Forcible administration of antipsychotic medication; due process; Sell doctrine

Winkel v. Hammond, 2017 WL 3225632 (10th Cir. July 31, 2017)

Tenth Circuit rules that defendant hospitalized for restoration to competency to stand trial has filed a plausible claim of a due process violation by hospital staff when he alleges that he was forcibly medicated without any finding that he posed a danger to self or others or that he met the Sell standards for forcible medication to restore him to competency.

Found in DMHL Volume 36, Issue 3

Judicial authorization of treatment with psychotropic medication over objection

In the Matter of C.B., 392 P.3d 598 (Mont. 2017)

Montana Supreme Court upholds District Court order in involuntary commitment case in which the Court also authorizes the administration of involuntary medication when it “may be necessary.”

Found in DMHL Volume 36, Issue 2

Involuntary commitment hearings; judicial authorization of treatment; due process

In the Matter of N.L., 71 N.E.3d 476 (Mass. 2017)

Massachusetts Supreme Court rules that Massachusetts statutes give individuals in involuntary commitment hearings and in judicial authorization of treatment hearings the right to request and obtain a continuance of the hearing beyond the otherwise statutorily required time frames.

Found in DMHL Volume 36, Issue 2

Involuntary medication to restore competency to stand trial; due process

Washington v. Lyons, 2017 WL 2438687 (Wash. Ct. App. June 6, 2017)

Washington State Court of Appeals holds that a defendant has a due process right to obtain and present expert testimony on whether the findings required under Sell for involuntary medication to restore competency to stand trial have been proven by the state.

Found in DMHL Volume 36, Issue 2

Administration of psychotropic medication; due process

Johnson v. Tinwalla, 855 F.3d 747 (7th Cir. 2017)

Seventh Circuit reverses summary judgment awarded by the district court to facility physician who prescribed and arranged for dispensing of psychotropic medication over an inmate’s objection, finding that an inmate can pursue claims that his resulting unknowing taking of the medication violated his constitutional due process rights and constituted common law medical battery.

Found in DMHL Volume 36, Issue 2

Connecticut Supreme Court Applies Sell to Determination of Whether Defendant Can Be Forcibly Treated to Restore Competence

State v. Jacobs, 828 A.2d 587 (Conn. 2003)

The Supreme Court of Connecticut has issued one of the first appellate opinions applying the U.S. Supreme Court's decision in Sell v. United States (2003) to a determination of whether involuntary medication can be authorized to render a defendant competent to stand trial.  The defendant was charged with breach of the peace, simple trespass, assault of a peace officer, carrying a dangerous weapon, and interference with an officer, which carried a combined maximum punishment of 14 years.  Subsequent to the defendant being found incompetent to stand trial, the trial court ordered treatment with psychotropic medication to restore the defendant's competence to stand trial.  The defendant appealed, claiming forced medication would violate his constitutional rights under the first amendment (i.e., his right to free speech or the right to free thought and communication), sixth amendment (i.e., his right to a fair trial), and fourteenth amendment (i.e., his interest in privacy or liberty).  The state argued this question was limited to whether the defendant's fourteenth amendment rights were infringed...

Found in DMHL Volume 23 Issue 1

Law Struck Down that Established Means to Override Advance Directives and Involuntarily Medicate Individuals Civilly Committed or Imprisoned

Hargrave v. Vermont, 340 F.3d 27 (2d Cir. 2003)

The Second Circuit struck down a Vermont law that allowed the state to involuntarily medicate individuals who had been civilly committed or judged  mentally ill while imprisoned, notwithstanding a pre-existing durable power of attorney (DPOA) for health care to the contrary.  The Second Circuit ruled that such a law discriminated against individuals with a mental disability in violation of the Americans with Disabilities Act....

Found in DMHL Volume 23 Issue 1

Ruling that Officials Can Force Convicted Murderer to Take Medication to Make Sane Enough to Be Executed Not Disturbed

Singleton v. Norris, 319 F.3d 1018 (8th Cir. 2003), cert. denied, 124 S. Ct. 74 (2003)

The Supreme Court declined to review a ruling by the Eighth Circuit that allowed Arkansas officials to force a convicted murderer to take medication intended to make him sane enough to be executed.  In 1986 the Supreme Court held that executing an insane individual violates the Eighth Amendment's cruel and unusual punishment clause. However, the Supreme Court has not ruled on whether an individual can be forcibly medicated to be made sane enough to qualify for an execution...

Found in DMHL Volume 23 Issue 1

A Pair of Judicial Rulings Order Forcible Treatment of Non-Dangerous Criminal Defendants to Restore Competence to Stand Trial

United States v. Evans, No. 102CR00136, 104M00014, 2004 WL 533473 (W.D. Va. Mar. 18, 2004)

In December of 2003, a federal district court in Virginia denied a request to forcibly medicate a criminal defendant to restore him to competence to stand trial.  United States v. Evans, 293 F. Supp. 668 (W.D. Va. 2003). The court concluded that the government's interest in having the defendant treated over his objection was not sufficiently strong to outweigh the defendant's right to refuse such treatment.  This case was noteworthy in that it was one of the first applications of the U.S. Supreme Court's decision in Se// v. United States, 539 U.S. 166 (2003), which permits, under certain circumstances, the medication over objection of criminal defendants even when the defendant is not a danger to self or others...

Found in DMHL Volume 24 Issue 1

Fourth Circuit Adopts Narrow Test for Determining Incompetence to Be Executed

Walton v. Johnson, 440 F.3d 160 (4th Cir. 2006)

Sitting en bane, the Fourth Circuit in a seven­ to-six ruling held that the test for determining whether a criminal defendant is competent to be executed is limited to whether the condemned inmate is able to comprehend that he or she is sentenced to death and the reason why...

