The Right of the Mentally Ill to Refuse Antipsychotic Drugs During Trial

Transcription

1 The Right of the Mentally Ill to Refuse Antipsychotic Drugs During Trial I. INTRODUCTION Before the introduction of antipsychotic drugs,' treatments for mental disorders included such radical procedures as psychosurgery, in which a prefrontal lobotomy 2 was performed on patients, 3 sleep therapy,' in which a prolonged comatose sleep was induced by injections of barbiturates 5 to reduce psychotic excitation, 6 and shock therapy. 7 Antipsychotic drugs were introduced in the early 1950's for the treatment of mental illnesses.' These drugs "provided the first effective chemical therapy" 9 for individuals suffering from mental illnesses, such as psychoses, by restoring their normal state of mental 1. These drugs are also referred to as major tranquilizers, ataraxics, and neuroleptics. PETER R. BREGGIN, PSYCHIATRIC DRUGS: HAZARDS TO THE BRAIN 4 (1983). 2. This procedure involves "the surgical cutting of brain tissue in the frontal lobes." Id. at 2 n.2. Psychosurgery is rarely practiced today in the United States. HAROLD I. KAPLAN & BENJAMIN J. SADOCK, POCKET HANDBOOK OF CLINICAL PSYCHIATRY 269 (1990). 3. See JUDITH P. SWAZEY, CHLORPROMAZINE IN PSYCHIATRY: A STUDY OF THERAPEUTIC INNOVATION 13 (1974). 4. American psychiatrists did not often administer this type of treatment. Id. at 13 n These drugs "are used for their hypnotic and sedative effects." DORLAND'S POCKET MEDICAL DICTIONARY 74 (24th ed. 1989). 6. SWAZEY, supra note 3, at Id. at Methods of shock therapy include the production of a coma by the injection of insulin and the induction of convulsive attacks using electroconvulsive shock. Id. at 14. Electroconvulsive therapy involves the placement of electrodes on the patient's head to administer electrical stimuli that deliver energy to the patient's brain tissue. KAPLAN & SADOCK, supra note 2, at 268. Although this therapy is still used in the United States today, it is controversial in the treatment of schizophrenics. Id. at 266. This treatment is "[u]sually reserved for patients who have failed other therapeutic attempts." Id. 8. See KAPLAN & SADOCK, supra note 2, at 241; Bruce J. Winick, Psychotropic Medication and Competence to Stand Trial, 3 AM. B. FOUND. RES. 769, 778 (1977) [hereinafter Winick, Psychotropic Medication]; Thomas G. Gutheil & Paul S. Appelbaum, "Mind Control," "Synthetic Sanity," "'Artificial Competence," and Genuine Confusion: Legally Relevant Effects of Antipsychotic Medication, 12 HOFSTRA L. REV. 77, 99 (1983). 9. Richard Abrams, Psychopharmacology and Convulsive Therapy, in THE THERAPIST'S HANDBOOK: TREATMENT METHODS OF MENTAL DISORDERS 18 (Benjamin B. Wolman ed., 1976). 10. "Psychoses" are "any major mental disorder[s] of organic and/or emotional origin characterized by derangement of the personality and loss of contact with reality, often with

2 CRIMINAL AND CIVIL CONFINEMENT [Vol. 19:2 activity. I " The controversy over a defendant's right to refuse medication during trial emerged with the introduction of these drugs. 12 Under the Due Process Clauses of the Fifth and Fourteenth Amendments 13 and the Sixth Amendment,' 4 a defendant has a right to a fair trial.' 5 This right encompasses his rights to be present at trial, 1 6 confront witnesses against him,' 7 and present his version of the facts (including his right to present a defense)."' Whether a right to a fair trial includes a right to be unmedicated during trial has not yet been resolved consistently by the courts.' 9 Accordingly, while courts have agreed that the delusions, hallucinations, or illusions." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1283 (25th ed. 1974). 11. Gutheil & Appelbaum, supra note 8, at See generally Commonwealth v. Louraine, 453 N.E.2d 437 (Mass. 1983) (holding that defendant has a right to be in an unmedicated state during trial); State v. Hayes, 389 A.2d 1379 (N.H. 1978) (ruling that defendant does not have an absolute right to refuse antipsychotic drugs during trial); State v. Law, 244 S.E.2d 302 (S.C. 1978) (holding that medication may be involuntarily administered and evidence of its effects presented to the jury through expert testimony); In re Pray, 336 A.2d 174 (Vt. 1975) (ruling that defendant has a right to be undrugged during trial as long as safety during the trial is possible); State v. Jojola, 553 P.2d 1296 (N.M. Ct. App. 1976) (holding that defendant is not denied due process by being medicated during trial); State v. Maryott, 492 P.2d 239 (Wash. Ct. App. 1971) (ruling that true demeanor of a defendant during trial is of probative value to the jury when the defendant is pleading the insanity defense). 13. See U.S. CONST. amend. V ("No person shall be... deprived of life, liberty, or property, without due process of law... ); U.S. CONST. amend. XIV, 1 ("nor shall any State deprive any person of life, liberty, or property, without due process of law... "). 14. See U.S. CONST. amend. VI ("[T]he accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State... and to be informed of the nature and cause of the accusation... "). 15. See Ake v. Oklahoma, 470 U.S. 68, 76 (1985) ("[A] State... must take steps to assure that the defendant has a fair opportunity to present his defense. This elementary principle [is] grounded in significant part on the Fourteenth Amendment's due process guarantee of fundamental fairness... "). 16. "One of the most basic of the rights guaranteed by the Confrontation Clause is the accused's right to be present in the courtroom at every stage of his trial." Illinois v. Allen, 397 U.S. 337, 338 (1970). 17. See U.S. CONST. amend. VI ("[T]he accused shall enjoy the right... to be confronted with the witnesses against him... "); see also Allen, 397 U.S. at See Washington v. State, 388 U.S. 16, 19 (1967) ("The right to offer the testimony of witnesses, and to compel their attendance... is... the right to present a defense, the right to present the defendant's version of the facts... [A defendant] has the right to present his own witnesses to establish a defense. This right is a fundamental element of due process of law."). 19. The Supreme Court recently addressed the issue of forced administration of antipsychotic drugs during trial in Riggins v. Nevada, 112 S. Ct (1992). Although the Court held that an unacceptable risk of trial prejudice against the defendant was created by the involuntary administration of medication, it indicated that such prejudice would be justified if the state established that forced administration was necessary to

