THOMAS, J., dissenting

U. S. 44, 55, n. 11 (1987); id., at 64-65 (REHNQUIST, C. J., dissenting).

B

Riggins also argued in the Nevada Supreme Court, although not in his briefs to this Court, that he did not have a "full and fair' trial" because Mellaril had side effects that interfered with his ability to participate in his defense. Record 1018. He alleged, in particular, that the drug tended to limit his powers of perception. The Court accepts this contention, stating: "It is clearly possible that such side effects had an impact upon . . . the content of his testimony on direct or cross examination, his ability to follow the proceedings, or the substance of his communication with counsel." Ante, at 137 (emphasis added). I disagree. We cannot conclude that Riggins had less than a full and fair trial merely because of the possibility that Mellaril had side effects.

All criminal defendants have a right to a full and fair trial, and a violation of this right may occur if a State tries a defendant who lacks a certain ability to comprehend or participate in the proceedings. We have said that "the Due Process Clause guarantees the fundamental elements of fairness in a criminal trial," Spencer v. Texas, 385 U. S. 554, 563-564 (1967), and have made clear that "conviction of an accused person while he is legally incompetent violates due process," Pate v. Robinson, 383 U. S. 375, 378 (1966).

Riggins has no claim of legal incompetence in this case. The trial court specifically found him competent while he was taking Mellaril under a statute requiring him to have "sufficient mentality to be able to understand the nature of the criminal charges against him, and . . . to aid and assist his counsel in the defense interposed upon the trial." Nev. Rev. Stat. § 178.400(2) (1989). Riggins does not assert that due process imposes a higher standard.

The record does not reveal any other form of unfairness relating to the purported side effects of Mellaril. Riggins has failed to allege specific facts to support his claim that he

THOMAS, J., dissenting

could not participate effectively in his defense. He has not stated how he would have directed his counsel to examine or cross-examine witnesses differently. He has not identified any testimony or instructions that he did not understand. The record, moreover, does not even support his assertion that Mellaril made him worse off. As Justice Rose noted in his concurring opinion below: "Two psychiatrists who had prescribed Mellaril for Riggins, Dr. Quass and Dr. O'Gorman, testified that they believed it was helpful to him. Additional psychiatric testimony established that Mellaril may have increased Riggins' cognitive ability . . . ." 107 Nev., at 185, 808 P. 2d, at 540. See also State v. Hayes, 118 N. H. 458, 461, 389 A. 2d 1379, 1381 (1978) (holding a defendant's perception adequate because "[a]ll the expert evidence support[ed] the conclusion that the medication ha[d] a beneficial effect on the defendant's ability to function").1 Riggins' competence, moreover, tends to confirm that he had a fair trial. See State v. Jojola, supra, at 492, 553 P. 2d, at 1299 (presuming, absent other evidence, that the side effects of an antipsychotic drug did not render a competent defendant unable to participate fully in his trial). I thus see no basis for reversing the Nevada Supreme Court.

II

Riggins also argues for reversal on the basis of our holding in Washington v. Harper, 494 U. S. 210, 221 (1990), that the Due Process Clause protects a substantive "liberty interest" in avoiding unwanted medication. Riggins asserts that Nevada unconstitutionally deprived him of this liberty interest by forcing him to take Mellaril. The Court agrees, ruling

1 We previously have noted that "[p]sychotropic medication is widely accepted within the psychiatric community as an extraordinarily effective treatment for both acute and chronic psychoses, particularly schizophrenia.'" Washington v. Harper, 494 U. S. 210, 226, n. 9 (1990) (quoting Brief for American Psychiatric Association et al. as Amici Curiae, O. T. 1989, No. 88-599, pp. 10-11).

THOMAS, J., dissenting

that "the Nevada courts failed to make findings sufficient to support forced administration of the drug" in this case. Ante, at 129. I consider reversal on this basis improper.

A

Riggins may not complain about a deprivation of the liberty interest that we recognized in Harper because the record does not support his version of the facts. Shortly after his arrest, as the Court notes, Riggins told a psychiatrist at his jail that he was hearing voices and could not sleep. The psychiatrist prescribed Mellaril. When the prescription did not eliminate the problem, Riggins sought further treatment and the psychiatrist increased the dosage. Riggins thus began taking the drug voluntarily. Ante, at 129.

