Forcible Medication of Mentally Ill Criminal Defendants: The Case of Russell Eugene Weston, Jr. (Notes)
Feinberg, Aimee, Stanford Law Review
In his prison cell in North Carolina, he picks at sores and insists that the ripening of corn causes time to reverse. (1) Once convinced that he was the favorite son of President John F. Kennedy and the target of a communist murder plot, (2) Russell Eugene Weston, Jr. lives physically in a federal correctional institution in Burner, North Carolina. (3) Mentally, he lives in world of his own creation.
In 1996, Weston, diagnosed with paranoid schizophrenia years earlier, (4) arrived at the Central Intelligence Agency headquarters just outside of Washington, D.C. and introduced himself as an operative named "the Moon." (5) In suit-and-tie, he calmly explained the Ruby Surveillance System that he had created while working at NASA. (6) Constructed of a ruby, a watch, and a small wheel, this covert satellite system could reverse the march of time. (7) Fifty minutes later, after explaining his cloning at birth, but never threatening the life of the President, Weston was sent on his way. (8)
Two years later, on July 24, 1998, Weston returned to the national capital area--this time armed and ready to stop the work of the Ruby Surveillance System. (9) Cannibals had overused the system, he believed, and had spawned the development and spread of "Black Heva," a plague-like disease that could kill over one-third of America's population, (10) Weston was determined to reach the override switch located in the "great safe of the U.S. Senate" and halt the spread of "Black Heva." (11)
Running through the security magnetometers positioned in the entrance of the U.S. Capitol Building, Weston opened fire with a .38-caliber revolver, fatally shooting Capitol Hill Police Officers Jacob J. Chestnut and John M. Gibson. (12) Injured in the ensuing exchange of gun fire, Weston was taken into custody at the scene and charged with two counts of capital murder, attempted murder, and firearms offenses. (13)
With two federal law enforcement officers killed in the line of duty, harsh and swirl punishment was sure to follow. But today, three years after the murders, Weston has not yet been tried for his alleged crimes. Instead, government prosecutors, Weston's lawyers, and six federal judges have been grappling with the critical, but largely unanswered question on which Weston's fate hinged: May the government, and, if so, under what circumstances, constitutionally administer psychotropic medication to a mentally ill criminal defendant against his will for the purpose of rendering him competent for trial?
Once incarcerated immediately after his deadly rampage, Weston refused to take antipsychotic medication to tame the symptoms of his schizophrenia, (14) and in April 1999, D.C. District Court Judge Emmet G. Sullivan declared Weston incompetent for trial. (15) In response, the government sought court permission to forcibly medicate Weston in the hope that drug treatment would restore his competence to stand trial. Fearing that a trial would lead to an inevitable death sentence, Weston's attorneys fought prosecutors every step of the way.
Certainly Weston is not the first defendant to enter the legal labyrinth of forcible administration of psychotropic medicine. (16) But with two law enforcement officers dead, the security of the U.S. Congress breached, the death penalty on the table, and a severely delusional defendant willing to fight a drawn-out legal battle, the dramatic nature of this case has turned Russell Weston into the "poster boy" (17) for the issue of forcible medication of mentally incompetent criminal defendants.
This Note examines Weston's legal journey and the complex legal questions raised by the forcible medication of incompetent criminal defendants. Part I outlines current Supreme Court doctrine on this issue. Part II explores the application of this doctrine to Weston's case. Part III analyzes the most recent, and final, opinion of the U.S. Court of Appeals for the District of Columbia Circuit and concludes that this decision established new law that likely will give government prosecutors considerable latitude to forcibly medicate non-dangerous, mentally ill criminal defendants in order to bring them to trial.
I. SUPREME COURT DOCTRINE ON FORCIBLE MEDICATION
It is well established that the government may not constitutionally try or convict an incompetent criminal defendant. (18) While the standard of competence is clear--a "defendant may not be put to trial unless he has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding ... [and] a rational as well as factual understanding of the proceedings against him" (19)--the lengths to which the government may go to restore the trial competency of an incompetent defendant remain ill-defined.
In Washington v. Harper, (20) the Supreme Court held that prison inmates "possess a significant liberty interest in avoiding the unwanted administration of antipsychotic drags under the Due Process Clause of the Fourteenth Amendment." (21) The Court found, however, that the unique context of an inmate's confinement necessarily restricted the scope of this right. (22) "[G]iven the requirements of the prison environment, ... the State [may] treat a prison inmate who has a serious mental illness with antipsychotic drugs against his will, if the inmate is dangerous to himself or others and the treatment is in the inmate's medical interest." (23) The government need only show that the forced treatment is reasonably related to legitimate penological interests. (24)
Two years later, in Riggins v. Nevada, (25) the Court considered the claims of a pretrial detainee asserting his right to be free from unwanted medication. The defendant, Paul Riggins, sought reversal of his capital conviction based on a Nevada state court's refusal to allow him to discontinue antipsychotic drug therapy during trial, and argued that forcible medication infringed on both his Fourteenth Amendment liberty interests and his fair trial rights. (26) He asserted that the "drugs' effect on his demeanor and mental state during trial [denied] him due process" (27) and that "because he [offered] an insanity defense at trial, he had a right to show jurors his true mental state." (28)
Reversing Riggins' conviction, Justice Sandra Day O'Connor, writing for the Court, held that because "the Fourteenth Amendment affords at least as much protection to persons the State detains for trial" as it does to convicted inmates, pretrial detainees have a due process right to be free from unwanted psychotropic medication. (29) The Court explicitly relied on Washington v. Harper, (30) but recast that case's emphasis, signaling that more searching review was appropriate in the pretrial detainee context. (31) While the government could forcibly medicate Harper by advancing a "legitimate penological interest," (32) the state of Nevada could permissibly medicate Riggins only if it showed an "overriding justification." (33)
