October 2008, Page 32

Forced Medication After United States v. Sell: Fighting a Client's 'War on Drugs'
By Donna Lee Elm; Douglas Passon

Editor’s Note: Part One appeared in the May/June 2008 issue. In Sell, the Supreme Court held that the government must make a substantial showing before proceeding with forced medication of an incompetent defendant.

V. Burden of Proof in a Sell Hearing
The court in United States v. Sell did not specify the burden on the government, but most courts that have considered the issue have held that facts supporting the Sell factors must be found by clear and convincing evidence.1

Are Important Governmental Interests at Stake?
The first Sell factor is that the government’s interest in bringing to trial an individual accused of a “serious crime” is important. Serious crimes affect “the basic need for security,” and therefore generally refer to offenses against a person or property.2 The defendant will likely be in a better position to prevail on this issue where the underlying offense is a “vice” or “victimless” crime. Such crimes include drug usage, prostitution, or a “status” crime such as truancy and curfew for juveniles, and possibly drug addict in possession of firearms or illegal entry for aliens.3 Some courts, including the Tenth Circuit, have held that immigration crimes do not implicate “important governmental interests.”4 Similarly, courts have determined that possession of a firearm by the mentally ill (another status offense),5 threats,6 misdemeanors,7 and probation/parole/supervised release violations8 were not sufficiently “serious” to force medication.

The Ninth Circuit recently offered guidance on this issue in United States v. Hernandez-Vasquez, starting with the proposition that “courts must consider the facts of individual cases in evaluating the government’s interest in prosecution.9 The court reiterated that the length of sentence is one important factor to use in measuring the seriousness of the offense. However, while other circuits have considered the statutory maximum sentence as the appropriate measure of the crime’s severity, the Ninth Circuit determined that the applicable advisory sentencing guideline range is a more accurate measuring tool.10 The court also approved of the district court’s consideration of several other factors to assess seriousness, such as the defendant’s criminal history, the “predatory nature” of his prior offenses, and the close temporal proximity between prior and instant offenses.11

The Hernandez-Vasquez court also noted that “special circumstances” may lessen the importance of those governmental interests. Specifically, if lengthy civil commitment would last as long as the time the defendant would serve if convicted, then going to the trouble of trial makes little sense. Further, if the defendant already served his time, there is no point in continuing the case with expensive litigation and hospital placement.

Other Sell hearings have turned on “special circumstances.” Hence, when the defendant likely faces lengthy commitment anyway, the government’s interests in force medicating him are reduced.12 Thus, the government could not involuntarily medicate a schizophrenic who sent threatening e-mails to fellow students because he would be found dangerous and civilly committed for a long time.13

Moreover, when the defendant has already served whatever sentence he would likely receive, that weighs against a finding of “important governmental interests” at stake.14 Several federal courts have denied forced medication when the defendant had already done “time served.”15 Another practical issue, not mentioned in Sell (but in keeping with its policy), is a perfected insanity defense. Where the defendant is incompetent and insane, some courts have denied involuntary medication and proceeded immediately to insanity commitments.16 If a defense attorney pursues this route, he or she should ask for an opinion of insanity with the evaluation of competency.

If the defense has a strong case that the government has weak interests in prosecuting the client, consider raising this factor alone in a motion. Normally a matter of law, not fact, it can avoid extensive expert involvement and litigation.17 If this is not a winning motion, the defense can still proceed with the evidentiary hearing on the other three Sell factors.

VI. Are the Drugs ‘Substantially Likely’ to Restore Defendant?
The surest way for the government to win a Sell motion is to show that the defendant was medicated with the proposed drugs previously and recovered under that treatment. This readily establishes “substantial likelihood” of restoration. The defense should watch out, however, for government doctors who treat first generation antipsychotics like second generation; although they are the same class of drugs, they are not interchangeable. Similarly, not all antidepressants, mood stabilizers, anti-anxiety drugs, or tranquilizers work on the same principles. Knowing, or having an expert who can distinguish between how certain drugs work, is critical.18

If the client has never been administered a particular drug, then the prosecution’s experts must rely on another basis to predict whether it would work on him. Generally, the government’s experts simply stand on their professional opinions that the medicine will be effective. It is surprising how few doctors are familiar with the research to reference it when testifying. Would scientific studies undermine their positions? If government experts do not refer to scientific studies in their opinions, check the literature.

