Forcible Antipsychotic Medication and the Unfortunate Side Effects of Sell V. United States, 539 U.S. 166, 123 S.Ct. 2174 (2003)

Article excerpt

The right to refuse medical treatment is a constitutionally protected liberty which has long been recognized in the common law as an important element of individual autonomy. (1) Yet the exercise of this right has traditionally been limited to individuals "of adult years and in sound mind." (2) As such, the degree to which mentally ill individuals--particularly those within the criminal justice system (3)--also have the right to refuse treatment, such as the administration of antipsychotic medications, has long lacked clear definition. (4)

In 1990, the Supreme Court held that a mentally ill inmate may be forcibly medicated as long as an administrative hearing with sufficient procedural safeguards yields the finding that he poses a serious danger to himself or others and that antipsychotic drugs are substantially likely to reduce that risk. (5) Two years later, in Riggins v. Nevada, the Court specifically reaffirmed the right of a mentally ill criminal defendant to avoid antipsychotic medication, but held that the right could be overcome by a compelling governmental interest. (6) Harper and Riggins, however, left unresolved whether a mentally ill defendant may ever be involuntarily medicated only to restore trial competence--that is, where the medication's exclusive purpose is to enable the government to proceed with prosecution.

Last term, in Sell v. United States, the Supreme Court held that, as long as four conditions are satisfied, the Constitution permits the involuntary administration of antipsychotic medication to a mentally ill defendant in an attempt to render him competent to stand trial for serious criminal charges. (7) Sadly, the Court's well-intentioned attempt to protect mentally ill defendants by delineating the conditions under which the government may forcibly administer antipsychotic drugs contains two prominent flaws.

First, it directly undermines its own holding--that, in limited circumstances, a defendant can be forced to ingest antipsychotic medication against his will--by inviting the government to sidestep its deliberately stringent requirements. Since Sell's four-part test only applies to incompetent defendants who are not dangerous, the government can likely proceed under the less stringent Harper/Riggins standard by merely labeling a specific defendant "dangerous." Justice Breyer, writing for the majority, also suggests several other practices which, if adopted literally, may prove to marginalize rather than protect the rights of mentally ill criminal defendants.

Second, in its eagerness to reach the merits, the Court ignored the traditional interpretation of the collateral order doctrine, under which the Court lacks jurisdiction. Although the Court has "repeatedly stressed" that the collateral order exception must be construed narrowly to prevent it from "swallow[ing] the general rule" that a party's appeal must be deferred until final judgment has been entered, (8) it relaxed those conditions here without a clearly-defined justification for so doing. As such, the Court created an incentive for other defendants to obstruct justice by filing inappropriate interlocutory appeals. (9)

I. RELEVANT FACTS AND PROCEDURAL HISTORY

In May 1997, Charles Thomas Sell, a dentist with a "long and unfortunate history of mental illness," (10) was charged with making false representations regarding payment for medical services. In mid-July 1997, the district court adopted, without objection, a psychiatric evaluation finding Sell "currently competent" and agreed to release Sell on bail. (11) Two weeks later, Sell was indicted on fifty-six counts of mail fraud, six counts of Medicaid fraud, and one count of money laundering, all derived from a scheme to submit hundreds of false claims to Medicaid and private insurance companies between 1989 and 1997. (12)

In January 1998, the government alleged witness intimidation and sought to revoke bail. At the bail hearing which followed, Sell shouted, swore, and spat in the judge's face when she attempted to advise him of his rights. …