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Medicating Incompetent Defendants Involuntarily OK: 8th Cir.

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By Aditi Mukherji, JD on June 13, 2013 12:55 PM

Involuntarily medicating incompetent defendants is a tricky issue.

Shawn Mackey was indicted for failing to register as a sex offender, in violation of 18 U.S.C. § 2250(a). After the parties determined Mackey was incompetent to understand the proceedings against him or assist in his own defense, the district court granted the government's motion to medicate Mackey involuntarily to restore his competency to stand trial.

The Eighth Circuit affirmed the district court's application of Sell v. United States when it granted the government's motion.

In Sell, the Supreme Court held the government can administer antipsychotic drugs involuntarily to render a mentally ill criminal defendant competent to stand trial for serious, but nonviolent, crimes

The Sell case established four requirements to administer drugs involuntarily:

Element 1: An Important Governmental Interest is at Stake.

The government almost always has an important interest in bringing to trial an individual accused of a serious crime.

Here, Mackey argued that his offense of failing to register as a sex offender was not serious, because it's just a "non-violent, status offense." To determine whether an offense is serious, the Eighth Circuit looks at the maximum penalty authorized by statute.

Since Congress established a maximum term of ten years' imprisonment for the offense of failure to register under SORNA, 18 U.S.C. § 2250(a), the Eighth Circuit determined Mackey's failure to register was a serious crime.

A key take-away from this factor is that the court considered a "status" offense a serious offense and that there is a government interest in prosecuting a status offense. This is because criminals who don't properly register as offenders present a serious risk to the safety of the community.

Element 2: Involuntary Medication Will Significantly Further the Governmental Interest.

On the second Sell element, Mackey argued there was insufficient evidence to conclude that antipsychotic medication was substantially likely to restore Mackey's competency to stand trial because he suffers from an unusual "grandiose delusional disorder."

Whether involuntary medication is an effective means to the government's end quickly turns into a battle of medical experts.

At bottom, to win in a battle of the experts, it must be demonstrated that it was impermissible for a court to credit the more persuasive expert testimony. You have to discredit the expert's testimony and tear it down. In this case, Mackey was unable to do that.

Element 3: Involuntary Medication is Necessary to Further the Interest.

Mackey did not challenge the district court's finding on the third element of the Sell test.

Element 4: Administration of the Drugs is Medically Appropriate.

To determine whether a particular type of drug is medically appropriate to administer involuntarily, the court uses expert testimony to find out how common the drug is and what kind of side effects it has.

In this case, the court ruled the antipsychotic drugs Mackey would be taking are appropriate because they are regularly used in the United States and have minimal side effects like dry mouth and light-headedness.

Most troubling of all, the court accepted the doctor's expert testimony that the medication would not only restore Mackey's competency to stand trial, but would also allow him -- who was not showering, recreating, or communicating with staff -- to "have a better quality of life and to kind of move forward."

The court then affirmed the lower court ruling. How's that for "Big Brother"?

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