Found in DMHL Volume 25 Issue 2

Defendants Found Incompetent to Be Sentenced Also Entitled to Sell's Protections from Treatment over Objection; Ruling Not Disturbed

United States v. Baldovinos, 434 F.3d 233 (4th Cir. 2006), cert. denied, 126 S. Ct. 1407 (2006)

The United States Supreme Court, in Sell v. United States, 539 U.S. 166 (2003), held that governmental officials, under limited circumstances, can obtain a court order to administer over objection antipsychotic drugs to restore the competence of defendants found incompetent to stand trial, even though it had not been shown they were dangerous to themselves or others.  Because it believed that most cases can and should be resolved by first focusing on the defendant's dangerousness to self or others, an independent basis for forcible medication established in Washington v. Harper, 494 U.S. 210 (1990), the Court indicated that it thought few Sell orders would be needed and that the protections it mandated would limit the imposition of what was acknowledged to be a significant invasion of a defendant's constitutionally protected liberty interest in avoiding the involuntary administration of these drugs and their side effects...

Found in DMHL Volume 25 Issue 2

Requirements for Forcibly Medicating a Defendant Found Incompetent to Stand Trial Delineated by Fourth Circuit

United States v. Evans, 404 F.3d 227 (4th Cir. 2005)

The U.S. Supreme Court in Se// v. United States, 539 U.S. 166 (2003), held that the government may involuntarily medicate a criminal defendant to render the defendant competent to stand trial even though the defendant does not pose a danger to self or others.  The Supreme Court authorized such treatment under limited circumstances, but left it to the lower courts to flesh out the details of the requisite test. While reviewing a ruling by a federal judge in the Western District of Virginia, the Fourth Circuit provides many of these details...

Found in DMHL Volume 25 Issue 1

Fourth Circuit holds Government Cannot Forcibly Medicate Incompetent Defendant Due to Special Circumstances.

United States v. White, 620 F.3d 401 (4th Cir. 2010)

In United States v. White, 620 F.3d 401 (4th Cir. 2010), the 4th Circuit Court of Appeals determined that the government’s usually strong interest in prosecuting someone charged with six felony offenses was too diminished in this case by “special circumstances” to make it constitutional to involuntarily medicate the defendant with antipsychotic drugs to restore her competency to stand trial. The defendant, charged with conspiracy, credit card fraud and identity theft, had already spent 41 months locked up and the estimate was that it would take another ten months before she would be competent to stand trial if treated with medication.

Prior to involuntarily medicating a defendant to restore his competency to stand trial, the United States Supreme Court held in Sell v. United States, 539 U.S. 166 (2003), that the government must establish that the treatment must 1) serve an important government interest, 2) be substantially likely to succeed without significant side effects, 3) be necessary in light of alternatives, and 4) be “medically appropriate.” Applying the Sell standard, the 4th Circuit found in United States v. Bush, 585 F.3d 806 (4th Cir. 2009) that the government must establish the Sell requirements by clear and convincing evidence. It also held that the government must establish not only that it has an important interest in involuntarily medicating the defendant, but also that this interest is not mitigated by special circumstances in a particular case.

Courts have generally found that a ten year maximum sentence constitutes a sufficiently serious crime to establish an important governmental interest. In this case, the defendant’s sentence if found guilty would likely range from 42-51 months; she had already been confined for 41 months; and the estimate was that it would take another ten months to render her competent. In addition, the crime charged was nonviolent; she was not a danger to herself or the public; her conviction met requirements for the federal ban on possession of firearms; and there was considerable ambiguity as to the side effects and effectiveness of antipsychotic medication because she suffered from a “rare form of delusional disorder.” Of note, Judge Barbara Milano Keenan added a concurring opinion stating that this case was not one of those exceptional cases contemplated by Sell and that a contrary ruling would come “perilously close to a forcible medication regime best described…as routine.” The Court therefore refused to authorize the government to forcibly medicate the defendant to restore her competency to stand trial.

Found in DMHL Volume 30 Issue 1

Government Fails to Carry Burden to Forcibly Medicate Incompetent Defendant

United States v. Ruiz-Gaxiola, 623 F.3d 684 (9th Cir. 2010)

The Ninth Circuit Court of Appeals has reversed the decision of the trial court and found that the Government did not meet its burden of establishing by clear and convincing evidence the Sell factors authorizing treatment of a defendant over his objection.

The defendant in this case, a Mexican citizen with an extensive criminal history of drug offenses, was charged with illegal reentry into the United States. Diagnosed with a delusional disorder, grandiose type, he was found incompetent to stand trial and sent to Butner Correctional Institution in North Carolina for treatment. At an administrative hearing, the defendant was found not to be a danger to himself or others in the institutional setting and did not suffer from a grave disability justifying involuntary medication. Thus the sole issue before the court was whether the defendant could be medicated over objection for the purpose of restoring his competency to stand trial.

Under Sell v. United States, 539 U.S. 166 (2003), the government must prove by clear and convincing evidence each of the factors enunciated by the United States Supreme Court: 1) that important governmental interests are at stake; 2) involuntary medication will significantly further that interest, i.e. it is substantially likely to restore defendant to competency and substantially unlikely to cause side effects that would impair significantly his ability to assist in his defense; 3) involuntary medication is necessary to further those governmental interests; and 4) treatment with medication is medically appropriate.

The magistrate judge considered the evidence and concluded that the government had proved its case. The Court of Appeals reversed finding that this case does not present one of those rare circumstances permitting medication over objection to render the defendant competent to stand trial and the government had not met its burden under Sell’s second and fourth prong. Although the defendant had never been treated with antipsychotic medications, the Court held that the government must prove what the medication will do, not what it is designed to do. The appellate court discounted the testimony of the government’s experts and relied on the testimony of the defendant’s expert who testified that the medication was likely to worsen his rare and difficult to treat mental disorder and increase his delusional thinking, especially based upon his inferiority feelings and hypersensitivity to powerlessness. It found that treatment with haldol would also unduly subject him to the risk of tardive dyskinesia. The court therefore found that treatment with medication was medically inappropriate.

