Sell’s Conundrums

1. Sell’s Conundrums Christopher Slobogin Milton Underwood Professor of Law Vanderbilt University USC Law School March 22, 2012

2. The Holding • Forcible medication solely for the purpose of restoring CST “may be rare” • The Riggins baseline--Forcible medication to restore competency is not permitted unless: • “medically appropriate” • “essential” to restore to competency • does not undermine Sixth Amendment rights • Even if these criteria are met, forcible medication is not permitted unless necessary to achieve an “important” government interest

3. A Closer Look at Sell • A reason to panic? • Medication is the treatment of choice for restoration of competency • 75% of people found ICST refuse at one time or another • ButSell appears to have recognized 3 exceptions: • Danger to self or others • Incompetency to make treatment decisions • Serious crime

4. The Dangerousness Exception • Harper: May forcibly medicate if danger to self or others: • Harper’s definition of danger: “substantial likelihood of physical harm or severe deterioration” • No imminence, serious harm, or high probability requirement • Confinement: a less restrictive option? Cf. Weston • Loughnercase: • First a danger to others, then a danger to self • Defense strategy ethical?

5. The Incompetency Exception • Virtually never mentioned post-Sell • Possible definition: basic rationality and basic self-regard (cf. Saks) • Does exception swallow the rule? • Applies in most ICST cases: Dusky ≥ BR/BSR • But medication must be in “best interests” • What if medication restores competency to make treatment decisions and person refuses?

6. The Serious Crime Exception • Ten-year maximum usually meets threshold • But, per Sell, exception doesn’t apply if “special circumstances” exist (e.g., refuser’s continued detention satisfies government’s goals) • Is government’s goal ever satisfied simply by commitment? (cf. Weston) • Aren’t these individuals uncommittable? • Or is confinement for those charged with serious crimes permissible regardless of dangerousness? • Is this reconcilable with Donaldson (1975)? • Is this reconcilable with Jackson (1972)?

7. Procedures • Sell: suggests that administrative procedure is preferable (cf. Parham, Vitek) • Yet Sell encourages pretextual actions by prosecutors, clinicians and defense attorneys • Proposal • Serious crime/special circumstance exception addressed by court • If that exception doesn’t apply and there is a refusal, dangerousness and incompetence decided administratively, with right to appeal to court

8. Conclusion • Sell’s reaffirmation of Riggins is good • Otherwise, Sell is a disaster • Creates exceptions that are hard to apply and may (or may not) swallow the rule • It encourages defendants to refuse for strategic reasons and the government to lie • Better approach: If Riggins is met, no right to refuse for felons