Invading a Sovereign Body – Forcibly Medication Prisoners Under American Law

by Joseph Anthony Valenti*

Preliminary Remarks:

(by Dr. Lutz Eidam, LL.M., Hamburg)

Valenti’s article deals with important legal questions that are relevant on both sides of the Atlantic – in Continental Europe as well as in the United States. And maybe it makes sense to not only refer to “important”, but to “serious” or even “fundamental” legal issues when it comes down to the question: Under what circumstances and restrictions should a government be entitled to forcibly invade the body of an imprisoned citizen?

Of course, the German legal system is and has been confronted with questions like these over the years. A very prominent example is the hunger strike of the former members of the RAF terrorist organisation in the jailhouse of Stuttgart Stammheim in the 1970s where the German authorities struggled hard with the question of a forcibly initiated feeding of the inmates. Another well-known example lies in the field of criminal procedure. Here, it took Germany several years – and two human lives – to learn that it violates very basic human rights if the government forcibly administers emetics in order to collect swallowed evidence from drug suspects. It seems obvious that all of these examples are well located at the intersection of very fundamental questions about Basic Human Rights, Ethics and the means of the Criminal Law System in general.

But let us get a little more specific. Valenti’s subsequent article deals with the more precise question if – and under what legal standards and restrictions – the government of the United States may forcibly administer medical treatment towards a prisoner. Certainly, forcible treatment will only be necessary if the person to receive such treatment expressly does not consent to such a measure. The author shows that this question has a clear constitutional impact – it would be the same in Germany – and explains in great detail the (federal) constitutional standards in the United States that end up in some kind of legal balancing process of all interests involved to determine the outcome of an actual case. Furthermore, Valenti even explains the constitutional case law with – as he calls it – four “key cases” so that every reader gets a good sense of the legal tradition in this field. All of these cases deal with psychiatric medication of mentally ill inmates which, at the same time, is Valenti’s main focus in his article. In the end, the author draws the conclusion that the United States

* The Author is currently practicing with K&L Gates LLP, an elite international law firm based in Pittsburgh, Pennsylvania, United States of America. Former part-year Law Clerk to the Honorable Thomas M. Hardiman of the United States Court of Appeals for the Third Circuit. Juris Doctorate, Summa Cum Laude, Duquesne University School of Law (2009).

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government has a clear right to forcibly administer medical treatment to a prisoner who is deemed dangerous. Also, the U.S. government may treat a non-dangerous prisoner who is currently incompetent to stand trial in order to make him competent to stand trial. Valenti’s article ends with this conclusion since the article is meant to follow a descriptive approach.

Of course, one might argue that serious legal debates and analysis should continue or maybe even start at this point, because it seems obvious that a forcible antipsychotic medical treatment can have serious effects on doctrinal rules that favor a defendant, such as the insanity defense. One might ask: Should it be possible to treat somebody so that he or she is not able to invoke the insanity defense or the claim of mental retardation anymore? Both legal concepts may even trigger the question of capital punishment since insane and mentally retarded defendants – under the 8th Amendment of the U.S. Constitution – may not be executed (anymore). So here comes a tough question that has already been determined by several U.S. Courts since the 1990s: May the U.S. government (forcibly) treat mentally ill inmates on death row in order to make them competent to be executed?

We have seen in a nutshell that the general topic of the subsequent article may directly trigger fundamental questions in and above the legal system. So hopefully Valenti agrees with such a viewpoint, continues his work in this field and writes a follow-up article to satisfy the expressed desire to dig deeper. But for now: Happy reading with part one!


(by Joseph Anthony Valenti, B.A., J.D.)

A. Purpose and Scope

This article1 illustrates the general power possessed by the penal system in the United States of America to forcibly administer medical treatment to a prisoner against that prisoner’s express wishes. As a government-sponsored intrusion on a person’s liberty interest, forcible medical treatments must pass federal constitutional muster, particularly under the Due Process Clause of the Fifth Amendment (for federally operated prisons) or the Fourteenth Amendment (for state-run prisons). Any additional state constitutional protections must also be respected by state-run prisons. Once the applicable constitutional baselines are satisfied, a government may afford additional statutory, regulatory, or common-law protections in various scenarios where forcible treatment is constitutionally permitted. This article focuses on the federal constitutional baseline that all American prisons must satisfy.

