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A win for Sell, but not a complete victory WASHINGTON, DC, June 16, 2003 -- Today's Supreme Court ruling is a win for Charles Thomas Sell. But it's far from a complete victory. Yes, says the Supreme Court, the government can force people to take mind-altering drugs in order to make them competent to stand trial. (We already knew that.) But it can force drugs on defendants for the purpose of making them competent only in certain circumstances -- the drugs have to be medically appropriate and also necessary to significantly further an important government interest -- and those circumstances have not been shown to exist in the case of Charles Thomas Sell. Dr. Sell, a dentist, is being held in a medical facility for prisoners. He has been judged incompetent to stand trial for fraud and money laundering, and he's probably staying exactly where he is until he is determined to be competent and goes to trial. That, according to government psychiatrists, will only happen once he takes antipsychotic drugs -- and he does not want to take them them. Besides competence, the government has at least one other reason for wanting to drug him. It thinks that, unmedicated, he's dangerous. But as the case moved from the original administrative decision to drug him to the arguments before the Supreme Court, Sell was officially declared non-dangerous, and that declaration still stands. Dangerousness is therefore both officially irrelevant and unofficially absolutely crucial to understanding what's going on.
The kind of guy Tom Sell is is also important to understanding the story. Although again, it's officially irrelevant. It appears to be generally accepted that Dr. Sell is mentally ill -- specifically, that he has delusions. Certainly that's how he was portrayed on Dateline NBC last week. He definitely believes a number of things that many other people do not. There seems also to be wide agreement that he is dangerous. One of the theories put forward on Dateline NBC was that the situation Sell is in now isn't so much about bringing him to trial as about preventing him from committing some act of domestic terrorism. And he has been accused of threatening, and even plotting to kill, other people. Specifically, some of Dr. Sell's apparent beliefs and alleged activities make it easy to portray him as an anti-government white supremacist -- as someone many of us are predisposed to find unsympathetic and very, very frightening. It's not hard, either, to drench him in a bunch of unsympathetic and very, very frightening stereotypes of "the mentally ill." So the outcome the general public wants is one that changes his scary beliefs and curtails his scary behavior. There are two issues that show up in the majority opinion from Justice Breyer and the dissenting opinion from Justice Scalia. First, did the Court have jurisdiction to consider the case? Second, does Sell have a right to refuse the drugs? Scalia -- with Justices O'Connor and Thomas on his side -- doesn't think the order to medicate Sell ought to have been reviewed until after the trial was over. According to Scalia, Sell could have challenged the forced-drugging order as an administrative procedure, or he could have challenged the conditions in which he was held; but he had no right to challenge the order requiring him to be drugged in the context of a criminal trial. No right to have the order reviewed by the Eighth Circuit Court or the Supreme Court. Not before his trial was actually concluded. Breyer -- along with Chief Justice Rehnquist and Justices Ginsburg, Kennedy, Souter, and Stevens -- disagrees. There are exceptions, writes Breyer, to the rule that only final judgments, not pre-trial orders, are appealable; and this was one of them. The Eighth Circuit Court, and then the Supreme Court, had jurisdiction to consider Sell's appeal. Because the six members of the majority believed they have the jurisdiction to review the case, they have done exactly that. They considered whether Dr. Sell's interest in not being forcibly medicated outweighs the government's interest in drugging him to make him competent so that he can be prosecuted. Their answer: yes. Or more precisely, yes-but. Let's start with the yes. There are four criteria that must be met, in order for forced drugging solely to render defendants competent to stand trial, writes Justice Breyer for the majority. First, there must be an important government interest at stake. Clearly, according to Justice Breyer, the prosecution of significant crimes is an important government interest. But defendants who have been judged incompetent to stand trial and who are being held in a psychiatric facility awaiting competence -- as Dr. Sell is -- can't go out and continue to commit crimes. That doesn't entirely undermine the importance of prosecution. Over time, memories fade and evidence can be lost (Ira Einhorn, anybody?): if you wait long enough before prosecuting a defendant, the trial itself may be impossible. But it is relevant. Nor does the fact that incompetent defendants are racking up time confined in the criminal justice system -- time which will be counted toward their sentences if they are tried, convicted, and sentenced to imprisonment -- entirely undermine the government's interest in taking them to trial. But it makes a difference too. Second, the forced drugging must significantly further the government's interest. They can't just randomly drug people in the hopes that they will be rendered competent. They have to be pretty sure that the drugs will have the desired effect. And that's not an easy question to decide. If you've been following the Sell case, you may remember that experts have already testified that the drugs are likely to be helpful ... and other experts have testified that they aren't.
There's also the question of whether the drugs might themselves interfere with the defendant's right to a fair trial. "The idea that forced drugging can 'clear up your thinking' so you can better defend yourself during a trial is especially bizarre," says David Oaks, executive director of the psychiatric survivor organization Support Coalition International. "The myth of the benevolence of psychiatric drugs is a kind of magical thinking that many judges have bought into, because of psychiatry. Several of our members were forcibly drugged during trial and it blitzed their cognitive abilities so much they could barely stay focused or communicate." Questions about whether the drugs themselves would interfere with Dr. Sell's ability to participate in his own defense were never asked -- but if the judgment about whether to drug him rests on issues about his competence to stand trial, they should have been. Third, the forced drugging must be necessary. Less intrusive means of achieving competence have to be unavailable. And fourth, the drugs must be medically appropriate. Evaluating the case for drugging Dr. Sell solely in order to make him competent to stand trial by these four criteria, Breyer says it just doesn't measure up. And so we have a Supreme Court ruling in favor of Dr. Sell. But it's wholly possible that there might be other reasons to forcibly drug someone who just happened to be an incompetent defendant; and once force is authorized on other grounds the whole standing-trial thing becomes irrelevant. One justification for drugging people? Dangerousness. Sell's alleged dangerousness was clearly crucial to the Magistrate's original decision that he could be forcibly medicated; without dangerousness -- and the Eighth Circuit Court took dangerousness off the table -- the case was not effectively made. Maybe it could have been effectively made, but with everyone distracted by dangerousness, it wasn't. And so the Eighth Circuit erred in ruling against Sell. Justice Breyer doesn't officially consider whether Dr. Sell is dangerous. He can't. But he's thinking about it. "If anything," he writes after acknowledging that the Court has to assume non-dangerousness, "the record before us. . . . suggests the contrary." Just in case the proponents of drugging Dr. Sell need a hint as to what their next move should be. So today's Supreme Court ruling is a win for Charles Thomas Sell; but even granting that a win here may mean he stays locked up for a long, long time, it's not a conclusive victory. Posted June 16, 2003 Read Cal Montgomery on "Drugging Dr. Sell." Cal Montgomery writes frequently for Ragged Edge. Her recent stories have included A Hard Look at Invisible Disability and Critic of the Dawn.
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