STATE OF WISCONSIN, Plaintiff-Respondent-Petitioner, v. J.D.B., Defendant-Appellant.
No. 2023AP715-CR
Supreme Court of Wisconsin
February 25, 2026
2026 WI 5
REVIEW of a decision of the Court of Appeals. Milwaukee County Circuit Court (Milton L. Childs Sr., J.) No. 2022CF3407.
¶1 BRIAN K. HAGEDORN, J. In Sell v. United States, 539 U.S. 166 (2003), the United States Supreme Court held that a state may, within certain limits, forcibly “administer antipsychotic drugs to a mentally ill defendant facing serious criminal charges in order to render that defendant competent to stand trial.” Id. at 179. The state may only do this, however, if: 1) “important governmental interests are at stake”; 2) “involuntary medication will significantly further” those interests; 3) “involuntary medication is necessary to further those interests”; and 4) “administration of the drugs is medically appropriate.” Id. at 180–81 (emphasis omitted).
¶2 The defendant in this case, whom we will call Jared,1 was charged with battery to a law enforcement officer. The circuit court ordered involuntary medication so Jared could be competent to stand trial. It concluded that the statutory requirements along with the Sell factors were satisfied. The court of appeals reversed, concluding that none of the Sell factors were established and the circuit court’s findings on the statutory requirements were clearly erroneous. We granted review and now reverse.
¶3 This case requires us to articulate the proper standard of review on appeal for the Sell factors and to determine whether that standard was met under the facts of this case. We hold that the first Sell factor, whether the state has an important governmental interest, is an issue we review de novo. The remaining three Sell factors are fact questions entrusted to the circuit court in the first instance and will not be disturbed unless they are clearly erroneous. Using this framework, we affirm the circuit court’s decision on the Sell factors. We further conclude the circuit court’s findings under
I. BACKGROUND
¶4 According to the criminal complaint filed against him, Jared’s mother called the police in August 2022 and reported that Jared was threatening to obtain a gun and kill everyonе at his home. When officers arrived, Jared threatened the officers and punched one of the officers in the face. Jared was arrested and charged with battery to a law enforcement officer in violation of
¶6 After being moved to the mental health institution in January, Jared did take his medications regularly. On April 3, however, he began refusing to take his prescribed antipsychotic drugs, and problems soon arose. Jared charged at staff, defecated on the floor, smeared and threw feces, and spit at others. Dr. Illichmann, who works for DHS, moved the circuit court to involuntarily medicate Jared. The circuit court held a hearing and granted the motion. The evidence before the circuit court consisted largely of Dr. Illichmann’s report, his recommended treatment plan, and his testimony at the hearing. It also included information from Jared’s previous competency reports. We cover this evidence and the specific circuit court findings in more detail below. But suffice it to say for now, the circuit court concluded the legal prerequisites, including all four Sell factors, were satisfied and ordered involuntary medication to render Jared competent for trial.
¶7 Jared appealed the involuntary medication order on the grounds that neither the statutory nor constitutional standards were met. In a published decision, the court of appeals reversed. The State petitioned this court for review, which we granted.
II. DISCUSSION
A. OVERVIEW AND ISSUES FOR REVIEW
¶8 Rooted in the Fourteenth Amendment’s Due Process Clause, the United States Supreme Court has identified “a significant liberty interest in avoiding the unwanted administration of antipsychotic drugs.” Washington v. Harper, 494 U.S. 210, 221–22 (1990). This “constitutionally protected liberty interest” may be overcome, however, when the State has
¶9 When a mentally ill defendant is facing serious criminal charges, rendering that defendant competent to stand trial can constitute a sufficiently important interest, “but only if the treatment is medically appropriate, is substantially unlikely to have side effects that may undermine the fairness of the trial, and, taking account of less intrusive alternatives, is necessary significantly to further important governmental trial-related interests.” Id. at 179. The U.S. Supreme Court then broke this down into the factors a court must find as prerequisites to ordering involuntary administration of psychotropic medication, now known as the four Sell factors. Id. at 180–81.
