At law. One flew over the Supreme Court.

It is too soon to tell how seriously to take Soviet historian Roy A. Medvedev's statements that "Gorbachev's taking a lot from the American Constitution," and that the U.S. "can take some pride in setting an example for us [the Soviets]." (1) But it is not too soon to conclude that the President of the United States and the U.S. Supreme Court have taken a page from some old totalitarian tactics. The President, for example, remains committed to constitutional amendments that would outlaw almost all abortions and outlaw flag burning as a means of political protest. The U.S. Supreme Court last year gutted the Fourth Amendment as it applied to U.S. citizens to foster the "war on drugs." (2) Early in 1990 the Court decided that antipsychotic drugs could be forcibly administered to competent prisoners to maintain order, even if the result might be death or permanent disability. How could our highest court endorse such a prototypical totalitarian measure at this juncture of our history? The Case of Walter Harper Walter Harper was convicted of robbery in 1976 and sentenced to the Washington State Penitentiary in Walla Walla. He was confined primarily to the mental health unit there from 1976 to 1980, where he voluntarily underwent antipsychotic drug therapy. In 1980 he was paroled on condition that he continue in treatment. He did, but in 1981 his parole was revoked after he assaulted two nurses at an inpatient facility. Upon his return to prison he was sent to the Special Offenders Center (SOC), a 144-bed facility operated by the Department of Corrections in Monroe. While there he voluntarily took medications until November, 1982, after which he was medicated by antipsychotic drugs against his will for all but one month until june 1985, because he was thought to be a danger to others. The forced medication was consistent with SOC policy which provides that a prisoner may be subjected to involuntary drug treatment by a psychiatrist in a nonemergency situation only if he (1) suffers from a "mental disorder," and (2) is "gravely disabled" or poses a likelihood of serious harm "to himself, others, or their property." If the prisoner refuses medication, he is entitled to a hearing before a special committee consisting of a psychiatrist, a psychologist, and the associate administrator of the SOC, none of whom may be, at the time of the healing, involved in the prisoner's treatment or diagnosis. The prisoner must be given twenty-four hours' notice of the hearing (during which time he cannot be medicated), has the right to attend the healing, to present evidence, to cross-examine witnesses, and to have a lay adviser help him. The prisoner may appeal a decision against him to the Superintendent of the SOC, and may later seek judicial review. After seven days of forced treatment, a committee composed in the same manner as the original committee must review the case. If the committee approves forced treatment again, it can continue indefinitely provided a report by the treating psychiatrist is sent to the medical director of the Department of Corrections every fourteen days. Harper had his hearing and was unsuccessful in his appeal to the Superintendent. His forced treatment was periodically reviewed according to the policy. In February 1985, he filed suit alleging that he had a constitutional right not to be medicated against his will without a judicial hearing. In March 1987, the trial court ruled that the SOC policy provided him with all that the U.S. Constitution required. On appeal, the Washington Supreme Court unanimously reversed. (3) The Decision of the Washington Supreme Court The Washington Supreme Court was unimpressed by the SOC's antipsychotic medication policy and found it constitutionally defective as a matter of both substantive and procedural due process. Substantively, the Washington court found that Harper had a protected liberty interest to refuse antipsychotic drugs that was of the same importance as his liberty interest in being able to refuse electroconvulsive therapy (ECT). …