The SCOW docket: Citing Marsy's Law, court OKs drugging pretrial defendants against their will

Note: We are crunching Supreme Court of Wisconsin decisions down to size. The rule for this is that no justice gets more than 10 paragraphs as written in the actual decision. The "upshot" and "background" sections do not count as part of the 10 paragraphs because of their summary and very necessary nature. We've also removed citations from the opinion for ease of reading, but have linked to important cases cited or information about them. ​Italics indicate WJI insertions except for case names, which also are italicized.

The case: State of Wisconsin v. Joseph G. Green

Majority opinion: Justice Patience D. Roggensack (24 pages), joined by Justices Rebecca Grassl Bradley, Brian Hagedorn, and Annette K. Ziegler; Justices Ann Walsh Bradley, Rebecca F. Dallet and Jill J. Karofsky joined in part

Concurrence / dissent: Walsh Bradley (7 pages), joined by Dallet and Karofsky

Roggensack

The upshot

We conclude that because the State's significant pretrial interests in bringing a defendant who meets each one of the factors set out in Sell v. United States to competency for trial and providing timely justice to victims outweigh upholding a defendant's liberty interest in refusing involuntary medication at the pretrial stage of criminal proceedings . . . (the) automatic stay of involuntary medication orders pending appeal does not apply to pretrial proceedings. ​

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Background

On December 27, 2019, the State filed a criminal complaint charging Green with first-degree intentional homicide with use of a dangerous weapon. Pretrial, defense counsel raised reason to doubt Green's competency to proceed. The circuit court ordered a competency examination, which was completed by Dr. Craig Schoenecker and filed with the court. At the competency hearing, Dr. Schoenecker testified that Green was not competent but could be restored to competency through anti-psychotic-type medication within the 12-month statutory timeframe. ...

After the hearing, the circuit court found Green incompetent. Accordingly, the court entered an order of commitment for treatment with the involuntary administration of medication. Following this determination, Green appealed and filed an emergency motion for stay of the involuntary medication order pending appeal, which was automatically granted by the circuit court pursuant to our decision in (State v) Scott. 

The State responded with motions to lift the automatic stay and to toll (pause) the statutory time period to bring a defendant to competence, both of which were granted by the circuit court. Green appealed. He moved for relief pending appeal, which included reinstatement of the temporary stay. The court of appeals reversed the circuit court's involuntary medication order and its order lifting the automatic stay of involuntary medication. In addition, the court of appeals determined that the circuit court lacked authority to toll the statutory time period to bring Green to competency. We granted the State's petition for review. 

Upon granting review, the parties submitted briefs addressing the circuit court's ability to toll the limits on the maximum length of commitment for competency restoration. However, following oral argument, additional briefing was ordered to answer whether the automatic stay required by Scott applied to pretrial proceedings. We determine: (1) whether Scott's automatic stay applies to pretrial competency proceedings and (2) whether Wis. Stat. § 971.14(5)(a)1. permits tolling the 12-month limitation provided to restore a defendant to competency. ​

The guts
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If a defendant is found to be incompetent, a court may allow the government to confine and involuntarily medicate the defendant if certain criteria are met. 

In Scott, the court ruled that involuntary medication orders are subject to an automatic stay pending appeal to preserve the defendant's 'significant' constitutionally protected 'liberty interest' in 'avoiding the unwanted administration of antipsychotic drugs.'

In Sell, the Supreme Court set forth criteria for determining when the government may be allowed to involuntarily medicate a defendant for the purpose of making the defendant competent to stand trial.  In short summation, a court must find that: (1) there are important government interests at stake, including bringing a defendant to trial for a serious crime; (2) involuntary medication will significantly further those state interests; (3) involuntary medication is substantially likely to render the defendant competent to stand trial; and (4) administration of the drugs is in the patient's best medical interest in light of his medical condition. However, postconviction circumstances that call for governmental involuntary medication are "rare."

As with (a prior defendant's) concern in a postconviction context, significant, competing interests underlie our consideration of the involuntary administration of medication in a pretrial context. The defendant holds the same substantial liberty interest in refusing involuntary medication, regardless of the stage of proceedings. Once a defendant is subject to involuntary medication, irreparable harm could be done. On the other hand, the State has a significant interest in bringing a defendant to trial. The State's power "to bring an accused to trial is fundamental to a scheme of 'ordered liberty' and prerequisite to social justice and peace." Further, unlike postconviction proceedings, in pretrial proceedings, the State has yet to employ a significant portion of the criminal justice process to try to achieve justice and uphold the considerable victim and community interests at stake. For example, victims are guaranteed a right to "justice and due process," as well as a "timely disposition of the case, free from unreasonable delay." Wis. Const. art. I, § 9m(2)(d). The "unreasonable delay" phrase is part of the "Marsy's Law" amendment to the state constitution approved by voters last year. And while treatment to competency is not always necessary for postconviction proceedings, the State is required to bring a defendant to competency before a defendant can be tried. 