3 19931 ANTIPSYCHOTIC DRUGS DURING TRIAL demeanor of an accused is of probative value during trial, 2 " they have conflicting views about the method by which evidence of the natural demeanor of a defendant who is taking antipsychotic drugs may be presented to the jury. 21 Some courts have held that a defendant has the right to refuse antipsychotic medication during trial, thereby allowing the jury to observe the defendant in his true mental condition. 22 This often presents an unusual situation: a defendant may be faced with waiving his right to be competent at trial by discontinuing his antipsychotic medication. 23 Other courts have held that an accused is not denied due process of law by being medicated during trial. 24 These courts often consider expert testimony to be a sufficient further an essential state interest. Riggins, 112 S. Ct. at See generally State v. Hayes, 389 A.2d 1379 (N.H. 1978) (ruling that defendant has a qualified right to refuse antipsychotic drugs during trial); State v. Murphy, 355 P.2d 323 (Wash. 1960) (holding that a fair trial includes a defendant's right to be unmedicated when the death penalty may be imposed); State v. Lover, 707 P.2d 1351 (Wash. Ct. App. 1985) (holding that since effect of drugs could be fully explained to the jury, defendant was not denied due process). 20. See Pate v. Robinson, 383 U.S. 376, 386 (1966) (indicating that defendant's demeanor at trial is relevant to his insanity defense); Commonwealth v. Louraine, 453 N.E.2d 437, 442 (Mass. 1983) ("A defendant is entitled to place before the jury any evidence which is at all probative of his mental condition.... The defendant's mental state both before and after the crime is admissible."); Hayes, 389 A.2d at 1381 ("The defendant's demeanor... is relevant to the issue of sanity at the time the crime was committed."); State v. Maryott, 492 P.2d 239, 242 (Wash. Ct. App. 1971) ("When mental competence is at issue, the right to offer testimony involves more than mere verbalization. The demeanor in court of one who has raised the issue of his sanity is of probative value to the trier of fact."). 21. See, e.g., Commonwealth v. Louraine, 453 N.E.2d 437 (Mass. 1983) (holding that defendant should have the opportunity to present all relevant evidence, including the presentation of his natural demeanor); State v. Hayes, 389 A.2d 1379 (N.H. 1978) (ruling that defendant is entitled to be in the same state, medicated or unmedicated, as he was at the time of the commission of the crime); State v. Jojola, 553 P.2d 1296 (N.M. Ct. App. 1976) (concluding that defendant is given the opportunity to inform the jury about the effects of the medication through expert testimony); State v. Maryott, 492 P.2d 239 (Wash. Ct. App. 1971) (holding that defendant has A right to show the jury his natural demeanor by being unmedicated during trial). The Supreme Court in Riggins did not specifically address the method of presenting the defendant's natural demeanor to the jury. Riggins, 112 S. Ct. at See Louraine, 453 N.E.2d at 442 ("[W]hen the defendant's sanity is at issue, the trier of fact is entitled to consider the defendant's demeanor in court."); In re Pray, 336 A.2d 174, 177 (Vt. 1975) (concluding that since the jury was imposing the penalty in a murder trial, their exposure to the unmedicated defendant was critical to their judgment); Maryott, 492 P.2d at 242 (holding the state may not administer drugs to the defendant without his consent and, therefore, may not determine defendant's mental state that is to be presented to the jury). 23. Hayes, 389 A.2d at 1382 ("If the defendant by his own voluntary choice, made while competent, becomes incompetent to stand trial because he withdraws from the medication, he may be deemed to have waived his right to be tried while competent."). 24. See State v. Law, 244 S.E.2d 302; 307 (S.C. 1978) (holding that since defendant's

4 CRIMINAL AND CIVIL CONFINEMENT [Vol. 19:2 substitute for the jury's observation of the defendant in his natural mental state. 25 This Note considers judicial treatment of defendants on antipsychotic drugs. It begins with a general discussion about antipsychotic drugs and their side effects. It next discusses the forcible administration of these drugs on the mentally ill who have a qualified right to refuse medication, and the use of these drugs to render a defendant competent to stand trial. It then addresses the differing views of courts in allowing a defendant to be unmedicated during trial by focusing on the leading cases in this area of criminal law. This Note also discusses the relationship between the defendant's right to present a defense, particularly the insanity defense, and the presentation of the defendant's natural demeanor to the jury. II. ANTIPSYCHOTIC DRUGS The introduction of antipsychotic drugs in the early 1950's had a revolutionary effect on international psychiatry by permitting mentally ill patients to be treated in the community, rather than to be hospitalized for lengthy periods. 26 The first antipsychotic drug, chlorpromazine, commonly known by its trade name, Thorazine, was synthesized by a French drug industry chemist whose research was based, in part, on the synthesis of antihistamine-like drugs. 27 These antihistaminelike drugs had been used in the late 1940's and the early 1950's by a French anesthetist, who observed that his patients were more tranquil after surgery than other patients who had not received these drugs during surgery. 28 In addition to Thorazine, other commonly prescribed drugs include Thioridazine (Mellaril), Fluphenazine (Prolixin), and Haloperidol rights are not prejudiced by the administration of medication, he was not deprived of a fair trial); Jojola, 533 P.2d at 1299 ("In the absence of evidence that defendant's thought processes or the contents of defendant's thoughts were affected by the Thorazine, we hold that defendant was not denied due process because the trial took place while he was being medicated with Thorazine."); State v. Lover, 707 P.2d 1351, 1354 (Wash. Ct. App. 1985) ("Medication during the trial did not prevent Lover from appearing at trial and confronting witnesses, rather, it made it possible for him to do so."). 25. State v. Law, 244 S.E.2d 302, 307 (S.C. 1978) (concluding that medical testimony about the medication and its effects made it unnecessary for defendant to be in an unmedicated state during trial); People v. Hardesty, 362 N.W.2d 787, 797 (Mich. Ct. App. 1984) (holding that it was sufficient to inform the jury of defendant's medicated state at trial, since it was speculative whether the defendant's unmedicated state at trial would approximate his mental state at the time of the crime). 26. Jonathan 0. Cole, Phenothiazines, in DRUG TREATMENT OF MENTAL DISORDERS 13 (Lance L. Simpson ed., 1976). 27. See Cole, supra note 26, at 13; see also SWAZEY, supra note 3, at See Cole, supra note 26, at 13.

5 19931 ANTIPSYCHOTIC DRUGS DURING TRIAL (Haldol). 2 9 Because these drugs may cause sedation when initially administered, 30 they are often inappropriately referred to as "major tranquilizers." '3 1 This term is misleading because the secondary sedative effects of antipsychotic drugs usually decrease after several weeks of regular administration of the medication. 32 The purpose of these drugs is to restore a normal state of mental activity to individuals suffering from mental illnesses 33 such as mania, 34 schizophrenia, 35 and paranoia. 3 ' Therapeutic effects of antipsychotic drugs include the reduction of excitement, agitation, overactivity, hallucinations, delusions, uncooperativeness, and thought disorder. 37 In addition, these drugs produce emotional quieting and external emotional indifference. 3 8 Today, the administration of these drugs is the major therapy used by psychiatrists in the treatment of the most disturbed mental patients. 39 Although the use of antipsychotic drugs is an improvement over the previous methods of treating mental disorders," patients often experience various side effects from these drugs. 4 ' In fact, some patients often refuse to take these drugs because of the neurological side effects that usually accompany them. 42 The most common reversible side effect of antipsychotic drugs is Parkinsonism syndrome, which is iden- 29. KAPLAN & SADOCK, supra note 2, at "Although some patients may show some immediate improvement in agitation or anxiety when started on... antipsychotic drug[s], these effects are mainly the result of... sedation." Id. 31. Id. at 240; see also Winick, Psychotropic Medication, supra note 8, at 783. Antipsychotic drugs "[u]sed to an excess, however,... may act like simple sedatives." Gutheil & Appelbaum, supra note 8, at Winick, Psychotropic Medication, supra note 8, at See Gutheil & Appelbaum, supra note 8, at "Mania" is "a phase of mental disorder characterized by an expansive emotional state, elation, hyperirritability, overtalkativeness or flight of ideas, and increased motor activity." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 908 (25th ed. 1974). 35. "Schizophrenia" is "any group of severe emotional disorders characterized by misinterpretation and retreat from reality, delusions, hallucinations, ambivalence, inappropriate affect, and withdrawn, bizarre, or regressive behavior." Id. at Abrams, supra note 9, at 20. "Paranoia" is "a chronic, slowly progressive mental disorder (personality disorder) characterized by the development of ambitions or suspicions into systematized delusions of persecution and grandeur which are built up in a logical form." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1135 (25th ed. 1974). 37. See KAPLAN & SADOCK, supra note 2, at 240; Abrams, supra note 9, at Abrams, supra note 9, at KAPLAN & SADOCK, supra note 2, at See supra notes 2-7 and accompanying text; see also Cole, supra note 26, at See KAPLAN & SADOCK, supra note 2, at ("Antipsychotic drugs produce a broad range of side effects."); Abrams, supra note 9, at 23-27; BREGGIN, supra note 1, at 7-8, KAPLAN & SADOCK, supra note 2, at 242.