In dicta, the Court added that two rationales potentially could justify forcible medication of pretrial detainees. First, the State "certainly would" satisfy due process if the involuntary drug treatment were "medically appropriate and, considering less intrusive alternatives, essential for the sake of [the defendant's] own safety or the safety of others." (34) Second, the State "might" be able to justify forcible drug therapy if the treatment were medically appropriate and the State "could not obtain an adjudication of [the defendant's] guilt or innocence by using less intrusive means." (35) Because the Nevada courts had made none of these required findings, the Court reversed Riggins' conviction and remanded the case. (36)
Importantly, however, the Supreme Court did not establish any substantive standards for reviewing Riggins' claims. (37) Although the Court's language of "essential state interest" (38) and "less intrusive alternatives" (39) echo the language of strict scrutiny review, (40) the Court explicitly denied that it had adopted a strict scrutiny standard, insisting that its decision had left that question for another day. (41) Additionally, it did not define the term "might" that it had used in the context of the State's competence restoration rationale. (42) The opinion did not specify whether the term meant that the Court was simply reserving the issue of whether the state ever could justify forcible medication solely to render a defendant competent, or whether the word "might" meant that the state could administer involuntary medication for that purpose, but only under certain circumstances. (43)
As for Riggins' claimed infringement of his constitutional right to a fair trial, the Court noted that the effects of antipsychotic drugs, such as their impact on a defendant's demeanor, and on his ability to testify, to communicate with counsel, and to comprehend the proceedings, could create unconstitutional trial prejudice. (44) Justice O'Connor took judicial notice of the known side effects of psychotropic medicines, including acute dystonia, a severe involuntary spasm of the upper body, tongue, throat or eyes; motor restlessness, often characterized by the inability to sit still; and tardive dyskinesia, which causes uncontrollable movement of muscles, especially those around the face. (45) Because psychotropic drugs here likely rendered Riggins drowsy or confused and likely affected his appearance and the content of his testimony, forcible medication "may well have impaired the constitutionally protected trial rights [that he] invoke[d]." (46) Additionally, the Court found that expert testimony explaining the drags' effects on the defendant's demeanor was inadequate to cure the potential trial prejudice. (47)
The Court, however, did not erect an insurmountable hurdle to forcible medication, even where the involuntary drug treatment creates trial prejudice. To the contrary, the Court approved prejudice-producing drug therapies as long as the State could justify the prejudice with an "essential state interest." (48) Nonetheless, Justice O'Connor did not explain what kinds of state interests were "essential," (49) and the Court explicitly declined to decide whether competence restoration, standing alone, constituted such an interest. (50) Additionally, Justice O'Connor made no statement as to what types or level of trial prejudice were constitutionally permissible.
Thus, the majority in Riggins left unanswered a number of key questions: What is the appropriate standard for reviewing the substantive due process claims of forcibly medicated defendants? Under what circumstances, if ever, is restoration of trial competence, standing alone, a sufficient justification for medicating criminal defendants against their will? And what level of potential trial prejudice is constitutionally permissible in the forcible medication context?
While Justice O'Connor declined to answer these fundamental questions, Justice Kennedy directly addressed them in a concurring opinion. As for the standard of review, he argued that "absent an extraordinary showing by the State, the Due Process Clause prohibits prosecuting officials from administering involuntary doses of antipsychotic medicines for purposes of rendering the accused competent for trial...." (51) To constitutionally medicate a pretrial detainee against his will, the Due Process Clause requires the State to show that there is "no significant risk that the medication will impair or alter in any material way the defendant's capacity or willingness to react to the testimony at trial or to assist his counsel." (52)
For Justice Kennedy, a pretrial detainee's fair trial rights, more than his liberty interests, provided the source of this heightened protection. As the author of the majority opinion in Harper, he clearly contemplated that the needs of the penal system could justify forcible medication. However, a pretrial detainee enjoyed fair trial guarantees that distinguished him from a convicted inmate and elevated his right to be free from unwanted medication. (53) Indeed, the unique relationship between the government and a criminal defendant figured largely in this concurring opinion: "When the State commands medication during the pretrial and trial phases of the case for the avowed purpose of changing the defendant's behavior, the concerns are much the same as if it were alleged that the prosecution had manipulated material evidence." (54)
Additionally, Justice Kennedy suggested that competence restoration, standing alone, was not an important enough state interest to justify the risk that drug therapy would create unfair trial prejudice. Indeed, he labeled such an interest as only "legitimate"(55) and argued that "[i]f the State cannot render the defendant competent without involuntary medication, then it must resort to civil commitment, if appropriate, unless the defendant becomes competent through other means." (56)
Notably, however, Justice Kennedy focused on the unwanted side effects of the drugs, and not on their intended effect of rendering a defendant "synthetically sane." (57) In other words, while his concurring opinion suggested that a defendant has an almost per se right to be free from the prejudicial side effects of government-administered psychotropic drugs, he said little about whether a defendant, even one asserting an insanity defense, has a constitutional right to present himself to the jury in an unmedicated state. (58)
II. WESTON'S CASE
These two high court cases, Harper and Riggins, provided the legal foundation on which lawyers for Weston and the government would construct their cases. With no established substantive standard of review to guide them, however, there was no clear road map for resolving the question of whether the federal government could forcibly medicate Weston. The extensive briefs and several published federal court opinions in this case--the D.C. District Court's first order allowing involuntary medication, the D.C. Circuit's reversal of that ruling, the district court's opinion on remand again permitting forcible medication, the D.C. Circuit's opinion affirming the district court's decision, and ultimately the Supreme Court's denial of certiorari review--therefore, provide a unique window through which to examine this evolving constitutional question.
