William and Mary Bill of Rights Journal
The government should not place a defendant to whom it is administering involuntary medications in front of a jury. The test the Supreme Court created in Sell v. United States will likely result in the administration of involuntary medications to incompetent defendants in more than rare instances. Given the importance of the right to a fair trial, and the threat to this right posed by administering involuntary medications, the Supreme Court understandably cautions in its decision in Sell that the instances in which the government will be justified in administering such medications for the purpose of rendering a defendant competent to stand trial “may be rare.” Under the test the Court sets forth in Sell, however, what instead might be rare are instances in which a court decides that involuntary medications are not justified.
Under the Sell test, the government may administer involuntary medication that is: (1) medically appropriate; (2) substantially unlikely to have side effects that may undermine the fairness of the trial; (3) decided upon after taking account of less intrusive alternatives; and (4) necessary significantly to further important governmental trial-related interests. Mentally ill defendants who are both incompetent and dangerous will suffer violations of not only their right to a fair trial but also their right to equal protection of the laws. In almost all cases, it is likely that the government will easily meet the first three criteria of the test. The only real limiting factor is the last criterion, which requires courts to decide whether the government's interests are “important”—a concept that the Court in Sell leaves undefined and since, lower courts have defined in a variety of ways. Due to the confusion and interpretation of the law, it is doubtful that Sell will be the Court's last word on involuntary medications and incompetent criminal defendants.
Dora W. Klein, Curiouser and Curiouser: Involuntary Medications and Incompetent Criminal Defendants After Sell v. United States, 13 Wm. & Mary Bill Rts. J. 897 (2005).