![]() (While he faced other charges, the litigation surrounding his forced medication was focused on the fraud.) Many of the involuntary medication cases after the Sell ruling have followed a similar pattern. By the time his case got to the Supreme Court, Sell had already been detained for about five years-longer than the 46 to 57 months recommended by the sentencing guidelines for his fraud charges. But again, across jurisdictions there is no clear standard for which special circumstances sufficiently mitigate government interest. For example, if a defendant has already been incarcerated for a length of time equivalent to the likely sentence for their charged crime, it’s harder for the government to make the case that it has a strong interest in prosecution. At the same time, courts are supposed to assess special circumstances that mitigate the government interest in prosecuting a crime. There are some crimes that are obviously serious, but others-such as credit card fraud or illegal reentry, which have both been declared serious by federal courts-are more debatable. However, the Sell decision leaves the definition of serious crime open to debate-some courts, for example, determine whether a crime is “serious” by looking at the maximum possible sentence for the charge, while others assess the likely sentence. In addition, to evaluate government interest, the court must determine whether someone is charged with a serious crime. The Supreme Court’s focus on side effects further complicates the matter, because while medical professionals can make general predictions about side effects for different antipsychotic medications, it’s impossible to know exactly how someone will react to a particular medication until they take it. The Supreme Court failed to define standards like “substantially likely,” which means that in practice, different courts use different thresholds (70 percent? 85? “more likely than not”?). One of the key challenges with the Sell decision is that it leaves a lot of room for interpretation.
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