¶10 In Fitzgerald, we held that Wisconsin’s statutory provisions in
¶11 In this case, Jared contests both the constitutional and statutory bases for his involuntary medication оrder.2 First, he challenges whether each of the four Sell factors was satisfied. This requires us to determine the meaning and application of each Sell factor. In addition, we must resolve the appropriate standard of appellate review for each
B. SELL FACTORS
1. Sell Factor 1: Important Government Interest
a. Overview
¶12 Sell first requires a court to “find that important governmental interests are at stake.” 539 U.S. at 180. When someone is accused of a serious crime—whether against a person or property—bringing them to trial meets this threshold; it is an important governmental interest. Id.
¶13 But even if a serious crime is present, “Special circumstances may lessen the importance of that interest” in a particular case. Id. By way of example, Sell observed that if a defendant is facing a lengthy mental commitment in an institution, the state’s interest in incarcerating an individual would be diminished (though not extinguished), presumably because the risk of rе-offense is limited by the prospective mental commitment. Id. Similarly, the state’s interest could also be lessened if a defendant has already served a lengthy confinement for which he will receive significant credit toward any ultimate sentence resulting from the prosecution. Id. The Court also reiterated, however, that delayed prosecution affects the government’s substantial interest in prosecuting criminals on a timely basis. Id.
¶14 The first Sell factor is not a two-part test; it is a single unified question. Id. In general, if a defendant is charged with a serious crime, the state has an important interest in bringing that defendant to justice via prosecution. Id. By using the language “special circumstances,” the Court communicated that such mitigating circumstances will not be ordinary. The ultimate legal determination does not consist in a checkbox of “special circumstances” with fixed rules; Sell asks whether the state has an important interest that is not sufficiently mitigated so as to become unimportant considering “the facts of the individual case.” Id. Again, the question is whether the state has an interest in prosecution that is
b. Standard of Review
¶15 The standard of review an appellate court applies to a particular question is essential to the decision-making process. It deals with “apportion[ing] power and, consequently, responsibility between trial and appellate courts for determining an issue or a class of issues.” Utah v. Thurman, 846 P.2d 1256, 1265–66 (Utah 1993). Standards of review generally fall into three categories: questions of fact, questions of law, and discretionary decisions. Ronald R. Hofer, Standards of Review-Looking Beyond the Labels, 74 MARQ. L. REV. 231, 233 (1991). In this case, we focus on the first two categories.
¶16 First, generally speaking, circuit courts are tasked with and institutionally competent to decide questions of fact. Determining what is true as a factual matter involves evaluating witnesses and evidence and otherwise making numerous credibility judgments based on both written and in-person evidence. See State v. Owens, 148 Wis. 2d 922, 929, 436 N.W.2d 869 (1989) (“The trial judge not only hears the testimony, but also sees the demeanor of the witness and the body language. As a result, the trial judge hears the emphasis, volume alterations and intonations. The trial judge also has a superior view of the total circumstances of the witnesses’ testimony.”).
¶17 Appellate courts, in contrast, review only a cold paper record, and are designed to ensure the decisions below were made in accordance with the law. Appellate courts do not substitute their own interpretation of the facts for those of the circuit court because we are—by design—not equipped to do so. See id. at 931. (“The trial court could gauge considerations not witnessed by the appellate court.”); Hofer, supra, at 250 (“An appellate court cannot reproduce the decision making process if the initial decision was at all dependent upon the decision maker‘s sensory experience of the hearing or trial.”). Rather, appellate courts are structured to deliberate and decide what the law is—matters determined by reference to legal authorities such as statutes, constitutions, and precedent, rather than the credibility of an expert witness, for example. Thurman, 846 P.2d at 1271 (Establishing norms for jurisdiction-wide application is “classically reserved to multi-judge appellate panels.”).
¶19 This is simple enough in many cases, but much harder in others. Sometimes, a component of a legal question is necessarily intertwined with credibility and factual judgments that are hard to separate. See Hofer, supra, at 244 (highlighting classic problem with identifying which parts of a mixed question are law and which are fact); 5 C.J.S. § 823 (2025) (discussing how different courts assign weight to the facts and law in mixed questions). Where we do not have a legal authority that fixes the proper standard of review—such as a statute or U.S. Supreme Court precedent—we must determine the issue for ourselves. State v. Byrge, 2000 WI 101, ¶32, 237 Wis. 2d 197, 614 N.W.2d 477 (“[W]e note that whether an issue presents a question of fact or a question of law is in itself a question of law.”); see also 5 C.J.S. Appeal and Error § 816 (2025). And although the considerations can vary, the core questions are generally centered on which court is better positioned to decide the question as a final matter, whether uniformity or flexibility is important in the rule’s application, and whether factual or legal issues predominate. See State v. Pepin, 110 Wis. 2d 431, 435–36, 328 N.W.2d 898 (Ct. App. 1982); Hofer, supra, at 238–39; Thurman, 846 P.2d at 1271.