Found in DMHL Volume 30 Issue 3

Ninth Circuit Authorizes Medication over Objection for Pretrial Detainee on Dangerousness Grounds without Requiring Sell Hearing

United States v. Loughner, 672 F.3d 731 (9th Cir. 2012)

The Ninth Circuit Court of Appeals, in a 2-1 decision issued on March 5, 2012 and amended on May 14, 2012, upheld the ruling of the United States District Court in Arizona, holding that the government may treat a pretrial defendant with serious mental illness with antipsychotic medication over his objection if the inmate is a danger to himself or others. An administrative hearing comporting with the requirements in Harper v. Washington, 494 U.S. 210 (1990), is sufficient without the necessity of the judicial hearing and balancing test set out in Riggins v. Nevada, 504 U.S. 127 (1992) and Sell v. United States, 539 U.S. 166 (2003).

The defendant Jared Lee Loughner is accused of murdering six people, including U.S. District Judge John Roll, and the attempted murder of thirteen others, including Congresswoman Gabrielle Giffords in Tucson, Arizona on January 8, 2011. Loughner was committed to the Bureau of Prisons to determine whether he was competent to stand trial, and based upon the findings of the medical staff at the U.S. Medical Center for Federal Prisoners in Springfield, Missouri(“FMC-Springfield”) that he was not, he was then committed to determine whether he could be restored to competency.

While in custody at FMC-Springfield, Loughner was determined to be a danger to himself or others and the facility conducted an administrative hearing under 28 C.F.R. § 549.46(a) to determine whether he could be involuntarily medicated. A psychiatrist not involved in the defendant’s treatment presided over the hearing that took place in Loughner’s cell. A licensed clinical social worker was assigned as his staff representative. Even though Loughner requested that one of his attorneys appear at the hearing as his “witness,” counsel was not permitted to attend the hearing. Following the hearing, the presiding psychiatrist authorized involuntary medication finding that Loughner, who had been diagnosed with schizophrenia, “had become enraged while being interviewed by his attorney and yelled obscenities; had thrown objects, including plastic chairs and toilet paper; had spat on his attorney, lunged at her, and had to be restrained by staff; and his behavior had been characterized by indications that he was experiencing auditory hallucinations, including inappropriate laughter, poor eye contact, yelling “No!” repeatedly, and covering his ears.” Id. at 737. Loughner was given 24 hours to appeal the decision to the Administrator of the Mental Health Division, which he did. Laced with profanity, Loughner’s appeal was denied.

Upon learning of Loughner’s involuntary medication, his attorneys filed an emergency motion in the district court to enjoin FMC–Springfield from forcibly medicating him, arguing that the involuntary medication violated his substantive due process rights by treating his mental illness with medication without first considering less intrusive measures, and by failing to consider how the medication might implicate his fair trial rights. They also argued that his procedural due process rights as a pretrial detainee had been violated because the hearing should have been held before the court and the specific drug and dosage should have been specified in the hearing.

The district court denied the motion and request for an evidentiary hearing on the grounds that, even though he was a pretrial detainee, Loughner was being medicated on dangerousness grounds and that the Harper standards, not the Riggins and Sell standards, applied. In so deciding, the district court adopted the rationale in United States v. Morgan, 193 F.3d 252 (4th Cir. 1999), holding that dangerousness determinations are to be made by medical professionals and the court’s involvement should be limited to a review for arbitrariness. On appeal to the Ninth Circuit, the Motions Panel granted Loughner a stay, enjoining all involuntary administration of medication pending adjudication of this appeal.

After medication was discontinued, Loughner’s condition drastically deteriorated and he was placed on suicide watch. FMC–Springfield’s psychiatrists then determined that Loughner was a severe danger to himself and administered medication on an emergency basis. Loughner’s attorneys immediately requested the district court to enforce the Ninth Circuit injunction, but the district court refused. FMC–Springfield thereupon conducted a second Harper-style hearing to continue the mediation based on Loughner’s danger to himself. Loughner again requested that his attorney appear as his “witness.” His attorney did not appear but submitted a written statement which contained legal objections to the involuntary medication. In justifying the administration of medication in this report, the presiding psychiatrist noted the deterioration in Loughner’s condition after the administration of antipsychotic medication was discontinued. Many of his most serious symptoms had receded but he “still exhibits a tendency towards motor restlessness and pacing…cries frequently, and expresses intense feelings of guilt.” United States v. Loughner, 672 F.3d at 739. The report also noted Loughner’s current medication regimen and stated that other less intrusive measures would not address Loughner’s fundamental problem.

Loughner’s attorneys filed another emergency motion with the district court to enjoin the administration of the medication which the court again denied on the grounds that the administration of medication “was predicated on the grounds of dangerousness and really has nothing to do with his competency.” Id. at 740. The district court also continued Loughner’s commitment another four months for competency restoration based on his treating psychiatrist’s testimony that he was likely to become competent in the near future.

On appeal, the Ninth Circuit first distinguished between the substantive due process and procedural due process issues presented. It reiterated that the substantive due process clause of the Fourteenth Amendment establishes the definition of the protected constitutional interest, here the liberty interest in being free from unwanted antipsychotic medication, and identifies the conditions under which competing state interests outweigh it. The procedural due process grounds set out the minimum procedures required to determine whether those liberty interests outweigh the government’s interest in overriding them. The Court then conducted an analysis of the Harper, Riggins, Sell and post-Sell decisions.

