The memorandum discusses the issue of whether the state can forcibly administer antipsychotic medication to a mentally ill defendant to render them competent to stand trial. It analyzes this issue under the standards set by the Supreme Court in Washington v. Harper and Sell v. United States. In this case, the defendant has a 20% chance of being rendered competent through medication and is likely to experience significant side effects, so forced medication is not justified under Sell because it is not substantially likely to restore competence.

1. MEMORANDUM
To: Johnathan Schiffman, Esq.
From: Lauren Park, Paralegal
Re: Commonwealth v. Nelson
Forcible administration of anti-psychotic medication
Date: October 19, 2015
Issue
Does the Constitution permit the State to forcibly administer antipsychotic drugs to a mentally ill
defendant, when administering the drugs only has a 20 percent chance of rendering him competent to
stand trial and when defendant has previously suffered severe and debilitating side effects from these
drugs?
Brief Answer
No. The State may not forcibly administer antipsychotic drugs to a mentally ill defendant, when the
medication is not substantially likely to restore competence, and the drugs are likely to have side
effects that will interfere significantly with the defendant's ability to assist counsel in their defense.
Statement Of Facts
Our client, Jason Nelson (”Nelson”) has been charged with manslaughter. Nelson is mentally ill and is
currently confined to a mental institution. Because of his mental illness, Nelson cannot assist in his
defense and thus is not competent to stand trial. The prosecutor in this case has made a motion asking
the court to forcibly administer antipsychotic drugs to Nelson in order to render him able to stand trial.
Medical experts have determined that Nelson has an approximate 20 percent chance of being rendered
competent if he receives the medication the state intends to administer. Nelson is vehemently opposed
to receiving such drugs, primarily because he has suffered significant and debilitating side effects from
the drugs when he has taken them in the past. The side effects include drowsiness, lethargy and
confusion.

2. Analysis
The Supreme Court has specifically ruled on the issue of forced medication for mentally ill
prisoners and detainees in Washington v. Harper, 494 U.S. 210 (1990), and Sell v. United States, 539
U.S. 166 (2003).
In Harper, an incarcerated inmate sued the state of Washington over the issue of involuntary
medication, specifically antipsychotic medication. The United States Supreme court ruled that the Due
Process Clause permits a state to treat an incarcerated inmate having a serious mental disorder with
antipsychotic medication against his will, under the condition that he is dangerous to himself or others
and the medication prescribed is in his best medical interest. The Court concluded that although Harper
possessed a significant liberty interest in avoiding unwanted antipsychotic medication under the Due
Process Clause of the Fourteenth Amendment, such a liberty interest was not absolute.
In Sell, the Court affirmed that involuntary administration of antipsychotic medication for the
purposes of restoring a defendant’s competency to stand trial can be an appropriate means of acting in
the state's interest to bring to trial defendants who are charged with serious crimes, overriding the
defendant's right to refuse. Sell, a former dentist with a documented history of mental illness, was
charged with fraud in 1997. Once ruled incompetent, Sell was hospitalized for treatment. The hospital
staff concluded that Sell would benefit from antipsychotic drugs, as medication would likely render
him competent to stand trial. When Sell refused to take the drugs, the hospital staff sought the district
court's permission to forcibly administer the medication. The magistrate issued an order to forcibly
medicate Sell, and the district court and court of appeals affirmed the order. Considering Sell's case on
appeal, the Supreme Court determined that the Constitution permits involuntary medication of a
mentally ill defendant to restore the individual's competence, in limited cases where a four factor
standard is met (Sell v. United States, 539 U.S. 166, 180-82 (2003), hereafter referred to as the "Sell
test."). The Sell test requires: (1) important governmental interests that are (2) significantly furthered by

3. involuntary medication, which is (3) necessary to further those interests, and is (4) medically
appropriate.
In Harper, the Supreme Court made clear that the forced medication of inmates with mental
disorders could be ordered when the inmate was a danger to themselves or others and when the
medication is in the inmate's own best interests.
In Sell, the United States Supreme Court stated that a court should first consider if forced
medication is warranted for purposes set out in Harper related to the individual's dangerousness to
himself or others, before considering forcibly medicating a defendant against his or her will, for the
purposes of restoring a defendant's competency to stand trial. Sell v. United States, 539 U.S. 166, 181–
82 (2003)
In Nelson's case, there is no question of dangerousness that would allow involuntary medication
on Harper grounds. In this case, when involuntary administration of medications would be solely for
restoration of competence, the standards set forth by the Supreme Court in Sell would be most
appropriate.
The first factor a court must consider under Sell is if important governmental interests are at
stake. The Government’s interest in bringing to trial an individual accused of a serious crime is
important. However, courts must consider each case’s facts in evaluating this interest because special
circumstances may lessen its importance, e.g., a defendant’s refusal to take drugs may mean lengthy
confinement in an institution, which would diminish the risks of freeing without punishment one who
has committed a serious crime. In the present case, Nelson is charged with Manslaughter. Pennsylvania
law sets voluntary manslaughter as a first degree felony. If convicted, Nelson will face a sentence of
imprisonment for up to 20 years. 18 Pa. Cons. Stat.§§1103-2503. The prosecution will likely prove that
bringing Nelson to trial represents an important government interest, thereby satisfying the first Sell
factor.

