Forced Drugging of Americans: Constitutional?

The federal government is quietly seizing a new power: to forcibly drug peaceful citizens presumed to be innocent. Unprecedented and devoid of any constitutional or statutory basis, this new police power is frightening in its potential consequences.

The federal Court of Appeals for the Eighth Circuit recently held that a Dr. Charles Thomas Sell, never proven guilty, must submit to forced injection of mind-altering drugs unlimited in quantity and type. United States v. Sell, 282 F.3d 560 (8th Cir. 2002). His mental and physical fate is placed entirely in the hands of a single government psychiatrist operating without meaningful oversight.

The Eighth Circuit held that merely by alleging fraud and proffering testimony by a government doctor, a federal prosecutor may alter the mind of a prisoner against his will. The stunning breadth of the decision leaves few, if any, defendants free from the threat of being forcibly subjected to antipsychotic drugs. There are no limits on the type or quantity of the drugs to be injected, allowing even drugs that have not been fully tested and approved for the given purpose.

One would have thought that the manipulation of a peaceful citizen’s mind against his will is not permissible. Congress does not enjoy such an enumerated power under the Constitution.

Tragically, advances in medical technology inevitably facilitate this attempt to expand federal power. Over 50 years ago, George Orwell predicted the misuse of mind-control technology in his famous novel 1984. There the “persecutor” O’Brien confronts the prisoner with the tool of a hypodermic syringe, and severe cruelty results. It is uncivilized to authorize a prison doctor to administer, in his sole discretion, any quantity and type of antipsychotic medication over the objections of a peaceful prisoner.

Government must not have the power to drug defendants simply by claiming it beneficial to do so, which Justice Brandeis expressly warned against: “experience should teach us to be most on our guard to protect liberty when the government’s purposes are beneficent.” Olmstead v. United States, 277 U.S. 438, 479 (1928) (Brandeis, J., dissenting).

The Odyssey of Dr. Sell

Dr. Sell has already spent nearly five (5) years in prison (including nearly twenty months in solitary confinement). This incarceration is more than a year longer than his severest sentence under the Sentencing Guidelines for the underlying fraud charges.

The government’s interest in subjecting Dr. Sell to a trial should be no greater than its interest in sentencing him, which at this point is nil. But there are reasons why the government continues to pursue him.

Dr. Sell purportedly spat in the face of a magistrate. But Dr. Sell was never charged, much less convicted, for that allegation. As Dr. Sell explained on an investigatory wiretap, the incident was the result of his being struck on the head and repeatedly provoked while being led, handcuffed, to a holding cell. In a highly agitated state, and contrary to ordinary procedure, Dr. Sell was there confronted by a magistrate and without the presence of his attorney as he was desperately requesting. Earlier, Dr. Sell allegedly made inflammatory remarks about government officials in the courtroom.

Regardless, the Constitution prohibits use of medication as punishment. “Forced administration of antipsychotic medication may not be used as a form of punishment. This conclusion follows inexorably from our holding in Vitek v. Jones, 445 U.S. 480 (1980), that the Constitution provides a convicted felon the protection of due process against an involuntary transfer from the prison population to a mental hospital for psychiatric treatment.” Harper, 494 U.S. at 242 (Stevens, Brennan, Marshall, JJ., concurring and dissenting in part).

The Legacy of Buck v. Bell

American courts do not enforce the Nuremberg Code, which expressly prohibits the use of untested drugs without informed consent. The highest court of Maryland recently deplored this unfortunate chapter of American jurisprudence:

“‘[O]ur own use of prisoners, the institutionalized retarded, and the mentally ill to test malaria treatments during World War II was generally hailed as positive, making the war ‘everyone’s war.’ Likewise, in the late 1940’s and early 1950’s, the testing of new polio vaccines on institutionalized mentally retarded children was considered appropriate. Utilitarianism was the ethic of the day.’” Grimes v. Kennedy Krieger Inst., Inc., 366 Md. 29, 77, 782 A.2d 807, 836 (Ct. App. 2001) (quoting Dr. George J. Annas, Mengel’s Birthmark: The Nuremberg Code in United States Courts, 7 J. Contemp. Health L. & Pol’y 17, 24 (Spring 1991)).

The Supreme Court of Montana also recently rejected this utilitarian justification for forced medical treatment. See In re Mental Health of K.G.F., 306 Mont. 1, 29 P.3d 485 (2001). It held that counsel would be presumed to be ineffective if he acquiesces in involuntary commitment for a mental disorder. That Court held:

Nevertheless, our concept of due process regarding state action involuntarily imposed on individuals with mental disorders has surely progressed since the U.S. Supreme Court’s decision in Buck v. Bell. In that case, Justice Holmes described a ‘feeble-minded white woman,’ who was the daughter of a ‘feeble-minded mother’ and the mother of an ‘illegitimate feeble-minded child.’ The Court declared that the woman, who was committed to the ‘State Colony for Epileptics and Feeble Minded,’ could be involuntarily sterilized in the ‘best interest of the patients and of society’ because: ‘It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind . . . . Three generations of imbeciles are enough.’

306 Mont. at 13-14, 29 P.3d at 496 (quoting Buck v. Bell, 274 U.S. 200, 205-07 (1927)). See also In re W., 637 P.2d 366, 368-69 (Colo. 1981) (agreeing with scholars who “have concluded that compulsory sterilization laws, no matter what their rationale, are unconstitutional in the absence of evidence that compulsory sterilization is the only remedy available to further a compelling governmental interest”) (citing, inter alia, Burgdorf & Burgdorf, The Wicked Witch Is Almost Dead: Buck v. Bell and the Sterilization of Handicapped Persons, 50 Temp. L.Q. 995 (1977)).

The Buck v. Bell decision remains one of the worst in the history of our U.S. Supreme Court. Demonstrating the high potential for abuse of power, historians later discovered that neither the subject of the Buck v. Bell mandatory sterilization, Carrie Buck, nor her daughter, was mentally defective by today’s standards. The daughter, in fact, was reportedly “very bright” and was listed on her school’s honor roll. Albert W. Alschuler, Law Without Values: The Life, Work, Legacy of Justice Holmes 65 (Univ. Chicago: 2000) (quoting Robert J. Cynkar, Buck v. Bell: “Felt Necessities” v. Fundamental Values?, 81 Colum. L. Rev. 1418, 1458 (1981)). Despite assurances of protections against abusive sterilizations, Carrie Buck’s sister was even sterilized without her knowledge, under the ruse that she was having an appendectomy. Alschuler, supra, at 66 (citing Sheldon M. Novick, Honorable Justice: The Life of Oliver Wendell Holmes 478 n. 65 (Little, Brown: 1989)). Professor Alschuler observed that the Buck v. Bell decision imposing treatment without patient consent “merits its reputation for brutality.” Id.

Conclusion.

The U.S. v. Sell case has been appealed to the Supreme Court. Will it accept the case? We will hear in a few months. In the meantime, the forced drugging of pretrial detainees and perhaps witnesses is rampant.