In Washington v. Harper, the United States Supreme Court reviewed the State’s regulation governing the forcible medication of a convicted prisoner with serious mental illness who posed a serious likelihood of danger to himself, others, or their property. In upholding the Washington regulation, the Supreme Court balanced the prisoner’s interest in avoiding unwanted medical treatment with the State’s penological interest in providing needed treatment to inmates. The Court held that “given the requirements of the prison environment, the Due Process Clause permits the State to 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 best interest.” Washington v. Harper, 494 U.S. at 227.

In Riggins v. Nevada, the Supreme Court reviewed Nevada’s forced treatment of the defendant during trial. Riggins began taking mellaril prior to the trial, but requested it be stopped during trial because of its effect on his demeanor and his mental state. Following the testimony of three psychiatrists who questioned the need for continued medication during trial, the trial court denied Riggins motion to discontinue the mediation, but gave no rationale for the decision. The Supreme Court held that pretrial detainees possessed at least the same right as the convicted prisoners in Washington v. Harper, and denied it had determined the full constitutional protections required for pretrial detainees in that case. The Court suggested that the prosecution could have prevailed if “the district court had found that treatment with medication was medically appropriate and, considering less intrusive alternatives, essential for the sake of Riggins own safety or the safety of others.” Riggins v. Nevada, 504 U.S. at 135. The Court reversed but set no standards for pretrial detainees because the district court had made no determination related to the need for medication and no findings to support its decision.

In Sell v. United States, the Supreme Court set out the substantive standards for determining when the government may administer antipsychotic drugs involuntarily to restore a criminal defendant to competency to stand trial. The court must first determine “whether there are important government trial related issues at stake; that involuntary medication will significantly further these governmental interests, without causing side effects that will interfere significantly with the defendant’s fair trial rights; that the medication is necessary to further the government’s interests taking into account less intrusive alternatives; and that the administration of the antipsychotic drugs is medically appropriate, i.e., in the defendant’s best medical interest.” Sell v. United States, 539 U.S. at 180-181.

After reviewing the cases decided post-Sell, the Ninth Circuit held that “when the government seeks to medicate a detainee – whether pretrial or post-conviction – on the grounds that he is a danger to himself or others, the government must satisfy the standard set forth in Harper. The Due Process Clause permits the State to 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.” United States v. Loughner, 672 F.3d at 752. The Court then upheld the Bureaus of Prison’s regulation finding that a judicial hearing was unnecessary, stating that medical decisions should be made by medical personnel. Although it questioned the effectiveness of Loughner’s prison representative, it found attorney representation not necessary. The Court also held that a specific medication regimen need not be specified finding that Loughner’s treating psychiatrist must be able to titrate his existing dosages to meet his needs and to change medications as necessary. The Ninth Circuit finally held that should Loughner be restored to competency, his arguments that the antipsychotic medications substantially alter his demeanor and make him unable or unwilling to assist his counsel are issues to be decided at the time of trial.

Found in DMHL Volume 31 Issue 4

Virginia Court of Appeals Finds No Right to Jury Trial on Involuntary Medication Petition; Appeal Moot on Sufficiency of Evidence Issue

William Scott Ingram v. Commonwealth, 2013 Va. App. LEXIS 131 (April 23, 2013)
slip opinion at:

The Virginia Court of Appeals found no right to trial by jury on a hospital psychiatrist’s petition under Virginia Code § 37.2-1101 to involuntarily medicate an individual found not guilty by reason of insanity. The Court of Appeals also held that the appellant’s claim that forced medication violated his basic beliefs was moot because the circuit court’s 180-day order expired shortly before the Court heard his appeal. The Court, however, found the issue of his right to a jury trial was not moot because it was “subject to repetition, yet evading review.” The Court then proceeded to decide this issue on the merits finding no right to trial by jury under the United States and Virginia Constitutions or Virginia statutory law.

Ingram was found not guilty of malicious wounding by reason of insanity (“NGRI”) in the Martinsville Circuit Court in 1995 and has been periodically recommitted in accordance with Virginia law to various state psychiatric facilities, most recently Southern Virginia Mental Health Institute in Danville. Ingram has been diagnosed with various psychiatric conditions, including bipolar type schizoaffective disorder, narcissistic and antisocial personality disorder, and poly-substance dependence. When his father no longer agreed to serve as his son’s authorized representative for the purpose of making treatment decisions on his behalf, his psychiatrist first petitioned the Danville General District Court in 2009 for an order to involuntarily treat him with anti-psychotic medication pursuant to Virginia Code § 37.2-1101, which the court granted. Ingram appealed to the circuit court arguing in a de novo hearing that, among other things, the evidence was insufficient as a matter of law because the order violated his religious beliefs. On further appeal, the Court of Appeals dismissed the case as moot because the 180-day order had expired before the appeal was heard. Ingram v. Commonwealth, 2010 Va. App. LEXIS 254 (June 22, 2010)(unpublished), slip opn. at:

In 2012, Ingram’s psychiatrist again petitioned for involuntary court-ordered treatment. The general district court granted the petition and Ingram appealed to the circuit court demanding a trial by jury. Ingram also argued that the involuntary medication violated his religious beliefs or basic values. Unlike the previous appeal in which Ingram testified that medication violated his long-standing religious beliefs, he now states that he plays in a rock band, which is “sort of like a religion to [him].” The circuit court denied the request for a jury, conducted a de novo evidentiary hearing, and granted the petition. That 180-day order again expired before the appeal was heard. Under Virginia law, § 37.2-1102(3), an order authorizing treatment with anti-psychotic medication cannot exceed 180 days.