¶20 Turning back to this case, the first Sell factor—whether the state has an important interest in prosecution—serves as a threshold question. The Sell test is aimed at ensuring the due process liberty interest against unwanted medication is protected. Sell, 539 U.S. at 178. With no sufficiently important interest in prosecution, the other factors, which are largely aimed at ensuring that the interest will be appropriately furthered, logically need not be addressed. In our view, this is a question where the fundamental legal question of whether this is sufficiently important predominates. It is true that mitigating special circumstances have a factual component to them—for example, how long someone has been confined pretrial. And while we defer to these sorts of underlying factfindings, the determination under the first Sell factor is, in the main, one
¶21 To our knowledge, every court that has considered the appropriate standard of review on this factor, along with both parties in this case, concludes it is a question of law, not a question of fact.3 We are in accord and hold that the first Sell factor is subject to de novo review. An appellate court should rely on the specific factual сircumstances of the defendant’s situation as found by the circuit court when assessing the legal question: the impact those circumstances have on the strength of the interest.4 An appellate court, therefore, reviews independently whether the crime is serious and whether any mitigating special circumstances diminish the strength of the interest such that it is no longer important enough to warrant forcible medication.
c. Application to this Case
¶22 In this case, the parties agree that Jared is charged with a serious crime. We agree; felony battering of a law enforcement officer certainly satisfies any definition of serious. Despite their agreement, both parties suggest we adopt a framework for determining if a crime is serious—in effect asking for guidance on how cases with different facts might come out. We decline the invitation. As a general rule, courts should decide what is necessary to adjudicate the legal matters in dispute, not those that might be disputed in a future case.5
¶23 Thus, given the undisputed seriousness of this crime, the State has an important interest in prosecuting Jared unless special circumstances sufficiently undermine that interest. The parties debate whether Jared was required to raise any special circumstances in the circuit court, or whether that burden falls on the circuit court or the state. This is a more complicated matter here because nobody raised any special circumstances for the circuit court to consider. And other courts have found that the failure to raise these issues can constitute forfeiture. United States v. Dillon, 738 F.3d 284, 293 (D.C. Cir. 2013); see also United States v. Fieste, 84 F.4th 713, 722–23 (7th Cir. 2023) (collecting cases finding forfeiture). Nonetheless, we need not decide this question at this stage because none of the purported special circumstances Jared does raise before us are sufficient to undermine the State’s interest.
¶24 First, Jared contends the prosecution could result in a verdict of not guilty by reason of insanity (NGI). He argues this would mitigate the State’s interest in criminal punishment because, in such a scenario, he would not be criminally punished for his crimes. We disagree. By its nature, the NGI defense can be raised only within the confines of the prosecution itself. Put simply, a defense to prosecution cannot be the very reason to forgo prosecution in the first place. United States v. Mikulich, 732 F.3d 692, 701 (6th Cir. 2013) (“It is thus logically backwards to say that a potential insanity defense may somehow lessen the value of the condition precedent [prosecution] coming to pass in the first instance.”). We cannot see how a possible NGI defense would diminish the State’s interest in prosecuting a serious crime.
¶25 Second, Jared maintains he was improperly denied bail and subject to illegal pretrial detention. But Jared does not connect the dots on why this alleged legal error—which can be independently raised and argued—is relevant to the State’s interest in the prosecution itself. He names the issue but does not explain its supposed mitigating effect.
¶26 Third, Jared says he did not receive adequate and timely treatment, potentially raising a constitutional due process violation. And
¶27 Fourth, Jared contends his actions were the result of a mental health crisis. Jared was only 19 and had no criminal history, and thus concerns for his behavior could be addressed through a future mental health commitment rather than a long sentence. All of this, Jared contends, diminishes the State’s interest in prosecution. But once again, he does not explain why. Every ch. 971 proceeding involves a person struggling with mental health challenges. Against this argument, we must consider the words of Sell itself: civil commitment is not “a substitute for a criminal trial.” 539 U.S. at 180. Again, criminal prosecution is aimed at far more than the perpetrator’s wellbeing. Jared may be attempting to mirror Sell’s reasoning that he is likely to be civilly committed for a long time and therefore criminal punishment is less important. If this were true, that would serve a mitigating effect. However, at the time the circuit court made the decision we are reviewing, this was unclear at best. The ch. 51 proceeding, a separate, non-criminal civil involuntary commitment proceeding, had not yet begun. We find that, on this record, the mere possibility that Jared may have faced a future commitment at the time the circuit court made its decision does little to undermine the State’s interest in prosecuting Jared for this serious crime.
