THE NEEDLE AND THE DAMAGE DONE

Supreme Court Will Hear Forced Drugging Case

On November 4, the US Supreme Court agreed to hear the case of Dr. Charles
Thomas Sell, a dentist who the government seeks to forcibly inject with
mind-altering drugs. On May 16, 1997, Sell was charged with Medicaid fraud,
money laundering and mail fraud. Subsequently, government psychiatrists
diagnosed him with persecutory delusional disorder and declared him
incompetent to stand trial.

In May 2002, the 8th US Circuit Court of Appeals ruled that Sell could be
injected with psychotropic drugs in order to make him "mentally competent"
to stand trial. Sell has been held without trial in various prisons and
hospitals since 1997, nearly two years longer than the 41-month maximum
sentence for Medicaid fraud.

Sell's case has caught the attention of a number of civil liberties
activists and organizations, and several wrote amicus curiae briefs urging
the Supreme Court to hear Sell's case. California attorney Julie
Ruiz-Sierra authored one of these briefs, employing arguments based on
bodily integrity and the due-process clauses of the Fifth and 14th
Amendments. "The right of bodily integrity is acknowledged to be one of the
most cherished freedoms in a civil society," she states.

According to Ruiz-Sierra, the government violates Sell's right to security
and autonomy within his own body by drugging him against his will.
Ruiz-Sierra's brief mentions the "broad implications this case holds for
the liberty interest of all Americans to exercise control over their own
bodies and refuse unwanted medication." She argues that the government's
claim to the authority to involuntarily medicate Sell is an infringement of
fundamental rights that deserves the highest level of court scrutiny.
Ruiz-Sierra employs a potent metaphor to illustrate her point. "Perhaps no
image so horrifically evokes the specter of oppressive government as that
of a hypodermic syringe in the hands of a government agent, aimed at the
defenseless body of an unwilling citizen." She fears that courts will
circumvent the ban on trying the incompetent by medicating incompetent
pre-trial detainees in order to "render them competent to stand trial."
Since this practice infringes on established rights, such forcible
medicating must be held to a standard of strict scrutiny, a standard that
the 8th Circuit erred in failing to apply.

Other civil rights organizations feel that Sell's case concerns not only
bodily integrity, but cognitive liberty as well. The Center for Cognitive
Liberty and Ethics also filed an amicus curiae brief with the Supreme Court
in support of Sell. Unlike other parties before the court, the Center
argues that this case raises core First Amendment issues governing freedom
of thought. The author of the Center's brief, attorney Richard Glen Boire,
notes that "if the government can manipulate thoughts, it need not
manipulate expression; freedom of speech is, so to speak, nipped in the bud."

The brief filed by the Center argues that the lower court mischaracterized
Sell's liberty interest without reference to his First Amendment rights,
and, like Ruiz-Sierra, asks that the court apply a strict standard of
scrutiny. "By altering a person's mind with the forced administration of
drugs," states the CCLE brief, "the government commits an act of cognitive
censorship and mental manipulation, an action even more offensive to
democratic principles than the censorship of speech."

Boire notes that in the former Soviet Union, no equivalent to the First
Amendment existed. As a result, prison officials there sometimes labeled
dissident thinkers "mentally ill" and forcibly drugged them to destroy
their credibility and keep them silent. Boire notes, "If one vital
objective of the Constitution is to draw lines between freedom and
totalitarianism, surely the interior processes of the mind are protected
against forcible invasion and alteration by the government. Even the 8th
Circuit Court agrees that Dr. Sell is not a danger to himself or others.
Without the freedom to control one's own consciousness," continues Boire,
"what freedom remains?"

Unless the Supreme Court decides otherwise, Sell is caught in a classic
catch-22 of nightmarish proportions. According to court-appointed doctors,
he is mentally ill, and can't be tried until he takes the mind-altering
drugs as ordered. He won't take this medication voluntarily, so he remains
incarcerated without trial, often in solitary confinement.

Government doctors diagnosed him with delusional disorder in part due to
his unorthodox thoughts about the government's handling of the Waco, TX
cult case, Bosnia, HIV and other issues. He is also said to suffer from the
paranoid delusion that the government is "out to get him." Given Sell's
circumstances and his long incarceration, is that really such an
unreasonable view?

Critics of the lower court's judgment to forcibly inject Sell with drugs
have rightly called the verdict "a shocking, inhumane decision."
Administering psychoactive drugs against the defendant's will infringes on
his cognitive autonomy and physical liberty, ignoring the presumption of
innocence and the non-violent nature of his alleged crimes. Anti-psychotic
medication cannot be said to reliably cure a mental disorder, but merely to
suppress its symptoms. In temporarily suppressing some symptoms,
mind-altering medications, such as those that would be injected into Sell,
carry considerable risk of permanent harm (and occasionally death) to the
patient. As a medically astute man, Sell is quite aware of the potentially
dangerous side effects of the medications to be administered to him, and he
would refuse the medication on these grounds alone, if he had a say in the
matter.

Worse yet, even if the 8th Circuit decision stands and the needle is driven
into Sell, the effects of the drugs themselves may interfere with his
ability to participate in his own defense. The side effects of
anti-psychotic medications can severely affect a patient's demeanor at
trial, changing the jury's impression of the defendant. In addition, these
drugs can seriously alter thinking processes (indeed, that is their very
purpose), and therefore impact the defendant's freedom of speech.

This begs the question: Is drug-induced competence really competence? Are
the defendant's thought processes free and independent under such
conditions, or would he simply be drugged into a compliant state for his
conviction?

The government-sponsored message to "Just Say No To Drugs" seems flatly
hypocritical in contrast to the message sent to US citizens by the 8th
Circuit's decision. If you're charged with a crime and you behave
unacceptably, you may be forcibly drugged by the government. Unless the US
Supreme Court overturns the 8th Circuit, this may occur even if you're not
charged with a violent crime and aren't dangerous to yourself or anyone else.

In Rochin v. California, Justice Felix Frankfurter referred to the police
invasion of a suspect's body as "methods too close to the rack and the
screw to permit of constitutional differentiation." The decision to
forcibly drug Sell, in violation of both his bodily integrity and cognitive
liberty, is an example of similar barbarism under a medical guise.

The earlier court decision gave the government carte blanche with the body
and mind of the accused, with no limit on the type or amount of drugs to be
administered to Sell. Hopefully the Supreme Court will block this
unprecedented effort by the government to chemically and forcibly
manipulate a citizen's thinking processes.