The Commonwealth moved to dismiss the appeal on the grounds of mootness. Relying on Chafin v. Chafin, 133 S.Ct. 1017, 1018 (2013), the Court of Appeals stated that a case becomes moot when the issue presented is no longer live, or “when the dispute is no longer embedded in actual controversy about the plaintiffs’ particular legal rights.” Already; LLC v. Nike, Inc., 133 S.Ct. 721, 726 (2013). Courts do not issue advisory opinions and will review such cases in very limited circumstances and only when the underlying controversy is capable of repetition, yet evading review. Va. State Police v. Elliott, 48 Va. App. 551, 554, 633 S.E.2d 203, 204 (2006). Such review should occur rarely and only in cases that are “short-lived by nature,” Daily Press, Inc. v. Commonwealth, 285 Va. 447, 452, __S.E.2d__(2013), and then only when the party seeking review can demonstrate that he will be subjected to the same illegal conduct.

In this case, the Court of Appeals found that Ingram’s claim that involuntary medication violated his personal beliefs and basic values was fact-based and challenged the sufficiency of the evidence. His claim in this case differed from the factual basis of his previous claim. Because the Court had no confidence that the fact pattern would remain the same, it declined to find that the claim met the capable of repetition, yet evading review doctrine.

On the right to jury trial issue, however, the Court found that Ingram, having been found NGRI nearly twenty years earlier, would likely be the subject of future treatment petitions, each of which could raise the same jury issue, but never be decided. The Court found that this claim presents a question of law unaffected by the facts underlying any given petition. Because the jury trial issue presents an exceptional situation that is capable of repetition, yet evading review, the Court proceeded to decide the issue.

On the merits, the Court of Appeals noted that neither the United States nor Virginia Constitutions afford the right to trial by jury. Although the Fourteenth Amendment guarantees the right to due process before deprivation of a liberty interest, here the right to avoid unwarranted medication, it does not include the right to trial by jury. Relying on Washington v. Harper, 494 U.S. 210, 228 (1990), the Court found that a proceeding to order involuntary medication does not even require a judicial decision maker. The Court also found that although the Sixth Amendment guarantees a jury trial in all criminal prosecutions that could result in imprisonment for longer than six months, this proceeding is not criminal, but civil, and could not result in any incarceration. Further, although the Seventh Amendment also guarantees a right to trial by jury in suits at common law where more than $20 is in dispute, this right has never been applied to state court proceedings.

Under the Virginia Constitution, the Court found that the right to a jury trial applies only to proceedings for which the right to a jury trial existed when the Constitution was adopted. In this case, the statutory scheme was enacted well after the adoption of the Constitution and bears none of the indicia of a traditional common law proceeding. It does not attempt to affect the property rights of a patient or place him in the indeterminate custody of the state. “Instead, Code § 37.2-1101 represents a uniquely modern application of the parens patriae duty of the state to protect those ‘incapable of making an informed decision’ by attempting to ameliorate their illnesses in a manner consistent with the needs of society balanced with the deeply held religious or basic values of the individual.” Ingram v. Commonwealth, slip opn. at 9.

Finally, Ingram argues that Virginia Code § 8.01-336(D) affords him the right to trial by jury because his claim that the treatment is contrary to his religious beliefs and basic values which constitutes a plea in equity. Subsection D provides: “In any action in which a plea has been filed to an equitable claim, and the allegations of such plea are denied by the plaintiff, either party may have the issue tried by jury.” The Court reasons that this claim is not a plea in equity because such a plea is a discrete form of defensive pleading that does not address the merits of a case. Instead this plea raises a single set of facts that would be an absolute defense to a claim, such as the statute of limitations, res judicata, a release, or infancy. In this case, Ingram bears the burden of proving that the treatment is contrary to his religious beliefs or basic values. If he proves this, the burden then shifts to the Commonwealth to prove that the treatment is “necessary to prevent death or a serious irreversible condition.” The Court of Appeals held that this situation is different from the traditional plea in equity raising “a single state of facts or circumstances” and therefore the circuit court was not required to empanel a jury to decide the issue.

Found in DMHL Volume 32 Issue 2

Eight Circuit Upholds Administration of Antipsychotic Medication to Restore Competency of Defendant Accused of Failing to Register as Sex Offender

United States v. Mackey, 717 F.3d 569 (8th Cir. 2013)

The Eighth Circuit Court of Appeals upheld on June 10, 2013, the decision of the district court authorizing the government to involuntarily medicate a defendant accused of failing to register as a sex offender to restore him to competency to stand trial. Applying the standard in Sell v. United States, 539 U.S. 166 (2003), the Court found that the government has an important interest in bringing the defendant to trial for the non-violent status offense of failure to register as a sex offender. Unlike the Sixth Circuit in United States v. Grigsby, 712 F.3d 964 (6th Cir. 2013, reviewed above, the likelihood that the defendant might be sentenced to a term less than his pretrial confinement did not minimize that interest given the requirement for a minimum of five years, and the potential for a life time, of post-release supervision. Nor did the fact that the defendant might be found not guilty by reason of insanity, resulting in a lengthy period of civil commitment satisfy the government’s interest in his confinement, because there was no guarantee in spite of his delusional disorder that he would meet civil commitment criteria.

Shawn Mackey was indicted in June 2010 for failure to register as a sex offender in violation of the federal Sex Offender Registration and Notification Act. Mackey was detained pending trial and requested the district court to order a mental evaluation. He refused, however, to participate in the evaluation conducted at the Federal Detention Center in Seattle, Washington, but based upon the stipulation of both the government and Mackey, the district court found him to be suffering from a mental disease rendering him incompetent to stand trial. The court then ordered him to be committed to the custody of the Attorney General for evaluation and treatment, and a determination of whether he could be restored to competency.