Anglo-American common law has long recognized that every individual has a right to possession and control of his or her own body.2 This common law right typically allows a person to refuse medical treatment on the ground that a forced treatment would be a dispossession of bodily sovereignty.3 The United States Supreme Court has repeatedly recognized that this historic right is a “liberty interest” that is protected to some degree by the Constitution.4 While the constitutional dimension of this liberty interest is unclear in cases involving an unconsciousperson, a conscious person generally has a clear constitutional right to refuse medical treatment.5 In light of this general rule, the subsequent text addresses only situations where a prisoner has unequivocally attempted to exercise that right of refusal via a clear communication to his or her custodian, treating physician, or other responsible official.6

B. Balancing Government Interests Against Individual Liberty Interests

The Due Process Clause of the Fifth Amendment to the United States Constitution states “no person shall . . . be deprived of life, liberty, or property, without due process of law[.]”7 American case law broadly defines “liberty” and indicates that the concept includes freedom of personal choice in marriage and family life,8 the right to travel,9 and freedom from bodily restraint, including incarceration10 and physical violence.11 The right to refuse medical treatment is also included among these constitutionally protected liberty interests.12

While all American citizens are entitled to some level of protection from governmental abrogation of their liberty interests, they are not altogether shielded from that government action. The Constitution allows the government to act against a citizen when its interests outweigh the liberty interests of the affected citizen.13 Courts must determine whether government interests outweigh individual liberty interests on a case-by-case basis because the weight assigned to a particular government interest or liberty interest may vary based on individual circumstances.

As a result of these variances, the United States Supreme Court has adopted three possible standards of judicial review when evaluating the propriety of government actions that infringe upon individual liberties. No blanket rule exists to indicate exactly what standard of judicial review is appropriate for cases involving forcible medical treatment. Courts choose the appropriate standard by weighting and balancing the competing interests, often giving the most weight to the interest that has the highest chance of being severely endangered. The three possible standards of review are rational-basis review, intermediate scrutiny, and strict scrutiny.

I. Rational-basis Review

Rational-basis review is the least stringent level of judicial review of a constitutional issue. Under rational-

1 The author wishes to thank Abe Delnore and Denise Yasinow for their assistance in researching and editing portions of this article.

2 Union Pac. R.R. Co. v. Botsford, 141 U.S. 250, 251 (1891).

3 Cruzan v. Dir., Mo. Dep’t of Health, 497 U.S. 261, 270 (1990).

4 Id. at 278 (collecting cases).

5 Id.

6 This article specifically avoids commenting on procedures for dealing with (1) unconscious prisoners, (2) situations where a healthcare provider is unaware of a prisoner’s wishes regarding treatment, and (3) issues of whether a prisoner’s consent to treatment was fully informed and voluntary.

7 U.S. Const. amend. V. The Due Process Clause of the Fourteenth Amendment, which binds the states, reads, “No State shall . . . deprive any person of life, liberty, or property, without due process of law[.]” U.S. Const. amend. XIV, § 1.

8 Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632, 639-640 (1974).

9 Saenz v. Roe, 526 U.S. 489, 503 (1999).

10 Foucha v. Louisiana, 504 U.S. 71, 80 (1992).

11 Hysler v. Florida, 315 U.S. 411, 413 (1942).

12 Washington v. Harper, 494 U.S. 210, 221-222 (1990); Jacobson v. Massachusetts, 197 U.S. 11, 24 -30 (1905).

13 Youngberg v. Romeo, 457 U.S. 307, 321 (1982).

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basis review, a government action must be “rationally related” to a “legitimate government interest” to withstand judicial review. Rational-basis review is the most lenient standard of review for government actions because the “legitimate interest” does not have to be the government’s actual interest, just one that a court could entertain hypothetically. Additionally, the burden of showing that a governmental interest is “illegitimate” or that a government action is “not rationally related” to a legitimate government interest falls on the individual challenging the government’s action.14

Rational-basis review is historically employed in many contexts, including situations involving involuntary commitment or housing of minors and the mentally handicapped.15 Additionally, the rational-basis standard of judicial review is applied in cases of forcible medical treatment in American prisons.16 In that context, “the infringing [prison] regulation or policy [must be] reasonably related to legitimate penological interests.”17

II. Intermediate Scrutiny

Intermediate scrutiny is a heightened form of judicial review, resting between rational-basis review and strict scrutiny. When a court assesses the propriety of government action under intermediate scrutiny, the challenged government action is constitutional if it is “substantially related” to an “important government interest.”18 An “important government interest” is not a mere hypothetical reason to justify the exercise of government power but rather an actual policy or specific goal that the government properly seeks to support, such as the promotion or preservation of the general quality of life in an urban area.19 While the government action should be “narrowly tailored” to advance that important government interest, the action does not have to be the least restrictive means of advancing that interest. Intermediate scrutiny is often used in gender-discrimination cases20 and free-speech cases involving restrictions on the manner of speaking rather than the content of speech.21

