Leroy Smith III has been held at the Riverview Psychiatric Center since January, when a judge found him not competent to stand trial for murder in the gruesome slaying and dismemberment of his father in May 2014.

Now the state wants to take the unusual step of forcing Smith, who suffers delusions from schizophrenia, to take his anti-psychotic medication in hopes that he may become fit for trial.

A Kennebec County judge will ultimately decide on the state’s motion to force medication, but Smith’s case – believed to be Maine’s first instance of asking a judge to authorize it for competency reasons – has brought additional attention to the debate over how to handle people with severe mental illness who have been linked to violent crimes.

Forced medication, sometimes referred to as assisted outpatient treatment, has been consistently upheld as lawful by the U.S. Supreme Court. Still, it remains controversial because it sides with the safety of the patient and others at the expense of a patient’s individual rights.

Two sweeping mental health reform bills that have been introduced in Congress both call for expanding capacity for forced medication. However, some mental health advocates, including the National Alliance on Mental Illness, have expressed moral concerns about forcing an individual, even one with profound mental illness, to be medicated against his or her will. They also argue that it doesn’t work.

The Smith case is particularly unusual because the state is asking a judge to force medication not necessarily for the usual reason of protecting people from harm but to ensure that the state can move through the legal process. That type of forced medication is not common, although it has been upheld by the U.S. Supreme Court and a handful of states have passed laws to facilitate it as an option.

Assistant Attorney General Deborah Cashman cited a new Maine law, passed this summer, in her motion last month, but didn’t need to. The Supreme Court decision from 2003 already provided a pathway, which may render moot the objections of Smith’s attorneys, who believe their client’s constitutional rights are being violated.

Constitutionality aside, forcing medication in these types of cases raises questions. Smith is a pretrial defendant, who – even though he has confessed – is still presumed innocent. And his competence to stand trial is an entirely different issue than his mental capacity at the time of the alleged crime. That means even if his competency is restored through medication, it has no bearing on his state of mind in May 2014, when he allegedly killed his father.

Kathy Swedlow, an assistant dean and professor at Western Michigan University’s Cooley Law School who has published on the topic, said despite the high court’s decision 12 years ago, forced medication for the purpose of restoring competency remains fraught with problems.

“Professionals can determine incompetency, but how do you effectively determine that medication restores competency?” she said. “How are we really going to know if a person is competent?”

CONFESSION, BIZARRE BEHAVIOR

Smith, 25, already has confessed to stabbing his father, Leroy Smith Jr., to death in May 2014 inside the Gardiner apartment they shared.

He told police that he dragged the body into the bathtub to cut it into pieces, loaded those pieces into trash bags, and dumped the bags in the woods a few miles down the road.

During his confession, the younger Smith said he killed his father because of years of sexual abuse, but he also referred to himself as God, said the FBI told him to put a video of the slaying on YouTube and later claimed that people associated with heavy metal bands were conspiring to kill him.

At an initial hearing less than a week after the killing, Smith claimed that he was a political prisoner. His behavior has been similarly bizarre during subsequent court appearances.

Smith underwent a forensic evaluation last summer and fall that resulted in a ruling in January by Justice Donald Marden, who found the defendant not competent to stand trial. He’s been at Riverview, in Augusta, ever since.

By law, Smith can be held indefinitely to see if his competence can be restored, but that may never happen. Lately, Smith has been making things more difficult.

According to court documents, Smith has refused to take his Seroquel, an anti-psychotic medication that’s often used to treat schizophrenia, his mental health diagnosis.

Without that medicine, Smith suffers from debilitating delusions, according to Ann LeBlanc, director of the State Forensic Service, who conducted his forensic evaluation.

With it, though, Smith is “substantially likely” to be rendered competent, Cashman has argued.

Scott Hess, one of Smith’s attorneys, said that although the Supreme Court case allows involuntary medication, the state has to meet certain criteria: that there are important government interests at stake, that the medication will make it likely to render a defendant competent, that less intrusive means are unlikely to achieve the same results, and that administering medication is medically appropriate.

“Even though Mr. Smith is charged with a serous crime, the state cannot simply experiment upon him by forcing medications into his body, based on a guess that a particular medication might restore his competency,” Hess said. “This would be unconstitutional.”