6 CRIMINAL AND CIVIL CONFINEMENT [Vol. 19:2 tifiable by a "shuffling gait, rigidity of the limbs, tremors of the extremities, and expressionless facial muscles." '4 3 Other side effects include "various feelings of severe inner discomfort, including a pressure to move or pace about (akathisia) and, more often, a sense of being unable to talk or to move at a normal pace (akinesia)." These side effects often affect concentration and impair communicative ability. 45 One of the most serious side effects resulting from the administration of antipsychotic drugs is tardive dyskinesia. 46 This neurological disorder is irreversible in most patients, 7 and therefore, its symptoms continue even after drug therapy has ceased. 4 ' Symptoms include "bizarre, disfiguring, involuntary rhythmic movements of the face and mouth (protrusion of the tongue, puffing of the cheeks, chewing or puckering movements), and... various involuntary movements of the limbs, trunk, and respiratory system." 4 9 In addition, long-term administration of antipsychotic drugs "may impair memory, reasoning ability and learning capacity." 5 As a result of the many debilitating side effects of antipsychotic drugs, some psychiatrists do not advocate their use in treating mentally ill patients. 5 ' 43. BREGGIN, supra note 1, at 7; see also KAPLAN & SADOCK, supra note 2, at "Like Parkinson's disease itself, this condition is characterized by dysfunction in tone... movement and posture." Id. at BREGGIN, supra note 1, at 8. Akathesia-motor and mental restlessness-may be mistaken for psychotic agitation or the worsening of the patient's mental disorder. Abrams, supra note 9, at This often results in an erroneous increase in the drug dosage. Id. at 24. See also BREGGIN, supra note 1, at 75; KAPLAN & SADOCK, supra note 2, at Bruce J. Winick, The Right to Refuse Psychotropic Medication: Current State of the Law and Beyond, in THE RIGHT TO REFUSE ANTIPSYCHOTIC MEDICATION 7, 10 (David Rapoport et al. eds., 1986) [hereinafter Winick, The Right to Refuse]. 46. KAPLAN & SADOCK, supra note 2, at See KAPLAN & SADOCK, supra note 2, at 246; BREGGIN, supra note 1, at Abrams, supra note 9, at BREGGIN, supra note 1, at Winick, The Right to Refuse, supra note 45, at See generally BREGGIN, supra note 1. Dr. Breggin indicates that antipsychotic drugs are poisonous to the nerve cells and "produce severe, permanent neurologic damage (tardive dyskinesia) and should be presumed to cause dementia, lobotomy effects, and permanent psychoses." Id. at 4. Dr. Breggin suggests that the administration of antipsychotic drugs, which he labels "chemical lobotomy," is comparable to surgical lobotomy. Id. at 123. He indicates that these drugs produce similar effects to those resulting from a surgical lobotomy, namely, organic brain syndrome ("symptoms of a generalized brain disease") and dementia ("loss of all the highest faculties...[which] tends to have a deteriorating course in which the individual becomes increasingly more dull, unresponsive, and stuporous"). Id. at 78 n.2; see also United States v. Charters, 829 F.2d 479, 489 (4th Cir. 1987) (no distinction between effects of drug therapy and psychotherapy, such as lobotomy); Rennie v. Klein, 720 F.2d 266, 276 (3d Cir. 1983) ("The permanency of

7 1993] ANTIPSYCHOTIC DRUGS DURING TRIAL III. INVOLUNTARY TREATMENT OF THE MENTALLY ILL WITH ANTIPSYCHOTIC DRUGS Courts have indicated that the mentally ill have a liberty interest under the Due Process Clauses of the Fifth and Fourteenth Amendments that allows them to refuse antipsychotic drugs. 2 The Supreme Court recently addressed this issue in Washington v. Harper, 53 in which it recognized a qualified right of a prison inmate to refuse treatment using antipsychotic drugs. 54 The Court held that "the Due Process Clause permits the State to treat a prison inmate who has a serious mental illness with antipsychotic drugs against his will, if the inmate is dangerous to himself or others and the treatment is in the inmate's medical interest." 55 Accordingly, the Special Offender Center's 56 policy on the involuntary administration of antipsychotic drugs complied with the Due Process Clause. The policy provides the inmate with notice of the medication hearing (a hearing conducted prior to the involuntary administration of antipsychotic drugs) and the tentative treatment, the right to attend the hearing, present evidence, and cross-examine witnesses. 7 In addition, the Supreme Court concluded that the decision to medicate was appropriately left to the medical professionals, rather than to a judge, since a fair procedural these [side] effects is analogous to that resulting from such radical surgical procedures as a pre-frontal lobotomy."). 52. See Mills v. Rogers, 457 U.S. 291, 299 n.16 (1982) ("[W]e assume... that involuntarily committed mental patients do retain liberty interests protected directly by the Constitution... and that these interests are implicated by the involuntary administration of antipsychotic drugs."); United States v. Watson, 893 F.2d 970, 977 (8th Cir. 1990) ("We... assume that the substantive right to be free from unwanted bodily restraint includes the right to refuse psychotropic medications."); Charters, 829 F.2d at 490 ("Forcible medication with antipsychotic drugs implicates individual rights to freedom from physical invasion and freedom of thought as well as the right to privacy protected by the Constitution...."); Bee v. Greaves, 744 F.2d 1387, 1393 (10th Cir. 1984), cert. denied, 469 U.S (1985) ("[T]he decision whether to accept treatment with antipsychotic drugs is of sufficient importance to fall within this category of privacy interests protected by the Constitution."); see also Winick, The Right to Refuse, supra note 45, at 22 ("The due process clauses of the fifth and fourteenth amendments require notice and some kind of hearing before the government seeks to deprive the individual of liberty or property.") U.S. 210 (1990). 54. Id. at Id.; see also Rennie v. Klein, 720 F.2d 266, 269 (3d Cir. 1983) (holding that medication may be given involuntarily if mentally ill patient poses danger to himself or to others). 56. The Special Offender Center is "a 144-bed correctional institute established by the Washington Department of Corrections to diagnose and treat convicted felons with serious mental disorders." Harper, 494 U.S. at Harper, 494 U.S. at 235; see also Rennie, 720 F.2d at 269 (ruling that medical judgment to administer drugs is presumed valid unless it departs from accepted medical standards).

8 CRIMINAL AND CIVIL CONFINEMENT [Vol. 19:2 mechanism existed for the protection of the inmate. 58 Therefore, the policy effectively balanced the individual's liberty interest in refusing drugs with the State's interest in administering medication to reduce the potential danger posed by an unmedicated individual to himself and to others. 5 9 This balancing of competing interests involved the consideration of the individual's interests of freedom from physical invasion, freedom of thought, and the right to privacy.' Freedom from physical invasion, a liberty interest recognized by the Supreme Court, 6 ' is based on both the Due Process Clause and common law. 62 The Supreme Court in Union Pacific Ry. Co. v. Botsford 63 stated that "[n]o right is held more sacred, or is more carefully guarded by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others The concept of informed consent is derived from this right to be free from physical invasion. 65 It requires that a patient be informed about the possible benefits and consequences resulting from certain treatments and allows a patient to refuse or consent to such treatments. 66 The right to privacy is closely related to the freedom of unwanted physical invasions and is also based on the Due Process Clause. 67 Some courts have recognized an 58. Harper, 494 U.S. at Id. at See United States v. Charters, 829 F.2d 479, 490 (4th Cir. 1987) ("Forcible medication with antipsychotic drugs implicates individual rights to freedom from physical invasion and freedom of thought as well as the right to privacy protected by the Constitution and the common law."). 61. See Union Pacific Ry. Co. v. Botsford, 141 U.S. 250 (1890). 62. "The right to be free of undesired physical touching traces its origins to English common law..." Charters, 829 F.2d at 490. "The right to be free of unwanted physical invasions [is an] interest protected by the Due Process Clause. Id. at U.S. 250 (1890). 64. Id. at 251; see also Washington v. Harper, 494 U.S. 210, 229 (1990) ("The forcible injection of medication into a nonconsenting person's body represents a substantial interference with that person's liberty."); Bee v. Greaves, 744 F.2d 1387, 1392 (10th Cir. 1984), cert. denied, 469 U.S (1985) (stating that common law has recognized an individual's right to make decisions about his body). The right to be free from physical contact has evolved into the modern day tort of battery, which provides an individual with a remedy for unconsented touching of his or her body by another. Charters, 829 F.2d at 490 (citing W. PAGE KEETON ET AL., PROSSER AND KEETON ON THE LAW OF TORTS 9, at 39 (5th ed. 1984)). 65. Charters, 829 F.2d at Id. 67. See Roe v. Wade, 410 U.S. 133, 152 (1973) ("The Constitution does not explicitly mention any right of privacy. [T]he court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution."); see also U.S. CONsT. amend. IV ("The right of the people to be secure in their persons... shall not be violated...").