In March 2012, the government moved the court to conduct a Sell hearing to determine whether Mackey could be medicated involuntarily. Two doctors at the United States Medical Center for Federal Prisoners in Springfield, Missouri, testified that Mackey was delusional and suffered from a “psychotic disorder not otherwise specified.” One psychologist tried to interview Mackey on seven occasions but he refused to talk with her in almost all of those instances. He did make some remarks reflecting a mental illness, including once that he owned Alaska, and on another occasion that his mother owned Alaska. A psychiatrist and Director of the Medical Center testified that Mackey was delusional and his thinking was disorganized. The psychiatrist testified that administration of antipsychotic medication would be necessary to restore Mackey to competency and there was a substantial probability that it would be successful, although Mackey had stated he absolutely did not want any medication. He also testified that medication would have a positive impact on other aspects of his life, including his personal hygiene and his ability to interact with his peers.

Both the district court and the Court of Appeals applied the Sell test finding 1) that an important governmental interest is at stake; 2) that involuntary medication will significantly further that governmental interest; 3) that involuntary medication is necessary to further that interest; and 4) that administration of the drugs is medically appropriate. The Eighth Circuit first reviewed de novo the district court’s legal determination that important government interests are at stake.

Mackey first contended that the nonviolent “status” offense of failure to register as a sex offender was not “serious” for the purposes of Sell. The Court rejected this argument finding that sex offenders who are not properly registered present a serious risk to the safety of the community. The legislative scheme was enacted to address deficiencies in prior law that had enabled sex offenders to fall through the cracks. Even though this offense does not itself harm others directly, the Court found that society has a strong interest in prosecuting the violation and imposing punishment.

Mackey also argued that there were special circumstances in his case. Specifically he argued that the maximum time that he was likely to receive if convicted would be 24-30 months under the sentencing guidelines approximating or exceeding the time he would already be held pre-trial. The government’s interest in his confinement would thus be achieved. The Court first found that the maximum sentence for the crime charged is ten years imprisonment, but it was impossible to know what sentence might be imposed when no conviction had yet been obtained or pre-sentence report received. In addition, a criminal sentence in this case also included mandatory post-release supervision of at least five years to life.

Mackey further argued that even if medication restored him to competency, he would most likely be found not guilty by reason of insanity and civilly committed. The Court next noted that even if Mackey could successfully raise an insanity defense, there was no guarantee that he would be found to meet the long term federal civil commitment criteria that he posed a substantial risk of bodily injury to another person or serious damage to the property of another. The Court then held that these circumstances did not outweigh the government’s interest in bringing Mackey to trial.

Turning to the other Sell factors, the Eighth Circuit held that the district court did not commit clear error in finding that the administration of antipsychotic medication would be substantially likely to restore Mackey’s competence to stand trial and would be substantially unlikely to have significant side effects. Mackey challenged the testimony of the two experts based upon testimony presented in other cases that treatment with medication for persons with grandiose delusional disorders, such as his, was not effective. The Eighth Circuit upheld the district court finding that the experts in this case had testified to the contrary and that medication was substantially likely to restore his competency, distinguishing their testimony from the testimony of experts in other cases.

Finally the Court held that the district court did not commit clear error in finding that medication was medically appropriate in this case based upon the testimony of the psychiatrist that the medication would not only restore Mackey’s competence to stand trial but would provide him with a better quality of life. Based upon these findings, the Eighth Circuit upheld the district court’s order authorizing the government to involuntarily treat Mackey with antipsychotic medication to restore his competency to stand trial.

Found in DMHL Volume 32 Issue 3

Sixth Circuit Finds Special Circumstances Preclude Involuntary Medication of Incompetent Defendant Charged with Bank Robbery

United Sates v. Grigsby, 712 F.3d 964 (6th Cir. 2013)

The Sixth Circuit Court of Appeals held on April 11, 2013 that special circumstances exist that outweigh the government’s interest in prosecuting for bank robbery a pre-trial detainee to restore him to competency. Unlike the Eighth Circuit evaluating similar special circumstances in United States v. Mackey, 717 F.3d 569 (8th Cir. 2013), reviewed below, a majority three-judge panel concluded that the potential availability of lengthy civil commitment together with the likelihood that, even if the defendant is restored to competency, he will be found not guilty by reason of insanity, greatly diminishes the government’s interest in prosecution.

Dennis Grigsby was charged with three counts of unarmed bank robbery in Columbus, Ohio, between January and March 2010. Grigsby’s attorney requested the court to order mental evaluations to determine Grigsby’s competence to stand trial and his sanity at the time of the offenses. The district court granted the motion and he was transferred to the Metropolitan Correctional Center in New York where two psychologists conducted the examinations. They both diagnosed Grigsby with paranoid schizophrenia and determined him incompetent to stand trial, but one postulated that he was sane at the time of his offense and the other that he was not. Both psychologists reported that Grigsby’s mental disease did not significantly interfere with his appreciation of the wrongfulness of his acts, but there was insufficient information about whether mental illness impaired his ability to appreciate the wrongfulness of his conduct. Neither the government nor the defendant objected to the reports’ findings and the district court committed Grigsby to the custody of the Attorney General in November 2010 for a period not to exceed four months for a determination whether he could be restored to competency.

Grigsby was then transferred to the Federal Medical Center in Butner, North Carolina and was evaluated by a psychiatrist and psychologist at the facility. They found that Grigsby had a normal upbringing, education and employment until he stopped working due to “job burnout.” He was convicted of grand theft auto, disorderly conduct, and resisting arrest in 2006; for criminal trespassing in 2007; and for resisting arrest in 2010. He served short jail sentences for these crimes. He was also charged with voyeurism and menacing by stalking, which were not prosecuted. Grigsby was in good physical health, never received mental health treatment and was not taking antipsychotic medication for his illness. He followed all of the rules of the facility, got along well with peers and staff, was not gravely disabled and did not present a danger to self or others, or to the safe operation of the facility. Although his dress and grooming were appropriate and he was oriented to person, place, time and circumstances, and denied hallucinations and delusions, they reported, however, that Gillenwater’s conversation was not linear and he displayed substantial evidence of thought disorder, including an extensive, but poorly organized, paranoid religious delusional system extending into all major functional areas of his life.

