Christopher Slobogin Milton Underwood Professor of Law Vanderbilt University USC Law School March 22 2012 The Holding Forcible medication solely for the purpose of restoring CST may be rare ID: 255491
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Slide1
Sell’s Conundrums
Christopher Slobogin
Milton Underwood Professor of Law
Vanderbilt University
USC Law School
March 22, 2012Slide2
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 interestSlide3
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
But
Sell
appears to have recognized 3 exceptions:
Danger to self or others
Incompetency to make treatment decisions
Serious crimeSlide4
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
Loughner
case:
First a danger to others, then a danger to self
Defense strategy ethical?Slide5
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?Slide6
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)?Slide7
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 courtSlide8
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