When pressed to offer something more than their personal beliefs, government doctors may rely on their program’s historical preferences, the “experience” of fellow doctors, or ethereal “general practice” rather than hard data or sound science. These are, as discussed in Part One of this article, some of the least reliable bases for formulating medical treatment. Also, in the federal system, the Bureau of Prisons (BOP) has tried to legitimize its institutional opinion by creating an internal “study” that can be cited. If you come across this kind of “study,” be suspicious: when produced by forensic doctors with “a dog in this fight” or “made by a party in anticipation of litigation,”19 it is of questionable validity. Demand their study in advance so your expert can prepare to challenge it.

How to Challenge the ‘Likelihood’ of Restorability
Lack of Medication History. Doctors will concede that they cannot be sure whether the defendant will respond to certain medications unless they have been tried on him before.20 Thus, if he has never taken the proposed drug, the government will be hard-pressed to meet its burden of proof.21 They will, instead, have to turn to less certain means of predicting the “substantially likelihood” their drug will work. Be wary of the prosecution’s attempt to shift its burden of proof onto the defendant. Doctors, faced with a patient with no history of using the proposed drug, sometimes suggest medicating him to see whether it will work. Though seemingly practical, that places the burden of drug effectiveness onto the defendant.

Unrestorability Rates. Restoration programs have their failure rates, as witnessed by both the “BOP Study” and “Butner Study,” discussed later in this article, where approximately one quarter of the treated patients persisted in incompetence. Government doctors will also concede that treatments with a proven track record (such as using antipsychotics for schizophrenia, lithium for bipolar disorders, and electroshock for severe depression) will not work for all patients. Drugs without an established restoration record, predictably, would have even higher failure rates. When a medicine has a significant failure rate, those odds alone may establish that it will not be “substantially likely” to restore the defendant.

Using Science. Ask whether scientific research supports using the drug proposed by the government to treat the defendant’s diagnosis. In addition, walk the government’s doctors through the Medical Model (See Figure 1), comparing etiology (cause) of this mental illness with psychopharmacology (how the drugs affect the brain) of the medication, to show that their medicine does not fix the problem.

The BOP Study. Doctors at the medical center for federal prisoners in Springfield, Missouri, have testified throughout the country that their “BOP Study” showed a 76 percent restoration rate with involuntary medication.22 This abominably bad science and misleading testimony must be challenged. First, this study is merely an anecdotal report. It is not even a review of cases, but only statistics — the scientifically least reliable basis for making medical decisions. Also, the study was limited in its breadth. It was not a Bureau of Prisons-wide study, but arose only from Springfield. Additionally, it spanned just one year. Furthermore, although touted as a study of 285 patients, it turned out that only 20 percent of that number refused medication, so the relevant number for Sell was only 59.

The study’s second but most serious deficit is that no one has ever seen it. It was not published, subjected to peer review, or verified. Discovery requests are met with denials of having it; some doctors hypothesized that it was never actually put down on paper. They therefore rely on it as a matter of faith. After doggedly prodding Springfield for months, their doctors finally disclosed (on the day of the Sell hearing) the only known documentary evidence of the study’s existence, a mere summary sheet of their statistical conclusions. (See Figure 2.) The chief of psychiatry at Springfield testified that he had never before disclosed this to an opposing party in Sell litigation.23 When the defense team asked to review the cases they included (to verify their statistics), Springfield refused. There may, thus, also be room to challenge it with a Daubert or Frye hearing,24 as it represents the worst kind of “junk science.”

The third problem is that, because Springfield doctors did not break the statistics down by diagnosis, the study cannot be applied to a given case. Springfield conceded that they kept no record of the diagnoses or drugs used.25 When asked if the study included any delusional disorders (this is what Dr. Sell had), they admitted probably not, as that diagnosis is rare. Nevertheless, the government included the BOP Study in its Supreme Court brief when seeking to force antipsychotics on Dr. Sell.

