- The Washington Times - Monday, June 16, 2003

The Supreme Court yesterday ruled 6-3 that inmates charged with nonviolent crimes may be forcibly medicated to make them fit for trial.

The decision was one of three upholding the constitutionality of anticrime practices.

The other two, both unanimous, allowed Michigan prison officials to restrict the number of visitors for all inmates and to cancel visits entirely for troublemakers, and overturned a Virginia Supreme Court decision that a Richmond public housing project’s trespassing rules were unconstitutional.

The high court first explicitly approved forcible medication for trial in a 1992 Nevada murder case. Yesterday’s decision involved the appeal by St. Louis dentist Charles T. Sell, who is charged with Medicaid fraud and attempted murder.

The court said government has no less an interest in a speedy trial when the charge is relatively minor.

“It may be difficult or impossible to try a defendant who regains competence after years of commitment during which memories may fade and evidence may be lost,” said the opinion written by Justice Stephen G. Breyer.

While the court upheld government’s prerogative to drug defendants under certain circumstances, it found Dr. Sell not dangerous and ordered that his current condition be re-evaluated under standards laid down in yesterday’s decision, which now will apply to any defendant being medicated against his or her will.

The opinion was joined by Chief Justice William H. Rehnquist, and Justices John Paul Stevens, Anthony M. Kennedy, David H. Souter and Ruth Bader Ginsburg.

A dissent by Justices Antonin Scalia, Sandra Day O’Connor and Clarence Thomas said the new procedure will allow criminal defendants “to engage in opportunistic behavior” that thwart efforts to curb midtrial appeals.

“They can, for example, voluntarily take their medication until halfway through trial, then abruptly refuse and demand an interlocutory appeal from the order that medication continue on a compulsory basis,” Justice Scalia wrote, accusing his colleagues of a lack of concern for disruption of criminal proceedings.

“While the court held that some circumstances could allow for forced medication, it conceded that those could be rare,” said Denise Lieberman, legal director of the American Civil Liberties Union in St. Louis, which opposed medicating Dr. Sell.

The procedures set out yesterday require courts to determine that important governmental interests are at stake; that drugging a prisoner will further those interests; that it is necessary to do so rather than attempt alternative methods recommended by the American Psychiatric Association and American Psychological Association; and that medication will not inhibit the defendant’s ability to assist his own defense.

The last requirement was recommended by the National Association of Criminal Defense Lawyers.

In the prison-visits case, the court deferred to penologists on which relatives should be allowed to use overcrowded visiting rooms, and approved the Michigan Department of Corrections’ policy of barring for up to two years all family visits to an inmate who had a second violation of rules against drug or alcohol use.

In announcing the decision he wrote for the court, Justice Kennedy said the two-year ban on visits is severe, but justified for long-term prisoners when prisons seek to halt the smuggling of illicit substances.

Although Justices Thomas and Scalia differed with the reasoning — saying prisoners have no constitutional right to visits — all nine justices voted to reverse the decisions of the District Court and the 6th U.S. Circuit Court of Appeals holding the prison’s rules unconstitutional.

The public-housing case was the second in as many terms. In March 2002, the court ruled that tenants could be evicted if any member of the household violated drug laws, at home or away, even if other family members were unaware of the offense.

“This decision is important because it preserves state authority to protect residents who cannot afford to live anywhere else,” said Kent Scheidegger, legal director of the Criminal Justice Legal Foundation.

Yesterday’s unanimous ruling said governments seeking to reduce crime in housing projects may designate them off-limits to all visitors on “legitimate business or social purpose” and prosecute trespassers.

They rejected the plea by Kevin L. Hicks that the ban at Richmond’s Whitcomb Court violated the First Amendment. Mr. Hicks said the project rule was too broad because it included an “unwritten rule” requiring a permit to distribute handbills or speak out politically.

Justice Scalia wrote the court’s opinion, which said Mr. Hicks did not claim he wanted to speak out and could not assert that rights of others were violated.

“It is … his entry in violation of the notice-barment rule, not his speech, for which he is punished as a trespasser,” Justice Scalia wrote in reversing a Virginia Supreme Court opinion that threw out Mr. Hicks’ latest trespassing conviction.

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