9 1993] ANTIPSYCHOTIC DRUGS DURING TRIAL individual's constitutional privacy interest in deciding whether to accept or refuse treatment using antipsychotic drugs. 6 " If an individual has a right to privacy that allows him to be free from unwanted physical intrusion, he should have the right to prevent mental intrusions which go beyond the parameters of physical invasion. 6 9 This freedom of thought is derived from the First Amendment 70 and has been acknowledged by the Supreme Court as a constitutional right which allows "an individual to be free in action, thought, experience, and relief from governmental compulsion." 7 1 Accordingly, an individual has an interest in remaining free from the effects-both the mental aspects and the physical side effects-of antipsychotic drugs. 7 2 Although the right to refuse antipsychotic drugs is supported by the Constitution, it is not an absolute right. 73 The individual's interests 68. See Mills v. Rogers, 457 U.S. 291, 299 n.16 (1982) ("[W]e assume for purposes of this discussion that involuntarily committed mental patients do retain liberty interests protected directly by the Constitution... and that these interests are implicated by the involuntary administration of antipsychotic drugs."); Bee, 744 F.2d at 1393 ("[T]he decision whether to accept treatment with antipsychotic drugs is of sufficient importance to fall within this category of privacy interest protected by the Constitution."); Charters, 829 F.2d at 490 ("Forcible medication with antipsychotic drugs implicates individual rights to freedom from physical invasion and freedom of thought as well as the right to privacy protected by the Constitution and the common law."). See also Winick, The Right to Refuse, supra note 45, at for a discussion about the constitutional right to privacy as a basis for refusing treatment. 69. Charters, 829 F.2d at U.S. CONST. amend. I ("Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press.. "). 71. Charters, 829 F.2d at 492 (quoting Whalen v. Roe, 429 U.S. 589, 599 n.24 (1977)); see also Jones v. City of Opelika, 316 U.S. 584, 618 (1942), rev'd, 319 U.S. 103 (1943) (Murphy, J., dissenting). "Freedom of speech, freedom of the press, and freedom of religion all have a double aspect-freedom of thought and freedom of action. Freedom to think is absolute of its own nature; the most tyrannical government is powerless to control the inward workings of the mind." Jones, 316 U.S. at Winick, The Right to Refuse, supra note 45, at 14; see also Charters, 829 F.2d at 492 ("Such mind altering medication has the potential to allow the government to alter or control thinking and thereby destroy the independence of thought and speech so crucial to a free society."); United States v. Watson, 893 F.2d 970, 979 (8th Cir. 1990) ("Given the potential of psychotropic drugs for altering a patient's mental processes and the risk of severe side effects, including possible irreversible damage, we believe that the potential loss of liberty or intrusion on personal security for Watson...if forcibly medicated with psychotropic drugs is as great as the loss of liberty associated with the stigma of being labelled 'mentally ill'.... ). 73. Winick, The Right to Refuse, supra note 45, at 16; see also Washington v. Harper, 494 U.S. 210, 227 (1990) ("[G]iven the requirements of the prison environment, the Due Process Clause permits the State to treat a prison inmate who has a serious mental illness with antipsychotic drugs against his will, if the inmate is dangerous to himself or others and the treatment is in the inmate's medical interest."); Watson, 893 F.2d at 978 (recognizing that a liberty interest in the right to refuse antipsychotic drugs is not absolute); Charters,

10 CRIMINAL AND CIVIL CONFINEMENT [Vol. 19:2 must be weighed against the government's interests. 7 ' The government's interest in protecting both society and mentally ill individuals from any danger resulting from the individuals' mental disorders is accomplished through its police power. 7 The government also has an interest, through its parens patriae power, 76 in providing the proper treatment for citizens who are unable to care for themselves. 77 The Supreme Court in Washington v. Harper focused primarily on the danger posed by a mentally ill prison inmate to himself and to others. 7 ' Accordingly, it condoned the State's exercise of its police power in forcibly administering antipsychotic drugs to a mentally ill inmate if he was likely to cause harm to himself or to others. 79 In concluding that an inmate's interests are "adequately protected... by allowing the decision to medicate to be made by medical professionals rather than a judge," 8 " the Court failed to consider the possible conflict of interest that may exist between medical officials' interest in managing the prison population and their interest in providing the proper treatment for mentally ill inmates. 8 ' Institutional officials are concerned with maintaining prison security and control over prisoners. 8 2 To obtain this security and control, 829 F.2d at (holding that involuntary administration of medication may be allowed if it is in the best interest of the defendant). 74. See Winick, The Right to Refuse, supra note 45, at 16; Charters, 829 F.2d at The purpose of the government's police power is to protect public health, safety, welfare, and morals. Winick, The Right to Refuse, supra note 45, at 16; see also Watson, 893 F.2d at 890 (concluding that the state has a legitimate interest in providing a safe environment for the mentally ill defendant, other inmates, and the staff of the prison); Charters, 829 F.2d at (stating that the government has an interest in preventing violence); Winick, The Right to Refuse, supra note 45, at (stating that the government's police power has been used to justify the forced administration of antipsychotic drugs). 76. See Charters, 829 F.2d at 494; Winick, The Right to Refuse, supra note 45, at 18 ("To justify involuntary medication based on the government's parenspatriae power.., the patient's incompetency to make treatment decisions must be demonstrated in a manner meeting the requirements of procedural due process, and the medication decision must be justified by a professional judgment that it is in the patient's best interest."). The government's parens patriae power is "based on the need for the government to protect the well-being of its citizens when they cannot care for themselves. [li]t may legitimately be invoked only in the case of individuals who, because of age or physical or mental disability, are incapable of determining their own best interests." Id. at Winick, The Right to Refuse, supra note 45, at Washington v. Harper, 494 U.S. 210, 227 (1990). 79. Id. 80. Id. at See United States v. Charters, 829 F.2d 479, 499 (4th Cir. 1987) (concluding that use of antipsychotic medication lowers expenses and increases prison administrators' ability to control inmates). 82. Id.

