Ever since the Supreme Court's 2003 decision in Sell v. United States, 539 U.S. 166 (2003), there has been a cottage industry of commentary on the question of whether the state can medicate an incompetent defendant for the purpose of making him or her competent to stand trial. Moreover, there have been multiple cases interpreting Sell broadly and narrowly, both in the context of medication issues and in the context of other treatments. Because of the vagueness of certain terminology, questions such as what a "serious" crime is, what "substantially" meant to the Court in Sell, and how the least restrictive alternative doctrine was supposed to be applied in such cases have all been considered by later federal and state courts, with the predictable range of decisions. These issues have been discussed and reconsidered in multiple arenas from the scholarly literature (both legal and behavioral) to professional conferences and to law school classes and other academic settings.
Two seemingly unrelated issues, however, have been the subject of virtually no consideration at all, and we address both of these in this paper to encourage readers to think about these questions when they reflect on Sell's limits and its potential reach -- the application of international human rights law to the forensic process in all its aspects (especially the potential impact of the United Nations' Convention on the Rights of Persons with Disabilities (CRPD)), and the reality that the entire jurisprudence that has developed on questions related to Sell and its progeny is a jurisprudence of income inequality, as it presumes that all defendants at risk are in jail pre-trial because of inability to make bail. This paper discusses both of these questions, looking at the second issue through the specific filter of therapeutic jurisprudence.
8 Alb. Gov't L. Rev. 381 (2015)