¶28 Finally, Jared suggests he was unlikely to receive a long sentence, and the eight months he spent in custody would likely cover substantially all of his sentence. Sell recognizes that lengthy pretrial confinement can serve as a mitigating effect on the State’s interest. The parties debate whether we must compare Jared’s eight-months pretrial confinement to his likely sentence or a potential maximum sentence—here, six years. However, Sell does not commend rigid rules with fixed formulas. Yes, a portion of Jared’s potential sentence may already have
¶29 All in all, while Jared’s pretrial confinement has a mitigating effect, we nonetheless conclude Jared’s charged crime is serious, and the State has an important interest in prosecuting Jared for his conduct. Jared does not present special circumstances that serve to eliminate the State’s important interest in prosecution. Reviewing this question of law, we conclude the first Sell factor is satisfied.
2. Sell Factor 2: Significantly Further the State’s Interest
a. Overview
¶30 The second Sell factor requires a court to find that involuntary medication significantly furthers the government’s interest in prosecuting the offense. Id. at 181. To significantly further the government’s interest, the medication the State seeks to administer must do two things. It must be “substantially likely to render the defendant competent to stand trial” and be “substantially unlikely to have side effects that will interfere significantly with the defendant’s ability to assist counsel in conducting a trial defense, thereby rendering the trial unfair.” Id. Note that the goal of this factor is all about the efficacy of the medicine in ensuring а fair trial. If the medical treatment is just a shot in the dark, for example, having only a marginal possibility of restoring competency, it would not satisfy this standard. To say it another way, if the government is going to forcibly medicate a defendant to render him fit for trial, the treatment should be substantially likely to do so, and substantially unlikely to harm his ability to assist in his defense.
¶31 We must also address an opinion from the court of appeals which has been understood as mandating a list of specific requirements that must be present to satisfy this and other factors. In State v. Green, 2021 WI App 18, 396 Wis. 2d 658, 957 N.W.2d 583, the court of appeals considered a challenge to an involuntary medication order under dramatically different circumstances. Id., ¶1. There, the State’s expert medical witness on
¶32 The court of appeals rightly stressed that a generic treatment plan not tailored to the individual was insufficient. Id., ¶34. Rather, to prove Sell factors two, three, and four, the State must present an individualized treatment plan tailored to the individual the State is seeking to medicate. Id. But then the court of appeals went on to outline a broader itemization of evidentiary requisites: the specific medication, the maximum dosages, the overall duration of the treatment, how the plan applies to the particular defendant, the defendant’s age, the defendant’s weight, the duration of the defendant’s illness, the defendant’s past responses to psychotropic medications, the defendant’s cognitive abilities, the defendant’s current list of medications, and the defendant’s medical record. Id., ¶38.
¶33 We understand the problem Green was responding to. Given that a generic plan is insufficient, most of this information seems a natural part of an individually-tailored medication plan. However, to the extent Green is understood as creating a mandatory checklist, we see no such specificity in Sell itself. At this stage of the analysis, the State’s important interest in prosecution has already been established. This finding is therefore focused in a more limited fashion on whether the treatment will prove effective fоr purposes of trial. While evidence tailored to the defendant is required, Sell does not demand the kind of specificity that Jared argues Green requires. It is not clear whether Green meant to require each and every piece of information it lists. To the extent it did, it is overruled. Sell mandates individualized findings about the defendant’s medical situation, but it permits flexibility in how this finding is determined and the evidence that might support it.
