Nick Katz


In Sell v. United States , the Supreme Court announced a constitutional standard permitting involuntary medication of mentally ill criminal defendants to render them competent to stand trial. Lower federal courts have struggled to apply the Court’s balancing test, reading the same Sell language to impose different requirements.

While much ink has been spilled debating whether the Sell standard is sufficiently rights-protective, less attention has been devoted to the state court implementations of Sell . But because many more criminal prosecutions take place in state court than in federal court, it stands to reason that significantly more Sell requests should arise in state court. This Note provides the first comprehensive review of Sell in the states.

That review reveals that state courts have largely been forced to choose among conflicting federal approaches to Sell . Therefore, fixing Sell in the states requires assessing those interpretations to determine which one state courts should follow—namely, the approach most faithful to the balance struck by the Sell Court. After making that assessment, this Note proceeds to consider state-specific sources of law as alternative paths to Sell reform.

State constitutional law has yet to play a meaningful role in Sell cases and is unlikely to do so in the future. Instead, state legislatures can and should act to give structure to the Sell regime in their states, give guidance to the state courts, and, if desired, create additional protections for defendants. Providing such a comprehensive regime would free state courts from what is essentially a policy decision—picking between the various Sell approaches and determining how Sell should be applied in the states.

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