Old law meets new medicine: revisiting involuntary psychotropic medication of the criminal defendant.

The law concerning when a criminal defendant can be subjected to involuntary psychotropic medication prior to trial relies upon two distinct paradigms: a parens patriae-based treatment rationale and an institutional security rationale. These distinctions have created an unclear jurisprudence, which has left unanswered the basic questions: when can involuntary medication of the criminal defendant occur, and what procedure must be followed in order to undertake such medication? The existing jurisprudence was based upon two implicit premises concerning the practice of involuntary medication: it was very rare, and it was accompanied by numerous severe physiological and mental risks. Deinstitutionalization of the mentally ill, changes in treatment methodologies, and the development of new drugs, however, are rapidly undermining both these premises. These changes highlight the shortcomings in the law. Moreover, they demand that a jurisprudence be recognized which clearly reflects the range of constitutional interests implicated by involuntary medication of the criminal defendant prior to trial, particularly those interests implicated by his trial-related constitutional rights. We would reformulate the analysis to include an initial determination of the defendant's competence to make treatment decisions. We argue that the jurisprudence should then require that the government demonstrate both a compelling interest in psychotropically medicating the defendant, and that medication is medically appropriate and the most narrowly tailored, least intrusive means of achieving that interest, and that whenever such a showing is made appropriate safeguards be implemented to protect the defendant's trial-related rights. We also argue that establishing competence to stand trial, alone, may constitute such a compelling interest. Procedurally, we argue that this showing should be made before a trial judge (rather than hospital administrators or doctors), after a full hearing, at which the defendant is afforded the rights to notice, counsel, confrontation, and cross-examination, and that the government should satisfy its burden through clear and convincing proof.