In United States v. Loughner the Ninth Circuit will soon address the constitutionality of involuntarily medicating an incompetent pretrial defendant through a Harper order that could serve to render him competent to stand trial without the added procedural protection of a judicial hearing. Judicial support for applying Harper orders to pretrial defendants is likely to be used to justify Harper orders for pretrial jail detainees, allowing them to be involuntarily medicated in a jail setting, even though the place of involuntary medication was not at issue in the Loughner case. Because of the critical clinical, ethics-related, and legal concerns for such practice, the potential misapplication of the Loughner ruling should be considered by the Ninth Circuit before rendering its decision. This is, however, unlikely because the Ninth Circuit has just determined that Loughner will continue to be involuntarily medicated, regardless of whether this occurs in a hospital or in a nonmedical correctional facility.
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