On Point

SCOW reverses COA in 971.14 med order appeal, decides standard of review for Sell factors, limits Green’s applicability, and declines to resolve several issues

State v. J.D.B., 2026 WI , 2/25/26, reversing a published court of appeals opinion; case activity

SCOW reverses the COA, holding , clarifies the standard of review for each of the Sell factors, holds that Green is overruled to the extent that it “require[d] each and every piece of information it lists” and declines to decide several issues.

(See our prior posts here and here).

“Jared” was nineteen years old when, in August of 2022, police were dispatched to Jared’s home after he made homicidal threats to family members. (¶¶4, 55). While being arrested for this conduct, Jared allegedly punched one of the officers. As a result, he was charged with battery to a law enforcement officer. (¶4, ¶27). At his initial appearance, the circuit court ordered a competency evaluation. Jared was diagnosed with schizophrenia and found incompetent to proceed. Jared was held in the Milwaukee County Jail until January 2023, when he was transported to Mendota for treatment. (¶5). Jared began taking his medications consistently at Mendota but stopped a few months later. At that point, Jared’s treating physician moved for an involuntary medication order, which the circuit court granted after a hearing. (¶6). Jared appealed.

SCOW briefly gives an overview of the law and explains that circuit courts issuing involuntary medication orders must comply with Wis. Stat. § 971.14(3)(dm) and (4)(b), and Sell v. United States, 539 U.S. 166, 179 (2003). (¶10). Sell provided that mentally ill defendants facing serious charges can be involuntary treated to competency “only if the treatment is medically appropriate, is substantially unlikely to have side effects that may undermine the fairness of the trial, and, taking account of less intrusive alternatives, is necessary significantly to further important governmental trial-related interests.” (¶9).

The Court describes the issues on appeal as follows:

In this case, Jared contests both the constitutional and statutory bases for his involuntary medication order. First, he challenges whether each of the four Sell factors was satisfied. This requires us to determine the meaning and application of each Sell factor. In addition, we must resolve the appropriate standard of appellate review for each factor—an issue left unaddressed by the United States Supreme Court and key to how appellate courts in Wisconsin will review such challenges moving forward. Second, Jared challenges whether the State proved the statutory requirements in WIS. STAT. § 971.14(3)(dm) and (4)(b), which relate to whether Jared lacked an understanding or an ability to apply an understanding of the advantages and disadvantages of treatment.

(¶11).

First Sell Factor

As to the first Sell factor, whether there is an important governmental interest at stake, SCOW determines that it is a question of law that appellate courts should review independently. (¶¶3, 21). It determines that the other three factors are analyzed under the clearly erroneous standard. (¶¶3, 35, 40, 43).

Under the important governmental interest question, courts consider whether the individual is charged with a serious crime and “whether any mitigating special circumstances diminish the strength of the interest such that it is no longer important enough to warrant forcible medication.” (¶21). Because both parties, and the Court, agree that Jared is charged with a serious crime, the Court declines the parties’ request for a framework or guidance on making this threshold determination. (¶22). SCOW then declines to address forfeiture, as it rejects each of Jared’s arguments as to mitigating circumstances. Specifically, Jared raises the likelihood of NGI, that he was improperly denied bail, that he did not receive adequate and timely treatment in violation of his due process rights, that his actions were a result of a mental health crisis, and that he is unlikely to receive a long sentence and had already served 8 months. (¶¶23-29).

Second Sell Factor

The second Sell factor requires a court to find that involuntary medication significantly furthers the government’s interest in prosecuting the offense. “To say it another way, if the government is going to forcibly medicate a defendant to render him fit for trial, the treatment should be substantially likely to do so, and substantially unlikely to harm his ability to assist in his defense.” (¶30). Here, SCOW considers State v. Green, 2021 WI App 18, 396 Wis. 2d 658, 957 N.W.2d 583, which has been understood to require that certain evidence be presented as to the individual’s treatment plan (“the specific medication, the maximum dosages, the overall duration of the treatment, how the plan applies to the particular defendant, the defendant’s age, the defendant’s weight, the duration of the defendant’s illness, the defendant’s past responses to psychotropic medications, the defendant’s cognitive abilities, the defendant’s current list of medications, and the defendant’s medical record”). (¶32).

While the Court states that it “understand[s] the problem Green was responding to[,]” it goes on to overrule Green to the extent that “Green meant to require each and every piece of information it lists.” SCOW returns the law to its previous state of uncertainty, holding that “Sell mandates individualized findings about the defendant’s medical situation, but it permits flexibility in how this finding is determined and the evidence that might support it.” (¶33). Applying these principles to Jared’s case, under the clearly erroneous standard, but ignoring the underlying clear and convincing evidence standard, SCOW concludes that the circuit court’s determination “reflects a reasonable view of the evidence.” Despite some contradictory evidence, the Court deems it sufficient that the doctor “testified that the medication would ameliorate symptoms of Jared’s mental illness and decrease symptoms.” (¶37).