11 1993] ANTIPSYCHOTIC DRUGS DURING TRIAL antipsychotic medication is sometimes administered to inmates. 83 This method not only increases prison security, but it also lowers prison administration costs. 84 This interest of maintaining control and lowering expenses may conflict with the state's interest in treating mentally ill prisoners with the appropriate treatment. 85 The state, through its parens patriae power, has an interest in providing medication that is in the prisoner's best interest. 6 The state may have difficulty in separating these competing interests and addressing both in a satisfactory manner. 87 In addition, since the Supreme Court determined that judicial approval of forced medication was unnecessary, 88 it disregarded the traditional role of the medical professional: to provide the risks and benefits of a particular treatment to a patient, rather than to dictate that the patient be submitted to a particular treatment. 89 Choosing a particular treatment is an individualized decision in which one weighs the benefits and risks of the treatment. 90 Accordingly, if a mentally ill individual is unable to make a medically competent decision 9I to take antipsychotic drugs, then perhaps a neutral party, such as a court or a guardian ad litem, should determine the appropriateness of this therapy in addition to the medical professional. 92 IV. A. Competency to Stand Trial COMPETENCY A defendant's competency to stand trial is intertwined with his right to a fair trial. 93 Our criminal court system recognizes that a defendant's mental deficiencies may interfere with this right to a fair trial by 83. Id. 84. Id. ("Antipsychotic medication may ease institutional budgets by making it easier to manage patient population and allowing the institution to employ a smaller staff Id. 86. Winick, The Right to Refuse, supra note 45, at Washington v. Harper, 494 U.S. 210, 249 (1990) (Stevens, J., concurring in part and dissenting in part) ("The State, and arguably the Court, allows the SOC [Special Offender Center] to blend the state interests in responding to emergencies and in convenient prison administration with the individual's interest in receiving beneficial medical treatment. The result is a muddled rationale that allows.., forced psychotropic medication on the basis of purely institutional concerns."). 88. Id. at Charters, 829 F.2d at Id. at See infra text accompanying notes Charters, 829 F.2d at THOMAS GRisso, EVALUATING COMPETENCIES: FORENSIC ASSESSMENTS AND INSTRUMENTS 62 (1986). "[T]he conviction of an accused person while he is legally incompetent violates due process.. " Pate v. Robinson, 383 U.S. 375, 378 (1966). "The

12 CRIMINAL AND CIVIL CONFINEMENT [Vol. 19:2 depriving him of his ability to present an adequate defense. 94 All American jurisdictions deem a defendant incompetent to stand trial if, because of his mental illness, he is incapable of assisting in his defense or of understanding the proceedings against him. 95 Accordingly, the modem competency standard addresses both the cognitive and communicative capacity of a criminal defendant. 9 6 A defendant must have "'sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding-and... ha[ve] a rational as well as factual understanding of the proceedings against him.' ""9 The inquiry into a defendant's competency to stand trial is usually raised prior to a criminal hearing. 9 8 A mental health professional evaluates the defendant's mental abilities and presents his findings to the court which then determines whether the defendant is competent to stand trial. 9 9 A finding of incompetency suspends the criminal proceedings and subjects the defendant to involuntary treatment designed to make him competent." Although recent case law recognizes the right of mentally ill patients and prisoners to refuse treatment,'o this right is not absolute.' 02 The state's interest in bringing the defendant to trial on probable cause for violating its laws outweighs the defendant's right to be free of treatment and justifies his subjection to treatment to make him competent to stand trial." 3 The state's authority to commit a defendant to a mental institution or psychiatric hospital is not unlimited, however." Substantive due process requires that a state be able to provide sufficient treatment to render the defendant court's failure to make such inquiry [into the defendant's competence to stand trial] thus deprived Robinson [the defendant] of his constitutional right to a fair trial." Id. at GRISSO, supra note 93, at Bruce J. Winick, Incompetency to Stand Trial: Developments in the Law, in MENTALLY DISORDERED OFFENDERS: PERSPECTIVES FROM LAW AND SOCIAL SCIENCE 3, 5 (John Monahan et al. eds., 1983) [hereinafter Winick, Incompetency to Stand Trial]. 96. Id. at Dusky v. United States, 362 U.S. 402 (1960) (quoting the Solicitor General). "The Dusky test is deemed the minimum constitutional standard to be applied in determining competency... and all jurisdictions construe their respective statutory formulations in conformity with it." Winick, Incompetency to Stand Trial, supra note 95, at GRISSO, supra note 93, at 3. Although the competency issue is usually addressed before the criminal proceedings, it may be raised at any time in the criminal process. Id. 99. Id. at 3, Id.; see also Winick, Incompetency to Stand Trial, supra note 95, at 5. It is constitutionally required that criminal proceedings be delayed until the defendant is competent to stand trial. Winick, Incompetency to Stand Trial, supra note 95, at See infra notes and accompanying text; see also supra notes and accompanying text Winick, Incompetency to Stand Trial, supra note 95, at Id. at Winick, Psychotropic Medication, supra note 8, at 770.

13 1993] ANTIPSYCHOTIC DRUGS DURING TRIAL competent to stand trial within a reasonable period. 105 If a state cannot comply with this requirement, then it must either release the defendant or initiate civil commitment proceedings Most courts have held that a defendant may be deemed competent to stand trial even though his competence is maintained through the use of prescribed medication In State v. Hampton, 0 8 the court held that the "synthetic[ ] san[ity]"' ' 9 created by the involuntary administration of Thorazine was sufficient to render the defendant competent. 110 Accordingly, since the defendant understood the proceedings against her and was able to assist in her defense, the method by which she reached her cognitive functionality was held to be irrelevant.' This drug-produced competency was also supported in United States ex rel. Bornholdt v. Ternullo The defendant was involuntarily committed to a psychiatric hospital for an evaluation to determine his competency to stand trial. 1 I While at the hospital, he was treated with the antipsychotic drug Prolixin. 114 Even though the defendant suffered from physical side effects caused by this drug, his memory and cognitive faculties were not impaired. 15 Therefore, since he was able to consult with his attorney and was capable of understanding the proceedings against him, he was deemed competent to stand trial Jackson v. Indiana, 406 U.S. 715, 738 (1972). "[A] person... who is committed solely on account of his incapacity to proceed to trial cannot be held more than the reasonable period of time necessary to determine whether there is a substantial probability that he will attain that capacity in the foreseeable future." Id Id See State v. Hampton, 218 So. 2d 311, 312 (La. 1969) ("That this condition [competence to stand trial] has resulted from the use of a prescribed tranquilizing medication is of no legal consequence."); Ybarra v. State, 731 P.2d 353, (Nev. 1987) (holding that defendant may attain competency by the administration of medication); State v. Jojola, 553 P.2d 1296, 1299 (N.M. Ct. App. 1976) ("Thorazine enabled defendant to confer with his attorney and answer questions."). Antipsychotic drugs are often administered to defendants to render them competent to stand trial. Winick, Psychotropic Medication, supra note 8, at 771. "Psychotropic [or antipsychotic] medication is perhaps the most widely used and most effective treatment technique for the psychiatric conditions resulting in incompetence to stand trial." Winick, Incompetency to Stand Trial, supra note 95, at So. 2d 311 (La. 1969) Id. at Id Id F. Supp. 374 (S.D.N.Y. 1975) Id. at Id Id Id. at

14 CRIMINAL AND CIVIL CONFINEMENT [Vol. 19:2 B. Competency to Consent to Treatment Although a defendant may not be competent to stand trial, he may be competent to consent to and refuse treatment." 7 Therefore, a defendant's competency to stand trial is not dispositive of his medical competency. 1 8 A mentally ill patient has a right to be free from nonconsensual physical invasions." 9 Accordingly, if he is able to rationally weigh the benefits and risks of a particular treatment, thereby making an informed decision, he is medically competent.1 20 Therefore, he can refuse to take medication.' 2 ' The government's parens patriae interest1 22 in protecting the well-being of its citizens is triggered when a patient is unable to participate in medical decisions and is, therefore, medically incompetent. 123 The government's interest in protecting the best interests of a patient justifies forced medication on a medically incompetent patient when that particular medication is 24 determined to be the best treatment for the individual. When a mentally ill patient becomes a defendant in a criminal proceeding, however, the government's interests may be sufficiently compelling to outweigh the defendant's right to refuse treatment.1 25 These interests include ensuring the safety and security of the defendant and others and preventing the deterioration of the defendant's mental faculties without medication.1 26 If a mentally ill defendant is dangerous to himself or to others, the state may be able to forcibly administer antipsychotic drugs to the defendant.' 27 Some of the government's interests in involuntarily administering antipsychotic drugs coincide with its interests in making an accused competent to stand trial through the forced administration of antipsychotic drugs. Without medication, a defendant's cognitive ability 117. GRISSO, supra note 93, at See United States v. Charters, 829 F.2d 479, 495 (4th Cir. 1987). Defendant was found incompetent to stand trial, but this did not automatically make him incompetent to make decisions about his medical treatment. See also Rogers v. Commissioner of the Dep't of Mental Health, 458 N.E.2d 308, 313 (Mass. 1983) ("A person may be competent to make some decisions, but not others.") Charters, 829 F.2d at Id. at Id See supra note Winick, The Right to Refuse, supra note 45, at Id. at Charters, 829 F.2d at Id See Washington v. Harper, 494 U.S. 210, 227 (1990) (holding that the state is permitted to forcibly administer antipsychotic drugs to an inmate "if [he] is dangerous to himself or others and the treatment is in the inmate's medical interest.").