Fourth, it matters how the doctors measure whether their treatment works. The BOP Study’s statistics are based on their doctors’ opinions that their treatment worked, not on a judge’s finding that in fact the defendant had been restored. It should be disregarded because it is not an objective tally.

Fifth, because it was prepared by a party “in anticipation of litigation,” the BOP Study is suspect. The year comprising the BOP Study was the year that Sell was going to the Supreme Court. It was thrown together to offer the Supreme Court a statistical basis to force antipsychotics on Dr. Sell. Indeed, the United States had the gall to refer to and rely upon it in their Supreme Court appellee brief, despite the fact that it had not been in the record below.26 Their statistics should never be used to suggest that antipsychotics should be administered against an unwilling defendant.

The Butner Study. In 2007, Butner (the other major federal medical center) published its “study” of the success it had in restoring delusional defendants with antipsychtoics.27 Remarkably, these BOP doctors arrived at an almost identical statistic as their Springfield counterparts, 77 percent. Like the BOP Study, it was just another anecdotal report, but one with a very small sample (22). Indeed, one subject was described as “hallucinating,” which raises the specter of erroneous diagnoses as delusionals do not suffer hallucinations. Moreover, without a control group, the question remains whether the 17 who improved did so due to drugs, the positive therapeutic relationships Butner fosters, or because the disorder simply improved on its own. Incidentally, a delusional disorder’s normal course is to improve over time without drugs, as confirmed in a Norwegian controlled study.28 Because the “Butner Study” is far too limited, lacks consistent standards, and has no controls, even the Food and Drug Administration (FDA) would never rely on it to approve using antipsychotics for people with delusional disorder.

Equivocal Opinions. Knowing that their practice is not precise, psychiatrists are trained to recognize their limitations, and consequently couch prognoses in equivocal terms. Defense attorneys should watch, therefore, for phrasings denoting uncertainty. In one case, doctors (correctly) reported during the competency evaluation of a defendant with delusional disorder that “antipsychotic medication rarely eliminates delusional thinking in individuals with this disorder.” In the government’s subsequent report seeking forced medication, it said: “There are reasons to be optimistic that there is a substantial probability that his condition will improve so that he can be restored to competency.” Such loose language may give a judge pause when deciding the “substantially likely to restore” Sell factor.

‘Experimental’ Treatment. When doctors want to try a drug just to see if it works, the term for that is “experimenting.” The FDA uses the same verbiage for administering drugs not approved for a particular illness, i.e., “experimental” use. Indeed, the Ninth Circuit recognized that when the doctor did not know whether medicine he was recommending would be effective, he “planned on experimenting with several different drugs.”29

Exacerbating Paranoia. For paranoid defendants, another “unintended consequence” of seeking to force medicate is the undisputable fact that the government is indeed trying to control them and do things to them against their will. This may confirm their worst fears, and drive them deeper into their delusions. The defense attorney should consider informing the court about the harrowing details of how the hospital will forcefully inject the unwilling and usually terrified client,30 explaining that this exacerbates, rather than relieves, his paranoia. Even the threat of involuntary medication can exacerbate the client’s condition.31

VII. Drugs Interfering With Defendant’s Trial
How will the government prove drugs will not interfere with defendant’s trial? This is the Riggins issue that was reinvigorated by Sell. Bear in mind that it is the government’s burden to prove non-interference; the defense does not have to prove interference. As Justice Kennedy warned, “Elementary protections against state intrusion require the state in every case to make a showing 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 assist his counsel.”32 It concerns how drugs affect his participation and how he presents at trial, as well as how he interacts with counsel in defending himself.33

The government typically offers a doctor’s testimony declaring that the medication will not pose a problem at trial, assuring that they monitor it to avoid sedation. Other side effects with an impact on trial presentation, such as repetitive movements, withdrawal, and flat emotional response, are played down as “nuisance side effects,” controlled with side-effect medication.

