1 E.g., 18 U.S.C. secs. 4244 et seq. (1970); N.Y. Crim. Proc. Law art. 730 (McKinney 1971). For a compilation of state statutory provisions, see N. Richard Janis, Incompetency Commitment: The Need for Procedural Safeguards and a Proposed Statutory Scheme, 23 Cath. U.L. Rev. 720 n.1 (1974). The incompetency doctrine has common law origins. See Group for the Advancement of Psychiatry, Committee on Psychiatry and Law, Misuse of Psychiatry in the Criminal Courts: Competency to Stand Trial 912–15 (New York: Group for the Advancement of Psychiatry, 1974). Blackstone wrote that a defendant who became “mad” after the commission of an offense should not be arraigned “because he is not able to plead … with the advice and caution that he ought” and should not be tried, for “how can he make his defence?” 4 William Blackstone, Commentaries 24 (9th ed. London, 1783). See also 1 Matthew Hale, Pleas of the Crown 34–35 (London, 1678). See Youtsey v. United States, 97 F. 937, 940–46 (6th Cir. 1899); United States v. Chisolm, 149 F. 284 (S.D. Ala. 1906). The formulation of the competency standard approved by the Supreme Court for federal cases, whether the defendant “'has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding“and whether he has a rational as well as factual understanding of the proceedings against him'” (Dusky v. United States, 362 U.S. 402 (1960)), is followed in substance by all jurisdictions, although statutory terminology varies widely. Samuel J. Brakel & Ronald S. Rock, The Mentally Disabled and the Law 410 (rev. ed. Chicago: University of Chicago Press, 1971). A defendant can be severely mentally ill, even overtly psychotic, and still meet this threshold standard for being considered legally competent. E.g., Feguer v. United States, 302 F.2d 214 (8th Cir.), cert. denied, 371 U.S. 872 (1962).Google Scholar

2 Although a number of states authorize treatment of the incompetent defendant on an outpatient basis (see statutes cited in Janis, supra note 1, at 729 n.44), the overwhelming majority (42) provide for automatic hospitalization (Brakel & Rock, supra note 1, at 415, 444–50 table 11.2), a practice that is questionable as a matter of policy and may be unconstitutional under the “least restrictive alternative” doctrine. Alan A. Stone, Mental Health and Law: A System in Transition 212, DHEW Pub. No. (ADM) 76–176 (Rockville, Md.: National Institute of Mental Health, Center for Studies of Crime and Delinquency, 1975); David B. Wexler, Criminal Commitments and Dangerous Mental Patients: Legal Issues of Confinement, Treatment, and Release 40–41, DHEW Pub. No. (ADM) 76–28650 (Rockville, Md.: National Institute of Mental Health, Center for Studies of Crime and Delinquency, 1976); see United States v. Klein, 325 F.2d 283 (2d Cir. 1963); cf. Ashe v. Robinson, 450 F.2d 681 (D.C. Cir. 1971); Covington v. Harris, 419 F.2d 617 (D.C. Cir. 1969); Lake v. Cameron, 364 F.2d 657 (D.C. Cir. 1966). See generally David L. Chambers, Alternatives to Civil Commitment of the Mentally ill: Practical Guides and Constitutional Imperatives, 70 Mich. L. Rev. 1107 (1972).Google Scholar

3 Jackson v. Indiana, 406 U.S. 715 (1972). If there is no substantial probability that the defendant will regain competence in the foreseeable future, or if treatment provided for a reasonable period has not succeeded in restoring him to capacity, substantive due process requires that the state either release the defendant or institute civil commitment proceedings. Id. at 738.Google Scholar

4 Where circumstances at trial raise doubts about a defendant's competency, due process requires the court to hold a hearing on the issue even if defendant fails to raise the question. Drope v. Missouri, 420 U.S. 162 (1975); Pate v. Robinson, 383 U.S. 375 (1966). The issue is typically raised at arraignment but may be raised at any point in the criminal process. Note, Incompetency to Stand Trial, 81 Harv. L. Rev. 454 (1967); Stone, supra note 2, at 200–201. Statistics in the Manhattan Criminal Court for the first five months of 1973 indicate that of 38,841 defendants arraigned, 338, or 87 percent, were examined for competency. Robert Lloyd Goldstein, “The Fitness Factory,” Part I: The Psychiatrist's Role in Determining Competency, 130 Am. J. Psych. 1144, 1147 n.2 (1973).Google Scholar

5 Studies of the percentage of defendants evaluated for competency who are committed to state hospitals as incompetent cite figures ranging from a low of 4 percent in some jurisdictions to a high of 25 percent. Compare. Paul D. Lipsitt, David Lelos, & A. Louis McGarry, Competency for Trial: A Screening Instrument, 128 Am. J. Psych. 105 (1971), with. Goldstein, supra note 4.CrossRefGoogle Scholar

6 Patricia L. Scheidemandel & Charles K. Kanno, The Mentally ill Offender: A Survey of Treatment Programs XIV, 20 table IV (Washington, D.C.: Joint Information Service, American Psychiatric Association & National Association for Mental Health, 1969). Four percent are committed as not guilty by reason of insanity, and about 44 percent are sentenced prisoners transferred from prison to a state hospital for treatment. A more recent national survey confirms these results, and more limited studies in particular states indicate similar findings. William C. Eckerman, A Nationwide Survey of Mental Health and Correctional Institutions for Adult Mentally Disordered Offenders, DHEW Pub. No. (HSM) 73–9018 (Rockville, Md.: National Institute of Mental Health, Center for Studies of Crime and Delinquency, 1972); Group for the Advancement of Psychiatry, supra note 1, at 861–62 (more than 90 percent of defendants committed to Ionia State Hospital in Michigan between 1956 and 1966 were defendants found incompetent to stand trial; incompetence to stand trial accounted for from 65.5 percent to 78 percent of defendants committed to Matteawan State Hospital in New York); Thomas S. Szasz, Psychiatric Justice 51 (New York: Macmillan Co., 1965) (“for every patient found ‘not guilty by reason of insanity’ and confined at Matteawan, there are more than one hundred confined because of mental incompetence to stand trial”). Statistics for 1972 indicate that 9,261 of all state and county mental hospital admissions, or 2.3 percent, were admitted after being found incompetent to stand trial. Note, Developments in the Law–Civil Commitment of the Mentally ill, 87 Harv. L. Rev. 1190, 1193 n.3 (1974).Google Scholar

7 Group for the Advancement of Psychiatry, supra note 1, at 901.Google Scholar

8 “Psychoactive” or “psychotropic” drugs are compounds affecting the mind, behavior, intellectual functions, perception, moods, and emotion. V. G. Longo, Neuropharmacology and Behavior 182 (San Francisco: W. H. Freeman & Co., 1972); Gerald Klerman, Psychotropic Drugs as Therapeutic Agents, Hastings Center Studies, Jan. 1974, at 82 n.1.Google Scholar

9 Leo E. Hollister, Psychotropic Drugs and Court Competence, in 1 Lynn M. Irvine, Jr., & Terry B. Brelje, eds., Law, Psychiatry and the Mentally Disordered Offender 14 (Springfield, ill.: Charles C. Thomas, 1972); V. G. Haddox & Seymour Pollack, Psychopharmaceutical Restoration to Present Sanity (Mental Competency to Stand Trial), 17 J. For. Sci. 568 (1972); M. Herbert Buschman & Jackson M. Reed, Tranquilizers and Competency to Stand Trial, 54 A.B.A. J. 284 (1968); C. B. Scrignar, Tranquilizers and the Psychotic Defendant, 53 A.B.A.J. 43 (1967). A 1967 survey of treatment programs in facilities for mentally ill offenders revealed that 63 percent used psychotropic drugs for “most or all” patients, making this modality the second most frequently used (“planned and supervised recreational therapy” was the most frequently used for “most or all” patients, in 68 percent of such facilities), and that 96 percent used psychotropic drugs for either “most or all” patients or “some” patients, making medication the most frequently used treatment technique overall. Scheidemandel & Kanno, supra note 6, at 47–48.Google Scholar

10 e.g., Leo E. Hollister, Clinical Use of psychotherapeutic Drugs 5–6 (Springfield, ill.: Charles C. Thomas, 1973); George E. Crane, Clinical Psychopharmacology in Its 20th Year, 181 Science 124 (1973); Murray E. Jarvik, Drugs Used in the Treatment of Psychiatric Disorders, in Louis S. Goodman & Alfred Gilman, eds., The Pharmacological Basis of Therapeutics 151 (4th ed. New York: Macmillan Co., 1970); Klerman, supra note 8.Google Scholar

11 Gerald Klerman, Neuroleptics: Too Many or Too Few? in Frank J. Ayd, ed., Rational Psychopharmacotherapy and the Right to Treatment 1, 3 (Baltimore: Ayd Medical Communicadons, 1975).Google Scholar

12 Crane, supra note 10, although critical of long-term treatment with these drugs, has described their extensive use: In the last 15 years, neuroleptic agents have replaced most forms of treatment for psychoses and other serious mental ailments. Electric shock therapy and various types of psychotherapy have survived, but the former is seldom used in institutions, and the latter play a subordinate role in the total management of psychotic individuals. The fact that these drugs reduce overt psychopathology without causing excessive sedation, euphoria, or addiction explains, in part, their widespread use in psychiatry. Id. at 124–25. For discussion of the use of psychotropic drugs in the treatment of a variety of mental conditions, see generally Group for the Advancement of Psychiatry, Psychiatry, Pharmacotherapy, Psychotherapy: Paradoxes, Problems and Prospects (New York: Group for the Advancement of Psychiatry, 1975); Longo, supra note 8; Jonathan O. Cole & John M. Davis, Antidepressant Drugs, in 2 Alfred M. Freedman, Harold I. Kaplan, & Benjamin J. Sadock, eds., Comprehensive Textbook of Psychiatry 1941 (2d ed. Baltimore: Williams & Wilkins, 1975); Jonathan O. Cole & John M. Davis, Minor Tranquilizers, Sedatives, and Hypnotics, in id. at 1956; John M. Davis & Jonathan O. Cole, Antipsychotic Drugs, in id. at 1921; Ronald R. Fieve, Lithium Therapy, in id. at 1982; Jarvik, supra note 10; Frederick H. Meyers & Philip Solomon, Psychopharmacology, in Philip Solomon & Vernon D. Patch, eds., Handbook of Psychiatry 427 (3d ed. Los Altos, Cal.: Lange Medical Publications, 1974); Henry E. Payson, Drug Treatment of Mental Illness: Treatment of Psychiatric Depression, in Richard H. Rech & Kenneth E. Moore, eds., An Introduction to Psychopharmacology 321 (New York: Raven Press, 1971); Charles Solow, Drug Therapy of Mental illness: Tranquilizers and Other Depressant Drugs, in id. at 289.Google Scholar

13 Group for the Advancement of Psychiatry, supra note 1, at 902–3; Robert A. Burt & Norval Morris, A Proposal for the Abolition of the Incompetency Plea, 40 U. Chi. L. Rev. 66, 85 (1972); Buschman & Reed, supra note 9, at 284–85 (case I); Victor G. Haddox, Bruce H. Gross, & Seymour Pollack, Mental Competency to Stand Trial While Under the Influence of Drugs, 7 Loy. L.A.L. Rev. 425, 437 (1974); Haddox & Pollack, supra note 9, at 570; Abraham L. Halpern, Use and Misuse of Psychiatry in Competency Examination of criminal Defendants, vol. 5 Psychiatric Annals, Apr. 1975, at p. 22 of unnumbered reprint.Google Scholar

14 Haddox & Pollack, supra note 9, at 571; note 32 infra and accompanying text; e.g., notice from Dr. Patrick R. Staunton, Chicago Area Zone Director, Illinois Department of Mental Health, to all superintendents, Chicago Area Zone, July 8, 1970: Following a recent meeting with Judge Joseph Powers, Chief Justice of the Criminal Court of Cook County, patients will not be considered competent to stand trial if they are under the influence of psychotropic drugs at the time of the court hearing …. Consequently all Mittimus Patients who are judged competent to stand trial must be withdrawn from psychotropic medication at least 72 hours prior to leaving the DMH facility.Google Scholar

15 Burt & Morris, supra note 12, at 85.Google Scholar

16 State v. Garrett, Nos. 72–7046, 70–7353 (Dade County [Fla.] Cir. Ct., Mar. 2, 1977) (denying defendant's motion to dismiss for lack of speedy trial or, alternatively, to civilly commit him under Jackson v. Indiana, 406 U.S. 715 (1972)).Google Scholar

