Feb. 25, 2026 – An appeal challenging the constitutionality of involuntary medication to restore a defendant’s competency to stand trial gave the Wisconsin Supreme Court the opportunity to set standards of review for the
Sell factors in
State v. J.D.B., 2026 WI 5.
Justice Brian K. Hagedorn, writing for the 6-1 majority, said “we independently conclude – and agree with the circuit court – that the [s]tate has an important interest in prosecuting Jared for his serious crime of battery to a law enforcement officer.”
In contrast, Justice Susan M. Crawford disagreed “that the [s]tate maintained a sufficiently important interest in prosecuting Jared, eight months after he was arrested and taken into custody, to warrant an order to forcibly medicate him solely for the purpose of restoring his competency to stand trial.”
Punched an Officer
The defendant, which the Court gave the pseudonym “Jared,” at age 19 had threatened to get “a gun and kill everyone at his home.” His mother called police.
Jay D. Jerde, Mitchell Hamline 2006, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by
email or by phone at (608) 250-6126.
“Jared threatened the officers and punched one of the officers in the face.” He was charged with battery to a law enforcement officer. Jared had no criminal history.
Jared’s defense counsel had reason to believe Jared was not competent to stand trial. At Jared’s first court appearance, the Milwaukee County Circuit Court ordered a competency evaluation.
A Wisconsin Department of Health Services (DHS) evaluation indicated schizophrenia and found Jared incompetent to proceed to trial and assist in his defense.
A few months after Jared went from jail to Mendota Mental Health Institution, he stopped taking his medications, which made him violent.
DHS moved the circuit court to involuntarily medicate Jared. The court, relying on the DHS doctor’s report, proposed treatment plan, and testimony, granted the motion.
The Court of Appeals reversed. The state appealed.
Due Process
Orders for involuntary medication for trial raise a due process liberty interest under the Fourteenth Amendment. The U.S. Supreme Court defined these constitutional protections in
Sell v. United States, 539 U.S. 166 (2003).
Sell sets four factors the state must prove:
- “important governmental interests are at stake,”
- “involuntary medications will significantly further” the government’s interest,
- “involuntary medication is necessary to further those interests,” and
- “administration of the drugs is medically appropriate.”
State v. Fitzgerald, 2019 WI 69, applied the
Sell factors to Wisconsin’s statutory provisions, but no standard of review existed to evaluate appealed orders.
Although Jared’s involuntary medication order expired – making his appeal moot – both parties sought judicial clarification.
Because the issue could evade review, the Supreme Court decided to review the merits.
Governmental Interest
“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,” the opinion explained about the first
Sell factor.
Special circumstances could undermine the government’s interest,
Sell warned. A civil commitment or lengthy pre-trial incarceration cuts into this interest, the opinion explained.
This “threshold question” is a “fundamental legal question … focused on the broader governmental interest, not on the credibility determinations or judgments unique to factual findings.”
It’s a question of law, the Supreme Court held, subject to independent appellate review.
Although Jared never argued special circumstances before the circuit court – potentially forfeiting the defense – the majority considered his arguments, which it concluded didn’t “undermine the [s]tate’s interest.”
Although Jared argued that he could be found not guilty by reason of insanity, “a defense to prosecution cannot be the very reason to forgo prosecution in the first place,” the majority explained.
His “mental health crisis,” Jared argued, “could be addressed through a future mental health commitment rather than a long sentence,” but
Sell advises that “civil commitment is not ‘a substitute for a criminal trial,’” the majority said. Nor had a civil commitment proceeding begun.
“Jared suggests he was unlikely to receive a long sentence, and the eight months he spent in custody would likely cover substantially all of the sentence,” the majority said.
“What Jared misses, and our analysis emphasizes, is that criminal prosecution serves interests far beyond Jared himself.”
Questions of Fact
The other three
Sell factors, the majority held, relied upon factual determinations – reviewing an individualized treatment plan and evaluating witness credibility.
“This is work ‘where the [trial] court’s comparative expertise is at its zenith and ours its nadir,” the Supreme Court majority explained.
Whether “involuntary medication
significantly furthers the government’s interest in prosecuting the offense,” ensuring mental competence with minimal side effects, required weighing the evidence of the proposed treatment plan’s ability to help the defendant.
This process isn’t resolved by a checklist, the majority said in addressing a misunderstanding about
State v. Green, 2021 WI App 18, which attempted to remedy a generic treatment plan by listing specific items.
Similarly, whether “medication is
necessary to further the important government interest” is a medical conclusion, “assessed by a careful credibility-focused assessment of the written evidence and hearing testimony.”
Finally, whether “‘the administration of drugs is
medically appropriate, i.e., in the patient’s best medical interest’ … requires the circuit court to assess the medical evidence adduced in the record and at the hearing to make a factual finding.”
These three factors are reviewed under the clearly erroneous standard of review, the majority held. Decisions will survive appeal “as long as the evidence would permit a reasonable person to make the same finding.”
“We search the record not for evidence opposing the circuit court’s decision, but for evidence supporting it,” the majority explained, quoting
State v. Wiskerchen, 2019 WI 1.
The circuit court’s findings, the majority said, demonstrated “a reasonable view of the evidence” and application of “clear and uncontested” testimony in ordering involuntary medication of Jared.
Justice Crawford: ‘Not Constitutionally Warranted’
Although Jared never argued in circuit court his central issue on appeal, Justice Crawford in her dissent emphasized that
Sell turned on “specific circumstances
not considered by the lower courts.”
With “important liberty interests at stake” under de novo review with a well-developed record, Justice Crawford concluded that the circuit court had “overlooked special circumstances that outweighed the [s]tate’s prosecutorial interest.”
“If the circuit court had declined to order Jared forcibly medicated, a civil commitment would have been reasonably foreseeable,” potentially including “an order for involuntary medication.”
When the circuit court ordered involuntary medication, Jared had already been in custody for more than eight months. Medically induced competence could take months more.
The longer he remained confined, the dissent argued, the state’s interest in prosecution diminished.
“[A]s a first-time offender, he would likely have received a sentence for the crime well under the statutory maximum of three years of confinement,” the dissent said, especially given his youth and additional medical problems.
“As instructed by
Sell, I reach this conclusion by considering the facts of this individual case,” the dissent concluded.
“[B]y the time the [s]tate sought the order to forcibly medicate Jared, its interest had diminished to the point that the intrusion on his liberty was not constitutionally warranted.”
This article was originally published on the State Bar of Wisconsin’s
Wisbar Court Review blog, which covers case decisions and other developments in the Wisconsin Supreme Court, the Wisconsin Court of Appeals, and the U.S. Court of Appeals for the Seventh Circuit. To contribute to this blog, contact
Joe Forward.