by clear and convincing evidence.

1. The test for determining competency is whether a defendant has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and whether he has a rational as well as factual understanding of the proceedings against him. Dusky v. United States, 362 U.S. 402 (1960).

2. 494 U.S. 210 (1990).

3. 504 U.S. 127 (1992).

4. 539 U.S. 166 (2003).

5. Harper, id. at 221; see also, United States v. Rivera-Guerro, 426 F. 3d 1130, 1136 (9th Cir. 2005).

6. 494 U.S. 210 (1990).

7. As an interesting aside, an amicus brief was filed for the American Psychological Association by then-counsel John Roberts.

8. Harper, id. at 222.

9. Harper, id. at 227 (emphasis added).

10. Riggins, 504 U.S. 127 (1992).

11. An interesting law review article on this subject matter argues against involuntary administration of medications—particularly when the issue of danger to self or others is not involved. In “Selling your Soul to the Courts: Forced Medication to Achieve Trial Competency in the Wake of Sell v. United States,” 38 AKRON LAW REVIEW 503 (2005), author Elizabeth Schultz argues that there are four trial rights at risk under the Fifth and Sixth Amendments when a criminal defendant is medicated with antipsychotic drugs during trial: (1) the right to present a defense; (2) the right to not have the government manipulate a defendant’s appearance in a way that prejudices him in front of a jury; (3) the right to refrain from trial unless competent to consult and assist his attorney; and, (4) the right to testify in his own words in his defense. Interestingly, the author also expressed concerns that the United States Supreme Court in Sell did not take the opportunity to address a First Amendment analysis regarding a freedom of thought—particularly when the defendant is not a danger and is charged with a non-violent offense.
In United States v. Morin, 338 F.3d 838 (8th Cir. 2003), defendant was charged with murder. He suffered auditory hallucinations and delusions. He was diagnosed with paranoid schizophrenia. He moved to discontinue his medicines during trial so the jury could view him in his non-medicated state. This request was denied. After conviction, he argued on appeal his due process rights were denied. The conviction was affirmed, noting the medicines were prescribed by his own physicians—not state medical staff—and he was not forced by jail staff to ingest them.

12. 539 U.S. 166 (2003).

13. Judge Goss has presented analysis of the Sell decision in a paper entitled “Mental Health Issues Arising in Georgia Death Penalty Cases—Case Update” presented January 17, 2007, to the membership of the Council of Superior Court Judges of Georgia.

14. He had psychotic episodes spanning a fifteen-year period, including belief that his dental work gold was contaminated by communists, reports to police of a leopard boarding a bus, accusations that the governor was conspiring to kill him, and alleged directives from God to kill FBI agents.

15. A court must find the drugs are substantially likely to render the defendant competent for trial and find the drugs are substantially unlikely to have side effects that will significantly interfere with his ability to assist counsel. For example, there need to be findings as to whether the drugs will sedate defendant to a point he cannot assist his counsel or will make him slur speech to the point he cannot effectively testify. In United States v. Evans, 404 F. 3d 227 (4th Cir. 2005), the court notes that on this second prong of the Sell analysis, an issue is whether there are special circumstances in the case that undermine the government’s interest. For example, the court must look at the length of the possible sentence in the case versus how long the defendant will be detained pre-trial while undergoing psychological testing and treatment. In United States v. Ghane, 392 F. 3d 317 (8th Cir. 2004), the involuntary medication order was reversed because there was professional testimony that prescription therapy only provided a five to ten percent chance of restoring competence. The appellate court held this did not meet the substantial likelihood test of restored competency in prong two of the Sell analysis.

16. This will likely require testimony and evaluation by a psychiatrist (M.D.) who can discuss drug interactions and other healthcare issues.

17. See Debra Breneman, “Forcible Antipsychotic Medication and the Unfortunate Side Effects of Sell v. United States,” 27 HARVARD JOURNAL OF LAW AND PUBLIC POLICY 965 (2004).

18. 387 F.3d 157 (2nd Cir. 2004); see also, U.S. v. Lindauer, 448 F. Supp. 558 (S.D. N.Y. 2006).

19. 479 F. 3d 1220 (10th Cir. 2007).

20. Valenzuela –Puentes, id. 1226, noting the government has an important interest in prosecuting defendants for serious crimes with which they are charged, and in ensuring their mental competence for the duration of their prosecutions. In U.S. v. Bradley, 417 F. 3d. 1107 (10th Cir. 2005), the court held that the issue of the government’s interest in involuntary medications is a legal question—citing a similar holding by the Second Circuit in Gome, id. In Bradley, the defendant had been declared incompetent to stand trial on federal weapons and explosives charges. His charges stemmed from allegations he lobbed live hand grenades towards car salesmen at an automobile dealership. The psychologist did an evaluation, diagnosing defendant with paranoid schizophrenia but was of the opinion the defendant was not a danger to himself or others.

21. In Valenzuela-Puentes, the Court of Appeals was reviewing an involuntary medication order entered by the United States District Court for the District of New Mexico. The defendant had been found mentally incompetent to stand trial on the offense of re-entry into the United States after deportation following a felony conviction. The trial court held a Sell hearing and granted the government’s motion to involuntarily medicate.

22. Valenzuela-Puentes, id. at 1224. “If a district court may order involuntary medication based on the Harper inquiry, then there is no need to consider a Sell order. As we recognized in Morrison, id., the Court implicitly favored involuntary medication on Harper dangerousness grounds over involuntary medication based on Sell incompetence grounds . . .”. In Morrison, a Harper analysis was used when a schizophrenic defendant had to be medicated. The accused was charged with use of internet and wire communications to threaten the lives of leaders of the Church of Latter Day Saints. See also, U.S. v. White, 431 F. 3d 431 (5th Cir. 2005); U.S. v. Rivera-Guerro, 426 F.3d 1130 (9th Cir. 2005).

23. Bradley, id. at 1113; see also, Rivera-Guerro, 426 F. 3d. at 1136 (noting the Supreme Court has recognized a liberty interest in freedom from unwanted antipsychotic drugs).