17 Group for the Advancement of Psychiatry, supra note 1, at 901; Stone, supra note 2, at 213; Scrignar, supra note 9, at 44 (case 1).Google Scholar

18 William Jameson Kunz, Psychotropic Medication and Competency to Stand Trial: A National Survey 31–34 (Manteno, Ill.: Manteno State Hospital, 1974) (collecting most of the few reported cases).Google Scholar

19 People v. Dalfonso, 24 Ill. App. 3d 748, 321 N.E.2d 379 (1974) (reversing a trial court determination of incompetence where the only psychiatric expert testifying had found defendant competent although on medication); State v. Hampton, 253 La. 399, 218 So. 2d 311 (1969) (reversing a trial court finding that defendant was incompetent because only “synthetically sane,” where both expert witnesses had testified that defendant was competent although on medication but would probably relapse if the medication were discontinued).Google Scholar

20 Most of the few reported cases are collected in Kunz, supra note 18, at 31–34. Aside from cases involving the effects of narcotic drugs, involving medication but not the issue of competence, or otherwise not on point, the collected cases generally can be divided into three categories–(a) one permitting trial or upholding guilty plea or conviction of a defendant restored to capacity by psychotropic medication where the medication did not materially impair the defendant's capabilities at trial: People v. Szijarto, 264 Cal. App. 2d 828, 70 Cal. Rptr. 679 (2d Dist. 1968); People v. Kohn, 258 Cal. App. 2d 368, 65 Cal. Rptr. 867 (1st Dist. 1968); State v. Hampton, 253 La. 399, 218 So. 2d 311 (1969); State v. Plaisance, 252 La. 211, 210 So. 2d 323, cert. denied, 393 U.S. 1005 (1968); People v. Bornholdt, 33 N.Y.2d 75, 350 N.Y.S.2d 369 (1973) (competence at jury selection); State v. Ellis, 13 N.C. App. 163, 185 S.E.2d 40 (1971); State v. Rand, 49 Ohio St. 2d 127, 247 N.E.2d 342 (Ct. C.P. 1969); State v. Hancock, 247 Or. 21, 426 P.2d 872 (1967); State v. Arndt, 1 Or. App. 608, 465 P.2d 486 (1970); (b) one finding the defendant not restored to competence by the medication: People v. McCloud, 62 Misc. 2d 1086, 310 N.Y.S.2d 772 (Monroe County Ct. 1970); and (c) one reversing the defendant's death sentence where, although he was competent, the medication prejudicially altered his demeanor in a way that may have contributed to the jury's decision to impose the death penalty: State v. Murphy, 56 Wash. 2d 761, 355 P.2d 323 (1960). Cases on point reported since the 1974 survey or not collected therein all uphold trial on medication. United States v. Smith, 521 F.2d 374 (10th Cir. 1975); United States ex rel. Stukes v. Shovlin, 464 F.2d 1211 (3d Cir. 1972), aff'g. 329 F. Supp. 911 (E.D. Pa. 1971); United States ex rel. Trantino v. Hatrak, 408 F. Supp. 476 (D.N.J. 1976), appeal pending. No. 76–2018 (3d Cir. 1977); Virgin Islands v. Crowe, 391 F. Supp. 987 (D.V.I. 1975); State v. Jojola, 89 N.M. 489, 553 P.2d 1296 (Ct. App. 1976); People v. Parsons, 82 Misc. 2d 1090, 371 N.Y.S.2d 840 (Nassau County Ct. 1975); State v. Potter, 285 N.C. 238, 204 S.E.2d 649 (1974); Jones v. State, 71 Wisc. 2d 750, 238 N.W.2d 741 (1976); see In re. Pray, 133 Vt. 253, 336 A.2d 174 (1975) (upholding the possibility of competence on medication, but reversing where the jury was not informed that defendant, who raised an insanity defense, was on heavy medication).Google Scholar

21 Kunz, supra note 18.Google Scholar

22 Alaska, Arkansas, Colorado, Indiana, Montana, Nebraska, New Hampshire, North Dakota, and Wyoming. Id. at 9.Google Scholar

23 Alabama, Arizona, California, Florida, Illinois, Kansas, South Carolina, and Washington, Id.Google Scholar

24 Such disparity in judicial practices, even among judges of the same court, continues. For example, despite reports in response to the 1974 survey of the termination of a former practice in Dade County, Florida, under which the trial courts had ordered that defendants be maintained in the state hospital without medication for a prescribed period (id. at 15–16), a Dade County judge, in recently finding a defendant incompetent, ordered that he be committed to the Division of Mental Health “until such time as he shall be restored to a competent state of mind without the support of medication, and further … [t]hat he complete a minimal nine month period of time without the assistance of any medication for any major mental disorder before being declared competent.” State v. Kimble, No. 75–10681 (Dade County [Fla.] Cir. Ct., Mar. 31, 1976).Google Scholar

25 The states were Connecticut, Delaware, Georgia, Hawaii, Idaho, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Nevada, New Jersey, New Mexico, New York, North Carolina, Ohio, Oregon, Pennsylvania, Rhode Island, Tennessee, Texas, Vermont, Virginia, West Virginia, and Wisconsin. Kunz, supra note 18, at 9.Google Scholar

26 Iowa, Oklahoma, South Dakota, and Utah. Id. at 18, 26, 27, 28.Google Scholar

27 Ernest Wilkerson, Trying the Drugged Defendant, app. C (unpublished, May 11, 1972). The five states were Alaska, Arkansas, New York, South Dakota, and Texas. Id.Google Scholar

28 Indiana.Google Scholar

29 Georgia, New York, and Ohio.Google Scholar

30 Iowa.Google Scholar

31 States listed in notes 23, 28–30 supra. Hospitals in some of the eight states listed in note 23 as states in which the automatic bar rule is applied indicated in the 1976 survey that courts in their area permit trial of the medicated defendant. However, the more recent survey, because of incomplete responses, does not justify removing any of these states from the 1974 list of those in which at least some courts apply the automatic bar rule.Google Scholar

32 The states included seven not listed in either the 1974 or 1976 surveys as applying the automatic bar rule–Michigan, Minnesota, Montana, Nebraska, New Hampshire, New Mexico, and Pennsylvania. Thus, even in states where the courts apparently permit trial of medicated defendants, some hospitals automatically remove such defendants from medication prior to their return to court.Google Scholar

33 E.g., Suzuki v. Quisenberry, 411 F. Supp. 1113 (D. Hawaii 1976); Doremus v. Farrell, 407 F. Supp. 509 (D. Neb. 1975); Lessard v. Schmidt, 349 F. Supp. 1078 (E.D. Wis. 1972), vacated and remanded on procedural grounds, 414 U.S. 473 (1974), reinstated on remand, 379 F. Supp. 1376 (E.D. Wis. 1974), vacated and remanded on procedural grounds, 421 U.S. 957 (1975), reinstated on remand, 413 F. Supp. 1318 (E.D. Wis. 1976). See generally Stone, supra note 2, at 51–65; Note, supra note 6.Google Scholar

34 Group for the Advancement of Psychiatry, supra note 1, at 885; Harvard University, Laboratory of Community Psychiatry, Competency to Stand Trial and Mental Illness 2–3, DHEW Pub. No. (HSM) 73–9105 (Rockville, Md.: National Institute of Mental Health, Center for Studies of Crime and Delinquency, 1973); Halpern, supra note 13, at 1; A. Louis McGarry, Demonstration and Research in Competency for Trial and Mental Illness: Review and Preview, 49 B.U.L. Rev. 46, 49 (1969).Google Scholar

35 Harvard University, supra note 34, at 2; Stone, supra note 2, at 199; McGarry, supra note 34, at 4749.Google Scholar

36 See Ralph Slovenko, Psychiatry and Law 104 (Boston: Little, Brown & Co., 1973); Buschman & Reed, supra note 9. One judge recently described what he referred to as his “miniature stress test”: “If they can't take a week or two in jail (without drugs), what are they going to do if we allow them back on the streets?” Mark Neubauer, Failure and Danger at S. Florida State, Miami Herald, Feb. 6, 1977, at 1-E, 6-E.Google Scholar

37 Research Task Force of the National Institute of Mental Health, Research in the Service of Mental Health 331, DREW Pub. No. (ADM) 75–236 (Rockville, Md.: National Institute of Mental Health, 1975).Google Scholar

38 Alberto DiMascio, Innovative Drug Administration Regimens and the Economics of Mental Health Care, in Ayd, supra note 11, at 118.Google Scholar

39 John Pekkanen, The Impact of Promotion on Physicians' Prescribing Patterns, 6 J. Drug Issues 13, 18 (1976).Google Scholar

40 Gerald Klerman, Psychoactive Drugs: The Medical Model and Salvation 30, paper presented at Symposium on Ethical and Social Aspects of Behavior Control, Reed College, Portland, Or., Mar. 5–6, 1975.Google Scholar

41 Cole & Davis, Minor Tranquilizers, supra note 12, at 1956.Google Scholar

42 Gilbert Cant, Valiumania, N.Y. Times, Feb. 1, 1976, Magazine, at 34; Lawrence K. Altman, Valium, Most Prescribed Drug, Is Center of a Medical Dispute, N.Y. Times, May 19, 1974, at 1.Google Scholar

43 Scheidemandel & Kanno, supra note 6, at 47–48.Google Scholar

44 American Psychiatric Association, Committee on Nomenclature and Statistics, DSM-II: Diagnostic and Statistical Manual of Mental Disorders sec. 295 (2d ed. Washington, D.C.: American Psychiatric Association, 1968) [hereinafter referred to as DSM-II]; Research in the Service of Mental Health, supra note 37, at 173–79.Google Scholar

45 Klerman, supra note 11, at 16.Google Scholar

46 Stone, supra note 2, at 41.Google Scholar

47 Other phenothiazenes include promazine (Sparine), mesoridazine (Serentil), thioridazine (Mellaril), flupherazine (Prolixin), perphenazine (Trilafon), prochloroperazine (Compazine), and trifluoperazene (Stelazine). See generally Longo, supra note 8, at 7–46; Davis & Cole, supra note 12; Jarvik, supra note 10, at 155–74; Meyers & Solomon, supra note 12, at 43948; Solow, supra note 12, at 296–306. Each of these drugs is separately described in Physicians' Desk Reference (30th ed. Oradell, N.J.: Medical Economics Co., 1976) (hereinafter referred to as PDRI, an annual compilation of drug product information provided by the drug manufacturers.Google Scholar

48 PDR, supra note 47. Haloperidol (Haldol) is the most popular of the butyrophenones. The thioxanthenes include chlorprothixene (Taractan) and thiothixene (Navane). The rauwolfia alkaloids, such as reserpine (Serpasil), although now rarely used as antipsychotics, are used in the treatment of hypertension.Google Scholar

49 For a more extensive history of the discovery of chlorpromazine, see Research in the Service of Mental Health, supra note 37, at 147–48; Longo, supra note 8, at 7–8; Jarvik, supra note 10, at 151–52. See generally Judith P. Swazey, Chlorpromazine in Psychiatry: A Study of Therapeutic Innovation (Cambridge, Mass.: M.I.T. Press, 1974). The discovery of chlorpromazine provides a classic illustration of the often serendipitous nature of basic scientific research. See Research in the Service of Mental Health, supra. at 148.Google Scholar

50 Jarvik, supra note 10, at 155.Google Scholar

51 Crane, supra note 10. Extensive evaluation in controlled double-blind studies has established that these drugs are superior to placebos and to psychotherapy or electroconvulsive therapy alone in the treatment of schizophrenia. See Group for the Advancement of Psychiatry, supra note 12, at 282, 286; Davis & Cole, supra note 12, at 1922–23 (table summarizing drug-placebo comparative studies), 1931 (electroconvulsive therapy), and 1932 (psychotherapy); Jarvik, supra note 10, at 167–68.Google Scholar

52 Davis & Cole, supra note 12, at 1921–22; Research in the Service of Mental Health, supra note 37, at 334. Chlorpromazine has been judged the outstanding single practical contribution to psychiatry in several decades by the Committee on Brain Sciences of the National Research Council. Id. at 147.Google Scholar

