The question before the court was complex—and, attorneys said, never before litigated. The circumstances in question were not those of the crime itself, but the defendant’s competency and willingness to take antipsychotic medications ahead of the trial. At issue: How many doses was it OK to skip before the government had to step in?
Johnathan Mitchell was charged with robbing an Iowa cab driver at the time of her death, in 2011. The robbery charges, filed in 2016, came three years after Mitchell was acquitted of first-degree murder in the same case.
Shortly after being charged in 2016, Mitchell, who according to court records had been diagnosed with schizophrenia and antisocial personality disorder, was deemed incompetent to stand trial and committed to a Bureau of Prisons facility for competency restoration, which involved medication. A year later, it appeared to have worked: Mitchell was deemed competent to stand trial.
That didn’t, however, last for long. In February 2018, a judge again declared Mitchell incompetent and sent him back to the Bureau of Prisons for treatment. It was there that a psychologist noted Mitchell was only willing to take his prescribed antipsychotic medication about 50 percent of the time—a rate that, the psychologist opined, was unlikely to render him competent to stand trial. Over the next two years, Mitchell’s “voluntary compliance with medication” bounced around: up to 90 percent, down to 60, then 20, 62, 90, 50. He was found competent, then incompetent, and finally, in October of 2020, competent again.
It was then that the government filed a motion for involuntary medication, should Mitchell fall behind again on his treatment regimen. The government hoped to avoid, as the 8th Circuit Court of Appeals would later write in its decision, “a defendant who cycles in and out of competency indefinitely and who may never be able to stand trial if the cycle continues.”
The legal precedent that made such a motion possible traces back to a 2003 Supreme Court case, Sell v. United States, which sought to answer a question that has echoed in hundreds of courtrooms since: When can the government forcibly administer antipsychotic medication in order to render a defendant competent to stand trial?
Before he was a name on a Supreme Court docket, Charles Sell was a dentist. His office sat on the outskirts of St. Louis, Missouri. It was there, in spring of 1997, that Sell was arrested for submitting false records to insurance companies. He was later charged, alongside his wife, with 56 counts of mail fraud, six counts of Medicaid fraud, and one count of money laundering.
When they arrested Sell, FBI agents found 11 rifles and a handgun in his car, the St. Louis Post-Dispatch reported at the time. This was particularly concerning given that, during the investigation, Sell allegedly said the FBI “will never take me alive, never again, I outrank them. God told me for every FBI person I kill, a soul would be saved.”
By the time he was arrested, Sell had, as the Supreme Court would later put it, “a long and unfortunate history of mental illness.”
In 1982, after an episode in which he claimed the gold he used to fill cavities was contaminated by Communists, he was hospitalized and treated with antipsychotic medication, according to court records. In 1984, he supposedly asked police to respond to a leopard that was boarding a bus outside of his office.
And so it was not surprising that, in this case, a judge ordered that Sell be evaluated for competence. Courts throughout the U.S. perform tens of thousands of competency evaluations each year. They are looking for two basic things: first, that defendants understand the charges against them, and second, that they are able to consult with their attorneys and assist in their defense. If found incompetent, defendants can be referred for competency restoration, which, depending on their diagnosis, may involve medication.
At the time, federal doctors determined Sell was indeed competent to stand trial, but noted “there is a possibility he could develop a psychotic episode. … He does have … paranoid personality characteristics which are pervasive and will color interactions between Dr. Sell, counsel, and the Court.” Sell was subsequently released on bail.
This, however, did not last long. In early 1998, the government accused Sell of intimidating a former employee who planned to testify against him in the fraud case. According to newspaper coverage at the time, the witness said Sell smiled at her through a window while gesturing threateningly toward her with his hand in the shape of a gun (Sell denied this). At his bail revocation hearing, Sell was, said the judge, “totally out of control.” He screamed, shouted, used “personal insults” and “racial epithets,” and even spat in the judge’s face, according to court records. His bail was revoked, and he now faced new, more serious charges: allegedly hiring a hit man to attempt to murder both the former employee and the FBI agent who had arrested him.
Sell was evaluated again, and this time deemed incompetent to stand trial. Psychiatrists and a magistrate judge also found he was a danger to himself and others, but the district court, appeals court, and Supreme Court would later find this ruling erroneous—which meant, in Sell’s case, the justification for involuntary medication relied on competence, not dangerousness.
Two months into competency treatment, doctors recommended Sell take antipsychotic medication. He refused.