A. From Arrest Through Administrative Hearings
In October 1998, months after Weston's July arrest, Judge Emmet G. Sullivan of the United States District Court for the District of Columbia, the judge assigned to Weston's case, appointed Dr. Sally Johnson, a prison psychiatrist agreed upon by both the prosecution and the defense, to examine Weston. (59) Although Dr. Johnson had found both John Hinckley, Jr. and Ted Kaczynski competent, (60) she concluded that Weston was incompetent to stand trial. (61)
Dissatisfied with Dr. Johnson's conclusions, the government sought a second psychiatric opinion and petitioned the court for the appointment of another psychiatrist. (62) In January 1999, Judge Sullivan granted the government's request for a new psychiatric evaluation and, sua sponte, ordered an additional in-patient evaluation of Weston for the benefit of the court. (63) Pursuant to this order, Weston was transferred from Butner Federal Correctional Institute in North Carolina to an incarceration facility in Missouri where the government could conduct the in-patient psychiatric evaluation ordered by Judge Sullivan. Perhaps symbolic of the disconnect between the realities of the courtroom and the delusions of Weston's mind, once in Missouri, Weston refused to cooperate with the psychiatrists, thwarting the court's and the government's efforts to secure additional court-ordered evaluations. (64)
In February 1999, the government and defense counsel informed Judge Sullivan that Weston had refused to cooperate with psychiatric evaluators. (65) Left with no real alternative, Judge Sullivan ordered Weston to return to the District of Columbia for a competency hearing, (66) and the government withdrew its objection to a finding of trial incompetency. (67) In April 1999, Judge Sullivan finally declared Weston incompetent for trial. (68)
With this finding on the books, Judge Sullivan placed Weston in the custody of the Attorney General "for hospitalization and treatment to determine whether a substantial probability existed that he would attain the capacity to permit the trial to proceed in the foreseeable future." (69) Additionally, the court ordered a stay of any action by the Bureau of Prisons ("BOP") to administer drugs without Weston's consent. (70)
Subsequently, the BOP convened an administrative hearing to determine whether Weston could be forcibly medicated. Finding that Weston (1) "suffer[ed] from a mental disorder," (2) was "dangerous to [him]self and others," (3) was "gravely disabled," (4) was "unable to function in the open mental health population," (5) "need[ed] to be rendered competent for trial," and (6) was "mentally ill and dangerous," requiring medication "to treat the mental illness," the BOP hearing officer approved involuntary administration of antipsychotic drugs. (71) Once the prison warden affirmed the hearing officer's decision, Weston appealed to Judge Sullivan who held a judicial hearing to review the BOP's decision. At first, Judge Sullivan remanded the case to the BOP, citing procedural irregularities. (72) Following a second administrative hearing, the BOP made identical findings (73) and again decided that Weston should be involuntarily medicated. (74) After two judicial hearings, Judge Sullivan authorized the agency to medicate Weston against his will. (75)
B. First Opinion of the D.C. District Court
Although recognizing that Weston had a constitutional interest in being free from unwanted medication, Judge Sullivan held that the proposed treatment was "`medically appropriate and, considering less intrusive alternatives, essential for the sake of the defendant's own safety or the safety of others.'" (76) Significantly, the court explicitly refused to wade into the uncharted legal waters of the government's second justification--that medication was necessary to restore Weston's trial competence--and relied exclusively on the government's dangerousness rationale. (77) Judge Sullivan also refused to consider Weston's claims that forcible administration of psychotropic medication would impair his right to a fair trial, concluding that these issues were not yet ripe for judicial review. (78) Weston's lawyers launched their first appeal.
C. The D.C. Circuit's First Opinion
In a per curiam opinion accompanied by three concurring opinions, Judges David Tatel, Judith Rogers, and Karen LeCraft Henderson of the D.C. Circuit reversed Judge Sullivan's decision and remanded for further proceedings. (79) First, the court held that the record did not support the district court's finding of dangerousness, and required that "[i]f the government advances the medical/safety justification on remand, it will need to present additional evidence showing that either Weston's condition or his confinement situation has changed since the [district court's] hearing so as to render him dangerous." (80) Second, the appellate panel found ripe for review Weston's claim that drug treatment would negatively impact his fair trial rights, (81) Because the BOP had focused on the need to render Weston competent for trial, the government had placed this rationale "squarely before the district court." (82) Indeed, the per curiam opinion insisted that both the government and Weston were entitled to pre-medication resolution of the defense's fair trial claim (83)--because the government would forfeit its ability to prosecute Weston if post-medication review revealed that the drugs had infringed on his constitutional rights, and because "post-medication review [could] come too late to prevent impairment of [Weston's] Sixth Amendment right." (84)
D. Second Opinion of the D. C. District Court
After four days of hearings on the questions that the D.C. Circuit posed, (85) Judge Sullivan again held that the government could forcibly administer antipsychotic drugs to Weston. (86) More specifically, he found that the proposed treatment was medically appropriate, that each of the government's interests was compelling, that no less intrusive alternatives were available, and that the drug treatment would not prevent Weston from receiving a fair trial. (87)
As for the government's dangerousness rationale, Judge Sullivan concluded that Weston's condition had changed to such an extent that he had become more dangerous to those around him since the court's last opinion. (88) Indeed, Weston's attorneys' legal strategy of avoiding trial through incompetence (89) had come at great cost to their client's mental health. (90) As prosecutors and defense attorneys argued over the meaning of the Due Process Clause, Weston sat "warehous[ed] ... in a psychotic state," (91) living unmedicated, in solitary confinement, and in a "cocoon of madness," (92) with his schizophrenia slowly overtaking him. (93) Weston's illness had progressed to a point where his delusional system had crowded out "almost all aspects [of his] existence beyond vegetative functions." (94)
And as Weston's legal and medical fate remained in limbo, a high-profile controversy over the ethics of keeping necessary medication from a severely ill individual was brewing. (95) For A. J. Kramer, Weston's lead attorney in the Office of the Federal Public Defender in Washington, D.C., avoiding medication in a death penalty case was unquestionably the right strategy. (96) Although Kramer sought to avoid the conflict between Weston's medical and legal interests by twice petitioning for a guardian ad litem for his client, both times Judge Sullivan denied his requests: first in September 1999, because Weston was considered competent to consent to medication, (97) and the second time, because the court found no authority in federal criminal law for the appointment of a guardian under these circumstances. (98) Weston's legal team perceived the no-medication strategy as its only option.