53 Research in the Service of Mental Health, supra note 37, at 175; Longo, supra note 8, at 27, 43; Klerman, supra note 11, at 13–15; Solomon H. Snyder, Basic Science of Psychopharmacology, in 1 Freedman et al., supra note 12, at 109, 110–11. The neurotransmitter playing this key role is most frequently thought to be dopamine. Id.Google Scholar

54 Davis & Cole, supra note 12, at 1921–22; Solow, supra note 12, at 291.Google Scholar

55 Solow, supra note 12, at 291.Google Scholar

56 Stone, supra note 2, at 41.Google Scholar

57 First admissions rose from 130,000 in 1962 to 164,000 in 1964, but dropped to 141,000 in 1972. Id. at 41–42.Google Scholar

58 Klerman, supra note 11, at 3.Google Scholar

59 Jarvik, supra note 10, at 167.Google Scholar

60 Group for the Advancement of Psychiatry, supra note 12, at 342–43; Davis & Cole, supra note 12, at 1921; Jarvik, supra note 10, at 152.Google Scholar

61 Klerman, supra note 11, at 3.Google Scholar

62 Davis & Cole, supra note 12, at 1921–22; Klerman, supra note 11, at 3.Google Scholar

63 Davis & Cole, supra note 12, at 1921–22, 1929; John M. Davis, Overview: Maintenance Therapy in Psychiatry: I. Schizophrenia, 132 Am. J. Psych. 1237 (1975).Google Scholar

64 See Hollister, supra note 10, at 37; Davis & Cole, supra note 12, at 1929; Scrignar, supra note 9, at 43–44.Google Scholar

65 Id. at 294; Hollister, supra note 10, at 13–14.Google Scholar

66 Most of the drugs produce a family of autonomic reactions, including blurred vision, dry mouth and throat, constipation, paralytic ileus, urinary retention, orthostatic hypotension, edema, tachycardia, palpitations, dizziness, faintness, fatigue, and inhibition of ejaculation. Thomas P. Detre & Henry G. Jarecki, Modern Psychiatric Treatment 583–84 (Philadelphia: J. B. Lippincott Co., 1971); Davis & Cole, supra note 12, at 1933–34; Jarvik, supra note 10, at 165. These symptoms are usually mild, and patients generally develop tolerance to them. Some may be controlled by adjusting dosage. The most common side effects are the extrapyramidal reactions, a family of bizarre disorders of the extrapyramidal motor system, consisting of a parkinsonian syndrome, akathisia, dystonia, and dyskinesia. See generally Detre & Jarecki, supra, at 579–82; Hollister, supra note 10, at 47–50; Longo, supra note 8, at 14–17; American College of Neuropsychopharmacology-Food and Drug Administration Task Force, Neurological Syndromes Associated with Antipsychotic Drug Use: A Special Report, 28 Archives General Psych. 463 (1973) [hereinafter referred to as ACN-FDA Reportl; Davis & Cole, supra note 12, at 1934. The parkinsonian syndrome, resembling the symptoms of Parkinson's disease, consists of muscular rigidity, fine resting tremors, a masklike face, salivation, motor retardation, a shuffling gait, and pill-rolling hand movements. Akathisia is a feeling of motor restlessness in which the patient has difficulty remaining still and is driven to pace about impatiently and tap his foot incessantly. Dystonia involves bizarre muscular spasms, primarily of the muscles of the head and neck, often accompanied by facial grimacing, involuntary spasms of the tongue and mouth interfering with speech and swallowing, oculogyric crisis, convulsive movements of the arms and head, bizarre gaits, and difficulty in walking. The dyskinesias present a broad range of bizarre tongue, face, and neck movements. An early comprehensive survey of several thousand patients receiving phenothiazines reported an incidence of 39 percent with extrapyramidal symptoms, approximately 21 percent with akathisia, 15 percent with parkinsonism, and 3 percent with dystonias. Frank J. Ayd, A Survey of Drug Induced Extrapyramidal Reactions, 175 J.A.M.A. 1054 (1961). These conditions usually disappear soon after dosage is lowered, the drug temporarily withdrawn, or by the concurrent administration of anti-Parkinson drugs. However, one of the dyskinesias is not only irreversible but becomes intensified when antipsychotic medication is withdrawn. This condition, tardive dyskinesia, is a late-appearing, persistent neurological syndrome estimated to affect between 0.5 and 40 percent of patients taking these drugs. ACN-FDA Report, supra, at 463; George E. Crane, Persistent Dyskinesia, 122 Brit. J. Psych. 395 (1973); William E. Fann, John M. Davis, & David. S. Janowsky, The Prevalence of Tardive Dyskinesia in Mental Hospital Patients, 33 Disorders Nervous Sys. 182 (1972). It consists of slow, rhythmical, repetitive, involuntary movements of the mouth, lips, and tongue, sometimes accompanied by other bizarre muscular activity. Motor disorders in other parts of the body are frequent, including involuntary quick movements of the extremities, continuous arrhythmic movements in the distal parts of the limbs, overextension of the spine and neck, abnormal posture, shifting of weight from foot to foot, and inability to stand or sit still. The extrapyramidal symptoms are subjectively quite stressful and, in serious cases that do not respond to treatment, may be distracting and interfere with decorum at trial. Although special measures may be necessary at the trial of a defendant with these conditions, they do not interfere with mental processes and, except in extreme cases, should not be considered to render the defendant incompetent for trial. Additional adverse effects, although rarely reported, include such hypersensitivity reactions as blood dyscrasias, jaundice and dermatological effects, ocular changes, sudden death, agranulocytosis, convulsions, metabolic and endocrinologic changes, and adverse behavioral effects. Davis & Cole, supra note 12, at 1934, 1936–38; Myers & Solomon, supra note 12, at 44548; Solow, supra note 12, at 299–301.Google Scholar

67 Solow, supra note 12, at 298. “The cortex, presumably subserving intellectual capacities and coping mechanisms (i.e., ego functions), is spared from impairment.”Id. at 307. “After the initial psychotic behavior is controlled, one lowers the dose and then makes adjustments to arrive at an optimal dose for cognitive restoration.” Davis & Cole, supra note 12, at 1933.Google Scholar

68 Jarvik, supra note 10, at 167. See also Ronald T. Hill & David H. Tedeschi, Animal Testing and Screening Procedures in Evaluating Psychotropic Drugs, in Rech & Moore, supra note 12, at 237, 261 (the effects of the antipsychotic drugs “occur without inducing a significant change in the level of consciousness”).Google Scholar

69 Davis & Cole, supra note 12, at 1936; Hollister, supra note 9, at 18; Jarvik, supra note 10, at 157–58.Google Scholar

70 Detre & Jarecki, supra note 66, at 536–37. Chlorpromazine is accordingly classified as a sedating phenothiazene, the class of phenothiazenes producing the most drowsiness. Id.Google Scholar

71 Hollister, supra note 10, at 36; Blackwell, Rational Drug Use in Psychiatry, in Ayd, supra note 11, at 187, 191–92; Davis & Cole, supra note 12, at 1936.Google Scholar

72 Haddox et al., supra note 13, at 425 n.1; Merman, supra note 11, at 83 n.2.Google Scholar

73 Irvin M. Cohen, Effects of Chlorpromazine in Psychiatric Disorders: Report of Clinical Observations and Impressions in 1000 Cases, 229 Am. J. Med. Sci. 356 (1955); Jerome H. Jaffe, Drug Addiction and Drug Abuse, in Goodman & Gilman, supra note 10, at 276, 289–90.Google Scholar

74 Ernest L. Abel, Drugs and Behavior: A Primer in Neuropsychopharmacology 183 (New York: John Wiley & Sons, 1974); Jarvik, supra note 10, at 158. Any impairment in sustained-attention task performance that would affect trial abilities could presumably be successfully ameliorated by a liberal granting of trial recesses.Google Scholar

75 Jarvik, supra note 10, at 158; Solow, supra note 12, at 307.Google Scholar

76 Hollister, supra note 9, at 19.Google Scholar

77 Solow, supra note 12, at 305. The recommendations in PDR, supra note 47, at 1458, for dosage and administration of Thorazine, for example, provide: Adjust dosage to individual and the severity of his condition …. It is important to increase dosage until symptoms are controlled … . In continued therapy, gradually reduce dosage to the lowest effective maintenance level, after symptoms have been controlled for a reasonable period.Google Scholar

78 Hollister, supra note 9, at 19.Google Scholar

79 Where defendants found competent and tried on psychotropic drugs were not materially impaired by the drugs' effects, the courts have upheld their convictions or guilty pleas. E.g., Virgin Islands v. Crowe, 391 F. Supp. 987 (D.V.I. 1975) (Thorazine); State v. Jojola, 89 N.M. 489, 553 P.2d 1296 (Ct. App. 1976) (Thorazine); State v. Potter, 285 N.C. 238, 204 S.E.2d 649 (1974) (Haldol); State v. Ellis, 13 N.C. App. 163, 185 S.E.2d 40 (1971) (Thorazine); State v. Rand, 49 Ohio 2d 127, 247 N.E.2d 342 (Ct. C.P. 1969) (Thorazine and Stelazine); State v. Arndt, 1 Or. App. 608, 465 P.2d 486 (1970) (Thorazine); Jones v. State, 71 Wisc. 2d 750, 238 N.W.2d 741 (1976) (Thorazine).Google Scholar

80 Research in the Service of Mental Health, supra note 37, at 179. See DSM-II, supra note 44, at sec. 296.Google Scholar

81 Group for the Advancement of Psychiatry, supra note 12, at 329; Research in the Service of Mental Health, supra note 37, at 179. More than 80 percent of the 20,000 suicide deaths occurring each year in the United States are believed to be precipitated by depressive illness. Id.Google Scholar

82 Research in the Service of Mental Health, supra note 37, at 62; Longo, supra note 8, at 49.Google Scholar

83 See Research in the Service of Mental Health, supra note 37, at 62; Longo, supra note 8, at 50–51; Cole & Davis, Antidepressant Drugs, supra note 12, at 1941.Google Scholar

84 Research in the Service of Mental Health, supra note 37, at 62; Longo, supra note 8, at 59–61.Google Scholar

85 The MAO inhibitors include tranylcypromine (Parnate), isocarboxazid (Marplan), phenelzine (Nardil), pargyline (Eutonyl), and nialamide (Niamid). See generally Cole & Davis, Antidepressant Drugs, supra note 12, at 1947–48; Jarvik, supra note 10, at 181–86; Klerman, supra note 11, at 85.Google Scholar

86 The tricyclic antidepressants, in addition to imipramine, include amitriptyline (Elavil), desipramine (Norpramin, Pertofran), nortriptyline (Aventyl), doxepin (Sinequan), and protriptyline (Viractyl). See generally Longo, supra note 8, at 47–72; Cole & Davis, Antidepressant Drugs, supra note 12, at 1942–47; Jarvik, supra note 10, at 186–92; Payson, supra note 12, at 333–38.Google Scholar

87 Jarvik, supra note 10, at 183, 187.Google Scholar

88 Low levels of the neurotransmitter norepinephrine are thought to play a key role in causing depression. Research in the Service of Mental Health, supra note 37, at 62, 166, 172, 181; Longo, supra note 8, at 57–58; J. J. Schildkraut, Norepinephrine Metabolism in the Pathology and Classification of Depressive and Manic Disorders, in Jonathan O. Cole, Alfred M. Freedman, & Arnold J. Friedhoff, eds., Psychopathology and Psychopharmacology 23149 (Baltimore: Johns Hopkins University Press, 1973). The MAO inhibitors work by inhibiting the enzyme that destroys norepinephrine; the tricyclic antidepressants by blocking the reuptake of this neurotransmitter into the nerve terminals. Research in the Service of Mental Health, supra, at 62; Snyder, supra note 53, at 110–11.Google Scholar

89 See Cole & Davis, Antidepressant Drugs, supra note 12, at 194243 (table summarizing drug-placebo comparative studies), 1945 (70 percent of patients helped); Jarvik, supra note 10, at 190–92; Jeffrey B. Morris & Aaron T. Beck, The Efficacy of Antidepressant Drugs, 30 Archives General Psych. 667 (1974).Google Scholar

90 Richard Abrams, ECT and Psychotropic Drugs, in Ayd, supra note 11, at 151, 152–54 (reviewing comparative studies); Thomas D. Hurwitz, Electroconvulsive Therapy: A Review, 15 Comprehensive Psych. 303, 306 (1974) (table summarizing comparative studies).Google Scholar