b. Standard of Review
¶34 Unlike the first factor, this factor requires a factual determination and weighing of how likely a given treatment plan is to help, and not to harm the defendant. This necessarily requires making credibility assessments, evaluating testimony at the hearing, engaging in a
¶35 Therefore, we join the overwhelming majority of courts and conclude that the finding required under the second Sell factor is given tо the judgment of the circuit court as the trier of fact.6 We will disturb this factual finding only if it is clearly erroneous. This means that “as long as the evidence would permit a reasonable person to make the same finding,” it will be affirmed on appeal. State v. Wiskerchen, 2019 WI 1, ¶30, 385 Wis. 2d 120, 921 N.W.2d 730. This is true “even if the evidence may have presented competing factual inferences.” Id. “We search the record not for evidence opposing the circuit court’s decision, but for evidence supporting it.” Id.
c. Application to this Case
¶36 Given our standard of review, we observe that the circuit court made the required findings. The circuit court entered its findings that the medication was “substantially likely to render the defendant competent to stand trial” and “substantially unlikely to have side effects that undermine the fairness of the trial by interfering significantly with the defendant’s ability to assist counsel in conducting a trial defense.”
¶37 In applying our deferential standard of review, we conclude this reflects a reasonable view of the evidence. The circuit court had the benefit of a hearing on the motion for an involuntary medication order. The written treatment plan was included as an attachment to the motion itself. The treatment plan included a certification from the doctor that “to a reasonable degree of medical certainty” the medication was medically
¶38 Jared counters that Dr. Illichmann’s proposed treatment plan and testimony state only that the named pharmaceuticals help people like Jared—those with psychosis—rather than Jared himself.8 However, magic words are not necessary. The circuit court could reasonably infer from this testimony that Dr. Illichmann thought the medications would also help Jared himself. Indeed, it’s clear that’s exactly what this testimony meant.
3. Sell Factor 3: Necessity
a. Overview
¶39 The third Sell factor requires the court to find that the medication is necessary to further the important governmental interest in bringing the accused to trial. 539 U.S. at 181. This means the court must determine that treatments other than medication and methods of administering medication less intrusive than involuntary medication—such as nondrug therapies and a contempt order for not taking medication, respectively—are not available. Id.
b. Standard of Review
¶40 Like the previous factor, this finding is predominantly a medical conclusion, not a legal one. It can only be assessed by a careful, credibility-focused assessment of the written evidence and hearing testimony. This is exactly the kind of factual inquiry within the expertise of the circuit court, rather than the impersonal paper review done by appellate courts. We will therefore overturn this circuit court finding only if it is clearly erroneous. This standard of appellate review is likewise the approach adopted by nearly every other court to address this question.9
¶41 The circuit court found that involuntary medication was necessary based on the doctor’s testimony that no less intrusive alternative would help return Jared to trial competency. Specifically, Dr. Illichmann testified that Jared was already refusing medication; accordingly, voluntary use was not likely to restore Jared to trial competency. The only alternative, he said, was to hope that Jared would take his medications voluntarily. If he didn’t, and there was no “random improvement,” then DHS “would probably have to submit to the Court that the patient is not competent and not likely to be restored to competency.” In other words, without the medication, and the medication administered against Jared’s will, the State would never be able to prosecute Jared. The doctor’s testimony was clear and uncontested, and the circuit court’s finding based on this evidence is entitled to our deferential review. We conclude this finding is not clearly erroneous.
4. Sell Factor 4: Medically Appropriate
a. Overview
¶42 Under the fourth Sell factor, “the court must conclude that administration of the drugs is medically appropriate, i.e., in the patient’s best medical interest in light of his medical condition.” 539 U.S. at 181. While the second and third factors focus on the efficacy and need for the treatment in preparation for trial, the fourth factor inquires whether the treatment is in the defendant’s best medical interest personally.
b. Standard of Review
¶43 No less than factors two and three, this finding requires the circuit court to assess the medical evidence adduced in the record and at the hearing to make a factual finding regarding what is best for the defendant. This will be based on the defendant’s particular medical conditions and prescriptions for his well-being, and the credibility determinations that must be made to reach these conclusions. Again, this is predominantly a factual question that appellate courts are not wellpositioned to second-guess. Therefore, like Sell factors two and three and for the same reasons, we will disturb the circuit court’s finding only if it is
c. Application to this Case
¶44 On this factor as well, the circuit court made the requisite finding. It indicated that it found that “involuntary administration of medication(s) or treatment is medically appropriate.” This is a reasonable conclusion from the evidence. The written treatment plan certified that “to a reasonable degree of medical certainty” the medication was medically appropriate. Dr. Illichmann testified that the proposed medications would be in Jared’s medical interest by ameliorating and decreasing the symptoms of his mental illness. The doctor’s testimony was clear and uncontested, and the circuit court’s finding based on this evidence is entitled to our deferential review. We conclude this finding is not clearly еrroneous.
