By Brian Beattie
To constitutionally punish someone, the defendant must first understand why and how he faces possible punishment so that they may be able to do something about it. "Competency" as defined in RCW ¤ 10.77.010(14) refers to the defendant's capacity - as a result of mental disease or defect - to understand the nature of the proceedings against him or to the ability to assist in his own defense. For defendants found incompetent, the law authorizes and commands courts to attempt to restore their competency, which may include ordering involuntary medication.
Balancing the liberty interest of an incompetent individual to refuse medication against the government's interest in bringing him to trial for alleged crimes has reached the U.S. Supreme Court more than once. Washington has had a role in shaping the landscape, beginning in Washington v. Harper, where the Supreme Court held that prisoners (post conviction) possess a "significant liberty interest in avoiding the unwanted administration of anti-psychotic drugs under the Due Process Clause of the 14th Amendment."1 Involuntary medication, the Court said, would be appropriate only for the "gravely disabled or . . . [those who] represent a significant danger to themselves or others."2
Building on Harper, the Court in Riggins v. Nevada reversed a murder conviction finding that the defendant had been prejudiced at trial because of the "subtle but significant effects of the anti-psychotic drug upon his demeanor and his ability to testify at trial."3
Most recently, the Court decided 6-3 that the Constitution does permit the government to administer anti-psychotic drugs involuntarily to mentally ill defendants facing serious criminal charges to render them competent.4 However, the treatment must be medically appropriate, i.e., in a defendant's best medical interest in light of his medical condition, and - in keeping with Riggins - unlikely to have side effects that may undermine the fairness of the trial. Less intrusive alternatives also must be considered for the court to find the treatment necessary to significantly further important governmental trial-related interests.5
In Washington, the procedure typically begins with an order for evaluation and a subsequent competency hearing.6 There is a 15-day time limit if the defendant is moved to a "secure facility" for the evaluation.7
At the hearing, the defendant is presumed competent to stand trial unless a preponderance of the evidence shows otherwise.8 There may be live testimony or, more typically, the parties stipulate to a psychiatric report from Western State, which is advisory and does not have to be followed by the court. The court reads the report, inquires of the defendant, and makes a finding of competence or incompetence, which may be contested.9
Upon a finding of incompetence, the court must order "higher risk non-felony defendants" placed in competency restoration treatment.10 If the court finds restoration is unlikely to succeed, it may end the treatment. If involuntary medication is part of the treatment, the following factors are determinative:
- How important is the government interest?
- Will medication significantly further the government interest under the Sell standard?
- Is there a less intrusive alternative?
- Is it medically appropriate under Sell?
- Is a violent crime involved?11
- Is involuntary medication warranted for other reasons?12
If the treatment is successful, the defendant must return for a hearing where the court determines competency has been restored. The stay of proceedings must be lifted and the case will proceed.13 When treatment is unsuccessful, a defendant with a "higher risk" to reoffend may be sent to an evaluation/treatment facility for up to 72 hours and referred to a county designated mental health professional for evaluation for civil commitment.14 "Lower risk" defendants also may be detained or the charges may be dismissed outright.15
The Court in Sell implied that instances "may be rare" where involuntary medication would be appropriate to restore competency, and did so based solely on the government interest to bring a defendant to trial.16 If rare in felony matters, one would think such situations would be even rarer in misdemeanor cases. But this is not proving to be the case in Washington.17
One likely reason is that the Legislature has responded to that portion of the Sell opinion referring to other reasons to involuntary medicate a defendant. A misdemeanor defendant must be committed for mental health treatment and restoration of competency if he has "a history of one or more violent acts, or a pending charge of one or more violent acts;" or "been previously found incompetent under this chapter or any equivalent" statute with regard to an alleged offense involving actual, threatened, or attempted physical harm to a person, and a court has found the defendant incompetent."18
RCW ¤ 10.77.010(23) creates a broad basis on which to support involuntary medication. While one may see a practical benefit of short-cutting the inevitable for a chronically mentally ill person who would likely be involuntarily medicated at a mental hospital based on dangerousness at a later date, there is room for error in predicting this.19 On the other hand, forcing medication subverts the freedom and privacy of an individual to make his own decisions, protected from unwanted government interference.
Determining what is in the best interests of a mentally ill defendant versus the State's interest in bringing the defendant to trial has resulted in careful considerations of the right to refuse medication. Given that supposedly more advanced and more powerful psychoactive drugs have been and are being introduced, and the fast pace of misdemeanor courts, the potential for conflict is great; therefore, this area may not yet have reached a settled compromise.
Brian Beattie currently works as a public defender and can be reached at bbeattie@miller-kadish.com.
1 424 U.S. 210, 221Ð26 (1990).
2 Id.
3 504 U.S. 127, 132Ð34 (1992).
4 Sell v. United States, 539 U.S. 166 (2003).
5 Id.
6 Under CrCLJ 3.3(e)(1), the speedy trial requirement is tolled during this process. Much of the presentation of the case history and procedural explanation in this article was influenced and expediently guided by Michael J. Finkle's "The Fall 2004 Practitioner's Guide to Handling Competency and Insanity Issues in Courts of Limited Jurisdiction." Finkle plans on releasing a 2006 updated version this May. For an e-version, contact him at mike.finkle@seattle.gov
7 RCW ¤ 10.77.060(1)(a).
8 See Finkle at 12A-24, n. 58.
9 See Finkle at 12A-25.
10 RCW ¤ 10.77.090(1)(d)(i)(A)Ð(C).
11 See RCW ¤ 10.77.010(21). See also Born v. Thompson, 154 Wn.2d 749, 752 n.3 (holding that the State must prove by a clear and convincing standard that the alleged act was "violent" and that, where a bus passenger raised a fist and demanded to be taken somewhere, there was no "violent" act).
12 See Harper, supra; Finkle at 12A-45Ð12A-50.
13 RCW ¤ 10.77.090(1)(d)(ii).
14 RCW ¤ 10.77.090(1)(d)(iii)(A).
15 RCW ¤ 10.77.090(1)(e).
16 539 U.S. at 180.
17 This sentence is based on personal experience and a letter (dated June 24, 2005) received by my office from DSHS to Misdemeanor Courts of Western Washington announcing the need for additional staff and reorganization to deal with the increasing high volume of court-ordered referrals. In the past 16 months, the percentage of my caseload involving persons with serious enough mental health issues to potentially become subject to competency restoration under current law has ranged at any given point from an estimated 2% to 20%.
18 RCW ¤ 10.77.090(1)(d)(i)(A)Ð(C).
19 See Born, 154 Wn.2d at 761: "Given the level of risk of an erroneous deprivation of liberty and given that the individual interests weigh heavily against the governmental interests, the clear and convincing standard of proof applies."