“I have a God given right not to have [my brain] altered by the government’s antipsychotic, psychotropic medication,” Sell said, according to court records.
The Sell case, in many ways, is illustrative of the American criminal justice system’s grasping-at-straws approach to treating mental illness—an admittedly difficult task.
In a particularly striking line of questioning from oral argument in the Supreme Court, you can hear Justice Antonin Scalia boil down the dilemma at the heart of Sell quite simply: “It’s a vicious—what—what do we do with him? Do we continue to hold him with the inability to stand trial, not treat him, because he refuses treatment? I—it’s just a crazy situation. What can be done about it?”
That sentiment echoes across jails and prisons around the country: What can we do with people diagnosed with severe mental illnesses who are accused of serious crimes?
In Sell, the Supreme Court ended up solving the central dilemma of the case with a four-prong test, outlined in an opinion written by Justice Stephen Breyer. To forcibly medicate someone charged with serious but nonviolent crimes in order to render them competent to stand trial, a court must find that important government interests are at stake, such as the interest in prosecuting a serious crime; forced medication will significantly further those interests, and is both substantially likely to render the defendant competent to stand trial and substantially unlikely to cause side effects that would interfere with the trial; medication is necessary because alternative, less intrusive options are unlikely to achieve the same results; and administering the medication is medically appropriate.
In the majority opinion, Breyer predicted it would be “rare” for cases to meet those four requirements. But in practice, studies have found forcible medication has actually become routine. Since the 2003 ruling, more than 130 federal district court decisions involving Sell hearings have been published on commercial legal databases, according to a review provided to Slate by Susan McMahon, a law professor at Arizona State University. (Disclosure: ASU is a partner with Slate and New America in Future Tense, and my employer.) In 62 percent of those cases, the motion for forcible medication was granted. The real number of cases with such a hearing is likely much higher, because many of these hearings take place in state courts, and even for federal courts, commercial databases don’t capture all decisions.
One of the key challenges with the Sell decision is that it leaves a lot of room for interpretation. The Supreme Court failed to define standards like “substantially likely,” which means that in practice, different courts use different thresholds (70 percent? 85? “more likely than not”?). The Supreme Court’s focus on side effects further complicates the matter, because while medical professionals can make general predictions about side effects for different antipsychotic medications, it’s impossible to know exactly how someone will react to a particular medication until they take it.
In addition, to evaluate government interest, the court must determine whether someone is charged with a serious crime. However, the Sell decision leaves the definition of serious crime open to debate—some courts, for example, determine whether a crime is “serious” by looking at the maximum possible sentence for the charge, while others assess the likely sentence. There are some crimes that are obviously serious, but others—such as credit card fraud or illegal reentry, which have both been declared serious by federal courts—are more debatable. At the same time, courts are supposed to assess special circumstances that mitigate the government interest in prosecuting a crime. For example, if a defendant has already been incarcerated for a length of time equivalent to the likely sentence for their charged crime, it’s harder for the government to make the case that it has a strong interest in prosecution. But again, across jurisdictions there is no clear standard for which special circumstances sufficiently mitigate government interest. By the time his case got to the Supreme Court, Sell had already been detained for about five years—longer than the 46 to 57 months recommended by the sentencing guidelines for his fraud charges. (While he faced other charges, the litigation surrounding his forced medication was focused on the fraud.) Many of the involuntary medication cases after the Sell ruling have followed a similar pattern.
Several scholars point out that the gray area painted by the Sell test is problematic, both in the way it erases the idea of equal justice and in the way it treats individuals with mental illness.
“The way that the Supreme Court set out the test allowed judges to … allow their fears, allow their biases, allow their thinking about people with mental health conditions and the kinds of risk they pose to overtake the actual question, which should be, is this a case worth prosecuting?” said McMahon, who has extensively studied Sell cases. McMahon has found that judges almost always decide in prosecutors’ favor on the question of government interest.
McMahon argues the special-circumstances analysis of Sell cases should look at not only how long a defendant has been incarcerated, but also “whether or not the crime itself was likely the result of the defendant’s mental health condition.”
One of the key arguments the government makes for prosecuting these crimes, despite clear manifestations of serious mental illness, is that doing so serves as a deterrent. This is an argument that deserves extra scrutiny: Many individuals with serious mental health conditions caught in the criminal justice system don’t end up there because they perceive the system as lax, but rather because of systemic factors that mean they aren’t getting the treatment they need outside the system nor the representation they need within it. (Here, it’s important to remember that the vast majority of people with mental illness never commit a crime, and indeed “people with psychiatric issues are far more likely to be victims than perpetrators of violence.”)