¶45 Jared’s counterargument that the medicine isn’t in his best interest doesn’t persuade us otherwise. He says that because of potential side effects related to his various health conditions—including diabetes and seizures—the treatment is not medically appropriate. He points out that the FDA website calls for caution when prescribing these medications to people with diabetes or seizures. In effect, Jared is asking us to reconsider the potential side effects that were part of our analysis for the second Sell factor. We deferred to the circuit court’s finding that the medications were substantially unlikely to have side effects that undermine the fairness of the trial. The circuit court reasonably inferred that Dr. Illichmann thought the medication would help Jared. Dr. Illichmann was familiar with Jared’s medical history and testified extensively about the potential side effects of the medication he proposed on the treatment plan. Given that it had information before it sufficient to support its conclusion, we will defer to the circuit court on this issue as well.
5. Sell Factors Summary
¶46 The U.S. Supreme Court has held that a defendant charged with a serious crime may be involuntarily medicated to render the
¶47 The first Sell factor is a legal question an appellate court reviews de novo. The second, third, and fourth Sell factors are entrusted to the factfinder, and an appellate court will disturb these findings only if they are clearly erroneous.
¶48 In this case, we independently conclude—and agree with the circuit court—that the State has an important interest in prosecuting Jared for his serious crime of battery to a law enforcement officer. We further conclude that the circuit court’s findings on Sell factors two, three, and four are not clearly erroneous based on the record in this case.
C. STATUTORY QUESTIONS
¶49 With the constitutiоnal issue settled, we come to the final dispute between the parties—whether the State proved the statutorily required incompetency findings. We review these findings to see if they are clearly erroneous. See Byrge, 237 Wis. 2d 197, ¶45. We observe initially that Jared’s argument before us is different than that raised below. Before the court of appeals, Jared contended that the circuit court did not make the required findings, with a brief mention of whether the evidence could support those findings. The court of appeals concluded the circuit court did make the findings, but that they were clearly erroneous. Now, Jared argues that the State did not bear its burden to prove the statutory requirements for involuntary medication, based in large part on language from Outagamie County v. Melanie L., 2013 WI 67, ¶67, 349 Wis. 2d 148, 833 N.W.2d 607.
¶50 The statute provides in relevant part:
The defendant is not competent to refuse medication or treatment if, because of mental illness, developmental disability, alcoholism or drug dependence, and after the
advantages and disadvantages of and alternatives to accepting the particular medication or treatment have been explained to the defendant, one of the following is true: 1. The defendant is incapable оf expressing an understanding of the advantages and disadvantages of accepting medication or treatment and the alternatives.
2. The defendant is substantially incapable of applying an understanding of the advantages, disadvantages and alternatives to his or her mental illness, developmental disability, alcoholism or drug dependence in order to make an informed choice as to whether to accept or refuse medication or treatment.
¶51 Under this statute, before a court can order involuntary medication, the State must make a double showing. First, it must prove that the advantages and disadvantages of the medication were explained to Jared. Then, it must demonstrate that Jared lacks ability either to apply or to express his understanding of the advantages and disadvantages of the medication. The circuit court, while discussing the third Sell factor, found that Dr. Illichmann “talked to the defendant about the advantages and disadvantages to restore the defendant. And again, he felt the defendant did not understand.”
¶52 The record supports these findings. Dr. Illichmann testified that he explained the advantages and disadvantages of the medication to Jared at two different meetings, and the purpose was “to discuss symptoms, medications, side effects.” He went through all the medications and side effects and advantages of each one. Dr. Illichmann testified that “the most [Jared] would explain to me is that feeling he doesn’t need [the medications].” Additionally, he said, “I believe [Jared] lacks ability to apply information about medications to himself or his situation. Mainly, when I tried to discuss the importance of medications, I will get the repeated answer that he feels he just doesn’t need anything.” Dr. Illichmann also said that Jared is not capable of understanding the advantages and disadvantages because he gave the same repeated response to the doctor’s questions. Accordingly, Dr. Illichmann uncontestedly testified to explaining the advantages and disadvantages of the medication to Jared, and his view that Jared was not responsive to this
¶53 Jared argues that under Melanie L.’s description of identical language from ch. 51, Dr. Illichmann needed to testify about his efforts to educate Jared and the frequency of those conversations, and that Dr. Illiсhmann did not sufficiently explain how he reached his conclusions. This comes from a section in Melanie L. giving an overview of the statutory scheme, and on a portion that was not at issue in that case. We do not read Melanie L. as adding new, mandatory evidentiary standards to the statute. The circuit court made sufficient findings on the statute, and the evidence supports the finding that the statutory standards were met. Accordingly, its findings were not clearly erroneous. For its part, the court of appeals agreed the findings were made, but seemed to take a skeptical view of the testimony rather than deferring to the circuit court as factfinder. But applying the proper standard of review to the findings of fact, we affirm the circuit court’s findings.
