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Freedom of Thought

The U.S. Supreme Court this week firmed up an individual’s defenses around what some have called the final frontier of personal privacy — the human mind — with a ruling that severely restricts the government’s ability to drug mentally ill defendants to render them fit to stand trial. But in giving prosecutors another chance to make their case against St. Louis dentist Charles T. Sell, the high court made it clear that in some instances the government’s right to accuse people of crime, try them and punish them could outweigh their right to control the inner workings of their own minds.

At the heart of the case is Sell, who stands accused of Medicaid fraud for allegedly working with his wife to file fake claims using bogus X-rays. Sell also is charged with the attempted murder of an FBI agent, but the lower court’s finding that involuntary medication was appropriate did not touch on that charge, so it was not before the Supreme Court.

Since his 1997 arrest, Sell claimed that God told him he would save a soul for every FBI agent he killed, and that the governor and the police chief wanted him dead. The trial court in Missouri ordered Sell to a federal medical center, where doctors concluded that he was not competent for trial but could regain his competency if he were given antipsychotic drugs.

Under federal law, a defendant may be deemed to have sufficient mental competence to refuse medication or to make other decisions about treatment but still fall short of the standard for competence to stand trial. That was the case with Sell, who appealed after the court found the dentist’s right to reject the drugs was outweighed by the government’s interest in making him competent and in moving the trial along.

In a wide range of circumstances, courts recently have found that individuals can be forcibly drugged to serve a compelling government interest. In prisons, for example, mentally ill inmates who pose a danger to others and to the smooth operation of the prison can be forced to take medication that modifies their behavior. The 8th U.S. Circuit Court of Appeals has ruled that a man who was convicted of murder but is now so mentally ill that the death sentence cannot be carried out can be forcibly drugged to restore his mental competence — so that he can be executed.

It is also generally agreed that courts can order a dangerous defendant to be medicated. But Sell’s case deals with a non-dangerous defendant’s First Amendment right, before conviction, to reject mind-altering drugs. In a 6-3 ruling by Justice Stephen Breyer, the court said any such drugging must significantly further an important government objective and must be “substantially likely” to make the defendant competent and “substantially unlikely” to generate negative side effects. The treatment must also be “medically appropriate,” and there must be no reasonable alternative.

USC law professor Erwin Chemerinsky said Breyer’s opinion was a good one, enumerating the list of hoops through which the government would have to jump to get an order forcing a defendant to be drugged. “It is an important clarification of the law,” Chemerinsky said. “[Forced medication] only would be allowed in extraordinary circumstances.”

Chemerinsky also noted that the 8th Circuit, which issued the ruling that a condemned man could be forcibly drugged back to competence so that he could be executed, was based in part on Sell’s case — the very case that the U.S. Supreme Court overturned Monday.

The ruling deals only with criminal defendants, but it comes as attitudes toward the mentally ill and their place in society undergo a radical shift. Through the 1950s, the state’s ability to contain individuals deemed mentally ill was paramount. Thousands of people who had not been convicted of crimes were committed for indefinite terms to mental institutions, where they were treated with electroshock therapy and experimental drugs without their consent.

Then in California, in 1968, the Lanterman-Petris-Short Act was signed into law, recognizing that mentally ill people have civil rights, including the right to reject institutionalization and forced medication, unless a judge determines after a court hearing that the person poses a danger. Similar laws were passed in other states, and mental institutions closed their doors.

But lawmakers have questioned whether the desire to treat the mentally ill with respect has ended up doing more harm than good. Last year, Governor Gray Davis signed into law a bill that restores the power of courts to order treatment for people found to be mentally ill, even if they would prefer to be left alone.

Changing attitudes toward the mentally ill have vast policy implications, especially for local governments that bear the brunt of costs for homelessness and petty crimes often attributed to the mentally ill. But there are implications as well for all citizens, as the Center for Cognitive Liberty and Ethics wrote in a brief filed on Sell’s behalf.

“If government agents, with the concurrence of the courts, can constitutionally order the forcible manipulation of Dr. Sell’s mind in order that he may stand trial,” the center wrote in its brief, “then any defendant, who poses no danger to self or others, is also at jeopardy of losing his or her First Amendment right to freedom of thought.”


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