91 Longo, supra note 8, at 63; Cole & Davis, Antidepressant Drugs, supra note 12, at 1947; Jarvik, supra note 10, at 181; Meyers & Solomon, supra note 12, at 459.Google Scholar

92 Klerman, supra note 8, at 85.Google Scholar

93 John M. Davis, Overview: Maintenance Therapy in Psychiatry: II. Affective Disorders, 133 Am. J. Psych. 1, 10–11 (1976).Google Scholar

94 Following the onset of a favorable response, which may take up to 30 days from initiation of medication, the patient should be maintained on the drug for at least three to five months. Payson, supra note 12, at 336–37. Moreover, maintenance therapy with tricyclic anti-depressants is often recommended for longer periods to prevent the recurrence of depressive symptoms. See Davis, supra note 93, at 10–11.Google Scholar

95 The tricyclic drugs may produce the typical autonomic effects described in note 66 supra, as well as a number of allergic and hypersensitivity reactions, cardiovascular problems, endocrine changes, and neurological effects, including persistent tremors in the upper extremities and tongue, and a mild parkinsonian syndrome. Detre & Jarecki, supra note 66, at 602–6; Cole & Davis, Antidepressant Drugs, supra note 12, at 1946. The MAO inhibitors may produce these as well as a number of very serious toxic effects involving the liver and the cardiovascular system. Cole & Davis, Antidepressant Drugs, supra note 12, at 1947–48; Jarvik, supra note 10, at 185–86.Google Scholar

96 Hollister, supra note 9, at 17. Some of the antidepressants (e.g., Elavil, Sinequan) are more sedating than others (e.g., Norpramin, Aventyl), a fact that should be taken into account by hospital physicians in selecting an antidepressant for patients who will be returned to court. Interview with Dr. Ronald Shellow, Dec. 3, 1976, Miami, Fla.Google Scholar

97 Meyers & Solomon, supra note 12, at 453.Google Scholar

98 Cole & Davis, Antidepressant Drugs, supra note 12, at 194445.Google Scholar

99 Id. at 1948; Hollister, supra note 9, at 17–18; Jarvik, supra note 10, at 183, 186; e.g., PDR, supra note 47, at 827 (Tofranil), 1923 (Marplan).Google Scholar

100 DSM-II, supra note 44, at secs. 296, 296.1.Google Scholar

101 Fieve, supra note 12, at 1982.Google Scholar

102 Id.; see DSM-II, supra note 44, at sec. 296.1.Google Scholar

103 Fieve, supra note 12, at 1982.Google Scholar

104 Id. at 1984–86; Jarvik, supra note 10, at 193; Payson, supra note 12, at 337.Google Scholar

105 Davis, supra note 93; Fieve, supra note 12, at 1985; Ronald R. Fieve, David L. Dunner, Turkan Kumbarachi, & Frank Stallone, Lithium Carbonate in Affective Disorders: IV. A Double-Blind Study of Prophylaxis in Unipolar Depression, 32 Archives General Psych. 1541 (1975).CrossRefGoogle Scholar

106 Research in the Service of Mental Health, supra note 37, at 181. Lithium is believed to act by increasing the reuptake of norepinephrine, supporting the view that mania results from an oversupply of this neurotransmitter. Id.; Longo, supra note 8, at 69–70; Cole & Davis, Antidepressant Drugs, supra note 12, at 1951–52. The action of lithium is opposite to that of the tricyclic antidepressants, which, by decreasing the reuptake of norepinephrine, support the theory that depression results from an undersupply of neurotransmitters. See note 88 supra.Google Scholar

107 If lithium is given in excessive amounts or if renal mechanisms fail to eliminate it properly, lithium toxicity may develop, presenting serious central nervous system effects, including confusion, impairment of consciousness, and even coma. Fieve, supra note 12, at 1984; Jarvik, supra note 10, at 194.Google Scholar

108 The side effects may include tremor of the hands, abdominal cramps, nausea, vomiting, diarrhea, thirst, polyuria, fatigue, and weight gain. After a week or so all but thirst, excessive urination, and tremor disappear. Fieve, supra note 12, at 1984; Jarvik, supra note 10, at 194; Meyers & Solomon, supra note 12, at 449.Google Scholar

109 Jarvik, supra note 10, at 193; Meyers & Solomon, supra note 12, at 448.Google Scholar

110 Davis, supra note 93, at 9.Google Scholar

111 Jarvik, supra note 10, at 174–76; Solow, supra note 12, at 306. Clinical evaluation has established the superiority of these drugs to placebos and to barbiturates in the treatment of neurotic anxiety. See Cole & Davis, Minor Tranquilizers, supra note 12, at 1957, 1959–61 (table summarizing comparative studies); Klerman, supra note 8, at 86–87; Solow, supra note 12, at 308.Google Scholar

112 These compounds are among the most widely used of all drugs, constituting about 39 percent of all prescriptions for psychotropic medication. Cole & Davis, Minor Tranquilizers, supra note 12, at 1956. One of these drugs, Valium, is considered the most frequently pre-scribed medication in the world, alone accounting for almost 60 million prescriptions in the United States in 1974. See note 42 supra.Google Scholar

113 Solow, supra note 12, at 306. See generally Longo, supra note 8, at 73–95; Cole & Davis, Minor Tranquilizers, supra note 12, at 1956–68; Jarvik, supra note 10, at 174–80.Google Scholar

114 Longo, supra note 8, at 73. See DSM-II, supra note 44, secs. 300–300.08.Google Scholar

115 Cole & Davis, Minor Tranquilizers, supra note 12, at 1957; Jarvik, supra note 10, at 174, 176, 178–79; Meyers & Solomon, supra note 12, at 429, 436. Additional side effects are comparatively minor, generally constituting “no more than an inconvenience to the patient,” and should not affect trial competence. Cole & Davis, supra, at 1966. These additional effects include vertigo, excessive appetite, nausea, headache, allergic and hematological disorders, impaired visual-motor performance, paradoxical rage reactions, and hangover. Jarvik, supra note 10, at 176, 179–80; Meyers & Solomon, supra note 12, at 436–37; Solow, supra note 12, at 309.Google Scholar

116 Cole & Davis, Minor Tranquilizers, supra note 12, at 1966; Jarvik, supra note 10, at 175; Solow, supra note 12, at 307.Google Scholar

117 Cole & Davis, Minor Tranquilizers, supra note 12, at 1964; Jarvik, supra note 10, at 177.Google Scholar

118 Hollister, supra note 9, at 17.Google Scholar

119 Id.Google Scholar

120 Cole & Davis, Minor Tranquilizers, supra note 12, at 1966.Google Scholar

121 Id. at 1958.Google Scholar

122 See Jarvik, supra note 10, at 176 (caffeine counteracts the drowsiness produced by meprobamate).Google Scholar

123 Where defendants found competent and tried on antianxiety drugs were not materially impaired by the drugs' effects, the courts have upheld their convictions. E.g., United States v. Smith, 521 F.2d 374 (10th Cir. 1975) (Valium); United States ex rel. Trantino v. Hatrak, 408 F. Supp. 476 (D.N.J. 1976) (Equanil), appeal pending, No. 76–2018 (3d Cir. 1977); State v. Hancock, 247 Or. 21, 426 P.2d 872 (1967) (Valium).Google Scholar

124 Klerman, supra note 8, at 91; Klerman, supra note 40, at 36–39.Google Scholar

125 See Klerman, supra note 40, at 36–39; Group for the Advancement of Psychiatry, supra note 12, at 276–79.Google Scholar

126 See Hagop S. Akiskal & William T. McKinney, Jr., Psychiatry and Pseudopsychiatry, 28 Archives General Psych. 367 (1973); Richard M. Restak, Psychiatry in Search of Identity, N.Y. Times, Jan. 12, 1975, sec. 4, at 9.CrossRefGoogle Scholar

127 Research in the Service of Mental Health, supra note 37, at 60–84. For discussion of the relationship between the action of the psychotropic drugs and various hypotheses concerning the etiology and pathophysiology of some of the serious psychiatric disorders, see notes 53, 88, 106 supra and accompanying text.Google Scholar

128 E.g., Lester Luborsky, Barton Singer, & Lise Luborsky, Comparative Studies of Psychotherapies: Is It True That “Everyone Has Won and All Must Have Prizes”? 32 Archives General Psych. 995, 1002 (1975) (summarizing drug-psychotherapy comparative studies). See notes 51, 89, 104 supra and accompanying text.Google Scholar

129 State v. Hampton, 253 La. 399, 403, 218 So. 2d 311, 312 (1969); accord, People v. Dalfanso, 24 Ill. App. 3d 748, 321 N.E.2d 379, 381 (1974); State v. Potter, 285 N.C. 238, 248, 204 S.E.2d 649, 656 (1974).Google Scholar

130 Scrignar, supra note 9, at 44.Google Scholar

131 Stone, supra note 2, at 209.Google Scholar

132 Alexander D. Brooks, Law, Psychiatry and the Mental Health System 397–99 (Boston: Little, Brown & Co., 1974); Arthur R. Matthews, Jr., Mental Disability and the Criminal Law: A Field Study 134 (Chicago: American Bar Foundation, 1970).Google Scholar

133 See United States ex rel. Schuster v. Herold, 410 F.2d 1071 (2d Cir. 1969); Brakel & Rock, supra note 1, at 407; John J. Hess et al., Competency to Stand Trial, in Richard C. Allen, Elyce Zenoff Ferster, & Jesse G. Rubin, eds., Readings in Law and Psychiatry 616, 622 (rev. ed. Baltimore: Johns Hopkins University Press, 1975).Google Scholar

134 Group for the Advancement of Psychiatry, supra note 1, at 905; McGarry, supra note 34, at 57.Google Scholar

135 A. Louis McGarry, The Fate of Psychiatric Offenders Returned for Trial, 127 Am. J. Psych. 1181 (1971); accord, Harvard University, supra note 34, at 4; McGarry, supra note 34, at 56.Google Scholar

136 Slovenko, supra note 36, at 101.Google Scholar

137 An adequately staffed facility able to utilize psychotropic drugs in combination with other therapies should be able to return defendants as competent within a period of six months, the maximum length of time shown to be necessary to treat most civilly committed patients. Group for the Advancement of Psychiatry, supra note 1, at 907; Stone, supra note 2, at 212.Google Scholar

138 406 U.S. 725 (1972).Google Scholar

139 E.g., Special Committee on the Study of Commitment Procedures and the Law Relating to Incompetents of the Association of the Bar of the City of New York, Mental Illness, Due Process and the Criminal Defendant 72–73 (1968) (19-year-old boy accused of burglary in 1901 confined beyond his eighty-third birthday as incompetent to stand trial); Steven L. Engelberg, Pre-trial Criminal Commitment to Mental Institutions: The Procedure in Massachusetts and Suggested Reform, 17 Cath. U. America L. Rev. 163, 165 (1967) (24-year-old man charged with vagrancy committed as incompetent until his death 63 years later); John H. Hess, Jr., & Herbert E. Thomas, Incompetence to Stand Trial: Procedures, Results and Problems, 119 Am. J. Psych. 713, 716 (1963) (man accused of gross indecency in 1926 still hospitalized as incompetent in 1963).Google Scholar

140 Stone, supra note 2, at 203; Note, supra note 4, at 456. A study of the Ionia State Hospital, where Michigan's incompetent defendants are confined, revealed that “well over one-half of the individuals committed as incompetent will spend the rest of their lives confined to the hospital.” Hess & Thomas, supra note 139, at 717–18. A study of the Bridgewater State Mental Hospital for the Criminally Insane in Massachusetts found that prior to 1959, “more men in this pretrial committed status had in fact left Bridgewater by dying than by all other avenues combined.” A. Louis McGarry, William J. Curran, & Donald P. Kenefick, Problems of Public Consultation in Medicolegal Matters, 125 Am. J. Psych. 42, 44 (1968) (remarks of Dr. McGarry). A study of New York's Matteawan State Hospital found that among the 1,062 patients in residence on November 1, 1965, were “208 men and women who had been there for periods ranging from 20 to 64 years. Another 252 patients were there 10 to 20 years, and 185 were there 5 to 10 years.” Special Committee, supra note 139, at 73, 214–15 table 8.Google Scholar