15 1993] ANTIPSYCHOTIC DRUGS DURING TRIAL may deteriorate. 128 The government's interest in protecting the wellbeing of the defendant (by preventing the deterioration of his mental faculties) and its substantial interest in bringing to trial those defendants accused in good faith of violating its laws may both be satisfied through the forced administration of antipsychotic drugs. 129 A medically competent defendant should be allowed to decide the treatment that he believes is in his best interest, provided that this treatment does not defeat the government's interest in maintaining safety and security. A medically incompetent defendant, however, is unable to choose the treatment that is in his best interest. 130 This situation is also present in a prison setting. To avoid a potential conflict of interest between the prison officials' concern in managing prisoners and providing the appropriate treatment for its mentally ill inmates,13 1 a court or guardian ad litem, in conjunction with medical professionals, should determine (or approve) the treatment that is in the best interest of the defendant.' 32 V. THE RIGHT TO REFUSE DRUGS DURING TRIAL Defendants who become competent to stand trial through the administration of antipsychotic medication often plead the insanity defense. 133 They argue that since they were insane during the commission of the crime, they lack the mental and criminal intent necessary to hold them liable for their acts.' 34 Several of these defendants insist that they have a right to appear during trial in an unmedicated state to reveal their true demeanor to the jury.' See Robin L. Oaks, Unmedicated Defendants: The Two-Pronged Dilemma- Commonwealth v. Louraine, 390 Mass. 28, 453 N.E.2d 437 (1983), 7 W. NEW ENG. L. REV. 995, 1002 (1985); Charters, 829 F.2d at 499 ("[I]f without medication a patient will suffer a severe, immediate and irreversible deterioration, the government's parens patriae interest will be more urgent. In those circumstances, forcible medication of a competent patient will perhaps be justifiable.") Winick, Incompetency to Stand Trial, supra note 95, at 17; see supra text accompanying note Charters, 829 F.2d at See supra notes and accompanying text Charters, 829 F.2d at See Ake v. Oklahoma, 470 U.S. 68, 72 (1985); United States ex rel. Bornholdt v. Ternullo, 402 F. Supp. 374, 375 (S.D.N.Y. 1975); Commonwealth v. Louraine, 453 N.E.2d 437, 442 (Mass. 1983); In re Pray, 336 A.2d 174, 175 (Vt. 1975); State v. Murphy, 355 P.2d 323, 325 (Wash. 1960); People v. Hardesty, 362 N.W.2d 787, 794 (Mich. Ct. App. 1984); Gutheil & Appelbaum, supra note 8, at RITA J. SIMON & DAVID E. AARONSON, THE INSANITY DEFENSE: A CRITICAL ASSESSMENT OF LAW AND POLICY IN THE POST-HINCKLEY ERA 4-5 (1988) See Gutheil & Appelbaum, supra note 8, at 90; Louraine, 453 N.E.2d at 441; Pray, 336 A.2d at 177; Murphy, 355 P.2d at 326; State v. Maryott, 492 P.2d 239, 240 (Wash. Ct. App. 1971).

16 CRIMINAL AND CIVIL CONFINEMENT [Vol. 19:2 A. The Insanity Defense Our society recognizes that some individuals cannot be held accountable for their criminal acts because they lack "at least a minimum capacity for making the voluntary and rational choices required for criminal responsibility."' 36 Accordingly, the insanity defense was developed to distinguish between individuals who are mentally ill and individuals who are evil.' 37 Insanity defense standards differ from jurisdiction to jurisdiction,' 38 but they may be categorized into three groups: 3 9 the M'Naghten standard (often referred to as the rightwrong test), the irresistible impulse test, and the American Law Institute Test."' 4 In addition, in 1984, in response to the assassination attempt on President Ronald Reagan on March 30, 1981, Congress enacted the Insanity Defense Reform Act of 1984,141 the first federal codification of the insanity defense The M'Naghten test 143 was adopted in the federal and state courts in the 1850's and is still applied in some states today. 144Under this standard, "a person cannot be convicted if, at the time the criminal act was committed, that person was laboring under such a defect of reason (from a disease of the mind) as not to know the nature and quality of the act he or she was doing-or, if that person did know it, as not to know that the action was wrong." 145 Under the irresistible impulse test, a defendant is insane when his 136. SIMON & AARONSON, supra note 134, at Id. at Id. at A fourth standard, the Durham rule, is no longer the law in any jurisdiction. SIMON & AARONSON, supra note 134, at Under this test, "an accused is not criminally responsible if his unlawful act was the product of mental disease or mental defect." Durham v. United States, 214 F.2d 862, (D.C. Cir. 1954). This test broadened the definition of criminal responsibility by increasing the involvement of medical experts in aiding the jury in determining the definition of mental disease or defect. Nancy J. Beran & Beverly G. Toomey, The Mentally Disordered Offender: A Historical Prospective, in MENTALLY ILL OFFENDERS AND THE CRIMINAL JUSTICE SYSTEM 5, 10 (Nancy J. Beran & Beverly G. Toomey eds. 1978) SIMON & AARONSON, supra note 134, at U.S.C.A. 17 (West 1992) This Act applies only to defendants in federal courts. Id This test was developed by the House of Lords in England after the defendant in Regina v. M'Naghten, 8 Eng. Rep. 718 (1843) was found not guilty by reason of insanity. Beran & Toomey, supra note 139, at 9; see also SIMON & AARONSON, supra note 134, at SIMON & AARONSON, supra note 134, at 14. Eighteen states exclusively apply some form of the M'Naghten test. Three states use it in conjunction with the irresistible impulse test. Two states use this test, the irresistible impulse test, and the American Law Institute Test, and one state uses this test and the American Law Institute Test. Id. at Id. at 14.

