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THOMAS, J., dissenting

cerated for 32 years. See La. Rev. Stat. Ann. $$ 14:60, 14:94 (West 1986). Thus, I find quite odd JUSTICE O'CONNOR'S suggestion, ante, at 89, that this case might be different had Louisiana, like the State of Washington, limited confinement to the period for which a defendant might have been imprisoned if convicted. Foucha, of course, would be in precisely the same position today—and for the next 24 years—had the Louisiana statute included such a cap. Thus, the Court apparently finds fault with the Louisiana statute not because it has been applied to Foucha in an unconstitutional manner, but because the Court can imagine it being applied to someone else in an unconstitutional manner. That goes against the first principles of our jurisprudence. See, e. g., Salerno, 481 U. S., at 745 (“The fact that sa detention statute) might operate unconstitutionally under some conceivable set of circumstances is insufficient to render it wholly invalid, since we have not recognized an ‘overbreadth’ doctrine outside the limited context of the First Amendment”).17

Finally, I see no basis for holding that the Due Process Clause per se prohibits a State from continuing to confine in a "mental institution"—the federal constitutional definition of which remains unclear—an insanity acquittee who has recovered his sanity. As noted above, many States have long provided for the continued detention of insanity acquittees who remain dangerous. Neither Foucha nor the Court present any evidence that these States have traditionally transferred such persons from mental institutions to other detention facilities. Therefore, there is simply no basis for this Court to recognize a “fundamental right” for a sane insanity acquittee to be transferred out of a mental facility. “In an attempt to limit and guide interpretation of the [Due Process] Clause, we have insisted not merely that the interest

17 I fully agree with JUSTICE O'CONNOR, ante, at 88, that there would be a serious question of rationality had Louisiana sought to institutionalize a sane insanity acquittee for a period longer than he might have been imprisoned if convicted. But that is simply not the case here.

THOMAS, J., dissenting

denominated as a 'liberty' be 'fundamental (a concept that, in isolation, is hard to objectify), but also that it be an interest traditionally protected by our society.” Michael H. v. Gerald D., 491 U. S. 110, 122 (1989) (plurality opinion).

Removing sane insanity acquittees from mental institutions may make eminent sense as a policy matter, but the Due Process Clause does not require the States to conform to the policy preferences of federal judges. “The Court is most vulnerable and comes nearest to illegitimacy when it deals with judge-made constitutional law having little or no cognizable roots in the language or design of the Constitution.” Bowers, 478 U. S., at 194. I have no idea what facilities the Court or JUSTICE O'CONNOR believe the Due Process Clause mandates for the confinement of sane-butdangerous insanity acquittees. Presumably prisons will not do, since imprisonment is generally regarded as “punishment.” May a State designate a wing of a mental institution or prison for sane insanity acquittees? May a State mix them with other detainees? Neither the Constitution nor our society's traditions provide any answer to these questions.18

3 “So-called 'substantive due process' prevents the government from engaging in conduct that ‘shocks the conscience, Rochin v. California, 342 U. S. 165, 172 (1952), or interferes

18 In particular circumstances, of course, it may be unconstitutional for a State to confine in a mental institution a person who is no longer insane. This would be a different case had Foucha challenged specific conditions of confinement—for instance, being forced to share a cell with an insane person, or being involuntarily treated after recovering his sanity. But Foucha has alleged nothing of the sort—all we know is that the State continues to confine him in a place called the Feliciana Forensic Facility. It is by no means clear that such confinement is invariably worse than, for example, confinement in a jail or other detention center—for all we know, an institution may provide a quieter, less violent atmosphere. I do not mean to suggest that that is the case-my point is only that the issue cannot be resolved in the abstract.

THOMAS, J., dissenting

with rights ‘implicit in the concept of ordered liberty,' Palko V. Connecticut, 302 U. S. 319, 325–326 (1937).” Salerno, supra, at 746. The legislative scheme the Court invalidates today is, at the very least, substantively reasonable. With all due respect, I do not remotely think it can be said that the laws in question “offen[d] some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.” Snyder v. Massachusetts, 291 U. S. 97, 105 (1934). Therefore, in my view, this Court is not entitled, as a matter of substantive due process, to strike them down.

