Sell's Conundrums: The Right of Incompetent Defendants to Refuse Anti-Psychotic Medication

20 Pages Posted: 26 Apr 2012 Last revised: 29 Jun 2012

Christopher Slobogin

Vanderbilt University - Law School

Date Written: April 23, 2012

Abstract

The Supreme Court’s 2003 decision in Sell v. United States declared that situations in which the state is authorized to forcibly medicate a criminal defendant to restore competency to stand trial “may be rare.” Experience since Sell indicates that this prediction was wrong. In fact, wittingly or not, Sell created three exceptions to its holding (the dangerousness, treatment incompetency, and serious crime exceptions) that virtually swallow the right to refuse. Using the still-on-going case of Jared Loughner as an illustration, this essay explores the scope of these exceptions and the dispositions available in those rare circumstances when none of them is met. It concludes that Sell has created an unnecessarily complicated and often counter-productive legal regime that should be abandoned in favour of the regime that pre-existed it.

Keywords: Sell v. United States, psychotropic medication, right to refuse medication, dangerousness, competency to stand trial

Suggested Citation

Slobogin, Christopher, Sell's Conundrums: The Right of Incompetent Defendants to Refuse Anti-Psychotic Medication (April 23, 2012). Washington University Law Review, Vol. 89, Forthcoming; Vanderbilt Public Law Research Paper No. 12-28; Vanderbilt Law and Economics Research Paper No. 12-21. Available at SSRN: https://ssrn.com/abstract=2044682

Christopher Slobogin (Contact Author)

Vanderbilt University - Law School ( email )

131 21st Avenue South
Nashville, TN 37203-1181
United States

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