4. The second factor a court must consider under Sell is whether forced medication will
significantly further those concomitant state interests. It must find that medication is substantially likely
to render the defendant competent to stand trial and substantially unlikely to have side effects that will
interfere significantly with the defendant’s ability to assist counsel in conducting a defense.
It is unlikely that the prosecution will be able to satisfy this second factor as Nelson has
previously taken the medication which the state intends to administer, and experienced significant and
debilitating side effects, including drowsiness, lethargy, and confusion. These side effects would likely
interfere with his ability to assist counsel in his defense. In addition, the courts would not find that
antipsychotics are substantially likely to render Nelson competent to stand trial as medical experts have
determined that there is only an approximate 20 percent chance of medication being effective in this
case. The standards by which medication's efficacy should be measured have been established in
United States v. Gomes, 387 F.3d 157 (2d Cir. 2004), and United States v. Ghane, 392 F.3d 317 (8th Cir.
2004).
In Gomes, Aaron Gomes, a convicted felon facing a term of 15 years imprisonment for unlawful
possession of a firearm, was found to be incompetent to stand trial due to a psychotic delusional
disorder. In light of his refusal to take antipsychotic medications to treat his mental illness, the
government sought to allow medical personnel of the federal Bureau of Prisons to involuntarily treat
him with antipsychotic medications in order to render him competent for trial. On appeal, the Second
Circuit Court of Appeals noted the district court's reference to the Bureau of Prisons' 70 percent success
rate in restoring competence with antipsychotic medication, both on voluntary and involuntary bases.
The court concluded that a 70 percent chance of restoring a defendant's competence through
antipsychotic medications was a sufficient likelihood of success to satisfy the second factor of the Sell
test.
In Ghane, the Eighth Circuit Court of Appeals decided that a pre-trial detainee, incompetent to
stand trial, could not be medicated involuntarily because the Sell test requires that medication be

5. “substantially likely” to restore competence. Hessam Ghane, a 54-year-old resident of Kansas City,
Missouri, was was charged federally with possession of a chemical weapon. The federal magistrate,
after a hearing, found Ghane incompetent to stand trial. A forced-medication hearing was held, with
psychiatric testimony that Ghane's Delusional Disorder had a 10 percent chance of responding. The
magistrate found that this satisfied the Sell requirement that medication be “substantially likely” to
restore competence and issued an order for involuntary medication. Ghane appealed. The Eighth
Circuit Court of Appeals stated that a 10 percent chance of success is not “substantially likely” under
any standard, reversing the order for involuntary antipsychotic medication: “We cannot accept that a
'glimmer of hope' for…restored competence rises to the level of 'substantial likelihood,' as mandated by
the Supreme Court's holding in Sell. A five to ten percent chance of restored competence cannot be
considered substantially likely under any circumstances.” United States v. Ghane,392 F.3d 317, 320
(8th Cir. 2004). The court cited United States v. Gomes to illustrate the meaning of “substantially
likely” to restore competence: 70 percent in Gomes is “substantially likely,” whereas 10 percent in this
case was not.
In the present case, medical experts have determined that Nelson has a 20 percent chance of
being rendered competent if he receives the medication that the state intends to administer. The court
would likely find that, as in Ghane, 20 percent is not “substantially likely”.
To satisfy the third Sell factor, the court must conclude that involuntary medication is necessary
to further state interests and find that alternative, less intrusive treatments are unlikely to achieve
substantially the same results. A particular treatment is “necessary,” according to Sell, only when there
are no alternative, less intrusive treatments available that are likely to achieve the same results. Because
Nelson refuses to voluntarily take the medications, alternative treatments must be attempted and proven
unsuccessful before involuntary administration of medication is deemed necessary to further the
Governmental interest.

6. The court must conclude that administering the drugs is medically appropriate to satisfy the last
factor in the Sell test. A treatment is “medically appropriate” when “it is in the patient’s best medical
interest in light of his medical condition.” Sell v. United States, 539 U.S. 166, 181 (2003). To decide the
medical propriety of a given treatment, physicians must weigh its benefits against its costs (side-
effects). Nelson is opposed to receiving such drugs, primarily because he has suffered significant and
debilitating side effects from these drugs when he has taken them in the past. Given that there is only a
20 percent chance of the medications rendering Nelson competent, the benefits of forcibly medicating
him are unlikely to outweigh the harm the medications would cause him.
Conclusion
Absent of any evidence of Nelsons' danger to himself or others, the burden will fall on the Government
to prove it can satisfy the Sell requisites. While the prosecution will likely satisfy the first Sell factor, as
bringing Nelson to trial is an important government interest, they are unlikely to satisfy the remaining
three factors. Antipsychotic medications are not appropriate in this case given the substantial
unlikelihood of their efficacy, the likelihood of harmful side effects which will jeopardize Mr. Nelson’s
ability to assist counsel, present a defense, or otherwise receive a fair trial, and the availability of less
intrusive treatment methods.