Abstract

When a criminal defendant who is not competent to stand trial refuses to take voluntarily the antipsychotic medications that might make him become competent, should the government be allowed to administer the medications involuntarily? Increasingly, trial courts are answering “yes.” Since the Supreme Court’s 2003 decision in Sell v. United States, trial courts have almost routinely approved the administration of involuntary antipsychotic medications for the purpose of rendering criminal defendants competent to stand trial. Although most courts acknowledge that antipsychotic medications can cause serious, even life-threatening side effects, this article argues that the test set forth in Sell does not require courts to take adequate account of the potential physical harms of involuntary antipsychotic medications. This fault with the Sell test can be traced back to its roots, as a due process test, in decisions primarily concerned with protecting an individual’s interest in making autonomous choices, not with protecting an individual’s interest in avoiding physical harms. This article compares the Sell due process test to the Fourth Amendment test that courts apply when the government seeks to compel involuntary medical treatment for the purpose of obtaining evidence of a crime from a criminal defendant’s body. In these cases, the medical treatment must be reasonable - that is, the government’s interest that is advanced by the involuntary treatment must be important enough to justify the potential physical harms to the defendant. This article concludes that because Sell does not require courts to balance the government’s interest in rendering a defendant competent to stand trial against the physical harms that the defendant is likely to experience if administered involuntary antipsychotic medications, the Sell test inadequately protects incompetent criminal defendants from physical harms that are unreasonable.