141 E.g., Fla. Scat. Ann. Rules Crim. Proc. 3.210(a)(5) (West 1973) (defendant required to be adjudged not guilty by reason of insanity when court concludes “(1) that there is no substantial probability that the defendant will become mentally competent to stand trial within the foreseeable future or (2) that no progress is being made toward that goal …”).Google Scholar

142 Stone, supra note 2, at 215; David B. Wexler, Criminal Commitment Contingency Structures 8, paper presented at the First Bi-annual Law-Psychology Research Conference, University of Nebraska, Lincoln, Oct. 16–17, 1975.Google Scholar

143 One district judge recently commented that “[t]his court is aware of many criminal cases where defendants have made seemingly miraculous recoveries after pending criminal charges have been dropped ….” United States v. Lancaster, 408 F. Supp. 225, 229 (D.D.C. 1976).Google Scholar

144 Arlene Bigus, A “Lost Soul” Trapped in Legal Limbo, Knickerbocker News [Albany-Schenectady-Troy-Colonie, N.Y.], Aug. 14, 1973, at 1-A.Google Scholar

145 Id.Google Scholar

146 Id. at 4-A. The statute, N.Y. Crim. Proc. Law art. 730 (McKinney 1971), like virtually all statutes dealing with incompetency to stand trial, provides no guidance on how to treat the defendant whose capacity is maintained by medication.Google Scholar

147 E.g., Reed v. United States, 529 F.2d 1239 (5th Cir. 1976) (no abuse of discretion in trial court's failure to order a competency hearing simply because defendant was on methadone maintenance at time of guilty plea); State v. Holloway, 219 Kan. 245, 254–55, 547 P.2d 741, 750 (1976) (defendant's conviction upheld over his contention, raised for the first time on a motion for a new trial, that his competency at trial was impaired by methadone).Google Scholar

148 For example, drugs used in the treatment of hypertension are often sedating and cause decreased mental acuity, headache, and dizziness. E.g., PDR, supra note 47, at 1041 (methyldopa (Aldomet)). Reserpine (Sandril, Serpasil), an antipsychotic drug, is frequently used as a hypotensive and has the typical adverse central nervous system (CNS) reactions, including drowsiness, depression, nervousness, anxiety, CNS sensitization manifested by dull sensorium, dizziness, and headache. Id. at 726, 976. Phenytoin sodium (Dilantin), a popular anticonvulsant used in the treatment of epilepsy, has CNS effects such as slurred speech, mental confusion, dizziness, and headache. Id. at 1152. Antihistamines used to ameliorate and prevent allergic reactions may cause sedation, drowsiness, confusion, nervousness, and headache. E.g., id. at 1140 (diphenhydramine hydrochloride (Benadryl)). Drugs used for symptomatic relief in and management of rheumatoid arthritis may produce adverse CNS reactions, including headache, drowsiness, dizziness, lightheadedness, and inability to concentrate. Id. at A66 (Supp. A 1976) (naproxen (Naprosyn)). Drugs used in the treatment of peptic ulcer and related gastrointestinal disorders may produce headache, nervousness, drowsiness, dizziness, and mental confusion. Id. at 801 (anistropine methylbromide (Valbin)), 1090 (dicyclomine hydrochloride (Bentyl)), and 1597 (methscopolamine bromide (Pamine)). Increasing numbers of defendants who are heroin addicts are detoxified in detention facilities, placed on methadone maintenance, and brought to trial, although methadone may cause lightheadedness, dizziness, sedation, headache, and disorientation. Id. at 937 (methadone hydrochloride (Dolophine)). Even mild analgesics taken frequently by patients for relief of mild and moderate pain caused by a variety of conditions may cause dizziness, sedation, lightheadedness, and headache. E.g., id. at 933 (propoxyphene hydrochloride (Darvon)).Google Scholar

149 “Opiates cause a mental clouding characterized by drowsiness, an inability to concentrate, lethargy, and reduced visual acuity.” James V. DeLong, The Drugs and Their Effects, in Drug Abuse Survey Project, Dealing with Drug Abuse: A Report to the Ford Foundation 62, 78 (New York: Praeger Publishers, 1972).Google Scholar

150 E.g., United States v. Robinson, 530 F.2d 677 (5th Cir. 1976); United States v. Williams, 468 F.2d 819 (5th Cir. 1972); Manley v. United States, 396 F.2d 699 (5th Cir. 1968); United States v. Tom, 340 F.2d 127 (2d Cir. 1965).Google Scholar

151 Luis Kutner, The Illusion of Due Process in Commitment Proceedings, 57 Nw. U.L. Rev. 383, 385 (1962); David B. Wexler, Stanley E. Scoville, et al., Special Project: The Administration of Psychiatric Justice: Theory and Practice in Arizona, 13 Ariz. L. Rev. 1, 66–69 (1971).Google Scholar

152 Jarvik, supra note 10, at 156.Google Scholar

153 Kutner, supra note 151, at 385; Wexler et al., supra note 151, at 66–67. A number of courts have recently questioned this practice. Lessard v. Schmidt, 349 F. Supp. 1078, 1092 (E.D. Wis. 1972), vacated on procedural grounds, 414 U.S. 473 (1974), reinstated on remand, 379 F. Supp. 1376 (E.D. Wis. 1974), vacated on procedural grounds, 421 U.S. 957 (1975), reinstated on remand, 413 F. Supp. 1318 (E.D. Wis. 1976) (“due process is not accorded by an ex parte hearing in which the individual has no meaningful opportunity to be heard … because of incapacity caused by medication”); Dorsey v. Solomon, No. H-75–1406 (D. Md., July 29, 1976), 1 Mental Disability L. Rep. 116 (1976) (upholding a defendant's right to refuse medication “which will adversely impair his ability to participate at the hearing” to determine whether he should be committed following his acquittal by reason of insanity).Google Scholar

154 Gerald Gunther, Cases and Materials on Constitutional Law 658–64 (9th ed. Mineola, N.Y.: Foundation Press, 1975); see generally Gerald Gunther, Foreword: The Supreme Court 1971 Term: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86 Harv. L. Rev. 1 (1972); Note, Developments in the Law-Equal Protection, 82 Harv. L. Rev. 1065 (1969). In cases involving gender-based classifications the Court recently adopted what appears to be a “middle-tier” approach, requiring that “classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives.” Craig v. Boren, 429 U.S. 190, 197 (1976).Google Scholar

155 Note, supra note 154-, at 1076–87. E.g., New Orleans v. Dukes, 427 U.S. 297 (1976) (upholding grandfather clause in economic regulation of pushcart vendors); Dandridge v. Williams, 397 U.S. 471 (1970) (upholding classifications in a state welfare benefits program); McGowan v. Maryland, 366 U.S. 420 (1961) (upholding a state Sunday closing law riddled with exceptions).Google Scholar

156 Gunther, Cases, supra note 154, at 661–63. E.g., United States Dep't of Agriculture v. Moreno, 413 U.S. 528 (1973); McGinnis v. Royster, 410 U.S. 263 (1973); Reed v. Reed, 404 U.S. 71 (1971).Google Scholar

157 Gunther, Cases, supra note 154, at 658–61; Gunther, Foreword, supra note 154, at 8–12, 15–16.Google Scholar

158 Note, supra note 154, at 1087–1120, 1124–27. E.g., Examining Bd. v. Flores de Otero, 426 U.S. 572 (1976) (alienage); McLaughlin v. Florida, 379 U.S. 184 (1964) (race); Korematsu v. United States, 323 U.S. 214 (1944) (national origins).Google Scholar

159 Note, supra note 154, at 1120–24, 1127–31. E.g., Kramer v. Union Free School Dist. No. 15, 395 U.S. 621 (1969) (voting); Shapiro v. Thompson, 394 U.S. 618 (1969) (interstate travel); Griffin v. Illinois, 351 U.S. 12 (1956) (equal access to criminal appellate review); Skinner v. Oklahoma ex rel, Williamson, 316 U.S. 535 (1942) (procreation).Google Scholar

160 Note, supra note 154, at 1088, 1101–3, 1121–22. E.g., Examining Bd. v. Flores de Otero, 426 U.S. 572 (1976) (invalidating Puerto Rico statute permitting only American citizens to practice privately as civil engineers); Dunn v. Blumstein, 405 U.S. 330 (1972) (invalidating a state one-year residence requirement for voting).Google Scholar

161 Klopfer v. North Carolina, 386 U.S. 213, 226 (1967). In finding the speedy trial right fundamental and therefore applicable to the states through the due process clause of the Fourteenth Amendment, the Court noted: that the right “has its roots at the very foundation of our English law heritage” (id. at 223); that its first articulation appeared in Magna Carta; that it was likewise included in “the first of the colonial bills of rights” (id. at 225); and that today “each of the 50 States guarantees the right to a speedy trial to its citizens” (id. at 226). A defendant prevented by the automatic bar rule from meeting the charges against him is substantially disadvantaged in ways protected against by the right to speedy trial, which is designed “(i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired.” Barker v. Wingo, 407 U.S. 514, 532 (1972). See In re Harmon, 425 F.2d 916, 918 (1st Cir. 1970) (incompetency confinement “erodes the values protected by the right to a speedy trial”).Google Scholar

162 See generally John Rawls, A Theory of Justice 248–50 (Cambridge, Mass.: Harvard University Press, 1971); Jeffrie G. Murphy, Incompetence and Paternalism, 60 Archie fur Rechts- and Sozialphilosophie 465 (1974); Ronald Dworkin, Paternalism, in Richard A. Wasserstrom, comp., Morality and the Law 107 (Belmont, Cal.: Wadsworth Publishing Co., 1971); Note, supra note 6, at 1212–14; see, e.g., O'Connor v. Donaldson, 422 U.S. 563, 583 (1975) (Burger, C.J., concurring) (state exercises of parens patriae power for protection of the mentally ill require, at a minimum, that the members of the affected class be determined to be “unable to act for themselves”); Winters v. Miller, 446 F.2d 65, 68–71 (2d Cir.), cert. denied, 404 U.S. 985 (1971) (absent a determination of incompetence, mentally ill patient held able to refuse medication designed to treat her mental illness); Lynch v. Baxley, 386 F. Supp. 378, 390–91 (M.D. Ala. 1974) (mental hospitalization through exercise of the parens patriae power requires a showing of incompetence).Google Scholar

163 Illinois v. Allen, 397 U.S. 337 (1970).Google Scholar

164 Id. at 356–57 & n.5 (separate opinion of Douglas, J.).Google Scholar

165 Faretta v. California, 422 U.S. 806, 807, 834 (1975): [A] defendant in a state criminal trial has a constitutional right to proceed without counsel when he voluntarily and intelligently elects to do so …. The right to defend is personal. The defendant, and not his lawyer or the State, will bear the personal con-sequences of a conviction. It is the defendant, therefore, who must be free personally to decide whether in his particular case counsel is to his advantage. And although he may conduct his own defense ultimately to his own detriment, his choice must be honored out of “that respect for the individual which is the lifeblood of the law.”Google Scholar

166 See Joseph Tussman & Jacobus tenBroek, The Equal Protection of the Laws; 37 Calif. L. Rev. 341, 346–53 (1949): Note, supra note 154, at 1084–87. See, e.g., Crawford v. Cushman, 531 F.2d 1114, 1121–24 (2d Cir. 1976).Google Scholar

167 Cf. Shelton v. Tucker, 364 U.S. 479, 488 (1960) (invalidating a statute requiring public school teachers to disclose all organizations to which they belong because “less drastic means for achieving the same basic purpose” are available); Examining Bd. v. Flores de Otero, 426 U.S. 572, 605 (1976) (“Although the … justification proffered by the appellants has elements of substance and legitimacy, the means drawn to achieve the end are neither necessary nor precise”); Dunn v. Blumstein, 405 U.S. 330, 343 (1972) (“It is not sufficient for the State to show that durational residence requirements further a very substantial state interest. In pursuing that important interest, the State cannot choose means that unnecessarily burden or restrict constitutionally protected activity. Statutes affecting constitutional rights must be drawn with ‘precision,’… and must be ‘tailored’ to serve their legitimate objectives …. And if there are other, reasonable ways to achieve those goals with a lesser burden on constitutionally protected activity, a State may not choose the way of greater interference. If it acts at all, it must choose ‘less drastic means’”); Carrington v. Rash, 380 U.S. 89 (1965) (state ban on voting by service-men who had moved into the state on military service invalidated even though state's interest in limiting voting to bona fide residents conceded to be legitimate; state required to devise procedures permitting servicemen to demonstrate bona fide residence).Google Scholar

