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Shooting Drugs First, Asking Questions Later: How United States v. Weston Puts Too Many Incompetent Defendants at Risk 

by James N. Markels

I. Introduction

The right of an accused criminal to the due process of law[1] and a fair trial[2] are ingrained in the Constitution.  However, these rights are always at friction with the interest of the government to enforce the law.[3]  Those defendants that are least able to wield their legal rights are most at risk of losing them in this battle unless the justice system intercedes on their behalf.[4]  When a defendant has been accused of a crime but found incompetent to stand trial as a result of a mental defect, courts find themselves weighing the government’s wish to make the defendant competent in order to be tried against the defendant’s fundamental interest in personal liberty and due process.  While in the past courts have generally been generous toward incompetent defendants, the decision by the D.C. Circuit Court of Appeals in United States v. Weston[5] indicates the end of the road, rather abruptly, for that generosity.

The Weston court relied heavily on the gray areas left by the Supreme Court in Riggins v. Nevada[6] to hold that an incompetent defendant prior to trial may be given antipsychotic drugs against their will in order to be made competent to stand trial providing that the medication is medically appropriate and necessary, with no less intrusive means available, and the medication is necessary in pursuing essential state policy, outweighing the defendant’s liberty interest.  This casenote will examine how Weston—in its rush to mark the point where the defendant must yield to forced treatment (probably as a result of the incredibly high profile of the crime involved), failed to give proper attention to four areas that serve to protect defendants: The test to determine the dangerousness of the defendant; the drawing of a rather sudden line that puts many ordinary future defendants, as opposed to especially dangerous ones, at risk of forcible medication; whether the use of antipsychotic drugs would interfere with the defendant’s ability to conduct a defense; and whether the defendant’s refusal to take antipsychotic drugs while competent at an earlier date should receive weight in the inquiry.  After examining these issues, this casenote will conclude that the decision in Weston took advantage of the indecisiveness in Riggins to ensure that the government can have every opportunity to take a high-profile incompetent criminal to trial, while waving away pesky rights that might interfere.

II. Background

In order for a defendant to be competent to stand trial, they must be able to consult with their lawyer and have a rational and factual understanding of the events at trial.[7]  An incompetent defendant may not be convicted of a crime without violating his due process rights,[8] but a defendant that was incompetent but has been made competent through the use of drugs is considered “synthetically sane” and may face trial, even if they may relapse into insanity at a later date.[9] 

When it comes to imposing medication upon a defendant, the Supreme Court’s analysis began with Washington v. Harper,[10] wherein a state prisoner’s “liberty interest in avoiding the unwanted administration of antipsychotic drugs” was recognized.[11]  The Court held that the forcible administration of antipsychotic medication to an inmate comports with due process when “the inmate is dangerous to himself or others and the treatment is in the inmate’s medical interest.”[12]  This approach built off of earlier decisions recognizing that defendants have a generally strong interest in governing their own bodies, such as Winston v. Lee[13] wherein “the individual’s dignitary interests in personal privacy and bodily integrity” were recognized and weighed against the interest of the government in obtaining evidence for conviction.[14]

The next obvious step was for the Court to examine the issue of whether the forcible medication of a person against their will with antipsychotic drugs at a trial wherein they were convicted of a crime impugned the defendant’s constitutional rights to due process and a fair trial, which is what the Riggins case attempted to settle.  The Court again reiterated its holding concerning the defendant’s liberty interest in Harper[15] and provided two instances where the government could override that interest and comply with due process: Either the treatment “was medically appropriate and, considering less intrusive alternatives, essential for the sake of [the defendant’s] own safety or the safety of others,”[16] or the treatment is “medically appropriate” and the state “could not obtain an adjudication of [the defendant’s] guilt or innocence by using less intrusive means.”[17]  The Court explicitly denied that it was adopting a strict standard of scrutiny in the matter, but left no standard to guide by.[18]

As for the right to a fair trial, the Supreme Court had held that the 6^th Amendment encapsulates the right of a defendant to make their defense,[19] and while earlier lower court decisions held that the effects of certain antipsychotic drugs did not so affect a defendant’s thought processes as to violate this right,[20] Riggins found such drugs may impair defendant’s ability to defend themselves.[21]  The Court found it “clearly possible” that the various side effects of antipsychotic medication may have affected the defendant’s “outward appearance . . . the content of his testimony on direct or cross examination, his ability to follow the proceedings, or the substance of his communication with counsel,” which would thereby violate defendant’s constitutional rights, but the Court thought it “purely speculative” to determine whether in this case those rights had actually been affected by the medication.[22]  The Court resolved this by noting that “trial prejudice can sometimes be justified by an essential state interest,” and since there was nothing in the record “that might support a conclusion that administration of antipsychotic medication was necessary to accomplish an essential state policy,” there was no justification for the “substantial probability of trial prejudice” created.[23] 

