State v. Fitzgerald, 2018AP1296-CR, 2019 WI 69, 6/13/19; case activity
Sell v. United States, 539 U.S. 166 (2003) held that a mentally ill defendant has a constitutional right to avoid unwanted antipsychotic medication. The State can force it on him to restore his competency for trial only by proving the 4 “Sell factors.” Fitzgerald holds that §971.14 does not conform to Sell. Going forward, the State cannot obtain involuntary med orders based solely on §971.14 because it is constitutionally infirm. The State must satisfy Sell factors. The cases where this is possible may be “rare.” Sell, 539 U.S. at 180. Involuntary medication to restore competency to proceed should be the exception, not the rule.
Relying on the plain language of §971.14, Wisconsin courts have, for decades, involuntary antipsychotic medications after simply finding the defendant incompetent to make medication decisions. See §971.14(3)(dm). That violates substantive due process. Fitzgerald underscores what Sell mandated 16 years go. To obtain an involuntary medication order to restore competency, the State must prove:
¶14 “First, a court must find that important governmental interests are at stake.” [Sell, 539 U.S. at 180.] “[B]ringing to trial an individual accused of a serious crime” against a person or property is an important interest. Id. The Court did, however, emphasize that prior to entering an order for involuntary medication, courts “must consider the facts of the individual case in evaluating the Government’s interest in prosecution.” Id.
¶15 “Second, the court must conclude that involuntary medication will significantly further” the government’s interest in prosecuting the offense. Id. at 181. This means that a court “must find that administration of the drugs is substantially likely to render the defendant competent to stand trial” and “unlikely to have side effects that will interfere significantly with the defendant’s ability to assist counsel in conducting a trial defense, thereby rendering the trial unfair.” Id.
¶16 “Third, the court must conclude that involuntary medication is necessary to further those interests.” Id. In other words, “[t]he court must find that any alternative, less intrusive treatments are unlikely to achieve substantially the same results.” Id. In order to make this finding, the deciding court “must consider less intrusive means for administering the drugs, e.g., a court order to the defendant backed by the contempt power, before considering more intrusive methods.” Id. In other words, the Sell Court considered an order directed at the defendant, requiring him to accept medication or be found in contempt of court, to be less intrusive than ordering an entity like DHS to forcibly administer medication to the defendant.
¶17 “Fourth, . . . the court must conclude that administration of the drugs is medically appropriate, i.e., in the patient’s best medical interest in light of his medical condition.” Id. The Sell Court explained that “[t]he specific kinds of drugs at issue may matter here as elsewhere” because “[d]ifferent kinds of antipsychotic drugs may produce different side effects and enjoy different levels of success.” Id.
Why are these factors so important? Many motions for involuntary medication fail for lack of an “important government interest.” See NACDL amicus brief at 8. If your client is charged with a misdemeanor carrying a short sentence, the State arguably has no important interest in prosecuting him. It should dismiss the charge. Also, the Sell factors require the State and the court to consider your client’s personal health. The State must put on medical evidence (a doctor, not a psychologist) to specify which drugs in what doses it will administer to your client. The drugs have to be appropriate for your client’s diagnosis. They must be “substantially likely” likely to restore his competency (a tough burden to meet). They can’t cause unpleasant side effects or otherwise harm his health. This means that the examiner reports that defense lawyers are used to seeing (prepared pursuant to §971.14(3)) are no longer constitutionally sufficient for an involuntary med order. They don’t address the Sell factors. Also, the court can’t just let DHS and decide what’s best for your client. The court itself must find clear and convincing evidence of each Sell factor and make the medication decision.
A constitutionally-adequate Sell analysis is far more robust than the 4-paragraph summary above can convey. If your client has recently undergone, or is about to undergo, a §971.14 competency evaluation, here are some resources to help you defend him at an involuntary medication hearing.
- Read the amicus brief that NACDL, the Bazelon Center, NRDN, and DRW filed in Fitzgerald’s case. It offers guidance on how to do a Sell analysis. It also highlights an important difference between Wisconsin and federal involuntary medication procedures. In Wisconsin, DHS often finds a defendant incompetent to proceed and incompetent to refuse medication in the same report. In federal court, the examiner opines that the defendant is incompetent, then the government attempts competency restoration by every means short of involuntary medication (e.g. competency classes, cognitive behavioral therapy, outpatient, inpatient and so forth). If these less intrusive means fail, then the doctor asks the government to move for an involuntary medication order–often many months after the defendant is found incompetent for trial.
- Federal courts have substantial experience with Sell hearings. Skim this transcript from a federal Sell hearing where the defense prevailed. You may glean strategies and questions for use in your client’s case. One thing is certain. Defense lawyers should educate themselves on their client’s health (request his DHS records), common mental illnesses, and the efficacy and side effects of the drugs used to treat them.
- Take a look at Fitzgerald’s initial brief (except Argument IIB regarding dangerousness, which he withdrew). It cites defense friendly cases on each of the four Sell factors.
- Of course, read Sell and Fitzgerald. Both cases note that a court need not conduct a Sell analysis if the defendant is being medicated for dangerousness. This is an uncharted area of law, which the State may try to exploit. The seminal decision, Washington v. Harper, 494 U.S. 210 (1990), holds that an institution can forcibly medicate a prisoner to address his dangerousness to self, others, or property. Harper does not authorize criminal courts to declare defendants (especially those free on bond) dangerous and to order involuntary meds in to sidestep a Sell analysis. For that, the State (or the County) must file a Chapter 51 commitment proceeding.
Suppose that despite Sell‘s tough standard the State prevails at an involuntary medication hearing. Your client is entitled to an appeal as a matter of right and an automatic stay of the involuntary medication order under State v. Scott, 2018 WI 74, __Wis. 2d __, 912 N.W.2d 141. For guidance on how to initiate the appeal and trigger the stay see the post on State ex rel. Fitzgerald v. Milwaukee County Circuit Court, 2018AP1214-W below.
Finally, if you have a client who was medicated to competency without a Sell analysis, then he may have claims under §974.06. More to come on that subject.
