Bottom line: Circuit courts may order involuntary medication to restore trial competency when the Sell factors and statutory requirements are met, and appellate courts must defer to factual findings unless clearly erroneous.
Involuntary medication for competency restoration upheld under Sell factors
The Wisconsin Supreme Court in State v. J.D.B., 2026 WI 5, reversed the court of appeals and upheld a circuit court order authorizing involuntary medication of a defendant to restore his competency to stand trial. The case clarifies the standard of appellate review for each of the four factors from Sell v. United States, 539 U.S. 166 (2003). The first Sell factor is a question of law subject to de novo review. The remaining three Sell factors are factual findings that appellate courts may overturn only if clearly erroneous. This opinion sets a clear framework for how Wisconsin courts will handle involuntary medication orders under the Sell factors going forward.
Defendant charged with battery to a law enforcement officer after mental health crisis
In August 2022, the defendant’s mother called police to report that her 19-year-old son, referred to as “Jared,” was threatening to obtain a gun and kill everyone at their home. Officers responded and spoke with Jared. He threatened to fight them, and during the arrest, he punched one officer in the face. Jared was arrested and charged with battery to a law enforcement officer under Wis. Stat. § 940.203(2), a Class H felony.
At his first court appearance, defense counsel raised concerns about Jared’s competency. The court ordered an evaluation. The Department of Health Services (DHS) diagnosed Jared with schizophrenia and found him incompetent to proceed. The court committed him to a mental health institution for treatment. Jared sat in the Milwaukee County Jail from August 2022 until January 2023 before being moved to the institution.
Once at the institution, Jared initially took his prescribed medications. On April 3, 2023, he began refusing them. His behavior deteriorated quickly. He charged at staff, defecated on the floor, smeared and threw feces, and spit at others. Dr. Illichmann, a DHS psychiatrist, moved the circuit court to authorize involuntary medication. After a hearing, the circuit court granted the motion, finding that all four Sell factors and the statutory requirements under Wis. Stat. § 971.14(3)(dm) and (4)(b) were satisfied. Jared appealed.
Wisconsin Supreme Court defines the standard of review for Sell factors
The court of appeals reversed, concluding that none of the Sell factors were established. The Wisconsin Supreme Court took the case to resolve the proper standard of appellate review for each Sell factor. No prior Wisconsin decision had addressed this question, and the U.S. Supreme Court left it open in Sell itself.
The court held that the first Sell factor asks whether the government has an important interest in prosecution. Because this is primarily a legal question, appellate courts review it de novo. If a defendant faces a serious criminal charge, the government ordinarily has an important interest. “Special circumstances” may reduce that interest, but the court emphasized that such circumstances are not ordinary.
For the second, third, and fourth Sell factors, the court held that these are factual determinations. They require the circuit court to assess medical evidence, weigh expert testimony, and make credibility judgments. Appellate courts will disturb these findings only if clearly erroneous. The court aligned itself with the overwhelming majority of federal circuits that apply this same framework.
Court rejects special circumstances arguments and affirms the Sell factors analysis
On the first Sell factor, both parties agreed the charged crime was serious. Jared argued that several special circumstances diminished the State’s interest. He pointed to the possibility of an NGI verdict, alleged improper pretrial detention, delays in receiving treatment, his young age and mental health history, and the eight months he had already spent in custody.
The court rejected each argument. A potential insanity defense cannot be the reason to forgo prosecution, because that defense exists only within a prosecution. Alleged bail errors could be raised separately and did not reduce the State’s interest in the case itself. Delays in treatment did not diminish the broader interest in criminal justice. And while pretrial confinement had some mitigating effect, it was not enough to eliminate the State’s strong interest in prosecuting a felony battery against a law enforcement officer.
On the remaining Sell factors, the court found the circuit court’s findings were not clearly erroneous. Dr. Illichmann testified that the proposed medications were substantially likely to restore Jared’s competency. He described the specific drugs, their purposes, and their side effects. He testified that no less intrusive alternative existed because Jared was already refusing voluntary medication. He also testified that the medications were in Jared’s best medical interest. The court also rejected the argument that State v. Green, 2021 WI App 18, created a mandatory checklist of evidence requirements, overruling that reading of the decision.
Statutory requirements for involuntary medication also satisfied
Beyond the constitutional Sell factors, the court examined whether the State met its burden under Wis. Stat. § 971.14(3)(dm). That statute requires the State to show that the advantages and disadvantages of medication were explained to the defendant, and that the defendant either could not express or could not apply an understanding of that information.
Dr. Illichmann testified that he explained the advantages and disadvantages of medication to Jared at two separate meetings. He went through each medication and its side effects. Jared’s only response was that he did not feel he needed medications. Dr. Illichmann concluded that Jared lacked the ability to apply information about medications to his own situation. The circuit court relied on this uncontested testimony and found the statutory requirements satisfied. The Supreme Court agreed, holding these findings were not clearly erroneous.
Justice Crawford dissented, arguing that special circumstances, particularly the likelihood of a civil commitment and Jared’s lengthy pretrial confinement, sufficiently diminished the State’s interest under the first Sell factor.
Contact Van Severen Law Office
The Sell factors framework governs when the government can forcibly medicate a defendant to restore trial competency. If you or a loved one faces felony charges involving competency questions, involuntary medication orders, or issues related to mental health and criminal defense in Wisconsin, the attorneys at Van Severen Law Office can help. Our firm regularly handles serious criminal cases, including battery and assault charges and cases involving complex mental health issues. Finally, call (414) 270-0202 for a free consultation.