III. Discussion of the Opinion

The Weston court began its analysis with the due process claim, first tackling the issue of whether the medication to be forced upon the defendant was “medically appropriate.”  The district court below weighed the potential benefits of antipsychotic drugs to the defendant against their potential harm as testified to by experts,[24] finding that the benefits so outweighed the costs as to make the medication appropriate for the defendant’s condition.[25]  The D.C. Circuit Court of Appeals agreed with this analysis[26] and rejected the defendant’s argument that medical ethics should affect the determination, finding no legal authority to support such a position.[27]

The court next examined the due process requirement under Riggins that the treatment be essential for the sake of [the defendant’s] own safety or the safety of others.  On appeal after the district court’s first decision,[28] a panel of the D.C. Circuit Court of Appeals rejected the district court’s finding of dangerousness, ruling that “[the defendant] poses no significant danger to himself or to others” as a result of his solitary confinement and constant surveillance, and remanded the case.[29]  Subsequently, the district court again found the defendant dangerous by reason of his deteriorating mental condition.[30]  The D.C. Circuit Court of Appeals rejected this again, seeing no reason why the defendant’s mental state should negate the relative inability of the defendant to hurt himself or others as a result of his incarceration.[31]

Without a finding of dangerousness, the court was forced to use the other option allowed under Riggins: The government might prevail if it could not obtain an adjudication of the defendant’s case by using less intrusive means.  Since the Supreme Court explicitly rejected the notion that it was employing a strict scrutiny standard in the test of whether the government’s interest satisfied this condition,[32] the D.C. Circuit Court was left to its own devices to forge a path to the result it desired.  It did so by lifting a portion of the Riggins analysis of the effects of treatment on the right to a fair trial, referring to treatment that was “necessary to accomplish an essential state policy,”[33] and applying that to the due process issue as the test of the government’s interest.[34]  Thereby, when adjudication of the defendant’s case would accomplish an essential state policy, according to the Weston court, and less intrusive means were unavailable, medically appropriate and necessary treatment could be forcibly administered to a defendant to make them competent for trial.

When does adjudication of a defendant’s case become an essential state policy?  The Weston court recognized the compelling government interest in preventing crime in general, but realized that “adjudicating criminality is not necessarily an essential state policy under all circumstances.”[35]  However, the court reasoned that when the statutory sentences provided for the defendant’s alleged crimes involve life in prison or capital punishment, “the intensity of the government’s interest in bringing those suspected of such crimes to trial” is at its zenith.[36]  Based on this, it would appear that the Weston decision would allow most any defendant accused of first-degree murder to be forcibly medicated if necessary to make them competent for trial.

Finally, the court considered whether the forced treatment was necessary and that less intrusive means were unavailable.  The court dealt with defendant’s position that treatment could not be necessary if there was a chance that the treatment would not improve the defendant’s condition by determining that treatment could be a necessity even if it was not assured that competency would be restored by its use;[37] the important issue was whether the treatment was necessary in order to accomplish the government’s interest in bringing the defendant to trial.[38]  So even though the medication might not make the defendant competent, if it were the only possible way to make defendant competent, then it would be considered necessary.  By weight of the expert testimony obtained by the district court,[39] the D.C. Circuit Court of Appeals held that antipsychotic drugs were the only treatment available that could make the defendant competent for trial, and thereby necessary.[40]

When considering the availability of less intrusive means, the court examined the defendant’s 6^th Amendment claim that the antipsychotic drugs would jeopardize his right to a fair trial and found, despite the warnings in Riggins, that the involuntary application of antipsychotic medication would not interfere with this right, and in fact found a probability that the defendant’s ability to exercise his rights would be increased as a result of the medication, even though the defendant was to be given the exact same kind of medication that Riggins found to be a possible threat to a fair trial.[41]  The Weston court determined that sufficient measures were available to counteract any possible prejudice from the treatment, including management of the side effects,[42] informing the jury of the defendant’s medication,[43] having experts testify as to the defendant’s unmedicated condition,[44] and the large amount of evidence on file of defendant’s mental state prior to medication available.[45]

IV. Analysis

There are four significant areas where Weston misapplies or fails to apply the law to the detriment of defendants seeking to resist being forcibly medicated: The standard for the determination of dangerousness, the point at which the interest of the government in prosecuting defendants becomes compelling, 6^th Amendment rights to a fair trial, and the ability of a competent defendant to refuse treatment and have that wish enforced even when incompetent at a later date.

1. Standard of Determination for Dangerousness

Because the Supreme Court declined to set standards of scrutiny for its due process test, the door was open for courts to manufacture their own test, resulting in the Weston court using the language in Riggins concerning the 6^th Amendment to create a due process test.[46]  It was backed into doing this as a result of its finding that the defendant, as a result of being held in solitary confinement and under constant watch, was not dangerous,[47] and thereby the court did not have access to the Riggins due process test requiring such.

The court’s dangerousness analysis in this case differs from that provided by other courts, and contributed to its reliance on the backup plan of finding a superior governmental interest in pursuing its essential policies.  The panel of the D.C. Circuit Court of Appeals in Weston II, instead of basing their determination of dangerousness on 18 U.S.C. §§ 4241-4247 as most courts do,[48] adopted its own approach by incorporating the safety provided by the confinement into the relative safety of the defendant.[49]  This is, indeed, a “serious error,” as described by Circuit Judge Randolph in his concurrence.[50]  As a result, instead of the Weston decision focusing only on dangerous pretrial detainees, the court expands its reach to incorporate a much wider range of defendants, as mentioned below.

