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Better Justice Through Chemistry?

by HEIDI LYPPS

The June 16 Supreme Court decision in the celebrated forced drugging case of Dr. Charles Sell set off a mix of jubilation, confusion, and frustration among both advocates and opponents of involuntary medication. The 6-3 decision overturned two previous rulings allowing Sell’s forcible drugging to stand trial for 63 counts of fraud. Sell’s case differs from previous forcible medication cases, such as February’s Eighth Circuit court decision allowing the forcible drugging of murderer Charles Singleton to make him sane for execution. A dissenting judge called that decision a “barbarity.” Sell, on the other hand, is non-dangerous and accused of nonviolent crimes.

News sources had trouble interpreting the complex decision. While some, like the Christian Science Monitor, trumpeted “To stand trial, defendants can be medicated by force,” others, including the New York Times, led with “Court Limits Right To Drug Mentally Ill Defendants” with equal vigor.

The central question of Sell’s case was this: can the government drug the mentally ill, even against their will, to force them to stand trial? Trying the insane is unconstitutional. But what to do if a defendant could be involuntarily drugged and returned to sanity-is this even possible, let alone legal and ethical?

Sell will be spared the needle for now, and a stringent new legal test will have to be applied to all future attempts to drug nonviolent defendants for trial. Nonetheless, future defendants may not be as fortunate as Sell: the high court upheld the delusional dentist’s “liberty interest,” in avoiding forced drugging, but stopped short of spelling out the constitutional rights of the accused. Sell v. US is a landmark decision, to be sure. But what “liberty” was it, exactly, that the Sell decision protects?

The Center for Cognitive Liberty & Ethics, a civil liberties nonprofit that filed a friend of the court brief on Sell’s behalf, saw an opportunity for the Supreme Court to uphold Sell’s freedom of thought as a First Amendment right. To the CCLE, interfering with Sell’s brain chemistry is tantamount to mind control-the ultimate prior restraint on freedom of speech. Instead, the decision acknowledged Sell’s liberty interest in avoiding the involuntary administration of antipsychotic drugs, which can cause a host of damaging side effects. Richard Boire, CCLE director and author of the brief, said of the decision, “They made a good ruling, but they missed a major opportunity to recognize that thought is, at least partly, rooted in brain chemistry and that giving the government broad powers to directly manipulate the brain chemistry of a non-violent citizen would go against our nation’s most cherished values.”

Sell’s Fifth Amendment due process rights were also considered-after all, he did spend five years in jails and psychiatric hospitals without trial. The decision says that Sell’s liberty would be infringed by the prospect of forced medication; and that the government’s “important” interest in bringing him to trial was compromised by Sell’s lengthy confinement. Justice Breyer’s majority opinion takes this into account, suggesting that the time Sell has spent in the US Medical Center for Federal Prisoners would count as “time served,” and noting that Sell has already served more time than his maximum sentence for fraud ever would have been. But the thundering silence of the Court on the issue of a defendant’s freedom of thought frustrated those who had urged the court to hand down a decision protecting the mental autonomy of pre-trial defendants.

The case has relevance that reaches far beyond Sell; if the case had been decided against him, any mentally ill person accused of a crime might have been drugged in order to make him stand trial. The mental autonomy of all citizens was also at stake. In the decision, the justices acknowledged the “significant constitutional issues” the case raised, but focused on only one. The court stuck fast to the Fifth Amendment question alone: did the case violate Tom Sell’s right to due process of law? CCLE attorney Julie Ruiz-Sierra put it this way; “they’re not exactly saying that there’s a constitutional right to avoid forced medication; they’re saying there is a right not to be forcibly medicated without due process.”

The ruling limited forced drugging of the non-violent accused to occasions that Justice Breyer hopes will be “rare,” but avoids talk of a defendant’s freedom of thought, a right that would be violated by forcing mind-altering drugs on him despite his protests. The decision does set a high standard; it mandates that forced medication orders for each nondangerous defendant pass a four-part test. Future prosecutors who want to drug a defendant into competence will have to demonstrate that the medication is necessary to significantly further the government’s interest in adjudicating fair trials and is medically appropriate.

There’s also the question of whether antipsychotic medications can really force anyone to be sane enough to face trial, not to mention the ethics of forcibly changing the mental state of the accused with mind-altering drugs. The justices could have said, yes, the contents of our brains are deeply private and must be inviolable. They had an opportunity to protect both the bodily integrity and the mental freedom of the accused, but instead handed down a decision that simply tightens the standards of forcible drugging.

In any case, antipsychotic medications are not panaceas-they don’t suddenly render a person sane. Many would go so far as to say that Thorazine, Mellaril, Haldol, and the rest simply mask the symptoms of mental illness, creating “artificial sanity” rather than providing a cure. The side effects of many of these drugs can be severe, as well: facial twitches, drooling, depression, altered speech, permanent neurological damage.

As Morpheus said in the latest Matrix sequel, “It’s about control.” Sell’s prosecutors wanted to force a mental state on an insane and unwilling person in order to prop him up on the stand and convict him. Justice Scalia’s dissenting opinion in the case reflects this desire.

Scalia, (joined by Justices Thomas and O’Connor) fretted that defendants will see Sell v. US as an open invitation to misuse the system and delay trial. To permit pretrial appeals like Dr. Sell’s, Justice Scalia claimed, provides an “obvious opportunity for gamesmanship.” Further, he wrote, it will encourage “the disruption of criminal proceedings” by defendants who might be eager to sidetrack the progression of a trial. But it isn’t as if Sell is attempting to avoid trial; he’s been insisting he be brought to trial, unmedicated, all along. Though the decision allows him to avoid the indignity of having a needle filled with some very potent drugs shoved into his vein, too, he will likely remain incarcerated indefinitely.

The idea of an altered mental state forced on us against our will haunts our culture: the popularity of books like 1984 and Brave New World, not to mention films like Jacob’s Ladder and The Matrix, testify to this recurrent fear. Pharmacology and psychiatry are easy routes for this sort of abuse of power; in fact, in the former Soviet Union, dissidents were often declared insane, then drugged and imprisoned in psychiatric hospitals to keep them quiet. With the Sell decision, the US won’t become that nightmarish anytime soon. Yet, faced with one of the more persistent dystopian horrors of the era, the justices evaded the core issue: the defendant’s right to cognitive liberty.

Ironically, one of the delusions that led to Dr. Sell’s diagnosis of delusional disorder was the idea that the government was “out to get him;” a contention that, in retrospect, is a bit difficult to argue with. The Court did recognize Dr. Sell’s catch-22; by refusing medication, he ensured his continued confinement. The price of Sell’s resistance to drugging is high: the odds are good that he will “rot with his rights on” in a mental institution, and never be brought to trial.

Fortunately, the Sell decision will be strictly limit the involuntarily drugging of the accused. It is hubris, pure and simple, to believe that a person can be chemically forced into sanity; it is worse for the government to believe that it has the right to do so.

HEIDI LYPPS is director of communications at the Center for Cognitive Liberty & Ethics. She can be reached at: nemo@cognitiveliberty.org.

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