III. CONCLUSION
¶54 Before entering an order for involuntary medication for restoration for trial competency under ch. 971, circuit courts in Wisconsin must evaluate the four Sell factors and the statutory requirements. In this case, the circuit court correctly concluded that the government had an important interest in prosecuting Jared. The evidence also supports its factual findings that involuntary medication would significantly advance that interest, that involuntary medication was nеcessary to accomplish that interest, and that it would be medically appropriate for Jared. There was also sufficient evidence supporting the circuit court’s conclusion that the statutory elements were satisfied. For these reasons, we reverse the decision of the court of appeals.
By the Court.—The decision of the court of appeals is reversed.
¶55 This case began with an emergency call for help by a woman who reported that her mentally ill 19-year-old son, Jared, had threatened to get a gun and kill everyone in their home. The police response to that call escalated into a felony charge. Jared, in the throes of a mental health crisis, struck one of the responding officers in the face. The State arrested him and charged him with battery to a law enforcement officer. I disagree with the majority’s conclusion on the first factor from Sell v. United States, 539 U.S. 166 (2003). I would hold that the State’s interest in rendering Jared competent to stand trial on the battery charge was insufficient to overcome Jared’s liberty interest in avoiding the forced administration of psychotropic drugs. Accordingly, I would affirm the court of appeаls’ decision and reverse the circuit court’s order authorizing the involuntary administration of medication.
¶56 I would reach the merits of Jared’s claim despite my concern that a central issue he raises in this appeal—whether special circumstances undermined the State’s interest in prosecuting him—was not raised in the circuit court. He arguably forfeited appellate review of the issue. Moreover, the case is moot because the order committing Jared for treatment in the criminal case has expired. Nevertheless, I believe it is appropriate to decide this case on the merits (as the majority does) for several reasons. First, there are important liberty interests at stake that warrant this court’s full review. Further, as the majority holds, our review of the first Sell factor is de novo, and the record is sufficiently developed to allow a thorough assessment of this factor. Finally, the Supreme Court in Sell reversed an order for involuntary medication after concluding that specific circumstances not considered by the lower courts undermined the government’s interest in prosecuting Sell. 539 U.S. at 186. I similarly conclude that the record here shows that the circuit court overlookеd special circumstances that outweighed the State’s prosecutorial interest in bringing Jared to trial.
¶57 On appeal, the parties agree that the charged crime of battery to a police officer1 is a serious one for the purposes of the first Sell
¶58 Notwithstanding that the charge is a serious one, I conclude that the State’s interest in prosecuting Jared, under the particular circumstances here, is not strong enough to warrant forcibly medicating him for the sole purpose of rendering him competent to stand trial on the charge. I focus on two circumstances that undermine the State’s interest in obtaining a conviction: the likelihood of a civil commitment and the duration of Jared’s pretrial confinement. These circumstances undermine the State’s interest in prosecuting Jared to the point that forcibly medicating him for the sole purpose of bringing him to trial on the battery charge violates Jared’s rights under the Due Process Clause.
¶59 The following summary of the alleged crime and subsequent procedural history provides the factual context for this discussion. As alleged in the complaint, the police were dispatched to Jared’s residence after his mother called 911, reporting Jared’s threats to obtain a gun and kill everyone in their home. The officers went inside and spoke with Jared. He threatened to fight them. As the officers arrested Jared for threatening them, he struck one of them in the face, causing a laceration. Following his
¶60 At the time of his arrest, Jared was 19 years old and had no criminal history. He had significant mental and physical health challenges. Diagnosed with schizophrenia and major neurocognitive disorder, Jared had received inpatient psychiatric treatment on several occasions. Jared had permanent brain damage, partial paralysis, vision impairment, speech impairment, and cognitive deficits, all the effects of a gunshot wound to the head, self-inflicted when Jared was an 11-year-old child. The initial competency evaluation notes that Jared “recently experienced psychiatric decompensation after he underwent a medication change . . . . Thereafter, he became increasingly aggressive and irritable.”
