Medicating to Competency: Procedure or Substance?

What can the Government do to try a severely mentally ill person? Jared Lee Loughner, charged with killing six people, including a federal judge, and wounding others, including Congresswoman Gabrielle Giffords, is undeniably severely mentally ill and his mental state in the shooting will be the principal issue at any trial. No defendant can be tried unless he is mentally competent to stand trial, and within weeks of obtaining the 49 count indictment for capital murder, attempted assassination of a Congressperson, several other attempted murders and dozens of potentially lethal assaults and weapons crimes, the Government sought to have Loughner’s competence to stand trial evaluated. Whether Loughner can ever be tried will depend upon the legal framework the Court adopts for his case – which may answer the question whether the Government can force a person to become competent for the express purpose of seeking his conviction and possible execution.

Severely mentally ill people pose a tremendous, and growing, problem for the criminal justice system, comprising an estimated 16% of adult state prison inmates and jail detainees according to a 1999 US Justice Department Study. When convicted and imprisoned, seriously mentally ill inmates may be treated – even against their will – if they present a danger to themselves or others because of their mental illness. The US Supreme Court confirmed in Washington v. Harper, that a prison’s interest in security and safety was paramount, and permitted involuntary medication of a seriously mentally ill inmate when treatment is in his medical interest. The required process was an administrative, rather than judicial, proceeding before physicians without a right to counsel for the inmate.

On March 21, US District Judge Larry Alan Burns sent Loughner to a US Bureau of Prisons “Medical Referral Center” in Springfield, Missouri for evaluation of his competence to stand trial, and even the Government’s experts soon concluded he is not competent, because of his schizophrenia and – significant for analysis under Harper – that he posed a danger even within a secure mental facility. Government mental health professionals concluded psychoactive drugs are medically appropriate so, given Harper, it would seem he could be medicated, with or without his consent. BOP staff began medication in mid-June.

But medication of a seriously mentally ill inmate to reduce his dangerousness isn’t legally the same as medication to render a defendant competent to stand trial. Loughner isn’t a prison inmate yet – he’s a pretrial detainee, so there are other considerations relating to his being involuntarily medicated. These, under a different legal framework the Supreme Court set out in Sell v. US, need to be assessed by a judge – not by doctors. These require (1) important governmental interests at stake, (2) that involuntary medication will significantly further, considering any less intrusive measures, (3) which medication is necessary to further these interests, and (4) that drugs are medically appropriate.

That’s why on July 14 the Ninth Circuit Court of Appeals ordered a halt to involuntary medication and briefing on the appropriateness of involuntary medication. This appellate dispute will focus on whether the medication decision can be made a doctor, after a limited administrative hearing, or must be made by a judge, after a full adversarial proceeding. But underlying this question is whether Loughner will be considered first and foremost a dangerous inmate needing drugs to reduce his dangerousness, or a criminal defendant, charged with capital crimes, whose interests in decision-making about his case require greater process to protect. And underlying these process questions lays the ultimate question: how far may the Government go to try someone?

David Siegel