As the recent controversy over the collection of DNA samples from arrestees underlines, compelled intrusion into an individual’s body implicates profound expectations of privacy and security. Hence, the Supreme Court’s establishment in Sell v. United States of stringent conditions before a defendant may be medicated involuntarily for trial competence purposes – instances, the Court concluded, would be “rare.” In United States v. Mackey, issued on June 10, 2013, the Eighth Circuit affirmed the district court’s conclusion that the Sell factors permitted involuntary medication of a defendant facing charges under SORNA for failing to register as a sex offender. Notably, the only expert testimony presented in the case came from professionals employed by the Bureau of Prisons, and the case illustrates the uphill battle a defendant faces without an expert – and the resources that typically implies – in his corner.
Application of Four Sell Elements
First, Sell’s requirement of “an important governmental interest at stake” – an issue that faced de novo review – is met where the government seeks to bring to trial an individual accused of a “serious” crime. The SORNA charge at issue here was a serious offense, the Circuit held, since it carried a maximum penalty of ten years. Further, the Circuit rejected Mackey’s contention that “status” offenses in general, or offenses of failing to register as a sex offender in particular, are not “serious” for purposes of Sell. “Even where the commission of an offense does not itself harm others directly, society may have a strong interest in prosecuting the violation and imposing punishment.” Moreover, the fact that Mackey might face civil commitment was not a substitute for a criminal trial, where a criminal conviction carried the additional penalty of a potential supervised release term, and, in any event, Mackey’s likelihood of civil commitment was not strong.
On the second Sell element – that involuntary medication will significantly further the governmental interest at issue – the Circuit found no clear error where the district court relied on the testimony of two professionals employed at the prison where Mr. Mackey was detained: a board-certified forensic psychologist and the Chief of Psychiatry. Mackey argued that he had an unusual “grandiose delusional disorder,” and the government’s experts were not equipped to address how psychotropic medication would impact his condition. The Circuit distinguished the Fourth Circuit decision upon which Mackey relied, where a divided panel had found the record insufficient to support a finding that involuntary medication was likely to be effective in treating a woman with delusional disorder of the grandiose type. In that case, the government’s expert had admitted she was not an expert in treating delusional disorders. Here, by contrast, one of the the government’s experts had opined that medication would “restore[.] [Mackey] to competency,” and another put the likelihood at “substantial probability.”
Mackey did not challenge the third Sell factor: that involuntary medication was necessary.
Finally, as to the fourth factor – that the administration of the drugs is medically appropriate – the Circuit found no error, where the district court “reasonably credited the expert testimony” that the medications to be employed were “used daily in the United States to treat psychotic illness” and “most of the anticipated side effects are nuisances that usually end within three or four days,” and where “Mackey presented no countervailing evidence.”