Showing Drugs Will Interfere With Trial
The defense expert is the best source of information about likely side effects and how they can impact the client. In addition, Justice Kennedy, in his Riggins concurrence, detailed many side effects that must be controlled in order to preserve the defendant’s constitutional rights at trial.34 The Association of American Physicians & Surgeons filed an amicus brief in Sell that also enumerates a number of concrete symptoms that may plague a medicated client.35

Effects. Bear in mind that sedation is not a side effect, but an intended effect of many psychiatric medications including antipsychotics, tranquilizers, and anti-anxiety medication. When cross-examined on side effects, their experts may therefore omit that major issue.

Side Effects. As discussed in Part One of this article, if government doctors claim that they would prescribe side-effect medication, confront them with the serious side effects that those drugs can have.

VIII. Trying Other Alternatives
How will the government prove no other alternatives would work? Relying on their expertise, restoration doctors will simply opine that no less intrusive treatments work. When confronted about alternatives that they did not try, they may fall back on limitations inherent to their programs, claiming they cannot try them due to security, funding, lack of trained staff, or setting (in-custody) reasons. They may also inject political (not medical) opinions about “coddling” defendants.

The defense team can establish that other less intrusive alternatives should be tried. There are literally hundreds of alternative treatments, and the defense expert can recommend some that might benefit the client. That information can be used to impeach a government doctor’s opinions with viable options that were never tried. Furthermore, the defense team should ensure that the alternatives proposed are in fact supported by the literature and science, so that their efficacy can be proven.

Offering Viable Alternatives. The fact that a restoration program is unable to accommodate alternative treatment does not relieve the government of its burden. Sell does not limit alternatives to those already used in prison. If a treatment plan cannot be tried within the confines of incarceration, develop a reasonable out-patient plan with a doctor, and have him testify at the Sell hearing. Some courts have already established out-patient restoration programs.36

Furthermore, existing restoration programs should be challenged to develop effective interventions short of unwanted drugs. Dr. Robert Cloninger, the defense expert in Sell, proposed a non-medication program for delusional disorders (the one he used to restore Dr. Sell) for Springfield; it involved trusting therapeutic relationships, less confrontation of delusions, and stress reduction plus relaxation (allowing the defendant to reassess his beliefs himself).37

Budgetary issues may prevent restoration programs from offering alternatives. When this argument is raised, suggest that the court order the government to pay for it. Due Process, after all, is not qualified as “Due Process on the cheap.” Governments face financial decisions on costs of prosecution every day, and if the defendant needs prohibitively expensive treatment, they should withdraw their Sell motion and proceed with civil commitment.

Failure of Inappropriate Alternatives. When a restoration facility has attempted other options, consider whether these options could realistically be effective. For instance, when a defendant who is perfectly knowledgeable about rights, trials, and players’ roles is placed in a competency education class, we would not expect him to improve. Further, when a delusional person (which, by definition, is impervious to confrontation)38 is confronted with reality in cognitive-behavioral therapy, he will not abandon his delusions. Likewise, a brain-damaged, concrete thinker may gain little from intellectually challenging, insight-oriented rational emotive therapy. Thus, the government’s doctors might claim they tried alternatives that were doomed from inception. Challenge them to try alternatives having a reasonable chance to work with the mental illness involved in the case.

IX. Are the Drugs Medically Appropriate?
The government’s doctors — in order to prove the drugs are medically appropriate — will testify that the proposed medication is in the defendant’s best medical interests. Where there is reliable scientific evidence supporting that, they will refer the court to those studies as well.

Defendant’s Best Medical Interests
How can the defense attorney establish that the drugs are not in the client’s best medical interests? If the FDA or drug manufacturer does not endorse using a certain medication for the client’s mental illness, that is potent evidence that forcing it on him is not “medically appropriate.” Similarly, if the literature does not support it, or clinical textbooks do not recommend it, then it may not be medically appropriate.