The evaluators determined that Grigsby was incompetent to stand trial. Because he was refusing all antipsychotic medications, they also requested an order under Sell v. United States, 539 U.S. 166 (2003), allowing them to medicate him involuntarily to restore his competence to stand trial. The evaluators both determined that antipsychotic medication was substantially likely to render Grigsby competent to stand trial and substantially unlikely to produce sideeffects that would interfere with his ability to assist his attorney in conducting a defense and that less intrusive therapies, such as psychotherapy would not able work. They reported that antipsychotic medication was medically appropriate and would take at least four months to be effective.

In determining whether to uphold the district court’s order authorizing involuntary medication to restore Grigsby to competence, the Sixth Circuit applied the Sell test requiring the government to prove by clear and convincing evidence that 1) an important government interest in prosecution exists; 2) involuntary medication will significantly further the governmental interest, which requires proof both that administration of the medication is substantially likely to render the defendant competent to stand trial and substantially unlikely to cause side effects that will interfere significantly with the defendant’s ability to assist counsel in conducting the trial defense; 3) involuntary medication is necessary to further the governmental interest; and 4) administration of drugs is medically appropriate for the defendant. Id at 180-81.

At the district court hearing, Grigsby conceded that the government had an important interest in bringing him to trial for the serious crime of bank robbery. Grigsby argued, however, that special circumstances existed in his case to diminish that interest. He first argued that the potential availability of lengthy civil commitment together with the likelihood that he would be found not guilty by reason of insanity addressed the government’s interest in his continued confinement.

The Sixth Circuit reviewed the Butner psychiatrist’s testimony that if Grigsby is not forcibly medicated he would remain psychotic and medical staff at FMC-Butner would request his civil commitment. In order to be civilly committed, federal law requires the district court to determine by clear and convincing evidence whether Grigsby is suffering from a mental disease or defect and poses a substantial risk of bodily injury or serious damage to property. The evidence revealed that although Grigsby was not a present danger to himself or others in the structured environment at Butner, the government psychiatrist testified that he was not necessarily fit for release into society. The district court found that the evidence was inconclusive on that issue, but the Sixth Circuit determined that the district court should have inquired further. The Sixth Circuit found evidence in the record that supported the possibility that Grigsby might meet the insanity standard at trial, if restored to competence. Both the government’s psychiatrist and Grigsby’s expert agreed that Grigsby would need to be restored to competence before a definitive determination could be made, but Grigsby’s expert testified that he suffered from a severe and chronic mental illness and likely suffered from it at the time of the bank robberies. He also surmised that Grigsby may have experienced previous psychotic episodes.

The Court further determined that the length of Grigsby’s confinement while the government attempts to restore him to competency and prosecute him may approximate the length of any prison sentence he might receive if convicted. If convicted, the government indicates Grigsby might receive a sentence of 57 to 71 months based on sentencing guidelines. Unlike the Eighth Circuit, the Sixth Circuit found the government’s analysis under the guidelines instructive because the government often uses this range, rather than the maximum possible sentence, as a basis for negotiating plea agreements. The Court therefore found this range more useful when, as here, the government advances the length of sentence as a core reason why it wants to prosecute. The Court found that Grigsby had already been held since July 2010, or 33 months. It would take at least four months to restore him to competency, plus additional time to bring him to trial, and potentially additional time to re-restore him if he loses competency during the pendency of the trial. The Court also noted that often defendants plead guilty after they are restored to competency which reduces further their period of imprisonment under the guidelines. All of these factors indicated to the Court that Grigsby may remain in custody for a period roughly equivalent to the length of any prison sentence he might serve, thus lessening the government’s interest in prosecuting him.

The Court went on to find that antipsychotic medication can burden a defendant’s fair trial rights by affecting his ability to comprehend and react to trial events. Grigsby argued that he had trial-related concerns that tardive dyskinesia and akathisia, which causes constant movement and an inability to remain still, might impair his ability to make a dignified appearance before a jury and assist his counsel in his defense. Although the Court noted that the record indicates antipsychotic medication is generally effective in restoring competency especially in patient’s with Grigsby’s positive symptoms, it also found that the government’s psychiatrist testified that 30% of patients do not respond to haloperidol and another 30% show only a partial response. He also testified that 30% of individuals treated with haloperidol develop pseudoparkinsonism, 20-30% develop akathisia, 2-10% develop acute systonic reactions, and 18- 40% develop irreversible tardive dyskinesia. Although Grigsby had never previously been treated with antipsychotic medication, and the government psychiatrist testified that other medications would be prescribed to counter the side-effects and that the medication would be changed or discontinued if the side effects continued or irreversible side-effects developed, the Court nonetheless found that the record lacked clear and convincing evidence that medication is substantially unlikely to cause side effects that will interfere with Grigsby’s ability to assist in his defense.

Based upon all the facts above, the majority of the Sixth Circuit three-judge panel hearing the appeal found that the findings of the district court supporting an order authorizing involuntary medication were clearly erroneous. The Court reversed the district court order and remanded the case for further proceedings, specifying its expectation that the district court would determine whether civil commitment is appropriate for Grigsby. A dissent was filed in this case stating that the Court majority’s analysis of the special circumstances was highly speculative as to the likelihood of Grigsby’s civil commitment, his being found not guilty by reason of insanity, his pretrial confinement exceeding any sentence he might receive, and any side-effects impairing his pre-trial rights. Compare this decision with the decision in United States v. Mackey.