17 19931 ANTIPSYCHOTIC DRUGS DURING TRIAL mental disease prevents him from resisting the impulse to commit the deed, even though he may be aware of the difference between right and wrong. 146 Most states have rejected this test, 147 but a few states apply it in conjunction with the M'Naghten standard. 48 The American Law Institute Test (ALI Test) is the standard applied in most jurisdictions. 149 It recognizes both the cognitive (intellectual) and volitional (ability to choose or control) aspects of an individual's mental capacity. 5 Under this test "[a] person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality (wrongfulness) of his conduct or to conform his conduct to the requirements of.law."' 15 ' By passing the Insanity Defense Reform Act of 1984, Congress established a new federal insanity defense standard. 5 2 This standard replaced the previous standard that was based on the ALI Test.' The Act provides that the federal insanity defense standard "is an affirmative defense to a prosecution under any Federal statute that, at the time of the commission of the acts constituting the offense, the defendant, as a result of a severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of his acts.", 154 Defendants argue that being forced to take antipsychotic medication affects their ability to adequately present an insanity defense. 155 If defendants appear in court under the influence of antipsychotic drugs, which caused them to become competent to stand trial, the jury may be misled by the defendant's normal conduct in the courtroom, and may find it difficult to believe that the defendant was suffering from a 146. Beran & Toomey, supra note 139, at Id Id.; see also SIMON & AARONSON, supra note 134, at Approximately three states use this test with the M'Naghten test. Id SIMON & AARONSON, supra note 134, at Approximately 26 states use this test (23 states exclusively apply this test). Id Id. at MODEL PENAL CODE 4.01(1) (1962) SIMON & AARONSON, supra note 134, at Id U.S.C.A. 17 (West 1992) See Commonwealth v. Louraine, 453 N.E.2d 437, 441 (Mass. 1983) ("The defendant argues that, since his mental capacity to commit the crime charged was at issue, the Commonwealth should not have been permitted to administer drugs, over his objection, which visibly affected his demeanor and mental processes at trial."); People v. Hardesty, 362 N.W.2d 787, 795 (Mich. Ct. App. 1984) ("Defendant urges that if his mind had not been under the control of psychotropic drugs when he testified, the jury, might have found not only that he was mentally ill, but that he was insane.").

18 CRIMINAL AND CIVIL CONFINEMENT [Vol. 19:2 mental illness while committing the crime.' 56 In addition, some of the side effects of antipsychotic drugs may create impressions about the defendant's mental state during trial that are inconsistent with his mental state during the commission of the crime.' 57 The jury may be misled by the defendant's demeanor in the courtroom and, accordingly, consider his conduct as not indicative of an insane person. Therefore, the impression of saneness during trial created by the antipsychotic drugs may result in a rejection of the defendant's insanity defense by the jury.' 58 Accordingly, by being in an unmedicated condition during trial, the defendant may effectively remove any prejudice in the eyes of the jury that may be created by his legally competent, but medicated, state.' 5 9 B. Constitutional Issues The defendant's right to be present at trial and his right to present his version of the facts are fundamental rights guaranteed by the Sixth Amendment and the Due Process Clauses of the Fifth and Fourteenth Amendments. 60 The states do not agree that being present at trial necessarily means that the defendant has a right to be present in his natural mental condition."' 6 While the states have an interest in maintaining orderly trials, 6 ' defendants have an interest in convincing the 156. See United States v. Charters, 829 F.2d 479, 494 (4th Cir. 1987) ("[I]f the defendant is heavily medicated during the trial, the jury may get a false impression of the defendant's mental state at the time of the crime.") Id. ("[Akinesia] makes the defendant apathetic and unemotional. [Akathisia] makes him agitated and restless. As a result, the jury may be misled by the demeanor of a defendant who appears not to care about the crime (or the victim) or who appears overly anxious at particular moments.") For cases cited see supra note See Steve Tomashefsky, Note, Antipsychotic Drugs and Fitness to Stand Trial: The Right of the Unfit Accused to Refuse Treatment, 52 U. CHI. L. REV. 773, 782 (1985) See U.S. CONST. amend. VI ("[T]he accused shall enjoy the right.., to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense."). See also Washington v. State, 388 U.S. 16, 19 (1967) (holding that due process of law requires that a defendant have a right to present his version of the facts); State v. Maryott, 492 P.2d 239, 243 (Wash. Ct. App. 1971) See generally Commonwealth v. Louraine, 453 N.E.2d 437 (Mass. 1983) (ruling that defendant is entitled to be present in his natural mental state); State v. Law, 244 S.E.2d 302, 307 (S.C. 1978) (indicating that expert testimony about the effects of medication is a sufficient substitute for the defendant's presence in his natural state); State v. Maryott, 492 P.2d 239 (Wash. Ct. App. 1971) (holding that presence at trial includes the right of a defendant to be in his natural state when pleading the insanity defense) See Maryott, 492 P.2d at 243 (recognizing that defendant's right to be present at trial was limited by the state's interest in conducting an orderly trial); Illinois v. Allen, 397 U.S. 337, 349 (1970) ("[T]he governmental prerogative to proceed with a trial may not be defeated by conduct of the accused that prevents the trial from going forward.").

19 1993] ANTIPSYCHOTIC DRUGS DURING TRIAL jury that their appearance at trial may not necessarily mirror their mental state during the commission of the crime. 163 The Supreme Court has recognized the probative value of a defendant's mental state in the presentation of his defense." 6 It has not yet directly addressed the issue of whether a defendant, who is taking antipsychotic drugs during trial, has a right to show his natural demeanor to the jury by discontinuing his medication. 65 In Ake v. Oklahoma, 66 the Supreme Court held that since the defendant's sanity at the time of the offense was a significant factor in his insanity defense, the Constitution required that he be provided with a psychiatric expert to aid in his defense if he could not afford one.' 67 The Court recognized that the Fourteenth Amendment's due process guarantee of fundamental fairness includes giving a defendant a fair opportunity to present his defense.' 68 A defendant is not given a fair opportunity to present his defense if his poverty prevents him from obtaining the assistance of a psychiatrist who may be "crucial to the defendant's ability to marshal his defense."' 69 The Supreme Court never reached the question of whether expert testimony was a sufficient substitute for the actual observation of the defendant's true demeanor. Defendants arguing that they have a right to be unmedicated during trial often rely on State v. Maryott.' 70 In Maryott, the defendant appealed from a conviction of robbery and assault, in which he had shot and wounded a grocery store clerk. 7 ' The defendant, who had a history of emotional illness, was forcibly treated by his jailers with tranquilizers, or sedative-hypnotic drugs, during the trial.' 7 2 Maryott's counsel testified that the defendant "was suspicious and uncommunicative and refused to assist in his defense."' 173 Despite counsel's testimony, the appeals court upheld the trial court's finding that Maryott was competent to stand trial See United States v. Charters, 829 F.2d 479, 494 (4th Cir. 1987) ("[I]f the defendant is heavily medicated during the trial, the jury may get a false impression of the defendant's mental state at the time of the crime.") Ake v. Oklahoma, 470 U.S. 68, 86 (1985) (The defendant's "mental state at the time of the offense was a substantial factor in his defense See supra note U.S. 68 (1985) Id. at Id. at Id. at P.2d 239 (Wash. Ct. App. 1971) Id. at Id. Maryott was given Sparine, Librium, and chloral hydrate. Id. See KAPLAN & SADOCK, supra note 2, at for information about sedative-hypnotic drugs Maryott, 492 P.2d at Id. at 244.

20 CRIMINAL AND CIVIL CONFINEMENT [Vol. 19:2 Although the appeals court upheld the lower court's finding of competency, it disagreed with its holding that the defendant had no right to be free of medication that affected his mental and physical abilities at trial. 175 The appeals court likened the State's administration of drugs to chains and irons that were used in ancient times to inflict torture on prisoners.' 76 Accordingly, it acknowledged the defendant's right to be free from restraints affecting his cognitive abilities.' 77 The court held that in an adversary proceeding, it was unfair to allow the State "to determine what the jury will see or not see of the defendant's case by medically altering the attitude, appearance and demeanor of the defendant, when they are relevant to the jury's consideration of his mental condition."' 78 In addition, since the State in Maryott was not advancing any legitimate compelling interest, such as maintaining safety and order in the courtroom (the defendant was competent to stand trial without the use of drugs), the defendant had a right to attend trial in a drug-free state. 7 9 Another case often used to support a defendant's insanity defense and his right to be drug-free during trial is In re Pray. 8 In that case, the defendant was given Thorazine to control his violent behavior under the direction of state custodians prior to his trial for allegedly committing murder.' 8 ' The large dosages of this antipsychotic drug' 82 administered to the defendant were not disclosed to either the defendant or his counsel.' 83 Although the defendant, under the influence of this medication, was rational and cooperative in his defense and was, therefore, found competent to stand trial, the Supreme Court of Vermont was concerned with the effect of his drug-induced demeanor on the jury's evaluation of his mental capacity to commit the crime: 1 84 [T]he jury never looked upon an unaltered, undrugged Gary Pray at any time during the trial. Yet his deportment, demeanor, and day-to-day behavior during that trial, before their eyes, was a part of the basis of their judgment with respect to the kind of person he really was, and the justifiability of his defense of insanity.' 8 ' 175. Id. at Id. at Id Id. at Id. at A.2d 174 (Vt. 1975) Id. at Excess dosages of antipsychotic drugs may give a similar result as that of simple sedatives. Gutheil & Appelbaum, supra note 8, at Pray, 336 A.2d at Id Id.