Hopelessness Aversion. Sometimes, doctors want to try unproven drugs because they have no other way to restore a defendant. That is normal in clinical practice, and they may fall back on it to avoid a situation that they perceive otherwise as “hopeless.” Those pragmatic concerns are not, however, among the Sell factors. In Sherman, although it was in the defendant’s best interests to take the drugs, in light of undisputed facts under Sell, the judge could not order it.39 In Schloming, the schizophrenic defendant had gotten high marks during his studies at MIT, and had worked for the Federal Reserve until he went off medication and became psychotic. The Schloming court refused involuntary medication, reasoning:


Consensus regarding … what is necessary to lessen his affliction has been reached. Objectively, the administration of antipsychotic medication is in the defendant’s best interest. ... Subjectively, the answer is obfuscated by the defendant’s own wishes. ... The question of whether the medication of an individual who does not wish to be medicated is a tortured one. This court has laid witness to the ravages of the defendant’s diseased mind. It is saddening to know what he was, what he has become, and what he could be if he agreed to take the medication. It is, however, equally saddening to envision him being forcibly medicated and potentially suffer significant side effects from said medication. ... Therein lies the conundrum.40


Side Effects. Even when medication clearly works, it may not be in the defendant’s best medical interests. Some side effects call into question the medical appropriateness of a given drug. Bear in mind that antipsychotics are known to produce extremely serious conditions that can be fatal or leave permanent repetitive movements disorders such as tardive dyskinesia. Moreover, second generation antipsychotics can inflict diabetes on users. If a client is overweight, has existing metabolic conditions, or has a family history of diabetes, then certain drugs may not be “medically appropriate” for him. These serious medical issues need to be given great weight when medical treatment is undertaken involuntarily.

Monitoring. The many serious side effects of psychiatric drugs need constant monitoring. Restoration doctors, often in hospital or clinical settings, assure vigilant monitoring for side effects. Most restoration programs, however, return the defendant to jail upon competency, and diligent monitoring is lost. Use of these dangerous and risky drugs may be medically appropriate when the side effects can be monitored, but not medically appropriate when that monitoring cannot be assured.

Efficacy Stops at Hospital Door. Government doctors routinely consider their job done when they declare the defendant competent. Hence, their opinions of restorability actually refer to competency while at their facility, not after the defendant leaves for trial elsewhere, typically under different medical providers and conditions of confinement. The inquiry whether treatment is “medically appropriate,” however, should depend upon whether such treatment will render the defendant competent for trial — not just when leaving restoration.

It falls to the government to prove that the defendant would remain competent through trial; however, prosecutors seldom produce evidence showing how competency will be maintained once the defendant returns to jail. There are many instances where specific drugs have restored defendants, but jail doctors prescribe a cheaper or more readily available alternative (or worse yet, nothing at all), so the defendants decompensate. Moreover, most jails do not monitor whether inmates take prescribed drugs. As a result, there is no way to show that the treatment will be medically appropriate to restore the defendant for trial when compliance cannot be maintained. Demand that the government prove a continuum of treatment. If those drugs cannot be maintained once the defendant leaves, they may not be “medically appropriate.”

Forced Medication Procedure. How patients are medicated against their will is kept hush-hush, and government experts seldom volunteer this information. When asked in a recent hearing how doctors forcefully administer drugs, the doctor resolutely answered that they would offer the medicine in pill form and only proceed forcefully if the patient refused. It sounded quite civilized, but avoided ugly realities. The defense attorney should aggressively cross-examine the opposing experts until they reveal details of how they forcefully administer drugs to an unwilling inmate.

Forced medication procedures are aggressive, frightening, and intimidating. Educate the judge about what the defendant will face while discussing whether forced drugs are medically appropriate.