Intermediate scrutiny has been used in some forcible medical treatment cases. For instance, the Supreme Court used a form of intermediate scrutiny to evaluate the constitutionality of forcibly medicating a criminal defendant to restore the defendant’s mental competency to stand trial for serious criminal charges when that defendant was not a danger22 to himself or others.23 In that case, the question was whether “the treatment is medically appropriate, is substantially unlikely to have side effects that may undermine the fairness of the trial, and, taking account of less intrusive alternatives, is necessary significantly to further important governmental trial-related interests.”24

III. Strict Scrutiny

Strict scrutiny is the most stringent form of judicial review, and it is most commonly used to assess government action that (1) targets “suspect classes,” such as racial minorities,25 or (2) directly impinges on fundamental constitutional rights, such as the right to (a) free speech,26 (b) vote,27 (c) privacy,28 or (d) “liberty.”29 When a government action is analyzed under strict scrutiny, the government bears the burden of showing that the action (1) directly furthers a “compelling governmental interest” and (2) is “narrowly tailored” to further that interest using the “least restrictive means” to do so.30 In one of the earliest American cases to address forcible medical examinations and treatment – a case that pre-dated even the formalization of the “strict scrutiny” standard – the Supreme Court applied a form of strict scrutiny when finding that the state governments essentially had a compelling interest in protecting the public health at large from highly contagious diseases via a comprehensive legal scheme permitting the interception and taxation of incoming ships and the forced medical examination of all passengers, who could permissibly be forcibly quarantined or otherwise decontaminated despite their liberty interests.31

C. The Federal Constitutional Baseline

By 1905, the Supreme Court held that statutes permitting forcible medical treatment in the form of compulsory vaccinations infringe upon a person’s liberty interest.32 For these – and other – statutory schemes or government actions to withstand judicial review, the government must (1) indicate a source of authority for its infringing action and (2) ensure that such authority is powerful enough to defeat the fundamental rights in question.33

As a government of limited enumerated powers, the federal government must rely on a constitutional authorization as its source of authority for any action that it takes, though these authorizations can be very broad, often allowing the federal government to take any action that is needed to protect, among other things, foreign relations, interstate commerce, or the health and safety of its employees.34 State governments have additional sources of authority that can be generally used without a specific tie to federal or state constitutional provisions.35

14 United States v. Carolene Prods. Co., 304 U.S. 144, 152-54 (1938).

15 Youngberg, 457 U.S. at 321; see Parham v. J. R., 442 U.S. 584 (1979).

16 Harper, 494 U.S. at 223.

17 Id.

18 Metro Broad., Inc. v. FCC, 497 U.S. 547, 566 (1990), overruled on other grounds by Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995).

19 City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 50 (1986).

20 J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 152 (1994).

21 City of Ladue v. Gilleo, 512 U.S. 43, 55-58 (1994).

22 When a defendant incompetent to stand trial for serious criminal charges does pose a danger to himself or others, a less exacting test is required because the government interest is weightier. This argument was recently used by federal prosecutors in the case of Jared Lee Loughner, who was allegedly forcibly medicated with antipsychotic drugs in order to both prevent him from harming people and to render him competent to stand trial on charges stemming from an Arizona shooting that killed six and injured nineteen, one of whom was United States Representative Gabrielle Giffords.

23 Sell v. United States, 539 U.S. 166 (2003).

24 Id. at 179.

25 Adarand Constructors, 515 U.S. at 235. In Adarand, the Supreme Court held that even “benign” classifications intended to benefit racial minorities must meet the strict scrutiny standard of review. Id.