168 E.g., Frontiero v. Richardson, 411 U.S. 677, 689 (1973); Reed v. Reed, 404 U.S. 71, 76 (1971); Crawford v. Cushman, 531 F.2d 1114, 1123 (2d Cir. 1976). Where fundamental constitutional rights or suspect classifications are not involved, the Supreme Court has indicated that legislative concern with avoiding “the burden and expense of specific case-by-case determination” may justify “presumptions in aid of administrative functions, though they may approximate, rather than precisely mirror, the results that case-by-case adjudication would show … so long as that lack of precise equivalence does not exceed the bounds of substantiality tolerated by the applicable level of scrutiny.” Matthews v. Lucas, 427 U.S. 495, 509 (1976); Weinberger v. Salfi, 422 U.S. 749, 772 (1975). The automatic bar rule would seem clearly to exceed these bounds, particularly since it has the effect of burdening the fundamental right to speedy trial.Google Scholar

169 See generally Gary J. Simson, The Conclusive Presumption Cases: The Search for a Newer Equal Protection Continues, 24 Cath. U.L. Rev. 217 (1975); Laurence H. Tribe, Structural Due Process, 10 Harv. C.R.-C.L. L. Rev. 269 (1975); Note, The Irrebuttable Presumption Doctrine in the Supreme Court, 87 Harv. L. Rev. 1534 (1974); Note, The Conclusive Presumption Doctrine: Equal Process or Due Protection? 72 Mich. L. Rev. 800 (1974).Google Scholar

170 E.g., Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632 (1974) (invalidating regulation compelling public school teachers to take leaves of absence from the fifth and sixth months of pregnancy until three months after giving birth); United States Dep't of Agriculture v. Murry, 413 U.S. 508 (1973) (invalidating statute denying eligibility for food stamps to households containing individuals over 18 years of age claimed as a tax dependent for the previous year by an individual not himself belonging to a household eligible for food stamps); Vlandis v. Kline, 412 U.S. 441 (1973) (invalidating statute classifying students as permanent nonresidents, so as to make them ineligible for reduced tuition at state universities, solely because their legal address was outside the state at the time of application); Stanley v. Illinois, 405 U.S. 645 (1972) (invalidating statute automatically depriving unwed fathers of the custody of their illegitimate children upon the mother's death without affording them an opportunity to demonstrate their fitness as parents); Bell v. Burson, 402 U.S. 535 (1971) (invalidating statute suspending driver's license of driver involved in an accident who will not post security covering the resulting damage, without permitting him an opportunity to present evidence of nonliability to prevent suspension).Google Scholar

171 Weinberger v. Salfi, 422 U.S. 749 (1975) (upholding the Social Security Act's nine-month duration-of-relationship requirement for survivors' benefits, which irrebuttably presumes that marriages for a lesser period were fraudulently entered to obtain benefits, without affording an opportunity to demonstrate the bona fide nature of the marriage). See Jonathan B. Chase, The Premature Demise of Irrebuttable Presumptions, 47 U. Colo. L. Rev. 653 (1976); Note, The Supreme Court, 1974 Term, 89 Harv. L. Rev. 1, 77 (1975).Google Scholar

172 Compare Turner v. Department of Employment Security, 423 U.S. 44, 46 (1975) (invalidating a statute making pregnant women ineligible for unemployment benefits from 12 weeks before the expected date of childbirth until 6 weeks after, on the ground that “when basic human liberties are at stake,” rather than conclusively presuming that women are unable to work during this period, the state must achieve its ends “through more individualized means”) with Weinberger v. Salfi, 422 U.S. 749, 771–72 (1975) (distinguishing Stanley and LaFleur as cases involving statutes infringing fundamental rights, while the statute at issue involved “a noncontractual claim to receive funds from the public treasury [which] enjoys no constitutionally protected status …”).Google Scholar

173 Beazer v. New York City Transit Auth., 399 F. Supp. 1032, 1057–58 (S.D.N.Y. 1975).Google Scholar

174 Id. at 1058. See also Crawford v. Cushman, 531 F.2d 1114, 1124–26 (2d Cir. 1976) (invalidating Marine Corps regulation requiring mandatory discharge for pregnancy); McAulliffe v. Carlson, 377 F. Supp. 896 (D. Conn. 1974), rev'd on other grounds, 520 F.2d 1305 (2d Cir. 1975), cert. denied, 96 S. Ct. 3199 (1976) (invalidating statute creating irrebuttable presumption that hospitalized mental patients with assets of less than $5,000 are incompetent to manage their own affairs).Google Scholar

175 E.g., Goss v. Lopez, 419 U.S. 565 (1975) (public school suspension); Morrissey v. Brewer, 408 U.S. 471 (1972) (parole revocation); Goldberg v. Kelly, 397 U.S. 254 (1970) (termination of welfare benefits). See generally Henry J. Friendly, “Some Kind of Hearing,” 123 U. Pa. L. Rev. 1267 (1975).Google Scholar

176 See note 161 supra & accompanying text.Google Scholar

177 See stanites referred to in note 1 supra.Google Scholar

178 Board of Regents v. Roth, 408 U.S. 564, 577 (1972). See generally Tribe, supra note 169, at 275–83; Comment, Entitlement, Enjoyment, and Due Process of Law, 1974 Duke L.J. 89.Google Scholar

179 406 U.S. 715 (1972).Google Scholar

180 Id. at 738.Google Scholar

181 Id. See also McNeil v. Director, Patuxent Institution, 407 U.S. 245, 249 (1972) (substantive due process limit on duration of state's power to commit “for observation” to deter-mine if defendant is a defective delinquent).Google Scholar

182 422 U.S. 563 (1975).Google Scholar

183 The respondent in Donaldson“had received nothing but custodial care” and his “confinement was a simple regime of enforced custodial care, not a program designed to alleviate or cure his supposed illness.”Id. at 569. Moreover, although, petitioner, the superintendent of the hospital in which respondent was confined, had attempted to defend his treatment as “milieu therapy,” witnesses from the hospital staff testified that “milieu therapy,” in the context of respondent's case, “was a euphemism for confinement in the ‘milieu’ of a mental hospital.”Id.Google Scholar

184 Roe v. Wade, 410 U.S. 113 (1973); Doe v. Bolton, 410 U.S. 179 (1973); see Doe v. Younger, No. 4 Civ. 14407, slip op. at 20, 28–29 (Cal. Ct. App., 4th Dist., Apr. 23, 1976) (although the state has varied interests in regulating electroconvulsive therapy, where informed consent is adequately assured, “there is no justification for infringing upon the patient's right to privacy in selecting and consenting to the treatment”); United States v. Randall, Crim. No. 65923–75, slip op. at 11–12 (D.C. Super. Ct., Nov. 24, 1976) (citing the abortion cases as supporting “the right of an individual to preserve his health and bodily integrity”) (upholding a defense of necessity to a prosecution for possession of marijuana by a glaucoma patient who smoked marijuana because of its beneficial effects on his condition in normalizing intraocular pressure and lessening visual distortions, where other treatment techniques were either ineffective or carried significant risks); Rutherford v. United States, 399 F. Supp. 1208 (W.D. Okla. 1975), aff'd and remanded, 542 F.2d 1137 (10th Cir. 1976) (enjoining the Food and Drug Administration from preventing plaintiffs from importing quantities of laetrile for their own use, finding that the plaintiffs' right to medical treatment with a substance that had demonstrably favorable effects on their cancers superceded any governmental interest in protecting the general public from a drug whose properties were not conclusively proven).Google Scholar

185 407 U.S. 514 (1972).Google Scholar

186 Id. at 521.Google Scholar

187 Id. at 522.Google Scholar

188 Id. at 529–30.Google Scholar

189 Id. at 530–32.Google Scholar

190 E.g., United States v. Cartano, 420 F.2d 362 (1st Cir.), cert. denied, 397 U.S. 1054 (1970); Johnson v. United States, 333 F.2d 371 (10th Cir. 1964); Germany v. Hudspeth, 209 F.2d 15 (10th Cir.), cert. denied, 347 U.S. 946 (1954); United States v. Lancaster, 408 F. Supp. 225 (D.D.C. 1976); United States v. Barnes, 175 F. Supp. 60 (S.D. Cal. 1959) (dismissing for lack of speedy trial indictments against three of four codefendants indicted ten years after commission of offense where government had initially prosecuted unlawfully by general court-martial; motion of fourth codefendant, with same defense, denied because of his incompetency to stand trial). See Speedy Trial Act of 1974, 18 U.S.C. sec. 3161(h)(4) (Supp. V 1975) (excluding from statutory time limits for speedy trial any period of delay resulting from the defendant's incompetency to stand trial); ABA Standards Relating to Speedy Trial sec. 2.3(a) (Approved draft, 1968) (same). For reference to representative state statutory provisions, see Burt & Morris, supra note 13, at 89 n.94.Google Scholar

191 See James J. Gobert, Competency to Stand Trial: A Pre- and Post-Jackson Analysis, 40 Tenn. L. Rev. 659, 666 (1973); Robert J. Golten, Role of Defense Counsel in the Criminal Commitment Process, 10 Am. Crim. L. Rev. 385, 408 (1972).Google Scholar

192 United States v. Geelan, 520 F.2d 585, 589 (9th Cir. 1975); Williams v. United States, 250 F.2d 19, 22–24 (D.C. Cir. 1957) (Bazelon, J.).Google Scholar

193 Williams v. United States, 250 F.2d 19 (D.C. Cir. 1957); United States v. Pardue, 354 F. Supp. 1377 (D. Conn. 1973); see Jackson v. Indiana, 406 U.S. 715, 740 (1972); United States ex rel. von Wolfersdorf v. Johnston, 317 F. Supp. 66 (S.D.N.Y. 1970); United States v. Jackson, 306 F. Supp. 4 (N.D. Cal. 1969); People ex rel. Myers v. Briggs, 46 Ill. 2d 281, 263 N.E.2d 109 (1970); Caleb Foote, A Comment on Pre-trial Commitment of Criminal Defendants, 108 U. Pa. L. Rev. 832, 838 (1960); Gobert, supra note 191, at 669–70. But see State v. Garrett, Nos. 72–7046, 70–7353 (Dade County [Fla.] Cir. Ct., Mar. 2, 1977) (denying defendant's motion to dismiss for lack of speedy trial following an almost seven-year delay caused by trial incompetence due to repeated applications of the automatic bar rule). United States v. Lancaster, 408 F. Supp. 225 (D.D.C. 1976), a case denying a permanently incompetent defendant's motion to dismiss for lack of speedy trial filed almost four years after his indictment, illustrates the need for considering each case on its own facts even when delay is lengthy. In Lancaster, the defendant, indicted for felony murder, was found incompetent on his own motion. Following almost 20 months of hospitalization, he was found still incompetent and unlikely to regain his competency within the foreseeable future. As a result he was released to the custody of his aunt when an attempt to civilly commit him was unsuccessful. The court denied defendant's speedy trial motion on the basis that he could show no prejudice resulting from the delay. Witnesses to the crime as well as medical witnesses and records were still available. The possibility of anxiety from holding charges in abeyance was nonexistent as a psychiatrist had testified that defendant was unaware of the pending charges. The defendant lived in the community and worked for an employer who, aware of the pending charges, continued to employ him. As the government, from the outset, had been ready for trial and never sought a continuance, the court found the delay to have been “caused solely by the defendant and brought about by matters beyond the government's control.”Id. at 229. The court therefore denied the motion to dismiss and scheduled a further status call of the case for 5 months later.Google Scholar

194 406 U.S. 715 (1972).Google Scholar

195 See notes 15, 64 supra & accompanying text.Google Scholar

196 See Holt v. Sarver, 309 F. Supp. 362, 372–73 (E.D. Ark. 1970), aff'd, 442 F.2d 304 (8th Cir. 1971); cf. Knecht v. Gillman, 488 F.2d 1136 (8th Cir. 1973) (subjecting inmates of Iowa Security Medical Facility to involuntary aversive conditioning program utilizing apomorphine, a drug inducing vomiting for a 15-minute period, held cruel and unusual punishment); Nelson v. Heyne, 355 F. Supp. 451, 455 (N.D. Ind. 1972), aff'd, 491 F.2d 353 (7th Cir.), cert. denied, 417 U.S. 976 (1974) (use of Thorazine and Sparine to control excited behavior of inmates of Indiana Boys School held cruel and unusual punishment).Google Scholar

