Applying Sell V. United States, Virginia Federal Court Judges Order Treatment over Objection of Criminal Defendants Found Incompetent to Stand Trial
A steady stream of judicial rulings continues to be issued that addresses the parameters of the United States Supreme Court's ruling in Sell v. United States, 539 U.S. 166 (2003), that under limited circumstances the government may treat over objection a criminal defendant in an effort to restore the defendant's competence to stand trial. These rulings, however, have tended to focus on different aspects of the Sell decision, as exemplified by the recent rulings of three federal district court judges in Virginia.
Western District of Virginia. In United States v. Evans, 404 F.3d 227 (4th Cir. 2005), the Fourth Circuit reversed an order by the United States District Court for the Western District of Virginia that had authorized such treatment. The Fourth Circuit held that the lower court had erred because the government had failed to articulate with sufficient particularity the medications it planned to administer to the defendant, the potential side effects specific to the defendant's medical condition, and a plan for responding to the onset of such side effects.
Following this ruling, the government developed a more extensive and detailed proposal for treating the defendant and submitted it to the district court for review. The district court, for the most part, found that this proposal met the requirements of Sell and, with minor modifications, authorized its implementation.
The defendant, Herbert G. Evans, is charged with forcibly interfering with a United States Department of Agriculture employee and threatening to murder a magistrate judge. He suffers from paranoid schizophrenia and has refused antipsychotic medication to restore his competence since 2003. Pursuant to the directions of the Fourth Circuit, the district court focused on the second and fourth prongs of the Sell test in evaluating the proposal, namely, whether the government had adequately demonstrated that its prosecutorial interest was significantly furthered by involuntary medication and whether involuntary medication was medically appropriate.
The district court found that the proposal set forth a carefully detailed treatment plan, a specific plan for monitoring and responding to side effects, and a literature review supportive of its position. The proposal provided a number of empirical studies indicating a substantial success rate following the involuntary medication of patients like the defendant and cited the 2004 guidelines of the American Psychiatric Association for treating schizophrenia (with its statistics related to the successful treatment of schizophrenia). Although the defendant countered with a report of his own that disputed these studies as applied to the defendant, the court generally found the government's report persuasive.
The court further determined that, although the burden of proof was on the government to show that the Sell criteria for treatment over objection were met by clear and convincing evidence, this burden had been met. The court ruled that the proposed involuntary medication was substantially likely to render the defendant competent to stand trial and substantially unlikely to produce side effects that would significantly interfere with the defendant's defense.
As for the side effects, the court acknowledged that troublesome side effects, mainly metabolic in nature, are common with second-generation antipsychotics, but concluded that they are generally not so serious as to inhibit the defendant's assistance with his own defense.
The court also found that the proposed treatment was generally medically appropriate. Because the defendant had expressed his intention to refuse medication, the court found it appropriate for the government to choose a long-acting antipsychotic, risperidone, to reduce the necessity for forceful encounters in administering the medication. The court also supported the use of this second-generation antipsychotic to avoid the neuromuscular side effects the defendant had experienced previously with haloperidol and noted that risperidone is the only second-generation antipsychotic available in a long-lasting form.
The court authorized injections of this medication for between four and five months and, if the defendant did not respond within this time, authorized alternative antipsychotic medication for an additional four to five months. If risperidone was ineffective or caused intolerable side effects, the government was authorized to try, in order, long-acting haloperidol by injection, aripiprazole, and ziprasidone.
The government was required to monitor the defendant for side effects and, in particular, for side effects related to the defendant's diabetes and hypertension. It was ordered to cease treatment at any time when the defendant's diabetes reached a level requiring daily insulin injections. The government was also prohibited from using a nasogastric tube to administer test doses of the medication because of the risks of harm associated with using such a tube on an uncooperative patient and because risperidone is available in an orally soluble tablet form.
After ten months of treatment that failed to restore competence or the worsening of the defendant's diabetes to the point of requiring daily insulin shots, the government was required to cease treatment and to return to the court with a new proposal. United States v. Evans, 427 F. Supp. 2d 696 (W.D. Va. 2006).