26 Kramer v. Union Free Sch. Dist., 395 U.S. 621, 627 (1969).

27 Shapiro v. Thompson, 394 U.S. 618, 634 (1969).

28 Roe v. Wade, 410 U.S. 113, 155 (1973).

29 See discussion supra, at nn. 6-11, and accompanying text.

30 Ashcroft v. Am. Civil Liberties Union, 542 U.S. 656, 666 (2004).

31 Morgan’s S.S. Co. v. La. Bd. of Health, 118 U.S. 455, 466 (1886).

32 Jacobson, 197 U.S. at 22.

33 Id. at 13.

34 Gibbons v. Ogden, 22 U.S. 1, 187-88 (1824).

35 Id. at 203-06.

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I. State Authority Deriving from the Police Power and Parens Patriae

Despite an individual’s rights to due process and liberty, a government may still force medical treatment upon that person using its police power.36 States retained the police power over their respective geographic territories when they ratified the United States Constitution or entered America’s union of states.37 In the same way that a state may prevent and investigate crime and imprison criminals to protect the general populace, a state may prevent and investigate outbreaks of disease and restrain the liberty of diseased people to protect the general populace. The Supreme Court held that “the police power of a state must be held to embrace, at least, such reasonable regulations established directly by legislative enactment as will protect the public health and the public safety[,]” including laws authorizing forcible medical treatment to prevent or contain widespread plagues and protect the public or specific people from harm.38

In addition to the police power, a state may rely on its parens patriae power to protect citizens who cannot care for themselves.39 The doctrine of parens patriae is “[a] doctrine by which a government has standing to prosecute a lawsuit on behalf of a citizen, esp[ecially] on behalf of someone who is under a legal disability.”40 In short, the government may sue to protect someone who is physically or mentally incapacitated, even if the government’s lawsuit is against that incapacitated person in the form of a commitment proceeding.

II. Showing Dangerousness and Treatability to Overcome Substantive Due Process Rights

A “finding of ‘mental illness’ alone cannot justify a State’s locking a person up against his will and keeping him indefinitely.”41 The state’s police power does not authorize forcible commitment when a person has not been shown to be dangerous towards anyone, as the government interest in protecting the public is not sufficiently weighty to justify interference with a non-dangerous person’s liberty.42 The state’s parens patriae power is also insufficient to authorize forcible treatment when a person can survive alone or with the willing assistance of family or friends.43

Dangerousness is broadly defined, and a person need not commit a violent act to be involuntarily committed.44 A “not guilty by reason of insanity” verdict for even a non-violent criminal offense can prove dangerousness and allow automatic commitment.45 A defendant’s usual protections are diminished because “the acquittee himself advances insanity as a defense,” thus proving his own unacceptable – and therefore “dangerous” – behavior and greatly reducing the risk of an erroneous finding of illness or dangerousness.46 The state may also detain an insanity acquittee until his dangerousness no longer exists even if the period of detention extends beyond the maximum prison term that the acquittee could have received under a “guilty” verdict.47

In addition to the requirement of dangerousness, a prisoner or involuntarily committed person may only be forcibly treated when that person is shown to be afflicted with a treatable illness.48 When a medical treatment has no hope of curing or controlling an illness, the state has no legitimate authority to force such treatment.49 The same logic holds true for an illness that has been cured; when the medical treatment is useless, it must not be forced upon a person.50

III. Providing Notice, a Hearing, and Clear and Convincing Evidence to Respect Procedural Due Process Rights

In any analysis attempting to delineate what procedural process is actually due51 before forcing a medical treatment, an American court weighs three things: (1) the individual’s affected interests, (2) the value of added procedural safeguards in reducing the risk of erroneous deprivation, and (3) the burden that would fall on the government to provide those added safeguards.52 Given the substantial liberty and substantive due process interests of a person subjected to forcible medical treatment, that person must always receive notice of an impending forcible treatment and an opportunity to speak with a neutral factfinder.53 However, “due process is not violated by use of informal traditional medical investigative techniques” and a physician as the neutral factfinder.54 Although states may require added procedural protections, the United States Constitution does not require a legal fact-finding process, as a medical fact-finding process would have an equal – if not lower – error rate.55

Yet, a patient subjected to involuntary treatment is still entitled to periodic situational reviews by a neutral factfinder.56 Where such periodic or impartial review is not provided, the Supreme Court has noted that habeas corpus57 is the proper remedy.58 Procedural due process requirements are not

36 Jacobson, 197 U.S. at 24-25.

37 Id. The police power is “[t]he inherent and plenary power of a sovereign to make all laws necessary and proper to preserve the public security, order, health, morality, and justice.” Black’s Law Dictionary 1278 (9th ed. 2009).

38 Jacobson, 197 U.S. at 25.

39 See Vidal v. Girard’s Ex’rs, 43 U.S. 127, 144 (1844). “Jurisdiction over the three subjects of lunatics, infants, and charities has always gone together, and been claimed because the king is said to be parens patriae.” Vidal, 43 U.S. at 144 (citing 1 Blackstone’s Commentaries 303, 3 Blackstone’s Commentaries 47).

