Criminal justice reform has finally entered the realm of public discussion, and a big part of that conver- sation is the relationship
between mental health issues and
incarceration. A recent study found
that almost 17% of adults in local jails
have a serious mental illness.
1 But what
happens when a defendant with these
challenges is not competent to stand
trial? It is axiomatic that the government cannot prosecute people who lack
the capacity to understand the nature
of the charges against them or to participate in their own defense.
2 But if a
defendant is found not competent to
stand trial, is that it? Must the charges
be dismissed and the defendant released
from custody? Not necessarily.
The Due Process Clause of the 14th
Amendment protects an individual’s liberty interest in avoiding the unwanted
administration of antipsychotic drugs.
However, the Constitution does allow
the government to forcibly medicate
mentally ill defendants into temporary
competency specifically to be prosecuted for serious offenses.
4 This is obviously an extreme measure. Thus, in Sell v.
United States, the U.S. Supreme Court
pronounced that before any defendant
can be subjected to involuntary competency restoration, the government must
show that the proposed treatment is 1)
medically appropriate; 2) substantially
unlikely to have side effects that may undermine the fairness of the trial; 3) medically necessary to significantly further
an important government interest; and
4) that there are no less intrusive alternatives.
5 In Washington state courts, the
government must prove each factor by
clear, cogent, and convincing evidence
for what is colloquially known as a Sell
hearing before involuntary competency
restoration can be ordered.
medication is a powerfully invasive tool
that the court has cautioned prosecutors
and judges to wield rarely.
Washington state law specifically
authorizes courts to order competency restoration for certain defendants.
RCW 10.77.088 permits involuntary
competency restoration for people
charged with nonfelony offenses, including misdemeanors. To pass constitutional muster, the statute states that
involuntary restoration is only permit-ted when a person is charged with a
misdemeanor that is also defined as a
But digging a little deeper quickly
reveals that “serious offense” encom-
passes a wide array of nonviolent con-
duct. For example, the statute defines
criminal trespass in the second degree
as a serious offense.
10 In other words, if
a person struggling with mental illness
is caught sleeping outside a business
after hours, he or she could be sent to a
state hospital to undergo forcible medi-
cation specifically to be prosecuted for
that crime. Also under the umbrella of
“serious offense” is malicious mischief
in the third degree, which is defined as
“writ[ing], paint[ing], or draw[ing] any
inscription, figure, or mark of any type
on any public or private building or
other structure or any real or personal
property owned by any other person,”
otherwise known as graffiti.
In addition to the listed offenses, the
statute provides a catch-all provision
that permits any misdemeanor to be
considered “serious” for competency
restoration purposes if certain factors
12 To put this in perspective,
Thomas Sell, the petitioner in Sell, was
indicted for, among other things, attempted murder of an FBI agent.
there are certainly less serious cases
than Sell’s that warrant competency restoration, tagging an underpass or sleeping outside a business should not be one
In Born v. Thompson, the Washing-
ton Supreme Court expressed its disap-
proval of governments using Sell and
RCW 10.77 to forcibly medicate certain
misdemeanants into competency. The
As to the interest in prosecuting
misdemeanors, the U.S. Supreme Court
recently stated in regard to restoring
a defendant to competency through
administration of antipsychotic drugs
that “[t]he Government’s interest in
bringing to trial an individual accused
of a serious crime is important.” Sell v.
United States, 539 U.S. 166, 180 (2003).
Implicit in this statement is the prem-
ise that the relative importance of the
governmental interest in prosecuting
those charged with crimes correlates to
the seriousness of the crime. The gov-
ernment simply does not have the same
interest in prosecuting misdemeanor
defendants as it does in prosecuting de-
fendants charged with felonies.
by Jake Stillwell
The Statutory Broadening of Involuntary Competency Restoration
for Mentally Ill Defendants Charged with Nonviolent Misdemeanors
& COMPETENCY RESTORATION