March 3, 2003
Frequently Asked Questions About Sell v. US
and Forced Drugging
1. What is this case
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?
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
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?
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
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.
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
· 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?
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.