After the court issues its forced medication order, the institution will inform the defendant, and give him a final chance to voluntarily comply. Before a physical confrontation, the institution may employ more nefarious methods of coercion, such as depriving him of privileges and placing him in more restrictive confinement (i.e., segregation) until he realizes that his conditions will only improve through compliance.41 If these methods do not secure his acquiescence, the institution will undoubtedly resort to sheer physical force. This is extremely unpleasant, involving a cell extraction team in full riot gear, maximum restraints, forced injection of drugs, and prolonged restrictive confinement to follow.42

It should also be noted that, at least in the federal system, the Bureau has a policy of videotaping all forced medication procedures.43 Moreover, although most jails are exempt from licensing for involuntary treatment, they usually have standardized protocols to which they should adhere in force medicating a defendant.44

The defense should pursue disclosure of such videotapes and policy/procedure statements as evidence in the Sell hearing concerning whether the treatment will be medically appropriate. In Dr. Sell’s case, for example, the defense psychiatrist opined that the physical abuse inflicted upon him by prison staff (some of which had been captured on videotape) actually exacerbated his incompetence.

Punitive Coercion. When the defendant is paranoid about government conspiracies against him, forced medication may be medically inappropriate. It is so terrifying that a defendant may fake being symptom-free just to stop it. It is furthermore designed to coerce a defendant to “voluntarily” take the drugs; some doctors tell refusing defendants that they cannot leave until they take the medicine!45 Further, other coercive techniques “encourage” voluntary acceptance of medication. After hearing about coercive, manipulative practices, the judge in a recent Sell hearing contemplated prohibiting the hospital from punitive measures such as secluding or restricting the defendant.

X. Winning and Losing The Sell Hearing
How should an attorney preserve defense evidence if he or she loses the Sell hearing? The attorney may want to show the jury how the client acts without medication, especially if pursuing an insanity defense. It will be important to document the client’s condition before he is medicated. Upon losing a Sell hearing, consider immediately seeking a court order allowing the client to be videotaped before he is medicated. Lawyers such as George Parnham (defending Andrea Yates) preserved evidence of the defendants’ condition before medication, and used that effectively at trial.46 Should the drugs negatively alter your client’s appearance and presentation, you may also want “before and after” tapes to play in a motion to reconsider the Sell ruling.

Can the defense appeal an adverse Sell ruling? Courts consider Sell rulings “final judgments” or “dispositive claims” subject to immediate appeal, usually interlocutory appeal.47 Seek a stay of treatment while appealing the order. The Second Circuit parsed the standards of review between questions of law and fact; whether there were “important government interests” was a legal issue, while the three other Sell factors were matters of fact.48 The Tenth Circuit agreed, but also treated the question whether involuntary medication was “necessary” to further those interests as one of law.49 Questions of law would be given de novo review.

The defense team should revisit Sell if the client experiences side effects that compromise his communication with counsel, his ability to think about his case, or his presentation before a jury. Similarly, if the client fails to improve, ask the court to withdraw its order; there is no point in risking side effects when the drugs do not work. Consider asking for an independent medical examination or use the defense expert to support this inquiry. In addition, restoration must be accomplished within a reasonable amount of time.50 If the treatment exceeds that time frame, demand that it be stopped immediately.

What if the defense team wins the Sell hearing? Congratulations! In most jurisdictions, the next step will be to try to civilly commit the client. Federal courts require an evaluation and hearing as to the defendant’s dangerousness before proceeding with civil commitment.51 Some prosecution offices will promptly dismiss charges once the defendant is committed, but in serious or high-profile cases, they may leave the criminal case intact in case the defendant is released from his civil commitment.

Data Regarding 4241(d) Study Cases

Please note that the following data reflects the Bureau’s experience with 4241(d) study cases for the last 12 months.
  • 285 patients were committed to the Bureau for restoration of competency pursuant to 18 U.S.C. § 4241(d).
  • Of these, 59 (20.7 percent) were involuntarily medicated at least once following an administrative due process hearing.
  • Of the 285 committed patients, 43 (15.1 percent) were not restored to competency. This included an unknown number of patients who suffered from conditions such as dementia and mental retardation of such a severity that they were not competent.
  • Of those that required involuntary medication (59), 14 (23.7 percent) were not restored to competence.
  • There was a total of 15 patients (5 percent of the 4241(d) cases, and 34.8 percent of the cases that were not restored to competence) who were not restorable and were thereafter committed as mentally ill and dangerous pursuant to 18 U.S.C. § 4246. This group of 15 includes patients that accepted treatment voluntarily. Two additional patients were accepted back to their states for placement and thus, did not have to have a 46 hearing.
  • The outcome of the legal proceedings for those defendants returned to the courts after being found competent is not known.
  • It should be noted that since these data are not gathered prospectively, there may be some errors in these numbers. That said, our experience is little different from what is seen in the literature. The great majority of incompetent defendants can be restored to competency with treatment, whether or not they accepted treatment or were involuntarily treated.