¶61 The procedural history of this case shows that Jared languished in jail for several months awaiting treatment. After his arrest on August 23, 2022, Jared made his initial appearance in court, while in custody, on August 31, 2022. His attorney questioned his competency, and the court ordered a competency evaluation. Jared remained in jail awaiting evaluation. On October 11, 2022, after a hearing, the circuit court found Jared incompetent but likely to be rendered competent with treatment, and committed him to the Department of Health Services (DHS) for treatment. Jared was admitted to Mendota Mental Health Institution on January 25, 2023, about three and a half months after the court ordered the commitment for treatment, and five months аfter his arrest. Jared had been in jail for that entire period.
¶62 Jared initially took his medications voluntarily upon his admission to the institution, but he began refusing them on April 3, 2023. On April 11, 2023, a DHS psychiatrist requested a court order to involuntarily medicate him. On April 24, 2023, after a hearing, the circuit court amended the commitment order, adding an order for the involuntarily administration of medication. At that time, the commitment order had been in place for over six months and was due to expire on October 11, 2023.
¶63 More than eight months after his arrest, Jared’s prosecution had not advanced beyond an initial appearance (indeed, even the initial appearance was not completed because Jared’s competency was
¶64 These facts are properly considered in evaluating whether the State’s interest in this prosecution was strong enough to warrant an order to forcibly medicate Jared for the sole purpose of rendering him competent to stand trial. An order for involuntary medication is an intrusive measure that profoundly affects a person’s liberty interests. Washington v. Harper, 494 U.S. 210, 229 (1990) (“The forcible injection of medication into a nonconsenting person’s body represents a substantial interference with that person’s liberty.”). Sell instructs that a court “must consider the facts of the individual case in evaluating the Government’s interest in prosecution.” 539 U.S. at 180. This formulation indicates that courts must consider the totality of the circumstances in balancing the competing interests at stake. It does not attempt to predict, limit, or define what “special circumstances” may be present or relevant in a particular case. In Sell, the Court concluded that the government’s interest in prosecuting Sell for over 60 counts of fraud and two counts of attempted murder was insufficient to outweigh Sell’s liberty interests in avoiding forcible medication. Id. at 170, 186.
¶65 In weighing the government’s interests against Sell’s, the Court identified specific circumstances that mitigated the government’s interest in prosecuting Sell. Id. at 186. The Court identified the likelihood of a “lengthy confinement in an institution for the mentally ill” as a factor that may “diminish the risks that ordinarily attach to freeing without punishment one who has committed a serious crime.” Id. at 180. While cautioning that a civil commitment is not “a substitute for a criminal trial,” the Court reсognized that a potential civil commitment may “affect[] . . . the strength of the need for prosecution.” Id. In addition, the Court observed that the strength of the government’s interest in prosecution may be lessened if a “defendant has already been confined for a significant amount of time,” because the defendant “would receive credit toward any sentence ultimately imposed.” Id.
¶66 Such circumstances are present here. If the circuit court had declined to order Jared forcibly medicated, a civil commitment would have been reasonably foreseeable, given the severity of Jared’s mental illness and dysregulation. The medical reports show that Jared’s aggression increased when his psychotropic medications were changed (prior to the incident resulting in his arrest) and later when he stopped taking his medications at the institution. While not a substitute for
¶67 In addition, the State’s interest in prosecuting Jared for battery to a law enforcement officer was subject to diminishing returns the longer Jared’s pretrial confinement continued. At the time the court ordered Jared to be involuntarily medicated, Jared had been in custody for 245 days (over eight months). Even with an order for forced medication, it was likely Jared would not be rendered competent for several more months, and might not be rendered competent within the maximum commitment period of one year.2 That time would be credited toward an eventual sentence if Jared were convicted. See
¶68 In short, I disagree with the majority’s conclusion that the State maintained a sufficiently important interest in prosecuting Jared, eight months after he was arrested and taken into custody, to warrant an
¶69 Accordingly, I respectfully dissent.