Western District of Virginia. Perhaps because the judge's judgment had not previously been subjected to appellate review, an arguably more typical ruling was issued in conjunction with a defendant who had been arrested for carrying a handgun without a license.
The defendant was arrested after he approached law enforcement officers in Washington, D.C., asking for directions to Seattle, Washington. The man subsequently told the officers he was former President Gerald R. Ford's adopted son and wanted to go to President Ford's residence to pick up some old boxing tapes, and acknowledged that he had a gun and a knife in his possession.
After the defendant was found incompetent to stand trial (IST), committed to a federal facility, and refused to take psychotropic medications, the warden of the facility filed a motion seeking permission to forcibly medicate the defendant. The only evidence submitted was a forensic report generated by a staff psychologist and staff psychiatrist at the facility. The report asserted that the defendant had a delusional disorder, grandiose type, which rendered him IST but did not render him dangerous within the controlled environment of the facility.
The judge in this case began her analysis by examining whether the defendant was accused of a "serious" crime as required in Sell for treatment over objection of a nondangerous defendant found IST. The test to determine this issue, the court ruled, was whether the defendant was charged with any offense for which the defendant may be sentenced to more than six months' imprisonment. Because carrying a handgun without a license is punishable by a term of imprisonment of up to five years, the court concluded the defendant was charged with a serious offense.
Although the judge acknowledged that Sell directed that a defendant's potential for future confinement in a mental health facility or prior lengthy confinement could be taken into account in determining the government's interest in prosecution, the judge determined without explanation that neither applied here.
Also without explanation, the judge further found that the other Sell factors were met, namely, that the recommended medication was substantially likely to render the defendant competent, was substantially unlikely to cause side effects that would interfere significantly with the defendant's ability to assist in his trial defense, that alternative, less intrusive treatments were unlikely to restore the defendant to competency, and the administration of this medication was medically appropriate.
Unlike Evans, further supporting details were not provided by the court in its ruling beyond the forensic report's assertion that (1) without antipsychotic medication the defendant was substantially unlikely to become competent to stand trial (CST), (2) such medication was likely to improve his mental status to a level where he would be CST, (3) the standard treatment of anyone with delusional disorder, grandiose type, involved the prescription of antipsychotic medication, (4) the recommended typical antipsychotic medication Prolixin would be medically appropriate, and, (5) although this medication could produce unwanted side effects, the defendant would be carefully monitored for side effects and medically managed if they occurred. United States v. Martin, No. 1:04mj00183, 2005 WL 1895110 (W.D. Va. Aug. 10, 2005).
Eastern District of Virginia. A third case focused on a defendant who had been charged with conspiracy to possess with the intent to distribute cocaine, found incompetent to stand trial, and not shown to be a danger to self or others. The judge ordered the involuntary administration of antidepressant and antipsychotic medication in an effort to render the defendant competent to stand trial.
The court noted that under such circumstances Sell "requires an exacting focus on the personal characteristics of the individual defendant and the particular drugs the government seeks to administer."
The court's focus, however, was the delay in conducting a trial caused by the defendant's incompetence and the subsequent impact on the memories and availability of witnesses if medication was not administered. Similar to the ruling in Martin, without citing supporting facts or providing explanation, the judge determined that administration of medication was both medically and clinically appropriate.
Arguably providing a different twist to the directive in Sell that the likely placement of a defendant who refuses medication in a secure mental health facility undercuts the government's interest in treatment over objection, this judge was concerned that the defendant's depression and psychosis would only progressively worsen during an extended period of involuntary commitment. United States v. Hopkins, No. 3:04cr260 (E.D. Va. Apr. 10, 2006), 20 VA. LAW. WKLY. 1420 (Apr. 24, 2006).…
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Publication information: Article title: Applying Sell V. United States, Virginia Federal Court Judges Order Treatment over Objection of Criminal Defendants Found Incompetent to Stand Trial. Contributors: Not available. Magazine title: Developments in Mental Health Law. Volume: 25. Issue: 2 Publication date: July 2006. Page number: 117+. © 2009 Institute of Law, Psychiatry & Public Policy. COPYRIGHT 2006 Gale Group.