For others, Weston's attorneys' tactics raised serious questions. Said one commentator of defense counsel's decision:
The cost of suffering imposed on Russell Weston is so enormous that there is no way you can justify it, even to say, "We're going to save his life by doing it." If it was a physical condition, if somehow we could burn a portion of Russell Weston every day and cause him to scream and yell and suffer, but we said, "If we do this, we won't take him to trial," we wouldn't put up with it. (99)
Notwithstanding these ethical issues, with the deterioration in Weston's condition, Judge Sullivan concluded that the prisoner was indeed dangerous to prison personnel. (100)
Addressing the government's competence restoration rationale, the district court found that the government's interest in prosecuting Weston for such serious crimes was "essential" and outweighed Weston's liberty interests. (101) Finally, Judge Sullivan "balance[d]" this essential governmental interest against the drugs' potential detrimental impact on Weston's fair trial rights. (102) The court found that medication would enhance, not impair, Weston's right to consult with counsel and assist in his defense. (103) In contrast, Judge Sullivan concluded that the proposed drug treatment could have a negative effect on Weston's demeanor and potential testimony at trial, and hence was "of concern" to the court. (104) The court acknowledged that medication could cause Weston to "filter out events that might be too disturbing for him to cope with or to recount events as one would recount a dream" (105) and that a "jury listening to a non-delusional Weston explain his delusional beliefs may be more skeptical than a jury listening to a delusional, unmedicated Weston." (106) Nonetheless, Judge Sullivan found that these risks did not rise to the level of unconstitutional trial prejudice. (107) Even if the drugs impaired Weston's testimonial rights, Judge Sullivan concluded, "an essential government interest can sometimes justify trial prejudice." (108)
E. The D.C. Circuit's Second Opinion
Weston's lawyers again appealed Judge Sullivan's ruling, (109) forcing the D.C. Circuit to review the lower court's compliance with its remand order. This time, the panel of Judges David Sentelle, A. Raymond Randolph, and Judith Rogers affirmed the district court's ruling. (110)
First, Judge Randolph, writing for the court, rejected Judge Sullivan's conclusion that the government's dangerousness rationale justified forcible medication of Weston. (111) By demanding that the government show that he was more of a safety risk than he was at the time of the district court's first heating on the issue, the court found that the first appellate panel had precluded a finding of dangerousness. (112) This left the government's competence restoration justification as the sole basis on which the court could affirm Judge Sullivan's order. On this point, Judge Randolph held that "the government's interest in administering antipsychotic drags to make Weston competent for trial overrides his liberty interest, and ... restoring his competence in such manner does not necessarily violate his right to a fair trial." (113)
Second, concluding that the Supreme Court in Riggins had established "some form of heightened scrutiny" as the appropriate standard of review, the D.C. Circuit found that to medicate Weston for the sole purpose of rendering him competent for trial, the government had to prove that involuntary drag treatment was "necessary to accomplish an essential state policy." (114) As for the governmental interests at stake, the court found that "[p]reventing and punishing criminality are essential governmental policies" (115) and that here, the government's interest in "finding, convicting, and punishing criminals [had] reache[d] its zenith [because the crime involved] the murder of federal police officers in a place crowded with bystanders where a branch of government conducts its business." (116) In other words, the government's interest was not merely in adjudicating Weston's case but in seeing him convicted and punished. (117) Pointedly, Judge Randolph also rejected the defense's argument that civilly committing Weston would satisfy society's interests:
The civil commitment argument assumes that the government's essential penological interests lie only in incapacitating dangerous offenders. It ignores the retributive, deterrent, communicative, and investigative functions of the criminal justice system, which serve to ensure that offenders receive their just deserts, to make clear that offenses entail consequences, and to discover what happened through the public mechanism of trial. (118)
As for whether the means of forcible medication were "necessary," (119) the court concluded that the fit between the government's means--forcible medication--and its ends--bringing Weston to justice--was sufficiently close to survive heightened scrutiny review. (120) Because prison psychiatrists predicted that drugs had a seventy percent probability of rendering Weston competent for trial, the court found that the government could achieve its goals through involuntary drug treatment. (121) Judge Randolph stated: "That antipsychotic medication must be necessary to restore Weston's competence to stand trial does not mean there must be a 100% probability that it will produce this result." (122) Similarly, the court found that because medication would not impair Weston's fair trial rights, the government could constitutionally try Weston and, therefore, accomplish its goal of convicting him of his alleged crimes. (123) More specifically, the court determined that antipsychotic medication would enhance Weston's constitutional rights to testify and to communicate with counsel. (124) With respect to his right to present an insanity defense, the court saw only a "small risk" that the jury would find incredible the claims of a "synthetically sane" defendant and found "little basis to suppose that the jury [would] take Weston's testimony (if he decides to testify) as an indication that he must have been sane at the time of the crime, or that he is making it up, or that he deserves no sympathy." (125) For the court, evidence other than Weston's own testimony and demeanor could effectively explain his mental state and his insanity defense to the jury. (126) Additionally, Weston had no "absolute right to replicate on the witness stand his mental state at the time of the crime." (127)
III. ANALYSIS OF THE D.C. CIRCUIT'S SECOND OPINION
The D.C. Circuit's second opinion broke new ground in the developing doctrine of forcible medication of incompetent criminal defendants. It established a standard of review where the Supreme Court had declined to articulate one, found that competency restoration was sufficiently important to justify involuntary administration of psychotropic medicine, and concluded that forced medication did not create unconstitutional trial prejudice in this case. In drawing each of these conclusions, the court adopted a construction of current Supreme Court doctrine that limits the ability of future incompetent criminal defendants to avoid unwanted, competence-rendering medication.