40 Black’s Law Dictionary 1221 (9th ed. 2009).

41 O’Connor v. Donaldson,422 U.S. 563, 575 (1975).

42 Id. at 575.

43 Id. at 575-76. The ability to survive is all that a prospective patient needs to demonstrate to avoid commitment. Id. at 575. The state’s parens patriae power is not strong enough to trump a person’s liberty interest when state care can raise the prospective patient’s standard of living but is not required to ensure the prospective patient’s survival. Id.

44 Jones v. United States, 463 U.S. 354, 365 (1983).

45 Id. at 366.

46 Id. at 367.

47 Id. at 368.

48 Foucha, 504 U.S. at 82-83.

49 Id. at 79.

50 Id. at 77.

51 Editor’s Note: Under American law, individual procedural rights may vary, depending on the facts of each case, including the significance of the subject matter at issue in that case. Thus, the American concept of “procedural due process” is conceptually different from German procedural law, which generally provides a fixed set of procedural rights that always apply, regardless of the significance or insignificance of the subject matter at issue.

52 Mathews v. Eldridge, 424 U.S. 319, 335 (1976).

53 See Parham, 442 U.S. at 606-07.

54 Id. at 607-08.

55 Id. at 612-13.

56 Id. at 613.

57 Habeas corpus is a “writ employed to bring a person before a court, most frequently to ensure that the person’s imprisonment or detention is not illegal.” Black’s Law Dictionary 778 (9th ed. 2009).

58 Parham, 442 U.S. at 616 n. 22.

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changed by the relationship of the person seeking the forced treatment to the prospective patient: both family members and state officials were held to be sufficient initiators of involuntary commitment proceedings whose overzealousness could be tempered by the same procedures involving the same neutral factfinders.59

The Supreme Court has held that the factfinder in a commitment proceeding – whether it is a judge, a jury, or a medical professional – must find that the patient in question has a dangerous yet treatable mental illness by at least clear and convincing evidence.60 The Fourteenth Amendment requires a balancing between “an individual’s interest in not being involuntarily confined indefinitely and the state’s interest in committing the emotionally disturbed under a particular standard of proof” that will minimize erroneous judgments.61 The Supreme Court conclusively performed this balancing test, ruling that an intermediate standard between “a preponderance” and “beyond a reasonable doubt” must be used when depriving a person of liberty under the state’s police and parens patriae powers, and this holding likely extends to other instances of forcible medical treatment.62

D. Cases Where Forcible Treatment of Prisoners Was Permitted

This section discusses the four key cases in the past forty years where the Supreme Court issued an opinion having precedential value on the issue of whether the government could perform involuntary medical treatment on a prisoner.

I. Vitek v. Jones

In Vitek v. Jones,63 Larry Jones was a convicted robber who was involuntarily transferred from state prison to a state mental hospital for treatment after setting himself on fire during his incarceration.64 Additionally, as a condition of Jones’s release on parole, the state required him to submit to involuntary treatment for mental health issues.65 When Jones violated his parole, he was re-incarcerated in the state prison rather than the state mental hospital, but only because a lower court had enjoined his transfer to the mental hospital on constitutional grounds.66

The Supreme Court found that Jones had a liberty interest created by a state statute that required a finding of “mental illness for which [Jones] could not secure adequate treatment” in state prison before Jones could be involuntarily transferred to a state mental hospital.67 The Court reasoned that, once a state granted a prisoner a liberty interest, procedural due process protections are necessary to ensure that the state does not arbitrarily abrogate the prisoner’s state-created right.68 Though the state created the right, the state did not have the power to create a procedure for abrogating that right where the procedure created by the state fell below the minimum requirements for federal constitutional procedural due process.69

Even independently of any state-created right, the Supreme Court held that “the transfer of a prisoner from a prison to a mental hospital must be accompanied by appropriate procedural protections.”70 Even after a criminal conviction, a prisoner still has a qualified right to refuse medical treatment, including behavior modification programs or stigmatizing confinement associated with the treatment of mental illness, despite the prisoner’s loss of his general right to be free from confinement.71 A criminal conviction does not automatically entitle a state to deem a prisoner mentally ill or confine him in a mental hospital rather than a prison, and a deprivation of the prisoner’s right to refuse such treatment must only occur after constitutionally due procedural protections were granted.72

