March 3, 2003

Frequently Asked Questions About Sell v. US
and Forced Drugging

1.  What is this case about?

Dr. Sell is a dentist from St. Louis, Missouri who has been charged with insurance fraud.  The government hasn’t been able to bring Dr. Sell to trial because, owing to his mental illness, he is not competent to stand trial.  In our judicial system, we don’t put people on trial who cannot understand what is happening or meaningfully participate in their own defense.  This is one of the first times that the government has claimed the power to forcibly drug someone in order to render him competent to stand trial.

2.  Why is CCLE involved in this case?

As an organization charged with defending freedom of thought, CCLE has an interest in this case because the forcible injection of a citizen with mind-altering drugs is a serious violation of cognitive liberty and mental autonomy 

3.  Does the US Constitution protect cognitive liberty?

The term “cognitive liberty” does not appear in the Constitution, just as the word “privacy” doesn’t appear in the Constitution.  Nevertheless, we all have a right to privacy that is derived from other constitutional rights.   Likewise, cognitive liberty is derived from many other rights and the most important of these is the first amendment’s guarantee of freedom of speech.  The Supreme Court has long recognized that “speech” means more than just words.  The founding fathers wrote the first amendment to safeguard our ability to have and express unique opinions.  Thus courts have always found that freedom of thought is an implied right that makes the first amendment’s express guarantees of free speech meaningful.

4.  Does this case raise a first amendment issue?

· Absolutely.  The government is trying to force anti-psychotic drugs on Dr. Sell.  Anti-psychotic drugs manipulate brain chemistry with the express intent of changing thought processes.  Any government action that intentionally alters the way a person thinks by forcibly modifying their brain chemistry violates the first amendment right to freedom of thought.  

·  It is essentially a mental censorship issue because the government is trying to prevent Dr. Sell from engaging in a certain kind of thought process against his will.

5.  But isn’t Dr. Sell mentally ill and isn’t this just medical treatment?

·  Dr. Sell suffers from a mental condition known as paranoid delusion.  It’s not completely clear that these kinds of drugs can effectively treat his condition.  But even if they could, people have a right to make choices about their own medical treatment and even refuse treatment when they see fit to do so.  Dr. Sell hasn’t lost the right to make decisions about his own medical treatment just because he’s accused of a crime.  

·  Typically, forced drugging is reserved for extreme cases where someone will likely cause harm to himself or others if he is not medicated.  A lower court has already found that Dr. Sell poses no danger to himself or others.

6.  How can someone who is not competent to stand trial be expected to make good decisions about his own medical treatment?

When we talk about competence in this case we’re talking about competence to stand trial, or the ability to understand what’s going on at trial and meaningfully participate.  Being incompetent to stand trial is not the same thing as being legally incompetent, or lacking the ability to care and make decisions for oneself.  Being mentally ill doesn’t automatically make a person legally incompetent.  In this case Dr. Sell has been found to be incompetent to stand trial, but not legally incompetent.

7.  But isn’t it irrational to refuse the medicine that will cure your mental illness?

·  Anti-psychotic drugs are a relatively new kind of therapy.  They don’t actually “cure” mental illness; rather they suppress some of the symptoms of mental illness.  They also have one of the highest side-effect profiles of any class of drugs.

·  The side effects of anti-psychotic drugs can be so agonizing that patients often find them harder to bear than their illness.  Therefore even people whose illness causes them to behave irrationally can have very rational reasons for refusing these drugs.

·  Even if Dr. Sell is medicated, and the symptoms of his illness are suppressed, this doesn’t necessarily mean he will become competent to stand trial.  The drugs may make him feel lethargic or “out of it”, or worse, unable to understand or effectively communicate about what’s going on.  It will be impossible to tell if the drugs create more trial prejudice than they prevent by supposedly “rendering” him competent.

·  Aside from these issues, there is still a deeper principle at stake here; namely, the fundamental right of any person – so long as he or she is not endangering others—to engage in whatever type of thinking he or she chooses. So-called “irrational thought” is not a crime, and the government should not have the power to chemically enforce certain types of thinking or chemically preclude other types.

8.  Still, isn’t it really important that the government bring accused people to trial?

Very important.  But what’s even more important is that the trials that the government conducts be fair.  The incompetence rule helps to keep trials fair.  A major concern in this case is that the government is claiming to medicate Dr. Sell in his best medical interest while, as his adversary at the criminal trial, also acting against Dr. Sell’s best legal interest.  Thus there is a clear conflict of interest in permitting the government to forcibly drug Dr. Sell in order to give him a fair trial.

9.  If the court rules in favor of Dr. Sell, won’t it just encourage criminal defendants to pretend to be mentally ill or cause those who are mentally ill to refuse their medication in order to avoid going to jail?

·  It’s not easy or common for defendants to fake mental illness.  In this case, the government’s own doctors have determined Dr. Sell is not competent to stand trial.

·  Incompetence is not a “get out of jail free” card.  The alternative to trial in cases like these is not freedom.  Instead the law provides specific procedures, such as civil commitment, for mentally ill defendants. 

10.  Why should the Supreme Court rule in Dr. Sell’s favor?

The fundamental right to control one’s own thought processes is protected by the first amendment and will be seriously compromised if the government, with the approval of our courts, is allowed to manipulate the thought processes of non-dangerous citizens like Dr. Sell, who is entitled to a presumption of innocence until he is proven guilty.

11.  Why is this case important in the long run? 

It is important that courts begin to think about freedom of thought in a much more explicit way than they have in the past.  It would have been impossible for our founding fathers to imagine a world in which the government could abuse its power by directly controlling the mental processes of its citizens. But as we enter the 21st century, drugs and other technologies make mental manipulation an increasingly possible reality.  The Supreme Court has an opportunity in this case to recognize that thought is rooted in brain chemistry and to protect the liberty interest all Americans have over their brain chemistry.