A. The Standard of Review
In establishing "some form of heightened scrutiny" as the standard of review for a pretrial detainee's substantive due process claims, the D.C. Circuit adopted a mode of analysis that narrows the ability of incompetent criminal defendants to avoid the forcible administration of antipsychotic medication. First, in developing this standard of review, Judge Randolph did not differentiate between the two different rationales that the government offered, and hence was able to establish a less rigorous standard of review than traditional substantive due process analysis likely would have commanded. While Supreme Court jurisprudence on the constitutional rights of prison inmates relies heavily on the distinction between prison safety and other governmental rationales, the D.C. Circuit did not distinguish between these goals in Weston's case. In Harper, the Supreme Court held that less searching review of alleged infringements of an inmate's liberty interests is appropriate because of the unique demands of the prison setting. (128) In Weston's case, however, the needs of the penal system were not at issue because the D.C. Circuit deemed Weston, isolated in solitary confinement, non-dangerous. (129) Because the court considered only the need to render Weston competent for trial, "[t]he decision to be made here [related] solely to trial administration rather than to prison administration." (130) Absent a rationale relating to the safety imperatives of the penal system, however, the D.C. Circuit provided no basis for departing from the traditional substantive due process framework. Had the court relied on such a framework, it likely would have faced little choice but to adopt a strict scrutiny standard of review as the Sixth Circuit Court of Appeals had in United States v. Brandon. (131) In that case, the Sixth Circuit concluded that, because Brandon presented no safety risk to guards or other inmates, the less rigorous review generally appropriate in the prison context could not apply. (132) Rather, the court relied on standard substantive due process analysis to hold that the government's efforts to forcibly medicate a non-dangerous pretrial detainee for the sole purpose of rendering him competent for trial required strict scrutiny review: (133) Because Brandon's right to bodily integrity was fundamental, the government's effort to invade that right triggered strict scrutiny review. (134) By conflating the government's safety and competency restoration rationales in Weston's case, however, the D.C. Circuit was able to adopt a less rigorous standard of review.
Second, although the Supreme Court consciously adopted no substantive standard of review in Riggins, the D.C. Circuit read Justice O'Connor's opinion as rejecting strict scrutiny and compelling "some form of heightened scrutiny." (135) Judge Randolph interpreted language in Riggins requiring the lower court to determine whether "'administration of antipsychotic medication was necessary to accomplish an essential state policy'" as commanding heightened scrutiny review in Weston's case. (136) While the D.C. Circuit acknowledged that this phrase in Riggins discussed trial prejudice and not a defendant's substantive due process rights, the court found that the language established the standard for "ascertaining whether a governmental interest outweighs a right to avoid antipsychotic medication." (137) This Riggins language, however, states that a finding of an essential state policy determines whether a "substantial probability of trial prejudice ... [is] justified," (138) not whether an invasion of the defendant's constitutionally protected liberty interests is justified. By transforming the Supreme Court's trial prejudice standard into one for alleged substantive due process violations, the D.C. Circuit interpreted Riggins as providing a less searching standard of review than that opinion allows, and perhaps requires. (139)
Although the government had sought a less rigorous "arbitrary and capricious" standard of review, (140) by declining to distinguish between the government's two rationales and interpreting Riggins as forbidding strict scrutiny review, the D.C. Circuit appears to have adopted a construction of current Supreme Court doctrine that broadens the government's ability to medicate incompetent defendants against their will. (141) As a result of this interpretation, the court signaled that it would accept a not insignificant deviation in the fit between the government's ends of trying and convicting the defendant and its means of forcible medication. Here, the court approved a thirty percent possibility that drug treatment would not succeed in restoring Weston's competence (142) and accepted the risk--albeit one characterized as "small" by the court (143)--that the medication would so impair his fair trial rights that the government would forfeit its ability to bring him to trial. Strict scrutiny review likely would not have tolerated such a deviation. (144)
B. The Government's Essential Interest
The court's definition of the governmental interest in Weston's case also expands the government's ability to forcibly medicate incompetent defendants. Although the Supreme Court in Riggins clearly stated that the question of competency restoration was not before it, in dicta Justice O'Connor suggested that the State "might" be able to justify medically appropriate, involuntary drug treatment if it were the only way to "obtain an adjudication of [the defendant's] guilt or innocence." (145) In Weston's case, the D.C. Circuit held that competence restoration, standing alone, was sufficiently important--here "essential"--to justify forcibly medicating Weston. (146) In doing so, however, the D.C. Circuit transformed Justice O'Connor's formulation of the governmental interest of "adjudicat[ing a defendant's] guilt or innocence," (147) into "[p]reventing and punishing criminality." (148) By casting the essential state policy in terms of punishment and conviction, the court implied that a fair trial was only an ancillary part of the government's essential interest.
Such an interpretation produced two important consequences for Weston. First, the court declined to consider that "[t]he [government's] interest in prevailing at trial--unlike that of a private litigant--is necessarily tempered by its interest in the fair and accurate adjudication of criminal cases." (149) As a result, the court did not count the risk of trial prejudice against the prosecution which, in turn, allowed the governmental interests to more easily outweigh those of Weston. Second, with this narrow definition of the "essential state policy," the court dismissed the notion that lifetime civil commitment could serve the government's goals. According to Judge Randolph, the federal government's interest does not "lie only in incapacitating dangerous offenders." (150) Rather, the government needs to vindicate the "retributive" function of the criminal justice system and "ensure that offenders receive their just deserts...." (151) In contrast, in his concurring opinion in Riggins, Justice Kennedy saw civil commitment as an appropriate means of reconciling the interests of society and the rights of defendants. (152) For him, civil commitment satisfied society's needs without risking the defendant's constitutional rights. (153) By rejecting civil commitment as a possible solution, the D.C. Circuit removed another arrow from the defendant's quiver.