The terms of (state law) limit the treatment time for an incompetent defendant to "a period not to exceed 12 months, or the maximum sentence specified for the most serious offense with which the defendant is charged, whichever is less." As soon as a defendant is in custody for treatment, the statutory time during which he or she may be held before trial begins. 

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If the State is unsuccessful at restoring competency for trial, the likelihood of which is increased if treatment is prevented by the automatic stay of Scott, a defendant must be discharged from commitment and released unless civil commitment proceedings are commenced. . . .

Since our decision in Scott, the State has been trapped on both ends of the pretrial competency process. On one hand, (statute) permits a defendant to be held for 12 months to be brought to competence. On the other hand, Scott's automatic stay of the involuntary medication order keeps the State from starting the treatment that has been ordered by a court. While the State was given some leeway in the form of a modified Gudenschwager test, this is a high burden, and when employed, can use up the entire 12-month maximum commitment period that is permitted for treatment. And, if the State is not able to satisfy this Gudenschwager test and the time during which treatment can be required expires, the State is without recourse for prosecution. This is an unexpected consequence of the automatic stay that we created in Scott. 

Accordingly, even though the defendant has a constant liberty interest in refusing involuntary medication, the State cannot prosecute an incompetent defendant. The State also has a constitutional duty to provide timely justice to crime victims by bringing competent defendants to trial. Wis. Const. art. I, § 9m(2)(d). ("Marsy's Law" again.) Those State interests currently are being frustrated by Scott's requirement to impose an automatic stay on treatment during appeals of treatment orders. Accordingly, we conclude that the balance of interests weighs in favor of concluding that Scott's automatic stay of involuntary medication orders does not apply to pretrial proceedings. 

(Dallet, Karofsky, and Walsh Bradley concurred in the sections below.)

By its terms, (state law) limits commitment to restore competency to "a period not to exceed 12 months, or the maximum sentence specified for the most serious offense with which the defendant is charged, whichever is less." The State requested tolling of the statutory 12-month limitation for achieving competency based on the stay of Green's medication order under Scott. 

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The legislature's use of a firm 12-month period as a "commitment" period, rather than employing a more flexible "treatment" period as the term during which competency could be restored, supports the conclusion that the legislature set a firm limit on the term of an involuntary commitment to restore competency for trial.

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In the matter before us, the legislature has decided that 12 months is the maximum time during which to "determine whether there is a substantial probability that [a defendant] will attain competency in the foreseeable future." Jackson (v. Indiana) limited such confinement based on due process concerns. Given the past due process consideration that the legislature has afforded in its amendments to Wis. Stat. § 971.14(5)(a)1., we conclude that the plain meaning of the 12-month treatment limit does not permit tolling of its limit on confinement for pretrial treatment to achieve competency. 

Walsh Bradley

​Concurrence / dissent

The involuntary administration of antipsychotic drugs is "no small matter." Such drugs are "powerful enough to immobilize mind and body," have a "profound effect . . . on the thought processes of an individual," and come with a "well-established likelihood of severe and irreversible adverse side effects."

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Just four years ago in State v. Scott, this court unanimously again affirmed the need to protect that liberty interest. We established a new rule affecting criminal defendants declared not competent: "involuntary medication orders are subject to an automatic stay pending appeal." 

Our rationale for that rule was likewise unanimous and succinctly stated: "The reasoning for our decision is simple—if involuntary medication orders are not automatically stayed pending appeal, the defendant's 'significant' constitutionally protected 'liberty interest' in 'avoiding the unwanted administration of antipsychotic drugs' is rendered a nullity."

Despite no party initially raising the issue, the majority now backtracks on this rule, declaring that our determination in Scott does not apply to pre-trial proceedings. In doing so, it accomplishes just the result that Scott was intended to prevent, i.e., that the defendant's liberty interest in avoiding unwanted antipsychotic medication is rendered a nullity. 

(Walsh Bradley says she agrees with the majority's ruling on tolling.)

However, I part ways with the majority because I determine that the reasoning behind the automatic stay in Scott applies equally to pre-trial proceedings and postconviction proceedings. Rather than limit Scott, I would uphold it along with the vitality of the constitutionally protected right on which it is premised. 

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I acknowledge that the State's interests in bringing a defendant to competency may vary based on the procedural posture of a case. But the defendant's liberty interest in avoiding unwanted medication is a constant. As Green argues, such an interest "would be rendered just as much a nullity without an automatic stay pre-trial as it would postconviction." In either situation, when the defendant is forcibly medicated, the damage is done. 

While removing the automatic stay pre-trial has a drastic effect on the interests of the defendant, leaving it in place would have little effect on those of the State. Indeed, under Scott the State retains the ability to move to lift the stay, which it can do in short order.
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The majority correctly identifies the State's interest in bringing a defendant to trial and achieving timely justice on behalf of the victims. These are of course strong interests. However, in the name of these interests the majority tramples a defendant's constitutional rights rooted in bodily autonomy. 

​Once a defendant is forcibly medicated, it is impossible to undo such an intrusion. We should be mindful to avoid ringing a bell that cannot be unrung, especially where there exists a process to lift the stay in the case where the State's interests are as weighty as the majority claims.

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