Involuntary Psychotropic Medication to Competence: No Longer an Easy Sell

Abstract

This article examines implementation of Sell v. United States, 539 U.S. 166 (2003), that clarifies when a criminal defendant can be involuntarily medicated to establish his or her competence to stand trial. Legal commentators criticize Sell for insufficiently protecting defendants' rights, while mental health commentators applaud it for decoupling the mental health and criminal justice systems' treatment of mentally ill defendants. The article reviews how judges are actually applying Sell to identify emerging jurisprudential trends. It concludes (1) Judges are undertaking greater scrutiny of medication decisions, requiring that the legal record be medically informed, and refusing to allow either parties or mental health professionals to circumvent Sell's requirements; (2) Judicial quantification of the costs and benefits of involuntary medication, just starting, is highly variable; and (3) Some evidence is emerging to support a hypothesized decoupling of the mental health and criminal justice tracks for mentally ill defendants charged with less serious crimes. The article also assesses the potential impact of the recently-published preliminary results of the Clinical Antipsychotic Trials of Intervention Effectiveness Study.

Keywords: competence, medication, psychiatry, involuntary, criminal

JEL Classification: K14