Third Sell Factor

The third Sell factor requires the court to find that the medication is necessary to further the important governmental interest in bringing the accused to trial; i.e., that other treatments and options for administering medication less intrusive than an involuntary med order are not available. In light of the deferential standard, SCOW briefly states that the circuit court’s finding that involuntary medication was
necessary based on the doctor’s testimony was not clearly erroneous. (¶41).

Fourth Sell Factor

Under the fourth Sell factor, “the court must conclude that administration of the drugs is medically appropriate, i.e., in the patient’s best medical interest in light of his medical condition.” (¶42). Again ignoring the underlying clear and convincing evidence standard, the Court concludes that “the circuit court made the requisite finding” because “[i]t indicated that it found that ‘involuntary administration of medication(s) or treatment is medically appropriate.'” (¶44). SCOW relies on a statement in the treatment plan that the doctor’s opinion recommending medication was to a reasonable degree of medical certainty. In rejecting Jared’s argument that treatment is not in his best interest, the Court states that “Jared is asking us to reconsider the potential side effects that were part of our analysis for the second Sell factor.” (¶45). It defers to the circuit court again, concluding that the “circuit court reasonably inferred that [the doctor] thought the medication would help Jared.” (Emphasis added).

Statutory Issues

SCOW also applies the clearly erroneous standard to the question of “whether the State proved the statutorily-required incompetency findings.” (¶49). The Court notes that Jared’s argument has evolved over the course of the appeal, now focusing on whether the state met its burden to prove the requirements for involuntary medication, based on language from Outagamie County v. Melanie L., 2013 WI 67, 349 Wis. 2d 148, 833 N.W.2d 607. As Wis. Stat. § 971.14(3)(dm) is identical to the ch. 51 incompetence requirement, Jared argues that Melanie L. requires the doctor to testify about his efforts to educate the individual, the frequency of those conversations, and to sufficiently explain how he or she reached conclusions. (¶53). SCOW simply states, “We do not read Melanie L. as adding new, mandatory evidentiary standards to the statute” and concludes that applying the correct standard of review, the circuit court’s findings were not clearly erroneous.

As a result, SCOW reverses the court of appeals.

Dissent

Justice Crawford, alone, dissents. The dissent would affirm the COA opinion on the first Sell factor because special circumstances undermined the state’s interest in prosecuting Jared. (¶55). First, the dissent expresses concern that the crime is not serious, as a 3-year maximum term of incarceration may not be sufficiently weighty to warrant forcibly medicating a defendant to restore competency. (¶57). Regardless, the state’s interest in prosecuting Jared is not strong enough due to the particular circumstances. (¶58). The dissent focuses on two particular circumstances–the likelihood of a civil commitment and the duration of Jared’s pretrial confinement. As to the first mitigating circumstance, the dissent highlights Jared’s age, lack of criminal history, and severe diagnoses. (¶60). On the second mitigating circumstance, the dissent looks at the length of Jared’s pretrial incarceration before the med order, the fact that the case had not progressed at all given Jared’s incompetence, and whether Jared was likely to regain competency prior to the expiration of the commitment order. (¶¶61-63).

The dissent reasons:

These facts are properly considered in evaluating whether the State’s interest in this prosecution was strong enough to warrant an order to forcibly medicate Jared for the sole purpose of rendering him competent to stand trial. An order for involuntary medication is an intrusive measure that profoundly affects a person’s liberty interests. Sell instructs that a court “must consider the facts of the individual case in evaluating the Government’s interest in prosecution.” This formulation indicates that courts must consider the totality of the circumstances in balancing the competing interests at stake. It does not attempt to predict, limit, or define what “special circumstances” may be present or relevant in a particular case. In Sell, the Court concluded that the government’s interest in prosecuting Sell for over 60 counts of fraud and two counts of attempted murder was insufficient to outweigh Sell’s liberty interests in avoiding forcible medication.

(¶64) (citations omitted). It concludes that similar circumstances to those in Sell are present here. (¶66). Ultimately, Justice Crawford “disagree[s] with the majority’s conclusion that the State maintained a sufficiently important interest in prosecuting Jared, eight months after he was arrested and taken into custody, to warrant an order to forcibly medicate him solely for the purpose of restoring his competency to stand trial” and is “persuaded that, by the time the State sought the order to forcibly medicate Jared, its interest had diminished to the point that the intrusion on his liberty was not constitutionally warranted.” (¶68).