I respectfully dissent.




No. 90–8466. Argued January 15, 1992—Decided May 18, 1992 When petitioner Riggins, while awaiting a Nevada trial on murder and

robbery charges, complained of hearing voices and having sleep problems, a psychiatrist prescribed the antipsychotic drug Mellaril. After he was found competent to stand trial, Riggins made a motion to suspend the Mellaril's administration until after his trial, arguing that its use infringed upon his freedom, that its effect on his demeanor and mental state during trial would deny him due process, and that he had the right to show jurors his true mental state when he offered an insanity defense. After hearing the testimony of doctors who had examined Riggins, the trial court denied the motion with a one-page order giving no indication of its rationale. At Riggins' trial, he presented his insanity defense and testified, was convicted, and was sentenced to death. In affirming, the State Supreme Court held, inter alia, that expert testimony presented at trial was sufficient to inform the jury of the Mellaril's

effect on Riggins' demeanor and testimony. Held: The forced administration of antipsychotic medication during Rig

gins' trial violated rights guaranteed by the Sixth and Fourteenth Amendments. Pp. 133-138.

(a) The record narrowly defines the issues in this case. Administration of Mellaril was involuntary once Riggins' motion to terminate its use was denied, but its administration was medically appropriate. In addition, Riggins' Eighth Amendment argument that the drug's administration denied him the opportunity to show jurors his true mental condition at the sentencing hearing was not raised below or in the petition for certiorari and, thus, will not be considered by this Court. P. 133.

(b) A pretrial detainee has an interest in avoiding involuntary administration of antipsychotic drugs that is protected under the Due Process Clause. Cf. Washington v. Harper, 494 U. S. 210; Bell v. Wolfish, 441 U. S. 520, 545. Once Riggins moved to terminate his treatment, the State became obligated to establish both the need for Mellaril and its medical appropriateness. Cf. Harper, supra, at 227. Due process certainly would have been satisfied had the State shown that the treatment was medically appropriate and, considering less intrusive alternatives, essential for Riggins' own safety or the safety of others. The State also might have been able to justify the treatment, if medically appro


priate, by showing that an adjudication of guilt or innocence could not be obtained by using less intrusive means. However, the trial court allowed the drug's administration to continue without making any determination of the need for this course or any findings about reasonable alternatives, and it failed to acknowledge Riggins' liberty interest in freedom from antipsychotic drugs. Pp. 133–137.

(c) There is a strong possibility that the trial court's error impaired Riggins' constitutionally protected trial rights. Efforts to prove or disprove actual prejudice from the record before this Court would be futile, and guesses as to the trial's outcome had Riggins' motion been granted would be speculative. While the precise consequences of forcing Mellaril upon him cannot be shown from a trial transcript, the testimony of doctors who examined Riggins establishes the strong possibility that his defense was impaired. Mellaril's side effects may have impacted not only his outward appearance, but also his testimony's content, his ability to follow the proceedings, or the substance of his communication with counsel. Thus, even if the expert testimony presented at trial allowed jurors to assess Riggins' demeanor fairly, an unacceptable risk remained that forced medication compromised his trial rights. Pp. 137–138.

(d) While trial prejudice can sometimes be justified by an essential state interest, the record here contains no finding to support a conclusion that administration of antipsychotic medication was necessary to accomplish an essential state policy. P. 138. 107 Nev. 178, 808 P. 2d 535, reversed and remanded.

O'CONNOR, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and WHITE, BLACKMUN, STEVENS, and SOUTER, JJ., joined. KENNEDY, J., filed an opinion concurring in the judgment, post, p. 138. THOMAS, J., filed a dissenting opinion, in which SCALIA, J., joined except as to Part II-A, post, p. 146.

Mace J. Yampolsky argued the cause for petitioner. With him on the briefs were Jay Topkis, Neal H. Klausner, and Steven C. Herzog.

James Tufteland argued the cause for respondent. With him on the brief was Rex Bell.*

*Briefs of amici curiae urging reversal were filed for the Coalition for Fundamental Rights of Equality of Ex-patients by Peter Margulies, Herbert Semmel, and Patrick Reilly; for the National Association of Criminal

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