Found in DMHL Volume 32 Issue 3

Texas Appellate Court Finds Trial Court Lacks Authority to Order Incompetent Inmate to Be Involuntarily Medicated to Restore His Competency to Be Executed

Staley v. Texas, _ S.W.3d _, 2013 WL 4820128 (Tex.Crim.App. 2013)

The Texas Court of Criminal Appeals held on September 13, 2013 that a trial court had no authority to order a mentally ill inmate, who had previously been found incompetent to be executed to be medicated under the State’s competency-to-be-executed statute and therefore vacated the execution order.

In 1991, Steven Kenneth Staley was convicted of capital murder when he and two others rounded up a group of employees at a restaurant, threatened them with firearms, and killed the manager after taking him hostage. The trial court has since held two competency hearings finding Staley incompetent to be executed at the first hearing, and competent at the second.

A month before his scheduled execution in 2006, Staley filed a motion challenging his competence to be executed, arguing that his competence was “artificial” due to his involuntary medication. The trial court appointed two clinical forensic psychologists as experts to evaluate him. They both found that Staley suffered from paranoid schizophrenia for which he had routinely been diagnosed for 15 years, and that his condition had deteriorated over time. They reported that although he understood he was to be executed, Staley did not have a rational understanding of the reason for his execution. They further testified that Staley had been prescribed medications, mainly Haldol, through the years but that he had not consistently complied with his mediation regimen. In the months immediately preceding the competency evaluations, he had frequently refused the mediation.

One of the evaluators testified that Staley demonstrated numerous symptoms of psychosis over the years, including self-inflicted injuries, grossly neglected personal hygiene, including resting in his own urine and excrement, irregular eating and sleeping habits, and delusions of paralysis to the extent of lying in bed so long as to rub a bald spot on his head. The psychologist further described Staley’s history of spontaneously and repeatedly refusing medication, and testified that he would probably require compulsory medication for long-term control of his symptoms. He stated that good medical practice would involve medication to control his symptoms.

The other clinical psychologist also testified that Staley’s symptoms included “syntactical aphasia,” which is the nonsensical ordering of words as well as the regular use of fictitious language. He further testified that when Staley was medication compliant he showed no symptoms of decompensation, but he frequently refused medication because he denied his illness, believing it was an attempt to poison him. Based on all of the testimony, the trial court found Staley incompetent to be executed.

The following month, the State moved the trial court to order involuntary medication, arguing both the medical purpose of the medication and the State’s interest in enforcing the judgment. Staley opposed the motion arguing that the side effects of the medication were harmful, and that the medication only produced “artificial competence” and did not therefore meet the competency-to-be-executed standard under the federal or Texas constitutions or the Texas statute.

The trial court authorized the involuntary medication finding that (1) the State has a legitimate interest in enforcing the sentence that is not outweighed by the inmate’s interest in avoiding medication; (2) the medication is the least intrusive and only method of achieving competency; (3) compelling medication is in the inmate’s best medical interest because without it he will suffer “frightening delusions and general disorder within his mind” and there is no evidence he had suffered side effects from the medication; and (4) without medication he posed a danger to himself and others. Staley immediately appealed this decision to the Court of Criminal Appeals, but the Court found the involuntary medication order to be a non-appealable interlocutory order.

In 2012, the State filed a request with the trial court for a further competency examination. The court heard evidence from one of the clinical psychologists who had testified at the first hearing and another clinical psychologist, both of whom found Staley was now competent to be executed. They testified that although Staley was experiencing delusional thoughts, his symptoms were under control with about 60% compliance with Haldol and that he knew many of the details of the litigation and crime. He knew the names of the defense attorneys, prosecutors, and the victim, and that the death penalty was, in his words, to “retribute the public for a heinous crime.” He also understood the lethal injection process and described the death process as permanently going to sleep. Staley did not actually believe, however, that he would be executed because he thought his attorneys would obtain a stay. One expert testified that Staley met the competence-to-be-executed standard under the statute because he understood (1) that he was to be executed and his execution was imminent and (2) the reason for his execution. After hearing the evidence, the trial court found Staley competent to be executed, but only because of the effects of forced medication. Staley then appealed this decision to the Texas Court of Criminal Appeals arguing, among other things, that the trial court lacked authority to order his involuntary medication to restore him to competency to be executed.

On appeal, the Texas Appellate Court observed that a trial court derives its jurisdiction only from state law or the Texas Constitution, and once a conviction has been affirmed on appeal, general jurisdiction is not restored in the trial court. A trial court obtains jurisdiction post-conviction under a number of different Texas statutes, for example, to set an execution date, conduct DNA testing, or determine whether an inmate is competent to be executed. If an execution is stayed based on a determination that the inmate is incompetent, the trial court is required to order the inmate’s periodic re-evaluation by mental health experts to determine whether he is no longer incompetent to be executed. The Court held, however, that the statute does not convey the authority on the trial court to order involuntary medication to restore the inmate to competency to be executed. The Court rejected the State’s argument that the trial court had inherent or implied authority to order involuntary medication or that such a lack of authority would produce an absurd result in cases such as this.

By contrast, Texas statutes permit the involuntary medication of people who are involuntarily committed, or are incompetent and awaiting trial. The Court noted that in Texas this process involves an administrative hearing, not a judicial hearing, before a non-treating psychiatrist. Trial courts may also order a defendant to be forcibly medicated when under court order to receive inpatient mental health services or to be restored to competency to stand trial, but not to be executed.

Because the evidence demonstrated that Staley would have been incompetent to be executed but for the trial court’s involuntary medication order, the Court held that he did not meet the competency-to-be-executed definition under the Texas statute or the Texas or federal constitutions. The trial court’s unauthorized order was the sole cause of the transformation of evidence from supporting a finding of incompetence to one of competence. The Court therefore vacated the finding of competence and remanded the case to the trial court for periodic reexaminations of Staley’s competence to be executed.

Found in DMHL Volume 32 Issue 4