197 370 U.S. 660 (1962).Google Scholar

198 Id. at 666–67.Google Scholar

199 E.g., Welsch v. Likins, 373 F. Supp. 487, 496 (D. Minn. 1974); Martarella v. Kelley, 349 F. Supp. 575, 585, 599–600 (S.D.N.Y. 1972); see In re Ballay, 482 F.2d 648, 659–60 (D.C. Cir. 1973) (dictum); Rouse v. Cameron, 373 F.2d 451, 453 (D.C. Cir. 1966) (dictum).Google Scholar

200 406 U.S. 715 (1972).Google Scholar

201 317 F. Supp. 66, 68 (S.D.N.Y. 1970). Accord, United States v. Jackson, 306 F. Supp. 4, 6 (N.D. Cal. 1969). For an account of von Wolfersdorf's plight by his attorney, see Bruce J. Ennis, Prisoners of Psychiatry: Mental Patients, Psychiatrists, and the Law 63–84 (New York: Harcourt Brace Jovanovich, 1972).Google Scholar

202 United States v. Walker, 335 F. Supp. 705, 708 (N.D. Cal. 1971); accord, United States v. Pardue, 354 F. Supp. 1377, 1382 (D. Conn. 1973).Google Scholar

203 See Ingraham v. Wright, 97 S. Ct. 1401 (1977); Johnson v. Glick, 481 F.2d 1028 (2d Cir. 1973), cert. denied sub nom. Employee-Officer John v. Johnson, 414 U.S. 1033 (1973); Note, supra note 6, at 1260–64, 1331–33.Google Scholar

204 Ingraham v. Wright, 97 S. Ct. 1401, 1408–9 (1977).Google Scholar

205 Id. at 1409. Four members of the Court dissented, rejecting the view that the Eighth Amendment is limited to criminal punishment. Id. at 1419–23.Google Scholar

206 Id. at 1411 n.37.Google Scholar

207 Id.Google Scholar

208 E.g., Nelson v. Heyne, 491 F.2d 352 (7th Cit.), cert. denied, 417 U.S. 976 (1974) (state school for boys); Knecht v. Gillman, 488 F.2d 1136 (8th Cir. 1973) (security medical facility); Wheeler v. Glass, 473 F.2d 983 (7th Cir. 1973) (facility for the mentally retarded); Vann v. Scott, 467 F.2d 1235 (7th Cir. 1972) (Stevens, J.) (facility for runaway juveniles); Morales v. Turman, 383 F. Supp. 53, 70 (E.D. Tex. 1974), rev 'd on other grounds, 535 F.2d 864 (5th Cir. 1976), vacated and remanded, 97 S. Ct. 1189 (1977) (facilities for juveniles); Welsch v. Likins, 373 F. Supp. 487 (D. Minn. 1974) (facility for the mentally retarded); Martarella v. Kelley, 349 F. Supp. 575 (S.D.N.Y. 1972) (facility for juveniles adjudicated “persons in need of supervision”); Inmates of Boys' Training School v. Affleck, 346 F. Supp. 1354, 1366 (D.R.I. 1972) (boys' training school).Google Scholar

209 Rozecki v. Gaughan, 459 F.2d 6 (1st Cir. 1972); cases cited in notes 203, 204 supra.Google Scholar

210 See United States ex rel. von Wolfersdorf v. Johnston, 317 F. Supp. 66, 68 (S.D.N.Y. 1970): That … (the incompetent defendant's] confinement is “punishment”-in some ways worse than prison … is not questioned. To be sure, the concept of punishment usually comes into play after a trial, not before. But the difference is not one helpful to (defendant]. See also notes 131–33 supra and accompanying text.Google Scholar

211 Note, supra note 6, at 1333.Google Scholar

212 See Robert A. Burt, Of Mad Dogs and Scientists: The Perils of the “Criminal-Insane,” 123 U. Pa. L. Rev. 258, 260–63 (1974).Google Scholar

213 The difficult question of the Eighth Amendment's applicability to areas other than those involving the criminal sanction may be academic, however, since to the extent that treatment is so shocking to the conscience as to violate the ban on cruel and unusual punishment, it should also be held to violate Fourteenth Amendment due process. See Rochin v. California, 342 U.S. 165 (1952); Rhem v. Malcolm, 507 F.2d 333, 337 (2d Cir. 1974); Johnson v. Glick, 481 F.2d 1028, 1032 (2d Cir.), cert. denied sub. nom. Employee-Officer John v. Johnson, 414 U.S. 1033 (1973); Inmates of Suffolk County Jail v. Eisenstadt, 360 F. Supp. 676, 688 (D. Mass. 1973), aff'd, 494 F.2d 1196 (1st Cir.), cert. denied, 419 U.S. 977 (1974); Note, supra note 6, at 1333.Google Scholar

214 406 U.S. 715 (1972).Google Scholar

215 See notes 138–42 supra and accompanying text.Google Scholar

216 See Hollister, supra note 9, at 20.Google Scholar

217 See id. at 19: With the passage of time, the therapeutic effects of the drug may outweigh any disadvantages. Patients who are impaired in their functions after the initial doses of drug may be improved after a few weeks of treatment. Any trial continuance granted at defendant's request following the court's decision that he has been restored to competence should constitute a waiver of any speedy trial claims arising from the further delay, as well as of any right to a dismissal of charges under state statutory or case law responses to Jackson v. Indiana, 406 U.S. 715 (1972). As a result, there should be no artificial incentives motivating defendants to seek such continuances, and trial judges should therefore be liberal in the granting of such requests. Of course, if repeated continuances begin to prejudice the prosecution's case in ways not curable by the recording of the testimony of witnesses or other means, then the judge can deny further continuances. As these problems will vary with the facts of each case, motions for trial continuances on this basis should be left within the sound discretion of the trial judge.Google Scholar

218 For suggestions that the drugs with sedating side effects be administered once a day at bedtime rather than throughout the day, and that in appropriate cases frequent trial recesses for coffee breaks be held and shorter trial sessions be scheduled, see notes 71, 98, 121–22 supra and accompanying text.Google Scholar

219 See Group for the Advancement of Psychiatry, supra note 1, at 904: This legally undesirable consequence of drug-induced demeanor can be minimized if the fact of the dependency of defendant's demeanor on drugs is known to the other trial participants. When in such circumstances a defendant appears in court, the judge and legal counsel for both parties should be told by the examining psychiatrists: (1) that the defendant is appearing under the influence of drugs; and (2) the type of drug administered the defendant, the dosage, and the effect the drug has had on the defendant's demeanor. This information should be admissible at the discretion of the defense attorney and the judge so that the jury can take this aspect of the defendant's demeanor into account when dealing with the insanity defense. Excerpts from videotaped psychiatric interviews of the defendant before such treatment is initiated might be a useful device for establishing a base line in such cases. See also Burt & Morris, supra note 13, at 86 (“For example, the jury should be given a cautionary instruction at the beginning of trial explaining that the defendant's odd appearance and his nonparticipation at trial is a product of the tranquilizing drugs”). Failure to advise the jury that defendant's demeanor and appearance may be altered by the drugs he is taking may result in reversal, particularly in cases involving the insanity defense where the jury often draws inferences from his appearance at trial as to the defendant's mental state at the time of the crime. See, e.g., In re Pray, 133 Vt. 253, 336 A.2d 174 (1975); State v. Murphy, 56 Wash. 2d 761, 355 P.2d 323 (1960); State v. Maryott, 6 Wash. App. 96, 492 P.2d 239 (1971). On the other hand, where the jury is so advised and the defendant given the opportunity to introduce evidence of his behavior prior to the administration of medication, due process challenges to conviction have been rejected. E.g., State v. Jojola, 89 N.M. 489, 553 P.2d 1296 (Ct. App. 1976).Google Scholar

220 Burt & Morris, supra note 13, at 94–95: … If the prosecuting attorney indicates an intention to bring the defendant to trial, the court shall determine at a pretrial hearing whether fundamental fairness to the defendant requires that special trial or pretrial procedures be used in order to redress his disabilities. The court may prescribe any or all of the special pretrial and trial procedures set out below, or such other procedures as it deems necessary: (a) Prior to trial, the court shall review all the evidence that the prosecution intends to offer at trial and shall order pretrial disclosure of evidence that would materially assist the defendant in overcoming the disabilities under which he labors. Disclosure of evidence that may endanger the lives of witnesses, or in any way promote substantial injustice, shall not be ordered; (b) On motion for directed verdict, either before or after jury deliberation, the court shall demand from the prosecution a higher burden of proof than would obtain in an ordinary criminal prosecution, and the court shall insist on extensive corroboration of the prosecution's case with respect to issues on which the defendant is likely to be prevented by his disability from effective rebuttal; (c) If the trial is before a jury, the court shall instruct the jury that in weighing the evidence against the defendant, it should take into account, in the defendant's favor, the disabilities under which he went to trial. If trial is before the judge sitting alone, he shall take account of those disabilities. (8) Any conviction shall be set aside if evidence that was not available for trial because of the defendant's incompetence subsequently becomes available and might have led at trial to a reasonable doubt regarding the defendant's guilt. See also Wilson v. United States, 391 F.2d 460, 463–64 (D.C. Cir. 1968) (special procedural rules imposed for the trial of defendants suffering from amnesia).Google Scholar

221 E.g., Wilson v. United States, 391 F.2d 460 (D.C. Cir. 1968) (amnesia); Wood v. United States, 251 F. Supp. 310 (W.D. Va. 1966) (narcotics addiction); People ex rel. Meyers v. Briggs, 46 Ill. 2d 281, 263 N.E.2d 109, 113 (1970) (defendants handicapped by deafness, blindness, or similar affliction); Burt & Morris, supra note 13, at 81–85 (discussing situations involving unavailability of witnesses, defendant's memory loss due to amnesia or extensive passage of time, and defendant's disruptive behavior at trial). See Regina v. Roberts, [1953] 2 All E.R. 340 (deaf and mute defendant) (Devlin, J.).Google Scholar

222 See note 1 supra.Google Scholar

223 In Pate v. Robinson, 383 U.S. 375, 378, 385 (1966), the Supreme Court stated in dictum that “the conviction of an accused person while he is legally incompetent violates due process” (id. at 378) as this would be inconsistent with the “constitutional right to a fair trial” (id. at 385). However, in Jackson v. Indiana, 406 U.S. 715, 741 (1972), the Court indicated a willingness to reconsider this broad dictum when it stated that “[w]e do not read this court's previous decisions [citing Pate] to preclude the States from allowing, at a minimum, an incompetent defendant to raise certain defenses such as insufficiency of the indictment, or make certain pretrial motions through counsel.” (Emphasis added.) Although the due process implications of trying the incompetent defendant must therefore be regarded as unsettled, the Court has never suggested that due process would be violated by trial of the defendant whose impairment does not rise to the level of incompetence to stand trial.Google Scholar

224 For a recent case rejecting such a due process claim, see State v. Jojola, 89 N.M. 489, 553 P.2d 1296 (Ct. App. 1976).Google Scholar

225 State v. Walford, No. 75–179 (Dade County [Fla.] Cir. Ct., Dec. 13, 1976).Google Scholar

226 Ron Sympson, Suspect to Be Tried for Ritual Killing, Miami Herald, Dec. 14, 1976, at B-1.Google Scholar

227 Id.Google Scholar

228 Id.Google Scholar

229 See State v. Maryott, 6 Wash. App. 96, 492 P.2d 239 (1971) (finding administration of psychotropic medication at trial over defendant's objection violative of due process).Google Scholar

230 For cases recognizing a right to refuse treatment, see, e.g., Scott v. Plante, 532 F.2d 939 (3d Cir. 1976); Knecht v. Gillman, 488 F.2d 1136 (8th Cir. 1973); Mackey v. Procunier, 477 F.2d 877 (9th Cir. 1973); Winters v. Miller, 446 F.2d 65 (2d Cir.), cert. denied, 404 U.S. 985 (1971); Clonce v. Richardson, 379 F. Supp. 338 (W.D. Mo. 1974); Bell v. Wayne County Gen. Hosp., 384 F. Supp. 1085 (E.D. Mich. 1974); Welsch v. Likins, 373 F. Supp. 487 (D. Minn. 1974); Nelson v. Heyne, 355 F. Supp. 451 (N.D. Ind. 1972), aff'd, 491 F.2d 352 (7th Cir.), cert. denied, 417 U.S. 976 (1974); Kaimowitz v. Department of Mental Health, Civ. No. 73–19434-AW (Wayne County [Mich.] Cir. Ct., July 10, 1973), excerpted at 42 U.S.L.W. 2063 (July 31, 1973); Price v. Sheppard, 239 N.W.2d 905 (Minn. 1976); New York City Health & Hosp. Corp. v. Stein, 70 Misc. 2d 944, 335 N.Y.S.2d 461 (N.Y. County S. Ct., 1972); Dyer v. Brooks, No. 93758 (Marion County [Or.] Cir. Ct., June 10, 1976), 1 Mental Disability L. Rep. 122 (1976).Google Scholar

