Better justice through Christianity?

the June 16, 2003, Supreme Court decision in the celebrated forced drugging case of Dr. Charles T. Sell set off a mix of jubilation, confusion, and frustration among both advocates and opponents of involuntary medication. The 6-3 Sell v. United States decision overturned two previous rulings allowing Sell to be forcibly drugged in order to stand trial for sixty-three counts of fraud.

News sources had trouble interpreting the complex decision. While some, like the Christian Science Monitor, trumpeted, "To stand trial, defendants can be medicated by force," others, such as the New York Times, headlined their story "Court Limits Right To Drug Mentally Ill Defendants" with equal vigor.

The central question of Sell was whether the government can drug mentally ill defendants against their will to force them to stand trial. Trying the legally insane is unconstitutional. But what if a defendant could be involuntarily drugged and returned to sanity--is this even possible, let alone legal and ethical?

Sell will be spared the drugs for now, and a stringent new legal test will have to be applied for all future attempts to drug nonviolent defendants for trial. Nonetheless, future defendants may not be as fortunate as Sell. Though the high court upheld the delusional dentist's "liberty interest" in avoiding forced drugging, it stopped short of spelling out the constitutional rights of the accused. Sell is a landmark case to be sure. But what liberty was it, exactly, that the Sell decision protects?

We at the Center for Cognitive Liberty & Ethics, a civil liberties nonprofit organization that filed a friend of the court brief on Sell's behalf, saw an opportunity for the Court to uphold Sell's freedom of thought as a First Amendment right. Interfering with Sell's brain chemistry is tantamount to mind control--the ultimate restraint on freedom of speech. Instead, the decision primarily acknowledged Sell's liberty interest in avoiding the involuntary administration of antipsychotic drugs, which can cause a host of damaging side effects. Richard Boire, CCLE director and author of the brief, said of the decision, "They made a good ruling, but they missed a major opportunity to recognize that thought is, at least partly, rooted in brain chemistry and that giving the government broad powers to directly manipulate the brain chemistry of a nonviolent citizen would go against our nation's most cherished values."

Sell's Fifth Amendment due process rights were also considered. After all, he did spend five years in jails and psychiatric hospitals without trial. The decision says that to force medication would infringe on Sell's liberty and that the government's "important" interest in bringing him to trial was compromised by Sell's lengthy confinement. Supreme Court Justice Stephen G. Breyer's majority opinion takes this into account, suggesting that the time Sell has spent in the U.S. Medical Center for Federal Prisoners would count as "time served" and noting that Sell has already been incarcerated longer than his maximum sentence for fraud would have required. But the thundering silence of the Court on the issue of a defendant's freedom of thought frustrated those who had urged the Court to hand down a decision protecting the mental autonomy of pretrial defendants.

The case has relevance that reaches far beyond Sell--if the case had been decided against him, any mentally ill person accused of a crime might have been drugged in order to make that person stand trial. Thus the mental autonomy of all citizens was at stake. In the decision, the justices acknowledged the "significant constitutional issues" the case raised but focused on only the Fifth Amendment question--whether the case violated Sell's right to due process of law. CCLE attorney Julie Ruiz-Sierra put it this way, "They're not exactly saying that there's a constitutional right to avoid forced medication; they're saying there is a right not to be forcibly medicated without due process."

The ruling limits forced drugging of the nonviolent accused to occasions that Breyer hopes will be "rare" but avoids talk of a defendant's freedom of thought, a right that would be violated by imposing mind-altering drugs. The decision does set a high standard; it mandates that forced medication orders for each nonviolent defendant must pass a four-part test. Future prosecutors who want to drug a defendant into competence will have to demonstrate that: the governmental interests at stake are sufficiently important; the forcing of medication will ensure a fast and fair trial with low potential for side effects; the forcible medication is necessary and alternative methods would be ineffective; and the administration of the drugs is medically appropriate.

There also remains the question of whether antipsychotic medications can really make anyone sane enough to face trial--not to mention the ethics of forcibly changing the mental state of the accused with mind-altering drugs. The justices could have said that the contents of our brains are deeply private and must be held inviolable. They had an opportunity to protect both the bodily integrity and the mental freedom of the accused but instead handed down a decision that simply tightens the standards for forcible drugging.

In any case, antipsychotic medications aren't panaceas; they don't suddenly render a person mentally healthy. Many would go so far as to say that Thorazine, Mellaril, Haldol, and the rest simply mask the symptoms of mental illness, creating "artificial sanity" rather than providing a cure. Many of these drugs have severe side effects as well, often causing facial twitches, drooling, depression, altered speech, and permanent neurological damage.

It's really about control. Sell's prosecutors wanted to force a particular mental state on an unwilling person in order to prop him up on the stand and convict him. Justice Antonin Scalia's dissenting opinion reflects this desire.

Scalia, joined by Justices Clarence Thomas and Sandra Day O'Connor, fretted that defendants will see Sell as an open invitation to misuse the system and delay trial. To permit pretrial appeals like Sell's, Scalia claimed, provides an "obvious opportunity for gamesmanship." Further, he wrote, it will encourage "the disruption of criminal proceedings" by defendants who might be eager to sidetrack the progression of a trial. But it isn't as if Sell is attempting to avoid trial; he's been insisting he be brought to trial, unmedicated, all along. So, although the decision allows him to avoid the indignity of having a needle filled with some very potent drugs shoved into his veins, he will likely remain incarcerated indefinitely.

The idea of an altered mental state forced on a citizen against his or her will haunts our culture; the popularity of novels like 1984 and Brave New World, not to mention films like Jacob's Ladder and The Matrix, testify to this recurrent fear. Pharmacology and psychiatry are easy routes for this sort of abuse of power; in the former Soviet Union, dissidents were often declared insane, then drugged and imprisoned in psychiatric hospitals to keep them quiet. With the Sell decision, the United States won't become that nightmarish anytime soon. Yet, when faced with one of the more persistent dystopian horrors of the era, the Court evaded a core issue: the defendant's right to cognitive liberty.

Ironically, one of the delusions that led to Sell's diagnosis of delusional disorder was the idea that the government was "out to get him," a contention that, in retrospect, is a bit difficult to argue with. The Court did recognize Sell's catch-22: by refusing medication he ensured his continued confinement. The price of Sell's resistance to drugging is high. The odds are good that he will "rot with his rights on" in a mental institution and never be brought to trial.

Fortunately, the Sell decision will strictly limit the involuntarily drugging of the accused. It is hubris, pure and simple, to believe that a person can be chemically forced into sanity; it is worse for the government to believe that it has the right to do so.

Heidi Lypps is director of communications for the Center for Cognitive Liberty and Ethics, a nonprofit law and policy center working in the public interest to foster cognitive liberty--the right of each individual to think independently and use the full spectrum of his or her mind. For more information on the CCLE, visit www.cognitive liberty.org