The Costs of Delay: Incompetent Criminal Defendants, Involuntary Antipsychotic Medications, and the Question of Who Decides

University of Pennsylvania Journal of Law and Social Change, Vol. 16, 2013

17 Pages Posted: 3 Jan 2017

See all articles by Dorie Klein

Dorie Klein

St. Mary's University School of Law

Date Written: 2013

Abstract

Whether an incompetent pretrial detainee is entitled to a judicial hearing before he may be administered involuntary antipsychotic medication is a matter of contention. The question of the constitutionality, with regard to the Due Process clause, of involuntary medication to diminish a detainee’s dangerousness is one that arises at the intersection of two United States Supreme Court cases, Washington v. Harper and Sell v. United States.

In Harper, the Court ruled that a convicted prisoner is not entitled to a judicial hearing before he may be administered involuntary antipsychotic medications when the medications are necessary to diminish the prisoner’s dangerousness to himself or others. In Sell, the Court implied that an incompetent pretrial detainee is entitled to a judicial hearing, when the medications are necessary to render the detainee competent to stand trial.

In either case, the decision whether to allow the government to administer involuntary antipsychotic medications should be made as quickly as possible, and for that reason, medical personnel should decide. Moreover, the Sell Court’s decision requiring a judicial hearing is ineffective in protecting those interests of detainees that the Court thought would be protected by a judicial hearing. Given the nature of antipsychotic medication, requiring a judicial hearing on the question of involuntary antipsychotic medications is unlikely to protect the detainee’s interest in a fair trial. Furthermore, the delay involved in the judicial process harms the detainee’s health and compromises the government’s interest in rendering the detainee competent to stand trial. Thus, mandating that only a judge may authorize involuntary antipsychotic medications costs both the detainee and the government, and benefits no one.

Keywords: Incompetent Criminal Defendants, Pretrial Detainees, Involuntary Antipsychotic Medications, United States v. Loughner, Bureau of Prisons (BOP), Due Process Clause, Constitutional Protections, Washington v. Harper, United States Supreme Court, Sell v. United States, Judicial Determination, Fair Trial

Suggested Citation

Klein, Dorie, The Costs of Delay: Incompetent Criminal Defendants, Involuntary Antipsychotic Medications, and the Question of Who Decides (2013). University of Pennsylvania Journal of Law and Social Change, Vol. 16, 2013, Available at SSRN: https://ssrn.com/abstract=2891981

Dorie Klein (Contact Author)

St. Mary's University School of Law ( email )

One Camino Santa Maria
San Antonio, TX 78228-8602
United States

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