After weighing the state’s strong interest in separating and treating sick prisoners from the general prison population against the powerful interest of a prisoner to avoid arbitrary medical treatments, the Court found that the risk of error in assessing a prisoner’s illness “is substantial enough to warrant appropriate procedural safeguards against error.”73 The Court held that a prisoner is entitled to (1) written notice that treatment is being considered; (2) sufficient time to prepare for a hearing on the matter; (3) a hearing where (a) the evidence supporting the rationale for the treatment is provided to the prisoner and (b) the prisoner has an opportunity to argue, present documentary evidence, and present and cross-examine witnesses regarding the rationale for the treatment; (4) an independent decision-maker; (5) a written opinion from the decision-maker explaining the evidence and reasoning in support of the decision, (6) intelligible and timely notice of the aforementioned rights; and (7) qualified and independent assistance in exercising these rights.74 The Court also held that, for good cause, such as in cases where a prisoner acts disruptively at a hearing, the prisoner’s right to call or cross-examine witnesses may be curtailed.75

II. Washington v. Harper

Like Larry Jones, Walter Harper was a convicted robber housed in state prison and later paroled on the condition that he continue to receive treatment for mental health issues.76 Harper attacked two nurses while on parole, resulting in his re-incarceration.77 Though Harper initially consented to taking antipsychotic drugs,78 he ultimately withdrew his consent, leading the treating physician to seek permission to forcibly medicate Harper in accordance with procedures that were established to conform to Vitek v. Jones.79

59 Id. at 618.

60 Addington v. Texas, 441 U.S. 418, 443 (1979).

61 Id. at 425.

62 Id. at 426-29.

63 445 U.S. 480 (1980).

64 Vitek, 445 U.S. at 484.

65 Id. at 485-86.

66 Id. at 486.

67 Id. at 488.

68 Id. at 489.

69 Id. at 491.

70 Id.

71 Id. at 492-93.

72 Id. at 493.

73 Id. at 495.

74 Id. at 495-97. See id. at 497 (Powell, J., concurring in part, agreeing that “qualified and independent assistance must be provided to an inmate” facing involuntary treatment but rejecting the plurality’s contention that this assistance must come from a licensed attorney).

75 Id. at 496 (majority opinion).

76 Harper, 494 U.S. at 213-14.

77 Id. at 214.

78 “Antipsychotic drugs” are sometimes called “psychotropic drugs” or “neuroleptics” and include Haldol, Loxitane, Mellaril, Prolixin, Taractan, and Trialafon. Id. at 214 & n. 1. These drugs are used to treat schizophrenia and other mental illnesses. Id. at 214.

79 Id. at 214-15.

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Unlike Jones, Harper brought both procedural and substantive due process challenges to the forcible treatment scheme.80 The procedural issue was “whether the State’s nonjudicial mechanisms used to determine the facts in a particular case” regarding forced treatment afforded a prisoner at least the minimum required amount of constitutional protection against an erroneous deprivation of liberty.81 Largely relying on Vitek, the Court affirmed the procedural protections that were in place and held that neither a judicial factfinder nor a “clear and convincing” standard of proof placed upon the government were required by the Constitution.82

The substantive due process issue was expressly limited to “what factual circumstances must exist before the State may administer antipsychotic drugs to the prisoner against his will[.]”83 The State of Washington itself created substantive rights for its prisoners by requiring findings of (1) mental illness and (2) grave disability or dangerousness before forced treatment.84 The Court found that the United States Constitution bestowed no greater rights upon the prisoners, as the Court rejected Harper’s argument that he could only be forcibly treated after an initial finding of legal incompetence and a further finding that, if competent, Harper would choose to undergo treatment.85 As Washington required a medical finding by at least two psychiatrists that antipsychotic drugs were necessary because Harper was mentally ill and likely to be injured or dangerous if not treated, the Court found that drugs would only be administered if it was in Harper’s medical interests, in accordance with “the legitimate needs of his institutional confinement” and not merely for convenience or punishment.86

The Court collected its previous cases holding that prison regulations must always be reviewed under the rational-basis test – even if a prisoner’s fundamental right is allegedly infringed – because “prison authorities are best equipped to make difficult decisions regarding prison administration” that affect the safety and security of all prisoners.87 Recognizing the state’s legitimate interests in providing effective and safe medical and rehabilitative treatment to individual prisoners and in protecting the people physically within a prison, the Court found that a statutory scheme authorizing forcible medication in compliance with Vitek was rationally related to advancing those government interests by controlling dangerous behaviors of prisoners with scientifically acceptable methods.88

