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Sell’s Conundrums Sell’s Conundrums

Sell’s Conundrums - PowerPoint Presentation

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Sell’s Conundrums - PPT Presentation

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

sell exception danger medication exception sell medication danger competency forcible crime treatment dangerousness riggins refuse apply restore reconcilable government definition met icst

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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