The other argument the government often makes is that prosecution is necessary for the good of the community or for the individuals themselves. Even if an individual has already served an amount of time equivalent to the likely sentence for their crime, a conviction made possible by medication often comes with supervised release—important, the argument goes, for individual and community safety. (It’s worth remembering that the Sell standards apply in cases where someone has been determined not dangerous. The Supreme Court cases Washington v. Harper and Riggins v. Nevada deal with forcibly medicating people deemed dangerous to themselves or others.)
In the face of few or overburdened alternative public systems to adequately treat serious mental health conditions, this may be a convincing argument to a judge. But the lack of available alternatives in our current system shouldn’t be a justification to further criminalize mental illness—if anything, it’s justification for a massive, systemic reboot.
Forensic psychiatrist Gregory Leong said in an interview that in his more than 40 years working in mental health, he’s seen advances in the delivery of mental health care, but ultimately “we’re kind of at an impasse. …We haven’t addressed, in some ways, those with serious mental illness, and that’s because they’re the most difficult persons to work with, and their conditions don’t respond as well … to our treatment efforts.”
All this said, it’s important to note that the majority of people deemed incompetent to stand trial end up voluntarily taking medication. In its briefing for the Supreme Court in the Sell case, for example, the government noted:
Over a recent twelve-month period, the Bureau [of Prisons] evaluated and treated 285 patients who were deemed … incompetent to stand trial. Of the 226 persons who voluntarily accepted treatment, which in almost all instances included medication, 197 or 87.2% were restored to competency. Of the 59 persons who were involuntarily medicated following an administrative hearing under the Bureau’s regulations, 45 or 76.3% were restored to competency.
But even those who voluntarily accept medication may spend months waiting for the treatment they need in order to stand trial, due to insufficient capacity in competency restoration facilities.
Many of those caught up in the competency restoration cycle have been diagnosed with schizophrenia or delusional disorder. These conditions are related, but manifest in different ways. With schizophrenia, said Leong, who is a professor at the University of Southern California’s Keck School of Medicine, “usually a person suffers from delusions or hallucinations and disorganized thinking and behavior.” With delusional disorder, “a person usually suffers from non-bizarre delusions, and outside of that symptom of their particular delusion they appear ‘normal,’ ” he said.
Delusional disorder, thus, is difficult to study, because many individuals experiencing it don’t seek treatment and never come to the attention of mental health systems—“so long as their particular delusion does not get them to run afoul of societal norms, especially legal norms,” Leong said.
It is estimated that 1 to 2 percent of the population lives with schizophrenia at some point in their lives, whereas the best estimate for delusional disorder is about 0.2 percent, according to Leong, who said antipsychotic medication leads to good clinical responses in about 70 percent of schizophrenia cases. (The prevalence estimates should be taken with a grain of salt, because they are notoriously hard to pin down and subject to disagreement among researchers.) While the research on medication to treat delusional disorder is much more limited, Leong said, it appears to produce a similarly positive outcome. As the American Psychiatric Association noted in its Sell amicus brief, “Antipsychotic medications are not only an accepted but often essential, irreplaceable treatment for psychotic illnesses.”
There is reason to believe that delusional disorder is overrepresented in involuntary medication cases. In a review of Sell cases published in 2013, McMahon found that individuals with delusional disorder “account for at least 21 percent of defendants in reported Sell cases”—compared with, remember, 0.2 percent of the overall population. This, she writes, is “perhaps because these individuals are associated with litigious behavior. They have been known to file multiple lawsuits or send hundreds of letters of protest to government and judicial officials.” These crimes may “teeter on the brink of crimes of violence,” writes McMahon, but the very fact that they are being considered under Sell, which applies to defendants who have been judged nondangerous, “indicates that mental health professionals do not believe these individuals were likely to carry out their threats.”
While there are several types of delusional disorder, the type that most often shows up in Sell cases is persecutory. As the American Psychological Association noted in its amicus brief in the Sell case, “persons with delusional disorder, persecutory type, usually entertain deep-seated convictions that they are the subject of ‘vast, surreptitious plot[s]’ to do them harm.” This can complicate the doctor-patient relationship, as patients may be especially suspicious of treatment plans involving medication.