III. Riggins v. Nevada

The State of Nevada forcibly administered an antipsychotic drug, Mellaril, to David Riggins while he was on trial for robbery and murder.89 Riggins had initially consented to receiving treatment and was found competent to stand trial during that time.90 However, before trial, Riggins asked for the Mellaril treatments to be discontinued because (1) the treatment infringed on his freedom and (2) the treatment’s effect hindered his ability to assist in his own defense.91 After hearing expert testimony, the trial court denied Riggins’s request, and medication was thereafter forcibly administered in accordance with proper medical standards.92 Though Riggins pleaded insanity and testified at trial, he was convicted and sentenced to death.93

Seeking to overturn his conviction and sentence on appeal, Riggins established that he had an interest in avoiding forcible injections of Mellaril—and its often severe side effects—by citing Harper.94 The Court recognized that Harper prohibits the forcible medication of a prisoner “absent a finding of overriding justification and a determination of medical appropriateness” and reasoned that a person detained for trial must be given at least the same protection.95

Without determining what standard of judicial review applied to Riggins’s challenge, the Court found that the trial court’s one-page order that did not make “any determination of the need for [the treatment] or any findings about reasonable alternatives” “may well have impaired the constitutionally protected trial rights Riggins invokes.”96 Given the stated potential of Mellaril to cause uptightness, confusion, or drowsiness, the Court noted that Riggins could have been prejudiced by a medically induced internal inability to follow the trial or communicate with his counsel.97 While recognizing that such trial prejudice may be justified by a compelling interest, such as the need to control an extremely disruptive defendant, the Court reversed the conviction and remanded the case for a new trial, given the lack of a finding on the record “that administration of antipsychotic medication was necessary to accomplish an essential state policy[.]”98

IV. Sell v. United States

Charles Sell, a former dentist, was accused of defrauding insurers by submitting false insurance claims and attempting to murder witnesses to those crimes.99 Sell also had a lengthy history of mental illness that included bizarre rants, paranoid behavior, and hallucinations.100 Sell was deemed incompetent to stand trial and ordered into a prison hospital to allow further diagnosis of whether he would regain his competence.101 During this hospitalization, the staff sought to forcibly medicate Sell because of his dangerousness and to render him competent to stand trial.102

Lower courts found that Sell was not a danger to himself or others while housed in the prison hospital because he had merely been making inappropriate, nonthreatening comments

80 Id. at 220.

81 Id. at 220.

82 Id. at 234-35.

83 Id. at 214 n. 1 & 220.

84 Id. at 221.

85 Id. at 222.

86 Id. at 222-23 & n. 8.

87 Id. at 223-24.

88 Id. at 225-26.

89 Riggins v. Nevada, 504 U.S. 127, 129 (1992).

90 Id. at 129-30.

91 Id. at 130. Riggins also argued that he intended to advance an insanity defense and that he therefore “had a right to show jurors his ‘true mental state.’” Id. Riggins dropped this argument on appeal, so the United States Supreme Court did not address it. Id. at 133.

92 Id. at 130-31, 133.

93 Id. at 131.

94 Id. at 133-34.

95 Id. at 135.

96 Id. at 136-37.

97 Id. at 137.

98 Id. at 138.

99 Sell, 539 U.S. at 169-70.

100 Id.

101 Id. at 171.

102 Id.

Valenti, Invading a Sovereign Body (BLJ 2011, 115)121

and was otherwise prevented from harming anyone by the general confinement.103 Nonetheless, after applying strict-scrutiny review, those lower courts authorized the forcible medication of Sell on the ground that the government had a compelling interest in bringing a defendant to trial, and forcibly medicating Sell was the least intrusive way to render him competent to stand trial.104

The Supreme Court discussed Harper and Riggins, noting that both cases held that an individual has a significant constitutionally protected liberty interest in avoiding the forced administration of antipsychotic medication.105 The Court noted the suggestion in Riggins that the government’s interest in adjudicating Riggins’ guilt or innocence may have trumped his liberty interest if proper findings had been made to the effect that forcibly medicating Riggins was the least intrusive way to render him competent for trial.106 Synthesizing Harper and Riggins, the Court concluded “that the Constitution permits the Government involuntarily to administer antipsychotic drugs to a mentally ill defendant facing serious criminal charges in order to render that defendant competent to stand trial, but only if the treatment is medically appropriate, is substantially unlikely to have side effects that may undermine the fairness of the trial, and, taking account of less intrusive alternatives, is necessary significantly to further important governmental trial-related interests.”107

While finding that Sell could theoretically be forcibly medicated solely in order to stand trial – rather than because of any dangerousness, the Court vacated the lower appellate opinion and remanded for additional consideration of the case.108 Specifically, the Court held that four points needed to be considered to justify forcible treatment for purposes of rendering a defendant competent to stand trial.

