The Tensions of Antipsychotic Drugs with the Sixth Amendment

In Sell v. United States, the Supreme Court tackled the legal standard for determining when the government can administer antipsychotic drugs to a mentally ill criminal detainee without permission solely to render that defendant competent to stand trial.[1] In part, the court required that involuntary medication must be necessary to further important state interests and that administering the drugs is medically appropriate.[2]

The Sell requirements were a response to the incredible risks that antipsychotics present to a detainee’s mental and physical health. Antipsychotics have a wide range of side effects. Non-neurological symptoms mostly involve hormonal, sexual, and endocrine disorders.[3] Extrapyramidal symptoms affect the brain’s extrapyramidal system, which helps direct coordination and control of muscular movements. The category includes one of the most serious side effects, tardive dyskinesia, a neurological syndrome characterized by involuntary and spastic movements of the body.[4] Once discovered, tardive dyskinesia is considered irreversible in two out of three cases.[5] Lastly, antipsychotics can affect mood and mental sharpness by leaving the detainee in a lethargic, detached state and causing memory loss.[6]

These side effects present numerous legal issues regarding a detainee’s constitutional rights. One of the most concerning issues is the effect on the detainee’s right to a fair trial. In criminal prosecutions, the Sixth Amendment ensures defendants the right to “an impartial jury of the state . . .  to be informed of the nature and cause of the accusation . . . and to have the Assistance of Counsel for his defense.”[7]

First, antipsychotics may undermine the impartiality of a jury during a criminal trial. In Riggins v. Nevada, Justice Kennedy stated that “it is a fundamental assumption of the adversary system that the trier of fact observes the accused throughout the trial.”[8] Unfortunately, side effects can greatly alter a defendant’s demeanor in court. For example, antipsychotic drugs may make a defendant “seem nervous and restless … or so calm or sedated to appear bored, cold, unfeeling, and responsive.”[9] Other times they may cause uncontrollable movements or unusual stiffness. These actions allow a jury to form highly prejudicial opinions of the defendant that may decide the course of a trial.

Second, antipsychotics limit the defendant’s ability to effectively assist counsel. The Supreme Court held that a defendant’s right to the effective assistance of counsel is impaired when he cannot cooperate in an active manner with his lawyer.[10] The American Bar Association’s “Criminal Justice Standards” lists decisions that clients should make for themselves after a full consultation with defense counsel. They include deciding (1) whether to proceed without counsel, (2) what pleas to enter, (3) whether to accept a plea offer, (4) whether to waive jury trial, (5) whether to testify on his or her own behalf, and (6) whether to speak at sentencing.[11] The defendant usually needs substantial awareness of the decision’s implications and intact rational decision making, which spans the entire trial. For example, plea bargaining can act as a conviction, so defendants entering a plea bargain must be aware of the rights they are sacrificing and the nature of the charges.[12] Antipsychotic drugs, as noted earlier, may affect neurocognitive functioning, including memory loss and lethargy.[13] As such, a medicated defendant might not comprehend the full repercussions of pleading guilty, so he will not communicate effectively with his or her counsel to formulate a plea bargain.

Sixth Amendment concerns with antipsychotics continue to this day. Second-generation antipsychotics were introduced in the 1990’s in order to lower the incidence rate of side effects. However, it is clear that even the latest antipsychotics can have devastating effects on the constitutional rights of defendants.[14] Whether the law or medicine will neutralize these concerns first remains to be seen.

[1] 539 U.S. 166 (2003).

[2] Id. at 180-81.

[3] Braden A. Borger, Sell v. United States: The Appropriate Standard for Involuntarily Administering Antipsychotic Drugs to Dangerous Detainees for Trial, 35 Seton Hall L. Rev. 1099, 1115 (1992).

[4] Id.

[5] Robert M. Levy & Leonard S. Rubenstein, The Rights of People with Mental Disabilities 112 (1st ed. 1996).

[6] Vickie L. Feeman, Reassessing Forced Medication of Criminal Defendants in Light of Riggins v. Nevada, 35 B.C.L. Rev. 681, 699 (1994).

[7] U.S. Const. Amend. VI.

[8] 504 U.S. 127, 142 (1992) (Kennedy, J., concurring).

[9] Id.

[10] Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964).

[11] ABA STANDARDS FOR CRIMINAL JUSTICE: DEFENSE FUNCTION § 4-5.2 (2015).

[12] F. R. Crim. P 11(b)(1).

[13] See Feeman, supra at 699.

[14] Alp Ucok & Wolfgang Gaebel, Side Effects of Atypical Antipsychotics: A Brief Overview, 7 World Psychiatry 58, 58 (Feb. 2008)  (“Now, more than 15 years after the first atypical antipsychotic entered the market, psychiatrists have gradually come to realize that while extrapyramidal symptoms and tardive dyskinesia occur less frequently with atypical agents, these medications may present a different set of adverse effects.”).

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