The Court concludes that the medication became involuntary when the trial court denied Riggins' motion for permission not to take the drug during the trial. Ante, at 133. I disagree. Although the court denied Riggins' motion, it did not order him to take any medication.2 Moreover, even though Riggins alleges that the state physicians forced him to take the medication after the court's order, the record contains no finding of fact with respect to this allegation. The Court admits that it merely assumes that the physicians drugged him, and attempts to justify its assumption by observing that the Nevada Supreme Court also assumed that involuntary medication occurred. Ibid. The Nevada Supreme Court, however, may have made its assumption for the purpose of argument; the assumption, in its view, did

2 Riggins' counsel confirmed this interpretation of the order at oral argument:

"QUESTION: ... [D]id the court ever go further than saying I will not order the State to stop administering the medication? . . . It simply said I won't intervene and enjoin the administration of this medication[.] "MR. YAMPOLSKY: Yes....

"QUESTION: So if [Riggins] had then said, well, I'm not going to take it, he wouldn't be in violation of the court order?

"Mr. YAMPOLSKY: Apparently not." Tr. of Oral Arg. 10.

THOMAS, J., dissenting

not change the result of the case. The Court cannot make the same assumption if it requires reversal of Riggins' conviction.

Riggins also cannot complain about a violation of Harper because he did not argue below for reversal of his conviction on the ground that Nevada had deprived him of a liberty interest. Riggins consistently maintained in the Nevada courts that he did not have a "full and fair trial" because the medication deprived him of the opportunity to present his demeanor to the jury and to participate in his defense. App. 20-24 (trial court motion); id., at 42-47 (trial court reply); Record 1018-1021 (appellate brief); id., at 1068-1071 (appellate reply brief). As counsel for Nevada put it at oral argument: "The way this issue was initially presented to the trial court was really a question of trial strategy. There was never an indication in this case that Mr. Riggins was a Harper-type defendant who did not want to be medicated." Tr. of Oral Arg. 23.3

Because the claims that Riggins raised below have no merit, Riggins has altered his theory of the case. The Court, therefore, should not condemn the Nevada courts because they "did not acknowledge the defendant's liberty interest in freedom from unwanted antipsychotic drugs.' Ante, at 137. The Nevada courts had no reason to consider an argument that Riggins did not make. We have said quite recently that “[i]n reviewing the judgments of state courts under the jurisdictional grant of 28 U. S. C. § 1257, the Court has, with very rare exceptions, refused to consider petition

3 Riggins noted in his reply brief before the Nevada Supreme Court that the courts in United States v. Bryant, 670 F. Supp. 840, 843 (Minn. 1987), and Bee v. Greaves, 744 F. 2d 1387 (CA10 1984), had recognized a personal liberty interest in avoiding unwanted medication. Record 1070-1071. Yet, Riggins never asked for reversal because of a deprivation of this interest. He argued for reversal in that brief only on grounds that the medication "violated [his] right to a 'full and fair' trial because it denied him the ability to assist in his defense, and prejudiced his demeanor, attitude, and appearance to the jury." Id., at 1068.

THOMAS, J., dissenting

ers' claims that were not raised or addressed below." Yee v. Escondido, 503 U. S. 519, 533 (1992). Although "we have expressed inconsistent views as to whether this rule is jurisdictional or prudential in cases arising from state courts," ibid., the Court does not attempt to justify its departure here.

Finally, we did not grant certiorari to determine whether the Nevada courts had made the findings required by Harper to support forced administration of a drug. We took this case to decide "[w]hether forced medication during trial violates a defendant's constitutional right to a full and fair trial." Pet. for Cert. The Court declines to answer this question one way or the other, stating only that a violation of Harper “may well have impaired the constitutionally protected trial rights Riggins invokes." Ante, at 137. As we have stated, "we ordinarily do not consider questions outside those presented in the petition for certiorari." Yee v. Escondido, supra, at 535. I believe that we should refuse to consider Riggins' Harper argument.

B

The Harper issue, in any event, does not warrant reversal of Riggins' conviction. The Court correctly states that Riggins, as a detainee awaiting trial, had at least the same liberty interest in avoiding unwanted medication that the inmate had in Harper. This case, however, differs from Harper in a very significant respect. When the inmate in Harper complained that physicians were drugging him against his will, he sought damages and an injunction against future medication in a civil action under 42 U. S. C. § 1983. See 494 U. S., at 217. Although Riggins also complains of forced medication, he is seeking a reversal of his criminal conviction. I would not expand Harper to include this remedy.

We have held that plaintiffs may receive civil remedies for all manner of constitutional violations under § 1983. See