Sell also puts a unique burden on defense attorneys, whose job is to represent their clients’ wishes. One moment, they may be arguing that they’re concerned for their clients’ mental health and ability to assist in their defense, and therefore request a competency evaluation. But then, if the client is ordered to take a medication they object to, the attorney’s role may suddenly become to fight that order, explained Andrea George, the executive director of Federal Defenders of Eastern Washington and Idaho, a community defense program.
“It’s kind of just arguing against what you think is best for the client,” George said. It feels, she said, both “righteous,” because you’re advocating for what the client wants, and “very sad,” because you know that the medication would likely really help them.
There are serious questions about the future of Sell. For one, researchers and advocates point to the definitional vagueness surrounding “important government interest.” They also point out that the other three Sell factors—which relate to side effects, alternatives to medication, and medical appropriateness—are essentially medical, rather than legal, determinations.
Dorie Klein, a law professor at St. Mary’s University focused on the intersection of law and psychology, argues that courts should determine whether the government interest is important enough to justify involuntary medication at the same time they determine competence. “Once the judge decides that the charges against the defendant are serious enough, and that no special circumstances diminish the government’s interest in rendering the defendant competent to stand trial, the other three Sell factors could be left to the determination of medical personnel,” she wrote in the University of Pennsylvania Journal of Law and Social Change in 2013.
There are others who question the entire principle underlying the Supreme Court decision in Sell.
“To me, the biggest problem with Sell is that you’re treating somebody not to make them better, but to make them competent—and that’s a very different thing,” said McMahon, the Arizona State University professor. McMahon argues the government should be able to order medication to restore competence only in cases where someone is accused of serious violence or murder and facing a lengthy potential sentence. Otherwise, she said, forced medication for competence restoration “opens the door to so many abuses,” where individuals accused of nonviolent crimes get stuck in the system for years, untreated and unconvicted.
For those individuals, she said, it would be much better to “use this as a springboard to actually get them mental health treatment. Get them out of the criminal justice system, into the mental health system—so that they can be treated with the goal of making them better, instead of with the goal of just making them competent.”
While it’s complicated, and she recognizes there is legitimate disagreement over this point, McMahon said she can see a role for forcible medication in the context of mental health treatment—just not to restore competence for trial. “When we’re doing it within the context of the criminal trial, we’re doing it so that the government can prosecute, we’re doing it to achieve a government interest, whereas when we’re doing it within the context of the mental health system, we’re doing it because it’s in the best interests of the individual,” she said.
Sell spent part of his incarceration in solitary, which has been shown to exacerbate mental health conditions. On any given day, an estimated 80,000 incarcerated people in the U.S. find themselves in some sort of isolation.
In 1999, while confined in a federal prison hospital, Sell was allegedly pulled from his jail cell by seven guards, moved to an isolation cell, sedated, and handcuffed to a concrete slab for 19 hours, according to reporting from the St. Louis Post-Dispatch. In 2000, guards allegedly sprayed him with scalding hot water, leaving him with first-degree burns on his legs, chest, and back.
In a 2004 competency evaluation after the Supreme Court decision, a psychiatrist testified that Sell’s fixation on this abuse meant that he was still unable to effectively participate in his defense. “Dr. Sell is currently preoccupied with the comparison between his treatment while in federal custody and the torture of prisoners in Iraq. All his thoughts and feelings are pervaded by his recollections of having been intimidated, humiliated and abused by the staff of the Springfield Medical Center,” wrote C. Robert Cloninger, the defense psychiatrist who evaluated Sell, according to the St. Louis Post-Dispatch.
And so, seven years and a Supreme Court decision later, Sell found himself, in many ways, in the same place.
There he remained for a few more months, until April 2005, when he entered an Alford plea—a legal maneuver that allows defendants to accept punishment without admitting guilt. He was sentenced to time served, with three years’ supervised release.
In the more recent case of Johnathan Mitchell, whose willingness to take medication fluctuated between 20 and 90 percent, the courts ultimately granted the government’s motion for involuntary medication.
“If Mitchell does not voluntarily comply with his medication regimen, the Bureau of Prisons is authorized and directed to involuntarily administer antipsychotic medication as deemed appropriate by Mitchell’s treating psychiatrist … until and while Mitchell stands trial,” the district court ordered. Mitchell’s rate of medication compliance, the court added, “shall not be allowed to fall below 76% per month.” (This number was based on an estimate for how many doses he would have to miss to render the medicine ineffective, given his previous experience.)
The 8th Circuit Court of Appeals agreed with the decision, and in 2021, Mitchell petitioned the U.S. Supreme Court to hear his case.
The Supreme Court denied his petition. His trial is currently scheduled to begin in August.