On Point: C. Involuntary medication

State v. T.A.W., 2025AP437-CR, 6/3/25, District I (not recommended for publication); case activity

Although the charges against T.A.W. — resisting an officer causing soft tissue injury and retail theft — are not “serious crimes” under Wis. Stat. § 969.08, which specifies procedures for pretrial release, the COA found that the State met its burden to show an important governmental interest in forcibly medicating T.A.W. to competency under the aggravated circumstances of the case.

State v. M.M.K., 2024AP591-CR, 2024AP592-CR, 2024AP593-CR, 2024AP594-CR, 10/31/24, District IV(1-judge decision, ineligible for publication); case activity

In a case which continues a new trend in appeals of involuntary medication appeals, COA holds that while the circuit court correctly found M.M.K. incompetent, it failed to correctly apply Sell in ordering involuntary medication.

State v. N.K.B., 2023AP722-CR, 10/1/24, District I (recommended for publication); petition for review granted, 2/12/25 case activity

N.K.B. (referred to as Naomi) was found incompetent to proceed on her criminal charges.  The circuit court authorized involuntarily administering medication to Naomi because she was dangerous.  Naomi argued on appeal that the circuit court did not have authority to authorize involuntarily medicating her based only on dangerousness.  In a recommended-for-publication decision, the COA vacated the circuit court’s order authorizing involuntary medication: “Defendants committed under § 971.14 cannot be involuntarily medicated based on dangerousness absent the commencement of proceedings under ch. 51 or some other statute that authorizes involuntary medication based on the defendant’s dangerousness.”  (¶ 20).

State v. Wilson P. Anderson, 2023 WI 44, 6/2/23, summarily reversing an unpublished court of appeals decision; 2020AP819; case activity (including briefs)

As we’ve noted previously, the court of appeals (in the person of a single judge in District 1) decided this case shortly after the same court (by a three-judge panel of District 4) decided State v. Green, 2021 WI App 18, 396 Wis. 2d 658, 957 N.W.2d 583. Green reversed an order that a criminal defendant be involuntarily medicated to competency, relying on and fleshing out the factors established by Sell v. United States, 539 U.S. 166 (2003). In particular, Green required the state to file, for the court’s approval, an individualized treatment plan specifying medications and doses. (Green was then taken up by the supreme court, but its decision addressed other matters, leaving the court of appeals’ reading of Sell intact.) The D1 judge in Wilson’s case didn’t follow Green (or, as the state now concedes, Sell itself) and okayed a med order prepared by a psychologist with a generic recommendation that Wilson be medicated. The supreme court granted Wilson’s petition, and the state’s litigation position changed: it conceded in SCOW that it hadn’t met its burden under Sell. In briefing and argument, the only dispute between the parties was whether the testimony of a medical doctor is always necessary to satisfy Sell‘s requirements.

State v. Joseph G. Green, 2022 WI 30, 5/13/22, limiting in part and affirming in part, a published court of appeals decision; case activity (including briefs)

Section 971.14(5)(a)1 provides that a defendant’s commitment for treatment to competency cannot exceed 12 months or his maximum sentence, whichever is less. So the State argued that if a defendant appeals an involuntary medication order, this period must be tolled, otherwise the appeal time will consume the commitment period. SCOW unanimously rejects that argument. Unfortunately, a majority then “limits” State v. Scott‘s automatic stay of involuntary med orders to those entered during postconviction proceedings. In truth, SCOW eliminated the automatic stay.

State v. Wilson P. Anderson, 2020AP819-Cr, 3/16/21, District 1 (1-judge opinion; ineligible for publication); case activity (including briefs)

A few weeks ago, District 4 issued a to-be-published decision regarding the State’s burden of proof on a motion for involuntary medication to restore a defendant’s competence for trial. See State v. Green. It held that to satisfy Sell v. U.S., 539 U.S. 166 (2003), the State must file an individualized treatment plan specifying the medications and dosages it wants to administer to the defendant, and the circuit court must approve it. In Anderson’s case, District 1 holds that the State can file a psychologist’s report that simply indicates the defendant’s diagnosis, treatment history, and a need for medication (without specifying drugs, dosages, etc.). District 1’s decision in Anderson seems oblivious to, and contradicts, Green and a new District 4 decision in State v. Engen as well as Sell itself and substantial federal case law.

State v. Eric Engen, 2020AP160-CR, 3/18/21, District 4, (not recommended for publication); case activity (including briefs)

This is the third court of appeals decision on Sell v. United States in three weeks. As in State v. Green, District 4 here again holds that the State must file an individualized treatment plan to support a motion for involuntary medication to restore a defendant’s competence for trial. A psychiatrist’s report simply opining that medication is necessary to restore competency does not satisfy Sell. Green and Engen conflict with District 1’s decision this week in State v. Anderson, which holds that a report by a psychologist (who cannot prescribe medication) simply opining that the defendant needs medication to regain competence, satisfies Sell. The Engen decision is important for several other reasons as well.

State v. Joseph G. Green, 2021 WI App 18; case activity (including briefs)

SCOW recently declared parts of §971.14 unconstitutional. See State v. Fitzgerald,  2019 WI 69, 387 Wis. 2d 384, 929 N.W.2d 165 and our post here. The statute allowed the government to administer unwanted antipsychotic medication to a defendant to render him competent for trial in violation of  Sell v. United States, 539 U.S. 166 (2003). Here in Green’s case the court of appeals describes the evidence the State must present, and the findings the circuit court must make, before ordering involuntary medication. It also clarifies the procedures involved in appealing an involuntary medication order.

State v. Raytrell K. Fitzgerald, 2018AP1296-CR, petition for bypass granted 12/12/18, circuit court order vacated, 2019 WI 69; case activity (including briefs)

Issues:

Whether the involuntary medication provisions of Wis. Stat. §971.14 are unconstitutional because they do not comport with Sell v. United States, 539 U.S. 166 (2003)?

Whether the circuit court’s Order of Commitment for Involuntary Treatment violated Fitzgerald’s constitutional right to substantive and procedural due process?

State ex rel. Raytrell K. Fitzgerald v. Milwaukee County Circuit Court, 2018AP1214-W, petition for review of an Order Denying Supervisory Relief granted, 10/10/18, affirmed by an equally divided court, 2019 WI 69; case activity

Issue: State v. Scott, 2018 WI 74, ¶43, 382 Wis. 2d 476, 914 N.W.2d 141 held that “involuntary medication orders are subject to an automatic stay pending appeal.”  Which event triggers the automatic stay—the entry of the involuntary medication order or the filing of a notice of appeal? Either way, must the circuit court enter an “automatic stay” order?