231 E.g., Paul R. Friedman, Legal Regulation of Applied Behavior Analysis in Mental Institutions and Prisons, 17 Ariz. L. Rev. 39 (1975); Michael H. Shapiro, Legislating the Control of Behavior Control: Autonomy and the Coercive Use of Organic Therapies, 47 S. Cal. L. Rev. 237 (1974); Roy G. Spece, Jr., Conditioning and Other Technologies Used to “Treat?”, “Rehabilitate?”, “Demolish?” Prisoners and Mental Patients, 45 S. Cal. L. Rev. 616 (1972); David B. Wexler, Token and Taboo: Behavior Modification, Token Economies, and the Law, 61 Calif. L. Rev. 81 (1973); Bruce J. Winick, The Right to Refuse Mental Health Treatment (forthcoming).Google Scholar

232 See Scott v. Plante, 532 F.2d 939 (3d Cir. 1976); Mackey v. Procunier, 477 F.2d 877 (9th Cir. 1973); Kaimowitz v. Department of Mental Health, No. 73–19434-AW (Wayne County [Mich.] Cir. Ct., July 10, 1973), excerpted at 42 U.S.L.W. 2063 (July 31, 1973); Shapiro, supra note 231, at 255–73.Google Scholar

233 See Scott v. Plante, 532 F.2d 939 (3d Cir. 1976); Price v. Sheppard, 239 N.W.2d 905 (Minn. 1976); Kaimowitz v. Department of Mental Health, No. 73–19434-AW (Wayne County [Mich.] Cir. Ct., July 10, 1973), excerpted at 42 U.S.L.W. 2063 (July 31, 1973); Friedman, supra note 231, at 57–61; Shapiro, supra note 231, at 273–76; Spece, supra note 231, at 661–65; cf. Roe v. Wade, 410 U.S. 113 (1973); Runnels v. Rosendale, 499 F.2d 733 (9th Cir. 1974).Google Scholar

234 Since physically ill defendants who are disabled from standing trial are not generally subjected to involuntary treatment to restore them to trial capacity, can the state consistent with equal protection insist that mentally ill but competent defendants be required to take psychotropic drugs over their objection?Google Scholar

235 See Scott v. Plante, 532 F.2d 939 (3d Cir. 1976); Winters v. Miller, 446 F.2d 65 (2d Cir.), cert. denied, 404 U.S. 985 (1971); Clonce v. Richardson, 379 F. Supp. 338 (W.D. Mo. 1974); Morales v. Turman, 383 F. Supp. 53, 83 (E.D. Tex. 1974), rev'd on other grounds, 535 F.2d 864 (5th Cir. 1976), vacated and remanded, 97 S. Ct. 1189 (1977); Negron v. Preiser, No. 74 Civ. 1480 (S.D.N.Y., Oct. 2, 1974).Google Scholar

236 See Winters v. Miller, 446 F.2d 65 (2d Cir.), cert. denied, 404 U.S. 985 (1971); Dyer v. Brooks, No. 93758 (Marion County [Or.] Cir. Ct., June 10, 1976), 1 Mental Disability L. Rep. 122 (1976).Google Scholar

237 See Scott v. Plante, 532 F.2d 939 (3d Cir. 1973); Knecht v. Gillman, 488 F.2d 1136 (8th Cir. 1973); Mackey v. Procunier, 477 F.2d 877 (9th Cir. 1973); Friedman, supra note 231, at 61–65; Ralph K. Schwitzgebel, Limitations on the Coercive Treatment of Offenders, 8 Crim. L. Bull. 267, 297–305 (1972).Google Scholar

238 Roe v. Wade, 410 U.S. 113, 154 (1973). In Jacobson v. Massachusetts, 197 U.S. 11, 26–27, 29 (1905), in upholding compulsory vaccination to prevent epidemics over petitioner's due process claim that such a requirement was “hostile to the inherent right of every freeman to care for his own body and health in such way as to him seems best” (id. at 26), the Court, conceding that “[t]here is, of course, a sphere within which the individual may assert the supremacy of his own will, and rightfully dispute the authority of any human government … to interfere with the exercise of that will” (id. at 29), nevertheless found that: [T]he liberty secured by the Constitution of the United States … does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint. There are manifold restraints to which every person is necessarily subject for the common good … . “The possession and enjoyment of all rights are subject to such reasonable conditions as may be deemed by the governing authority of the country essential to the safety, health, peace, good order, and morals of the community. Even liberty itself, the greatest of all rights, is not unrestricted … . It is … liberty regulated by law.”Id. at 26–27.Google Scholar

239 Roe v. Wade, 410 U.S. 113, 155 (1973) (woman's decision to have abortion protected by right to privacy); Kramer v. Union Free School Dist. No. 15, 395 U.S. 621, 627 (1969) (right to vote); Shapiro v. Thompson, 394 U.S. 618, 634 (1969) (right to travel); Sherbert v. Verner, 374 U.S. 398, 406 (1963) (First Amendment right to free exercise of religion); Jacobson v. Massachusetts, 197 U.S. 11 (1905).Google Scholar

240 Illinois v. Allen, 397 U.S. 337, 347 (1970) (Brennan, J., concurring) (“government has a sovereign prerogative to put on trial those accused in good faith of violating valid laws. Constitutional power to bring an accused to trial is fundamental to a scheme of ‘ordered liberty’ and prerequisite to social justice and peace”).Google Scholar

241 Shapiro, supra note 231, at 300 n.215.Google Scholar

242 See Kelley v. Johnson, 425 U.S. 238, 247 (1976) (“The promotion of safety of persons and property is unquestionably at the core of the State's police power …”).Google Scholar

243 Cf. Schmerber v. California, 384 U.S. 757 (1966) (state's police power interest in gathering evidence of crime sufficient to authorize forced extraction of blood from driver to determine whether he was driving while intoxicated); Breithaupt v. Abram, 352 U.S. 432 (1957) (same); Jacobson v. Massachusetts, 197 U.S. 11 (1905) (state's police power interest in public health sufficient to authorize compulsory vaccination to prevent epidemics); United States v. Crowder, 543 F.2d 312 (D.C. Cir. 1976) (en banc) (state's police power interest in gathering evidence of crime sufficient to authorize involuntary surgical removal of bullet from defendant's arm).Google Scholar

244 But see the discussion in note 66 supra of tardive dyskinesia, a persistent neurological syndrome, accompanying use of some of the antipsychotic drugs, for which there is no known effective treatment. ACN-FDA Report, supra note 66, at 463.Google Scholar

245 For cases applying the “least restrictive alternative” principle to invalidate state regulation of fundamental constitutional rights, see note 167 supra.Google Scholar

246 See generally Jerome D. Frank, Persuasion and Healing: A Comparative Study of Psychotherapy (rev. ed. New York: Schocken Books, 1974); Susan Kleeman & Philip Solomon, Psychotherapy, in Solomon & Patch, supra note 12, at 341; Robert L. Stewart, Psychoanalysis and Psychoanalytic Psychotherapy, in 2 Freedman et al., supra note 12, at 1799.Google Scholar

247 See generally Albert Bandura, Principles of Behavior Modification (New York: Holt, Rinehart & Winston, 1969); Bertram S. Brown, Louis A. Wienckowski, & Stephanie B. Stolz, Behavior Modification: Perspectives on a Current Issue, DHEW Pub. No. (ADM) 75–202 (Rockville, Md.: National Institute of Mental Health, 1975).Google Scholar

248 See Spece, supra note 231, at 619–20 (psychotherapy less intrusive than drug therapy). Although Spece ranks behavior modification as more intrusive than drug therapy, id., this classification is oversimplified because both “behavior modification” and “drug therapy” are broad categories containing a multiple of components of varying degrees of intrusiveness. See Friedman, supra note 231, at 91 n.233. In my view, behavior modification techniques utilizing positive reinforcement, at least when not placing the patient in a state of deprivation at the outset of therapy, may be deemed less restrictive than therapy with many of the psychotropic drugs. See Winick, supra note 231. Although less restrictive, psychotherapy and behavior modification techniques are likely to be considerably less effective than medication in treating the typically serious psychiatric disorders resulting in trial incapacity (see note 128, supra and accompanying text), and in particular cases where psychiatric opinion is that these techniques would prove unavailing, they need not be regarded as alternatives that would accomplish the state's interest in restoring the defendant to trial competence.Google Scholar

249 George Gardos & Jonathan O. Cole, Maintenance Anti-psychotic Therapy: Is the Cure Worse Than the Disease? 133 Am. J. Psych. 32, 34 (1976).Google Scholar

250 E.g., ACN-FDA Report, supra note 66, at 465; Frank J. Ayd, Treatment-Resistant Patients: A Moral, Legal and Therapeutic Challenge, in Ayd, supra note 11, at 37, 49–50; Ross J. Baldessarini & Joseph F. Lipinski, Risks Versus Benefits of Antipsychotic Drugs, 289 New England J. Med. 427, 428 (1973); Davis, supra note 63, at 124243; Gardos & Cole, supra note 249, at 34–36; Robert F. Prien & C. James Klett, An Appraisal of the Long-term Use of Tranquilizing Medication with Hospitalized Chronic Schizophrenics: A Review of the Drug Discontinuation Literature, 5 Schizophrenia Bull. 64 (1972).Google Scholar

251 Cf. Taylor v. United States, 414 U.S. 17 (1973) (defendant's voluntary absence from courtroom held to waive his right to be present at trial); Illinois v. Allen, 397 U.S. 337 (1970) (defendant's disorderly and disruptful conduct held to waive his right to be present at trial); People v. Rogers, 150 Cal. App. 2d 403, 309 P.2d 949 (1957) (diabetic defendant deliberately inducing a clouded mental state by failing to follow his doctor's directions held to waive his right to be present at trial); Fed. R. Crim. P. 43(b) (defendant initially present at trial waives right to be present by voluntarily absenting himself after trial has commenced or acting disruptively after warning).Google Scholar

252 Note, supra note 4, at 457–58.Google Scholar

253 These drugs have been frequently administered in institutional settings for punitive, management, or control purposes unrelated to the therapeutic needs of patients. E.g., United States ex rel. Wilson v. Coughlin, 472 F.2d 100, 102 (7th Cir. 1973); Welsch v. Likins, 373 F. Supp. 487, 503 (D. Minn. 1974); Nelson v. Heyne, 355 F. Supp. 451 (N.D. Ind. 1972), aff'd, 491 F.2d 352 (7th Cir.), cert. denied, 417 U.S. 976 (1974). See Jessica Mitford, Kind and Usual Punishment: The Prison Business 129 (New York: Alfred A. Knopf, 1973); Frederick Redlich & Daniel X. Freeman, The Theory and Practice of Psychiatry 818 (New York: Basic Books, 1966); Michael S. Bomstein, The Forcible Administration of Drugs to Prisoners and Mental Patients, 9 Clearinghouse Rev. 379, 383 (1975); Edward M. Opton, Jr., Psychiatric Violence Against Prisoners: When Therapy Is Punishment, 45 Miss. L.J. 605, 640 (1974); Frank Rundle, Institution v. Ethics: The Dilemma of a Prison Doctor, Hastings Center Rep., Nov. 1972, at 7.Google Scholar

254 Jerome J. Shestack, Psychiatry and the Dilemmas of Dual Loyalties, 60 A.B.A.J. 1521 (1974); David L. Bazelon, Institutionalization, Deinstitutionalization and the Adversary Process, 75 Colum. L. Rev. 897, 905–6 (1975); Rundle, supra note 253.Google Scholar

255 See Jack Himmelstein & Robert Michels, Case Studies in Bioethics: The Right to Refuse Psychoactive Drugs, Hastings Center Rep., June 1973, at 8–11.CrossRefGoogle Scholar