C. Trial Prejudice and Weston's Fair Trial Rights
The court also crafted a more narrow interpretation of a forcibly medicated defendant's fair trial rights than that employed by the U.S. Supreme Court and other federal courts. In its analysis of Weston's fair trial rights, the D.C. Circuit minimized the risk that the proposed drug treatment could produce significant trial prejudice. Notably, it found that compelling a "synthetically sane" appearance presented only a "small risk" (154) of infringing on Weston's right to testify and that involuntary medication stood "little chance of impairing his right to present an insanity defense." (155) For the court, expert testimony and other evidence describing his unmedicated, delusional state at the time of the crime could adequately explain Weston's mental illness to the jury. (156) Judge Randolph stated that "the jury's overall impression of Weston will depend as much on [other] evidence as his testimony." (157)
In contrast, the Supreme Court in Riggins expressed serious doubt that expert testimony could mitigate the possibility of trial prejudice. (158) Indeed, the Court stated that "allowing [the defendant] to present expert testimony about the effect of [antipsychotic drugs] on his demeanor did nothing to cure the possibility that the substance of his own testimony, his interaction with counsel, or his comprehension at trial were compromised by forced administration of [the drug]." (159) Similarly, Judge Tatel, in his concurrence to the first panel's per curiam opinion, expressed strong concern that compelled "synthetic sanity" could impair a defendant's fair trial rights. (160) Although Judge Tatel stated that evidence other than Weston's testimony could enable defense counsel to mount an effective insanity defense, (161) he argued: "Will a jury that sees and hears a different Weston, one who is medicated and non-delusional, be as likely to believe that he truly thought there was a Ruby Satellite System? I think the answer is obvious." (162)
Additionally, in the D.C. Circuit's second opinion, Judge Randolph found that Weston had as little a right to present himself to the jury in a delusional state for the purpose of building his insanity defense as "a defendant asserting a heat-of-passion defense to a charge of first degree murder [has] to whip up a frenzy in court to show his capacity for rage," or as "a defendant claiming intoxication [has] to testify under the influence." (163) By finding that there was "little meaningful distinction between these cases and medication-induced competence to stand trial," (164) the court declined to acknowledge that in the case of the incompetent defendant, unlike the cases of the easily inflamed or drunk defendants, it is the government that compels the change to the defendant's demeanor and testimony. (165) Here, government-administered medication would dictate the content and appearance of Weston's trial testimony. (166) Indeed, "medication of the type here prescribed [would be for] the very purpose of imposing constraints on the defendant's own will, and for that reason its legitimacy is put in grave doubt." (167)
Unquestionably, controlling Supreme Court precedent contemplates that essential governmental interests can justify some level of trial prejudice. (168) However, the D.C. Circuit's opinion relies at least as much--if not more--on the lack of ascertainable trial prejudice rather than on the overriding interests of the government in bringing Weston to justice for the tragic deaths of two law enforcement officers. As a result of this approach, the court appears to leave little room for future incompetent criminal defendants faced with forcible medication to raise trial prejudice claims.
The D.C. Circuit's second opinion limits the doctrinal tools available to mentally ill defendants seeking to prevent unwanted, government-administered drug therapy. The court rejected a strict scrutiny standard of review, defined the governmental interest in a manner favorable to the prosecution, minimized the risk of trial prejudice that forcible antipsychotic medication could create, and declined to recognize the unique character of the relationship between a criminal defendant and the government.
Overall, when confronted with the competing interests--some may call them irreconcilable--of the government and a mentally ill defendant when the death penalty is on the table, the D.C. Circuit indicated that the government's interests would prevail. This is a dramatically different balance than the one Justice Kennedy struck in his Riggins concurrence when he asserted that, "[i]f the defendant cannot be tried without his behavior and demeanor being affected in [a] substantial way by involuntary treatment, in my view the Constitution requires that society bear this cost in order to preserve the integrity of the trial process." (169)
The sad irony is that, were Weston tried and executed today in his incompetent state, the death penalty would mean almost nothing to him. In his mind, if he is executed he "will simply be time reversed, put into a safe in the Capitol, and be able to resume his life at whatever point he chooses." (170) Only after the state reawakens his sense of life and death through the forcible administration of antipsychotic drags will the state be permitted to execute him.
Ultimately, Weston, the putative "poster boy" (171) for the issue of forcible medication of incompetent criminal defendants, will leave a significant footprint in the developing doctrine in this unsettled area of the law. After more than three years of legal wrangling, the D.C. federal courts have provided perhaps more exhaustive treatment and analysis of this issue than any other federal bench in the nation. As a result, the D.C. Circuit's final opinion will likely echo throughout the federal court system and make it more difficult for criminal defendants to avoid forcible medication when it is needed to render them competent for trial.
(1.) Anne Hull, A Living Hell or a Life Saved? Capitol Shooter's Untreated Madness Fuels Legal and Ethical Debate, WASH. POST, Jan. 23, 2001, at A1.
(2.) Stephen Braun, In Case of Capitol Shooter, a Question of Medication Courts: Lawyers Argue over Whether Russell Weston Should Be Treated to Attain Competence, L.A. TIMES, May 12, 2001, at A8.
(3.) Bill Miller, Judge Weighs Forcing Drugs on Weston, WASH. POST, July 25, 2000, at B1.
(4.) Paul Butler, A Basic Question of Right and Wrong: Suspect in Capitol Killings Faces Tough Insanity Test to Stay Alive, FULTON COUNTY DAILY REP., Aug. 25, 1998, at 6 (stating that Weston has been suffering from the disease of paranoid schizophrenia for twenty years).
(5.) Hull, supra note 1.
(6.) Id.; see also United States v. Weston, 206 F.3d 9, 19 (D.C. Cir. 2000) (Tatel, J., concurring).
(7.) Hull, supra note 1.
(10.) Weston, 206 F.3d at 19 (Tatel, J., concurring) (citations omitted).
(12.) Bill Miller, Weston Could Be Forcibly Medicated; Prosecutors Seek Trial in Slayings, WASH. POST, Sept. 10, 1999, at A25. Weston also shot and wounded Capitol Police Officer Douglas McMillan. Bill Miller, Judge Weighs Forcing Drugs on Weston, WASH. POST, July 25, 2000, at B1.
(13.) The indictment charged Weston with two counts of murder of a federal officer while engaged in his official duties in violation of 18 U.S.C. [subsections] 1111, 1113; one count of attempted murder of a federal officer while engaged in his official duties in violation of 18 U.S.C. [subsections] 1113, 1114; one count of carrying and using a firearm during and in relation to a crime of violence in violation of 18 U.S.C. [section] 924(c); and two counts of carrying and using a firearm during and in relation to a crime of violence and causing a death thereby in violation of 18 U.S.C. [section] 924(c) and 924(j)(1). United States v. Weston, 206 F.3d 9, 11 n. 1 (D.C. Cir. 2000) (per curiam).