Cashman has outlined in court documents that the state has a “significant interest in restoring (the) defendant’s competency in this case.” Although she wouldn’t comment on the case directly, it’s likely that the significant interest she cites is the fact that restoring Smith’s competency, even if it means he eventually is found not criminally responsible, will make it easier for him to be institutionalized.

If he’s found not guilty by reason of insanity, the state could keep him at Riverview indefinitely. If Smith’s competency is not restored and he demonstrates no imminent threat of harm to himself or others, the state may not be able to keep him at Riverview for the long term.

Amy Fairfield, a defense attorney with a long history of representing forensic clients, said she was surprised to hear about the state’s motion. Forensic patients are generally defined as either accused criminals who have been found not competent to stand trial or individuals who have been found not criminally responsible because of a mental illness.

“In most cases of competency, people never come back to competence, even with medication,” Fairfield said.

Asked whether the state’s interest is in keeping Smith as a forensic patient rather than a civil patient, Fairfield said that seemed likely.

“If the charges go away, the state has almost zero control over that patient,” she said. “There is a real possibility that he would be having dinner with all of us in the near future.”

A hearing is scheduled for Tuesday in Kennebec County Superior Court, but the judge likely will not act on the state’s motion at that time.

The decision will be watched closely. Daniel Wathen, former chief justice of the Maine Supreme Judicial Court and the court master for the consent decree that governs treatment of Riverview patients, said he believes this is the first time the state has requested forced medication for the purpose of restoring competency.

TWO TYPES OF FORENSIC PATIENTS

Richard Malaby, the state representative who sponsored the bill that became the law cited by Cashman, said he didn’t draft the legislation to assist in criminal cases, although he supports that use.

As it turns out, though, the law was not needed to petition a judge to force medication.

That framework already was provided in the 2003 Supreme Court case, Sell v. United States.

Malaby said his main aim was to improve safety for both patients and staff at psychiatric facilities, specifically Riverview. He said patients who have refused medication have become violent and attacked staff or harmed themselves.

The Republican lawmaker from Hancock said an inability to force medication on patients at Riverview – specifically, forensic patients – is one of the major reasons the hospital has been plagued with problems.

So Malaby’s bill created provisions to allow forced medication, under certain circumstances, for two types of forensic patients – those who have been found not competent to stand trial, like Leroy Smith III, and those who have been found not criminally responsible for their crime by reason of insanity.

State officials already have discretion to force patients to take their medication under certain circumstances in civil cases. That is allowed under a law that passed in 2010.

Legal guardians, health care practitioners and law enforcement personnel can petition a court to order treatment – much in the same way they can petition to have an individual involuntarily committed to a hospital.

The threshold for forced medication in civil cases is lower than the bar required to commit someone to a psychiatric facility involuntarily. But the option is still used sparingly, in part because some mental health advocates have been critical of it.

Those same organizations fought passage of Malaby’s bill this spring.

Oamshri Amarasingham, public policy counsel for the American Civil Liberties Union of Maine, testified in May that a law already exists to force-medicate – a reference to the 2010 legislation – and said additional measures were not needed.

“If a patient lacks the capacity to consent, a guardian should be appointed to make decisions in her best interest. Outside of that process, DHHS has the authority to forcibly medicate patients in its custody in emergency situations,” she said, referring to the Department of Health and Human Services.

NAMI Maine’s Jenna Mehnert said that forcing medication simply to aid in prosecutions is misguided.

“An individual’s mental state at the time the crime was committed, not after forced treatment, should be the driving factor during the court process,” she said.

Despite those objections by mental health advocates, the labor unions representing nurses and social workers supported the measure.

Wathen said that officials felt that it didn’t make sense to allow forced medication for patients who have been committed in civil cases but not for forensic patients whose institutionalization was tied to a criminal case.

The bill passed unanimously in both the House and Senate and became law without the governor’s signature.

Maine became the sixth state to codify the 2003 Supreme court decision into statute.

Wathen said the Smith case will be interesting to watch but he doesn’t think it will lead to a groundswell of requests for forced medication.

“There just aren’t enough of these types of cases in Maine, thankfully,” he said.

 

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