2. Point at Which Government Interest in Prosecution Must Prevail

As noted by some commentators, Riggins left open the possibility that future defendants may find themselves at greater risk of trial prejudice by noting the government’s compelling interest to bring a defendant to trial,[51] and it appears the Weston court took that expected step by determining that crimes involving possible sentences of life in prison or death are indicative of the government’s superior interest.  While perhaps it is understandable that a court would find a shooting spree in the Capitol building to be about as serious a crime as could exist for the government to prosecute, the Weston court, by only considering the magnitude of the punishment available to determine the government’s interest, opened the door to forcible medication for any incompetent defendant facing similar sentences for lesser infractions.  The court thereby did more than just use the case to draw a line in the sand; it set the bar lower than the case required, putting a whole class of incompetent defendants at risk of forcible medication, such as those facing life imprisonment under a three strikes system for a relatively minor offense.

3. Preservation of 6th Amendment Rights

A panel of the D.C. Circuit Court of Appeals held on the first appeal of the case that the defendant could challenge the treatment before going on it “because antipsychotic medication may affect the defendant’s ability to assist in his defense, [and therefore] postmedication review may come too late to prevent impairment of [defendant’s] 6^th Amendment rights.”[52]  However, in this decision, the court argues in a footnote that “[w]hether antipsychotic medication will impair [defendant’s] right to a fair trial is best determined when the actual effects of the medication are known, that is, after he is medicated.”[53]  The court finds that only the inquiry into the bodily integrity of the defendant requires an immediate ruling.[54]  Since no drug in and of itself violates bodily integrity, the Weston decision has effectively given a “shoot drugs first, ask questions later” approach to antipsychotic treatment that ignores the grave concerns held by the Supreme Court in Riggins over the potential harmful side effects of these drugs,[55] as well as the concerns of a panel from the same court ruling earlier.[56]

This cavalier attitude is best expressed when the court notes that “[a]ntipsychotic drugs have progressed since [Riggins],” and that the newest drugs (atypicals) feature reduced side effects that should encourage courts to be more lenient in their use.[57]  However, the court acknowledges that the government intends to give the defendant in this case typicals—the same kind of drugs that Riggins analyzed and found potential risks in.[58]  The court brushes this aside by offering that if the defendant starts to have his rights impaired by the older drugs, the government could simply switch to the newer atypicals.[59]  In other words, the Weston court asks that the mere presence of atypicals should be considered as having eliminated the dangers of the typicals.  This is too pat an answer, especially in the event that a switch in medication were deemed necessary as a result of impairment since the use of atypicals would require the patient’s consent while typicals do not.[60]  Courts should not pretend that a given drug is no longer a threat to the thought processes of a patient merely because other medication could possibly step in if need be, and defendants as a result of Weston are more at risk of being put under typicals regardless of whether they’ll ever get the chance to use atypicals.

4. Competent Defendant’s Refusal to Use Medication

The Weston court recognizes that the defendant is not currently being treated because, at a time he was considered competent, he refused them.[61]  In Cruzan v. Director, Mo. Dep’t of Health,[62] the Supreme Court described “[t]he principle that a competent person has a constitutionally protected liberty interest in refusing unwanted medical treatment,”[63] and that wishes a competent person makes concerning their medical treatment may still be applied if they become incompetent at a later date, provided that at least clear and convincing evidence of those interests were presented as required under that state’s law.[64]  That the defendant in this case is not being treated precisely because he had refused treatment while deemed competent is rather clear and convincing evidence that the defendant wished to avoid the administration of antipsychotic medication.  While he did indicate that he would comply with court-ordered medication,[65] such a position implies that he would refuse unless absolutely forced by law, wherein the law here seems to support his ability to say no when competent and have it stick.  The Weston court never considered whether the defendant’s desires while competent could have any weight under D.C. law as Cruzan implies it may.  This is yet another safeguard that received all-too-short shrift by the court.

V. Conclusion

The D.C. Circuit Court of Appeals belatedly realized it had made an error in not applying the proper test of dangerousness to the defendant in Weston, and as a result found itself lifting portions of Riggins from one area to apply to another in order to create a jury-rigged method of ensuring that the government can prosecute a man who allegedly committed a most public and violent crime.  Instead of creating a narrow standard that properly examined the full panoply of rights afforded to incompetent defendants, Weston instituted an overly broad standard that ignores the dangers of antipsychotic medication and goes too far in minimizing the rights of incompetent defendants.  Perhaps the blame should be equally shared by the Supreme Court, whose prior rulings did not adequately guard against such an attack on defendants’ rights.  The protections of those found incompetent to stand trial are all the more precious because those defendants are most at risk of being unable to maintain those protections by themselves.  Courts must take extra care before limiting their rights, even when a high-profile case is on the line.