Mandatory Circuit Court Form CR-206 suggests that in a criminal case the circuit court may order involuntary medication for an incompetent defendant because he is dangerous. Is the form correct? No, under the current state of federal and Wisconsin law, a criminal court may not order the involuntary administration of antipsychotic for an incompetent defendant based on dangerousness.
Let’s start with SCOTUS case law. When a criminal court declares a defendant incompetent to proceed under §971.14, the State usually requests an order for involuntary medication to restore the defendant’s competence. The circuit court holds a hearing where the State must prove the 4 factors in Sell v. United, 539 U.S. 166 (2003). See also State v. Fitzgerald, 2019 WI 69, ¶2, 387 Wis. 2d 384, 929 N.W.2d 165.
The Sell factors are hard to satisfy, so sometimes the State asks the circuit court to order involuntary medication based on the defendant’s dangerousness. The State usually cites a statement in Sell where SCOTUS said that a court need not address the Sell factors if forced medication is “warranted for a different purpose” such as the individual’s dangerousness or where the individual’s “refusal to take drugs puts his health gravely at risk.” Sell, 539 U.S. at 182 (citing Washington v. Harper, 494 U.S. 210 (1990)).
However, this statement must be read in context. Sell did not hold that criminal courts may decide whether incompetent defendants should be medicated for dangerousness. To the contrary, Sell stated that “courts typically address involuntary medication as a civil matter” through guardianship and commitment proceedings. Id. at 182. Sell explained that courts, “in civil proceedings, may authorize involuntary medication where the patient’s failure to accept treatment threatens injury to the patient or others.” Id. (Emphasis supplied).
Now let’s turn to state law. Wisconsin’s civil commitment statute is Chapter 51. It provides constitutionally mandated due process protections, including specific definitions for “dangerousness.” See e.g. Wis. Stat. §51.20(1) a.2. As SCOW recently said: “in this complicated and difficult area, the Supreme Court has wisely left the job of creating statutory definitions to the legislature who draft state laws.” Waupaca County v. K.E.K., 2021 WI 9, ¶28, 395 Wis. 2d 460, 954 N.W.2d 366. See also K.N.K. v. Buhler, 139 Wis. 2d 190, 205, 407 N.W.2d 282 (Wis. Ct. App. 1987) (reversing involuntary medication order due to lack of statutory authority for it).
If the State believes that a criminal defendant is mentally ill, dangerous, and in need of treatment medication, it must refer the case for a Chapter 51 commitment. It may not subvert due process by asking the criminal court to order involuntary medication at a competency hearing based on an amorphous finding of “dangerousness” for which there is no statutory authority.
Thus, consistent with Sell, when a circuit court declares a defendant incompetent to proceed in a criminal case, the court may certainly inquire whether the defendant is already under, or is being referred for, a Chapter 51 civil commitment and involuntary medication order. If so, then there is no need for the criminal court to conduct an involuntary medication hearing under Sell.