(14.) Hull, supra note 1.
(15.) United States v. Weston, 69 F. Supp. 2d 99, 102 (D.D.C. 1999), rev'd per curiam on other grounds, 206 F.3d 9 (D.C. Cir. 2000).
(16.) See, e.g., United States v. Brandon, 158 F.3d 947 (6th Cir. 1998); United States v. Santonio, No. 2:00-CR-90C, 2001 WL 670932 (D. Utah May 3, 2001); United States v. Sanchez-Hurtado, 90 F. Supp. 2d 1049 (S.D. Cal. 1999).
(17.) Marianne Szegedy-Maszak, Psychosis and Punishment: Should the Mentally Ill Be Drugged So They Can Face Execution?, U.S. NEWS & WORLD REP., Mar. 26, 2001, at 50.
(18.) Cooper v. Oklahoma, 517 U.S. 348, 354 (1996).
(19.) Id. at 354 (alteration in original) (citing Dusky v. United States, 362 U.S. 402, 402 (1960) (per curiam)).
(20.) 494 U.S. 210 (1990).
(21.) Id. at 221.
(23.) Id. at 227.
(24.) Id. at 223 (citing Turner v. Safley, 482 U.S. 78, 89 (1987)).
(25.) 504 U.S. 127 (1992).
(26.) In this Note, the term "fair trial rights" refers to a range of rights guaranteed to criminal defendants by the U.S. Constitution, including (1) the right not to be tried unless a defendant can consult with counsel and assist in preparing his defense, Drope v. Missouri, 420 U.S. 162, 171 (1975); (2) the right to testify and present a version of events in one's own words as provided by the compulsory process clause of the Sixth Amendment and by the Fifth Amendment guarantee against self-incrimination, Rock v. Arkansas, 483 U.S. 44, 52 (1987); (3) the right to be present at every stage of the trial in a manner that does not undermine the defendant's presumption of innocence as provided by the Sixth Amendment confrontation clause and the Fifth Amendment due process clause, Illinois v. Allen, 397 U.S. 337, 338 (1970); Estelle v. Williams, 425 U.S. 501, 503 (1976); and (4) the right to present a defense, including an insanity defense, see 18 U.S.C. [section] 17. See generally United States v. Weston, 206 F.3d 9, 20 (D.C. Cir. 2000) (Tatel, J., concurring).
(27.) Riggins, 504 U.S. at 130.
(28.) Id. (citations omitted).
(29.) Id. at 135.
(31.) See Weston, 206 F.3d at 17 (Rogers, J., concurring) (stating that "it nonetheless was clear that the Supreme Court [in Riggins] did not simply apply the Harper standard"). But see Jurasek v. Utah State Hosp., 158 F.3d 506, 511 (10th Cir. 1998) ("One could argue that because a pretrial detainee has not been convicted of a crime, he deserves greater due process protections than a prisoner. The Court, however, implicitly rejected this argument in Riggins by applying the Harper standards to an incompetent pretrial detainee.").
(32.) Washington v. Harper, 494 U.S. 210, 223, 224 (1990) (citing Turner v. Safley, 482 U.S. 78, 89 (1987)).
(33.) Riggins v. Nevada, 504 U.S. 127, 135 (1992).
(36.) Id. at 136, 138.
(37.) Id. at 136.
(38.) Id. at 138.
(39.) Id. at 135.
(40.) See, e.g., Roe v. Wade, 410 U.S. 113, 154 (1973) ("Where certain `fundamental rights' are involved, the Court has held that regulation limiting these rights may be justified only by a `compelling state interest,' and that legislative enactments must be narrowly drawn to express only the legitimate interests at stake.") (citations omitted).
(41.) See Riggins, 504 U.S. at 136:
Contrary to the dissent's understanding, we do not `adopt a standard of strict scrutiny.' We have no occasion to finally prescribe such substantive standards as mentioned above, since the District Court allowed administration of [antipsychotic drugs] to continue without making any determination of the need for this course or any findings about reasonable alternatives.
Id. (citations omitted).
(42.) Id. at 135.
(43.) See State v. Garcia, 658 A.2d 947, 962 (Conn. 1995) (stating that the Supreme Court in Riggins did not define "might").
(44.) Riggins v. Nevada, 504 U.S. 127, 137 (1992).
(45.) Id. at 134.
(46.) Id. at 137.
(47.) Id. at 137-38.
(48.) Id. at 138.
(50.) Id. at 136 ("The question whether a competent criminal defendant may refuse antipsychotic medication if cessation of medication would render him incompetent at trial is not before us."); see also United States v. Weston, 69 F. Supp. 2d 99, 111 (D.D.C. 1999):
Nevertheless, the case law does not clearly indicate whether the government can forcibly medicate a defendant solely to render him competent to stand trial. Dicta in Riggins intimates that the government may be able to justify medically appropriate, involuntary treatment with ... drug[s] by establishing that it could not obtain an adjudication of [the defendant's] guilt or innocence by using less intrusive means. The Riggins Court, however, stopped short of articulating either the circumstances under or standard by which the Court could medicate a defendant solely to render him competent to stand trial.
Id. (citations omitted).
(51.) Riggins v. Nevada, 504 U.S. 127, 139 (1992) (Kennedy, J., concurring).
(52.) Id. at 141 (emphasis added).
(53.) See id. at 140-41:
[Riggins] is not a case like Washington v. Harper.... Here the purpose of the medication is not merely to treat a person with grave psychiatric disorders and enable that person to function and behave in a way not dangerous to himself or others, but rather to render the person competent to stand trial.... [H]ere there are even more far reaching concerns.
(54.) Id. at 139.
(56.) Id. at 145.
(57.) See Linda C. Fentiman, Whose Right Is It Anyway? Rethinking Competency to Stand Trial in Light of the Synthetically Sane Insanity Defendant, 40 U. MIAMI L. REV. 1109 (1986) (using term "synthetically sane" to refer to the appearance of a mentally ill defendant when psychotropic drugs are able to alleviate some of the symptoms of his brain disorder).
