Under the Sell rule, an incompetent defendant has a right to an adversarial court hearing to determine whether or not they can be forcibly medicated to restore their competency. The court must determine that the medication is medically appropriate, that it won’t substantially impair the defendant’s rights to a fair trial, and that other less-intrusive alternatives have been considered. The defendant’s lawyers are able to present their own evidence, cross-examine the government’s doctors, and present their own alternatives to forcible medication.
This decision, relying on the Supreme Court case Washington v. Harper, shows that the Sell level of constitutional protection is not available to incompetent pretrial defendants who are *violent* in custody. Violent incompetent defendants are entitled only to an administrative (read: rubber-stamp) hearing conducted by prison or mental hospital officials. The incompetent prisoner is only given one day’s notice that there will be a hearing, he has no right to an attorney, and there is no consideration of how the medication will impair his constitutional right to a fair trial.
Since Loughner threw his furniture around and tried to attack his lawyer, they get to medicate him without a court hearing, and they don’t just get to knock him out with phenobarbitol: they get to treat his underlying mental condition, which will (if effective) restore him to competency.
Lawyers never give quick answers, do we?”