By Margo Kirchner
Incarcerated people cannot be forcibly medicated unless they are a danger to themselves or others – just being too incompetent to refuse the medication is not enough to justify its administration, says the Wisconsin Supreme Court.
The court recently held that a statute permitting administration of medication upon a finding of mere incompetence to refuse was unconstitutional.
Justice Annette Kingsland Ziegler wrote for the court, joined by Justices Ann Walsh Bradley, Daniel Kelly, and Rebecca Dallet.
In 2005, C.S. was convicted of mayhem and sentenced to 10 years of imprisonment plus extended supervision. C.S. suffers from schizophrenia, and during his incarceration in 2012 Winnebago County petitioned to involuntarily commit and medicate him.
Involuntary commitment is a separate matter from involuntary medication. Those who are involuntarily committed, whether in prison or not, have a general right to refuse unwanted medication and treatment.
The Winnebago County Circuit Court committed C.S. and ordered involuntary medication after finding that C.S. was incompetent to refuse it himself.
In prior litigation C.S. unsuccessfully challenged his involuntary commitment. The recent case instead challenged the involuntary medication orders.
Those orders were based on findings that C.S. was incapable of understanding his condition and could not make an informed choice about medication. At no point in the proceedings did the court determine that C.S. was dangerous.
C.S. argued that the statute allowing medication of an incarcerated person was unconstitutional because, unlike the law governing those not in prison, it did not require the judge to find that the person is a danger to himself or others.
Winnebago County argued in response that it had an interest in the care of mentally ill and incompetent inmates, which justified the statute.
Winnebago County Circuit Court Judge Barbara H. Key denied C.S.’s challenge. She concluded that Winnebago County could involuntarily medicate C.S. under the statute because the treatment was in the County’s and C.S.’s legitimate interests. The Wisconsin Court of Appeals affirmed, agreeing that involuntary medication in the prison setting is constitutional because the state has a legitimate interest in the welfare of those in its custody.
The Wisconsin Supreme Court, though, found that the statute violated substantive due process rights. The court pointed to the significant liberty interest each person maintains in avoiding medication.
The court based its decision on a trilogy of U.S. Supreme Court cases. The U.S. high court case of Washington v. Harper, in particular, discussed a state’s interests in the prison environment and provided that substantive due process allows for administration of antipsychotic drugs against an inmate’s will “if the inmate is dangerous to himself or others and the treatment is in the inmate’s medical interest.”
In her opinion, Ziegler reiterated the distinction between involuntary commitment and forced medication. “[W]hat justifies one does not automatically justify the other,” she wrote. “Involuntary medication is much more invasive and must be justified by an overriding or essential interest.”
A finding of dangerousness “gives rise” to such an overriding or essential interest that it may justify involuntary medication, she wrote.
“The State may not force a particular medication on a mentally ill inmate merely because the inmate is incompetent to refuse it,” Ziegler said.
But the mere inability of an incarcerated person to make an informed choice is not constitutionally sufficient. “The State may not force a particular medication on a mentally ill inmate merely because the inmate is incompetent to refuse it,” Ziegler said.
Justice Rebecca Grassl Bradley dissented due to her disagreement with the U.S. Supreme Court on substantive due process law. According to Bradley, the Fourteenth Amendment’s due process clause does not protect substantive rights at all; instead, it protects only procedurally fair treatment in the justice system. Bradley pointed to writings of U.S. Supreme Court Justices Antonin Scalia and Clarence Thomas criticizing substantive due process doctrine.
“’Substantive’ due process is a judicial invention with no mooring in the text of the Constitution,” she wrote.
In Bradley’s view, under an originalist interpretation of the U.S. Constitution, the source of any right C.S. could pursue would have to come from the federal Constitution’s Privileges or Immunities Clause. Alternatively, a right could arise from the “Life, Liberty, and Pursuit of Happiness Clause” in the Wisconsin Constitution. But as C.S. did not invoke either of these clauses, his argument should fail, she wrote.
Justice Brian Hagedorn, joined by Chief Justice Patience Roggensack, dissented on the ground that the proper legal test should be whether the state statute “is reasonably related to a legitimate penological interest.” And under that test the statute does not violate the U.S. Constitution, said Hagedorn.
Though Hagedorn, like Bradley, questioned the U.S. Supreme Court’s substantive due process decisions, he acknowledged his obligation to follow them.
Hagedorn identified the “real question” as determining circumstances upon which the state may overcome the incarcerated person’s substantive liberty interest in avoiding unwanted medication.
The majority misread Harper to require a finding of dangerousness, Hagedorn said. The requirement of dangerousness came from the particular prison policy in the Harper case, not from due process law, he said.
In Hagedorn’s view, C.S.’s case should have been analyzed under precedents regarding the prison setting. “Constitutional rights of all kinds are restricted in prison in a way that would be unthinkable for those outside of prison,” he wrote. The majority, he said, “incorporates standards from non-prison cases, applies the incorrect legal test, and therefore reaches an incorrect legal conclusion.”
Instead, he said, a deferential standard allows prison administrators to make difficult institutional choices. The majority’s decision, wrote Hagedorn, “requires the state to let prisoners suffer—physically, mentally, and emotionally—through serious mental health issues so long as the inmate won’t seriously hurt himself or others.”
He noted that an incarcerated person is sufficiently protected by the statute’s requirement that prison officials obtain an order from “an independent arbiter, a court, to ensure a prisoner’s rights are fairly heard and fairly respected.”
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