(58.) Indeed, Justice Kennedy cited the amicus curiae brief filed by the American Psychiatric Association, stating that "`[t]he mental health produced by antipsychotic medication is no different from, no more inauthentic or alien to the patient than, the physical health produced by other medications, such as penicillin for pneumonia.'" Riggins v. Nevada, 504 U.S. 127, 141 (1992) (Kennedy, J., concurring) (citing Brief of Amici Curiae American Psychiatric Association at 9).
(59.) United States v. Weston, 36 F. Supp. 2d 7, 8 (D.D.C. 1999).
(60.) Hull, supra note 1.
(61.) United States v. Weston, 69 F. Supp. 2d 99, 102 (D.D.C. 1999).
(62.) Weston, 36 F. Supp. 2d at 8.
(63.) See id.
(64.) Weston, 69 F. Supp. 2d at 102.
(70.) Id. at 103.
(71.) Id. at 104.
(72.) Id. at 103.
(73.) See id. at 104.
(75.) Id. at 119.
(76.) Id. at 107 (citing the standard established in Riggins v. Nevada, 504 U.S. 127, 135-36 (1992)).
(77.) Id. at 111 ("Riggins indicates that if treatment is justified on dangerousness grounds, as it is in the present case, the Court need not reach the issue whether the defendant may be treated solely to render him competent to stand trial.").
This Court holds that at this stage of the proceedings, where the defendant has not yet been arraigned and where there is no record evidence to suggest that the government's medical reasons are pretextual, the Due Process Clause requires the government to satisfy only the Riggins `medically appropriate' standard. In the event that medication successfully renders the defendant competent to stand trial, the Court could then reach the defendant's argument that the Due Process Clause or the Sixth Amendment will require a heightened showing before the defendant may be forcibly medicated during the trial.
(79.) United States v. Weston, 206 F.3d 9, 10-11 (D.C. Cir. 2000) (per curiam).
(80.) Id. at 13.
(81.) Id. at 13-14.
(82.) Id. at 14.
(85.) Jonathan Groner, Circuit Revisits Weston Dilemma: Should Accused Capitol Killer Face Mandatory Medication?, LEGAL TIMES, May 21, 2001, at 6.
(86.) United States v. Weston, 134 F. Supp. 2d 115, 116 (D.D.C. 2001), aff'd, 255 F.3d 873 (D.C. Cir. 2001), cert. denied, 122 S. Ct. 670, 2001 WL 1090817 (Dec. 10, 2001).
(87.) Id. at 121.
(88.) Id. at 131.
(89.) When Weston was considered competent to make his own medical decisions, he himself refused drug therapy, but said he was doing so on the advice of counsel. See Szegedy-Maszak, supra note 17.
(90.) Hull, supra note 1.
(91.) Id. (quoting prison psychiatrist, Dr. Sally Johnson).
(94.) United States v. Weston, 134 F. Supp. 2d 115, 127 n.17 (D.D.C. 2001) (quoting report of court-appointed psychiatrist, Dr. David Daniel).
(95.) See, e.g., Hull, supra note 1; Szegedy-Maszak, supra note 17; Morning Edition: Legal and Ethical Questions in the Case of Russell Weston, Jr. (National Public Radio broadcast, May 16, 2001), available at 2001 WL 9327489.
(96.) Interview with A. J. Kramer, Federal Public Defender, Office of the Federal Public Defender for the District of Columbia, in Washington, D.C. (July 26, 2001) (on file with author); cf. Butler, supra note 4 (arguing that the government is building a strong case to prove that Weston did not act "in the irrational manner that federal law requires" for a defendant to make out a successful insanity defense).
(97.) United States v. Weston, 69 F. Supp. 2d 99, 112 (D.D.C. 1999).
(98.) Weston, 134 F. Supp. 2d at 119 n.7.
(99.) ABC News Nightline: Insanity in the Courtroom: Russell Weston Denied Medication So He Won't Be Competent to Stand Trial (ABC television broadcast, Jan. 23, 2001) (quoting Arthur Caplan).
(100.) Weston, 134 F. Supp. 2d 128, 131-32.
(101.) Id. at 132.
(103.) For instance, Judge Sullivan stated that "[s]uccessful treatment with antipsychotic medication [would] probably decrease [the] delusional thinking" that had led Weston to refuse to speak to his actual attorneys at times, and to believe that "he has other attorneys from the past, famous attorneys who are involved in his case and who continue to have an interest in his case." Id. at 133.
(107.) Id. at 134.
(109.) See Brief for the Appellant, United States v. Weston, 255 F.3d 873 (D.C. Cir. 2001) (No. 98-357).
(110.) United States v. Weston, 255 F.3d 873 (D.C. Cir. 2001).
(111.) Id. at 878-79.
(112.) Id. at 879 ("Absent a showing that Weston's condition now exceeds the institution's ability to contain [his dangerousness] through his present state of confinement, the prior decision [of the D.C. Circuit] appears to preclude a finding of dangerousness.").
(113.) Id. at 876 (affirming the district court's conclusion).
(114.) Id. at 880 (citing Riggins v. Nevada, 504 U.S. 127, 138 (1992)).
(116.) Id. at 881.
(117.) See id. at 882 (stating that the "sole constitutional mechanism for the government to accomplish its essential policy is to take Weston to trial," implying that the court considers a criminal trial to be the government's means for punishing and not its end).
(119.) See id.:
We will treat what Weston styles the "narrow tailoring" requirement of strict scrutiny as an attack on the "necessity" of antipsychotic medication. In determining whether a governmental interest overrides a constitutional right, courts examine not only the nature of the right and the strength of the countervailing interest, but also the fit between the interest and the means chosen to accomplish it.... In the terms of this case, antipsychotic medication may not be "necessary" if its use will not permit the government to try Weston.
(120.) Id. at 882-83.
(121.) Id. at 882.
(123.) Id. at 883.