First, while the Court recognized that trying a defendant on serious charges of crimes against people or property is an important government interest that could justify forcible treatment, the Court also held that this interest could be lessened under special circumstances where a defendant would nonetheless not be free to commit additional crimes because of a lengthy civil commitment or where the government’s interest in providing the defendant with a fair trial would be undermined by forcibly medicating the defendant.109

Second, the Court held that any forcible treatment must “significantly further” both the government’s interest in trying a defendant and the government’s interest in providing the defendant with a fair trial.110 The medication must both be substantially likely to render the defendant competent to stand trial and “substantially unlikely to have side effects that will interfere significantly with the defendant’s ability to assist counsel in conducting a trial defense[.]”111

Third, medication must be necessary to further the government’s interests, and courts must find that any less intrusive alternative is “unlikely to achieve substantially the same results.”112 Courts must also consider how to effectively minimize the force used to administer the medication, such as by determining whether a court order directed to the defendant – and backed by the court’s contempt power – to take his medicine would suffice.113

Fourth, courts must always find that the treatment is medically appropriate by being in the prisoner’s best medical interests after considering his condition.114

The Court further explained that this intermediate-scrutiny review of government action is only appropriate when addressing forcible treatment undertaken to render a defendant competent to stand trial.115 Where a prisoner is dangerous to himself or others, Harper controls, and that analysis should be considered first – before seeking to justify forcible treatment solely on trial competency grounds.116

In Sell’s specific case, the Court found that the initial reasoning for forcibly medicating Sell was justified both by his dangerousness and the need to render him competent to stand trial.117 However, the Supreme Court also found that the lower courts mutated the thrust of administrative-level testimony and decisions to focus solely on Sell’s competency to stand trial.118 Recognizing the potential effect of the passage of time on Sell’s medical circumstances and noting that renewed efforts by lower courts and testifying experts to focus on the questions specifically outlined by the Court may lead to altogether different findings, the Court remanded the case for new findings of fact and the ironic application of a lower – albeit more detailed – standard of review.119

E. Conclusion

The procedural due process rights of an American prisoner to protest forcible medical treatment generally require a government to follow routine American administrative procedures where notice and a semi-formal hearing with a legitimate opportunity to be heard must be provided to an individual challenging government action. Substantively, an American prisoner deemed presently dangerous 120 to himself or others by credible and qualified medical staff is likely to be forcibly treated in a medically appropriate fashion without violating any constitutional mandates, regardless of whether he is awaiting trial or has already been convicted. Where a presently non-dangerous prisoner is (1) awaiting trial on serious charges, (2) presently incompetent to stand trial, (3) likely to be rendered competent to stand trial with a medically necessary treatment, (4) unlikely to suffer debilitating side effects from that treatment, and (5) unlikely to assist in treating or managing his own illness, forcible treatment does not violate the prisoner’s constitutional rights.

103 Id. at 173-75.

104 Id. at 174-75.

105 Id. at 178.

106 Id. at 179.

107 Id.

108 Id. at 186.

109 Id. at 180.

110 Id. at 181.

111 Id.

112 Id.

113 Id.

114 Id. at 181.

115 Id. at 181-82.

116 Id.

117 Id. at 184-85.

118 Id.

119 Id. at 186.

120 One interesting question that the Supreme Court has yet to answer is whether a prisoner’s passive dangerousness, such as when a prisoner is infected with a highly contagious disease, could be grounds for a forcible medical treatment. The apparent rule for individuals in the general public is that, aside from an initial forcible examination to verify the presence of the contagious disease, quarantine – rather than forced treatment – must be used if the individual refuses treatment. See Lawrence O. Gostin et al., The Law and the Public’s Health: A Study of Infectious Disease Law in the United States, 99 Col. L. Rev. 59, 115 & n. 232. (1999). Given (1) the strain that such individual quarantines could place on the prison system, (2) the potential ineffectiveness of quarantines within crowded prison facilities, and (3) the rational-basis review that prison regulations receive, a separate rule may be enumerated in the future for treating prisoners with contagious diseases.