21 1993] ANTIPSYCHOTIC DRUGS DURING TRIAL Although the Vermont Supreme Court left open the possibility that the defendant could be unmedicated during trial as long as an orderly trial continued, it also indicated that informing the jury about the administration of excess dosages of the drug under the direction of the state and the behavioral effects resulting from the drug may have been sufficient.'" 6 In fact, some courts have held that expert testimony is sufficient in informing the jury about the effect of the medication on the defendant's trial demeanor.' 87 Those courts that have upheld the use of medication on defendants have also determined that expert testimony about the effects of medication on a defendant may be substituted as evidence of the defendant's true unmedicated demeanor. 188 In State v. Jojola, 8 9 the defendant, who was convicted of two counts of aggravated sodomy, was psychotic and suffered from paranoid schizophrenia. '9 The State gave him Thorazine to control his behavior. ' 91 As a result, his condition was "in a state of remission.'' 1 92 Accordingly, the defendant was found competent to stand trial while under the influence of Thorazine.' 93 The effect of this antipsychotic drug "was described as inhibiting or depressing the emotional part of the brain and allowing the cognitive part to come back into play."' 194 The defendant relied on Maryott in his assertion that he had a right to be unmedicated during trial.' 9 ' The appeals court, however, distinguished Maryott by recognizing that the sedative-hypnotic drugs administered in Maryott affected the defendant's thought processes.' 96 In Jojola, "[t]here [was] no evidence that Thorazine affected [the] defendant's thought processes or the contents of defendant's thoughts... In fact, the expert witnesses did not label Thorazine as a mind-altering drug but, rather, indicated that "'Thorazine allows the mind to operate as it might were there not some organic or other type of illness affecting the mind.' "19' Accordingly, since Thorazine aided the defendant in the 186. Id See State v. Law, 244 S.E.2d 302, 307 (S.C. 1978); People v. Hardesty, 362 N.W.2d 787, 797 (Mich. Ct. App. 1984) See Law, 244 S.E.2d at 306; State v. Jojola, 553 P.2d 1296, 1300 (N.M. Ct. App. 1976) P.2d 1296 (N.M. Ct. App. 1976) Id. at Id. at Id. at Id Id Id. at Id Id Id. (quoting expert witness).

22 CRIMINAL AND CIVIL CONFINEMENT [Vol. 19:2 presentation of his defense, he was not denied due process by being required to take antipsychotic medication.' 99 The court also noted that the defendant had an opportunity to inform the jury about the effects of Thorazine on his demeanor, but he failed to do so.2" Those courts that force a defendant to be medicated during trial often fail to consider the side effects of antipsychotic drugs. 20 ' The physical side effects, such as shuffling gait and tremors of the extremities caused by parkinsonism syndrome, the pressure to pace caused by akathisia, and the involuntary rhythmic movements caused by tardive dyskinesia, 2 will eventually test the defendant's mental ability to withstand these persistent and disruptive effects. Therefore, although these side effects appear to be merely an annoyance to the defendant, they may, in fact, interfere with the defendant's ability to effectively communicate with and assist his attorney in presenting his defense In both State v. Hayes204 and People v. Hardesty, 2 " 5 the courts considered the defendants' demeanor at the time the crimes were committed to be of probative value These courts recognized a qualified right of the defendants to be unmedicated during trial. 207 The court in Hardesty held that "[a] defendant's demeanor on the witness stand is probative of the issue of sanity only to the extent that the defendant's mental state at trial approximates his mental state at the time of the offense." ' 2 8 Although the courts held in both of these cases that the defendants were required to attend trial in a medicated condition, 20 9 (both defendants were given antipsychotic drugs to make them competent to stand trial), 210 they did not foreclose a future defendant from 199. Id Id. at 1300; see also State v. Law, 244 S.E.2d 302, (S.C. 1978) (holding that since jury was informed about defendant's mental history and his present medicated condition, he was not denied a fair trial) See generally People v. Hardesty, 362 N.W.2d 787 (Mich. Ct. App. 1984) (side effects of antipsychotic drugs not addressed by court); State v. Jojola, 553 P.2d 1296 (N.M. Ct. App. 1976) (concluding that there was not evidence indicating that Thorazine affected the defendant's thought processes, but failing to consider the consequences of the side effects on his demeanor) See supra notes and accompanying text United States v. Charters, 829 F.2d 479, 494 (4th Cir. 1987) A.2d 1379 (N.H. 1978) N.W.2d 787 (Mich. Ct. App. 1984) Hayes, 389 A.2d at 1381; Hardesty, 362 N.W.2d at See Hayes, 389 A.2d at A defendant is entitled to be viewed in the same mental state that he was in during the commission of the crime. Therefore, since he was on medication at the time of the crime, he was not entitled to attend the trial drug-free. Id. See Hardesty, 362 N.W.2d at Hardesty, 362 N.W.2d at Hayes, 389 A.2d at 1381; Hardesty, 362 N.W.2d at Hayes, 389 A.2d at 1381; Hardesty, 362 N.W.2d at 790.

23 19931 ANTIPSYCHOTIC DRUGS DURING TRIAL being unmedicated during trial if his demeanor during trial was the same as during the commission of the crime. VI. CONCLUSION Although antipsychotic drugs are a definite improvement over the previous methods of treating mentally ill individuals, they are not a cure for mental disorders. 2 " ' In fact, their toxicity and side effects may outweigh any benefits received by mentally ill individuals. Further, their side effects may mislead a jury into believing that a defendant who appears indifferent and apathetic is pleading the insanity defense as a means to escape culpability for his crime. Some courts have held that expert testimony is a sufficient substitute for the jury's observation of a defendant in his natural state. Although actually viewing and hearing the testimony of an unmedicated defendant is far more powerful than hearing the testimony of a medical professional, the courts must consider their own interests in maintaining safe, orderly, and fair trials and providing the proper medical treatment for defendants. The courts must first distinguish between medical competency and competency to stand trial. Few courts consider a defendant's competency to consent to treatment when determining whether to permit a defendant to be unmedicated during trial. Yet, mentally ill patients who are not defendants in criminal proceedings have a qualified right to refuse antipsychotic drugs. This right is limited by the government's interests in protecting society and providing the best medical treatment for the mentally ill. A criminal defendant who is deemed medically competent should have a similar right to refuse antipsychotic medication provided that 1) he is in approximately the same mental state as he was at the time of the commission of the crime and 2) his unmedicated state does not defeat the state's interest in conducting a safe, orderly, and fair trial. If these conditions are satisfied, then the false impression that may be created by the effects of the antipsychotic drugs may be avoided by allowing a defendant to present his natural demeanor to the jury. As a result, the ultimate purpose of the government, to provide a fair trial, will be achieved. JENNIFER L. DIXON* 211. Cole, supra note 26, at 18. * This note is dedicated to my husband Brian for his patience, understanding, and support throughout my law school career. It is also dedicated to Anmarie Ciccolo for her guidance, encouragement, and friendship.