GPO-CONAN-2017-10-15.pdf

1220 issues of substantive due process may arise if

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tion upon [their] execution of sentences.’ ” 1220 Issues of substantive due process may arise if the government seeks to compel the medication of a person found to be incompe- tent to stand trial. In Washington v. Harper , 1221 the Court had found that an individual has a significant “liberty interest” in avoiding the unwanted administration of antipsychotic drugs. In Sell v. United States , 1222 the Court found that this liberty interest could in “rare” instances be outweighed by the government’s interest in bringing an incompetent individual to trial. First, however, the government must engage in a fact-specific inquiry as to whether this interest is important in a particular case. 1223 Second, the court must find that the treatment is likely to render the defendant competent to stand trial without resulting in side effects that will interfere with the defendant’s ability to assist counsel. Third, the court must find that less intrusive treatments are unlikely to achieve substantially the 1218 There was no opinion of the Court on the issue of procedural requirements. Justice Marshall, joined by Justices Brennan, Blackmun, and Stevens, would hold that “the ascertainment of a prisoner’s sanity calls for no less stringent standards than those demanded in any other aspect of a capital proceeding.” 477 U.S. at 411– 12. Concurring Justice Powell thought that due process might be met by a proceed- ing “far less formal than a trial,” that the state “should provide an impartial officer or board that can receive evidence and argument from the prisoner’s counsel.” Id. at 427. Concurring Justice O’Connor, joined by Justice White, emphasized Florida’s de- nial of the opportunity to be heard, and did not express an opinion on whether the state could designate the governor as decisionmaker. Thus Justice Powell’s opinion, requiring the opportunity to be heard before an impartial officer or board, sets forth the Court’s holding. 1219 477 U.S. at 416–17. 1220 536 U.S. at 317 (citation omitted), quoting Ford v. Wainwright, 477 U.S. 399, 416–17 (1986). The Court quoted this language again in Schriro v. Smith, hold- ing that “[t]he Ninth Circuit erred in commanding the Arizona courts to conduct a jury trial to resolve Smith’s mental retardation claim.” 546 U.S. 6, 7 (2005) (per curiam). States, the Court added, are entitled to “adopt[ ] their own measures for adjudicating claims of mental retardation,” though “those measures might, in their application, be subject to constitutional challenge.” Id. 1221 494 U.S. 210 (1990) (prison inmate could be drugged against his will if he presented a risk of serious harm to himself or others). 1222 539 U.S. 166 (2003). 1223 For instance, if the defendant is likely to remain civilly committed absent medication, this would diminish the government’s interest in prosecution. 539 U.S.
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