Notes
1. United States v. Gomes, 387 F.3d 157, 160 (2d Cir. 2004), cert. denied, 125 S. Ct. 1095 (2005) (government bears the burden of proving all questions of fact by clear and convincing evidence); United States v. Bradley, 417 F.3d 1107 at 1114; United States v. Brandon, 158 F.3d 947, 961 (6th Cir.1998) (stating that, in deciding whether to forcibly medicate an incompetent, non-dangerous pretrial detainee, the government must prove its case by clear and convincing evidence); but see United States v. Ghane, 392 F.3d 317, 319 (8th Cir. 2004) (expressly declining to decide whether clear and convincing is appropriate standard because government could not even satisfy its burden by a preponderance of evidence).
2. United States v. Sell, 539 U.S. 166, 180 (2003).
3. But see United States v. Hernandez-Vasquez, 513 F.3d 908, 919 (9th Cir. 2008) (finding that at least under some circumstances, a violation of § 1326 [illegal re-entry] may constitute a “serious” crime sufficient to justify involuntary medication under Sell).
As a practical matter, the federal Bureau of Prisons has a policy to deport, rather than seek civil commitment, of incompetent defendants charged with immigration offenses who cannot be restored to competency. In United States v. Rivera-Guerrero, No. 03MG2294-POR (D.S. Ca. Feb.19, 2004) (“Rivera-Guerrero I”), Dr. Mrad testified that “typically our institution‘s position has been that the defendants who are charged with illegal entry and are facing potential deportation, we don’t typically go to our local court and pursue 4246 [civil commitment if incompetent, unrestorable, and dangerous, as prescribed by 18 U.S.C. § 4246] commitment. ... They are instead turned over to the INS for deportation.” Transcript in Status/Sell Hearing at 7, in Rivera-Guerreo I.
4. United States v. Valenzuela-Puentes, 479 F.3d 1220 (10th Cir. 2007).
5. United States v. Dumeny, 295 F. Supp. 2d 131 (D. Me. 2004). But in United States v. Moore, 132 Fed. Appx. 429, 430 (4th Cir. 2005) (unpublished), the Fourth Circuit upheld involuntary medication on this offense.
6. In United States v. Brandon, 158 F.3d 957 (6th Cir. 1999), sending a threatening letter through the mail was not sufficiently serious to warrant forced medication. In United States v. Schloming, 2006 WL 1320078 (D.N.J. 2006) (unpublished), threatening e-mails were sent from a fellow student who was schizophrenic. The court denied the Sell motion because he had already served most of his sentence, plus he would have to go through the 18 U.S.C. § 4246 civil commitment procedure before they released him, and he likely would be civilly committed.
7. In United States v. Kourey, 276 F. Supp. 2d 580 (S.D.W.Va. 2003), the court denied a Sell motion for a parole violation on a misdemeanor case.
8. Sell has been applied to render a defendant competent to go forward with supervised release (parole) violations. See Kourey and United States v. Morris, 2005 WL 348306 (D. Del. 2005) (unpublished).
9. United States v. Hernandez-Vasquez, 513 F.3d 908, 917-18 (9th Cir. 2008).
10. Id. at 919.
11. Id.
12. Sell, 539 U.S. at 180.
13. United States v. Schloming, 2006 WL 1320078 (D.N.J. May 12, 2006) (unpublished).
14. Sell, 539 U.S. at 180.
15. United States v. Rodman, 446 F. Supp. 2d 487 (D.S.C. 2006); see also Schloming (defendant had already served most of his sentence).
16. United States v. Sherman, 2006 WL 1127006 (D. Ariz. 2006) (unpublished), turned on the fact that the defendant was undisputedly insane, so there was no compelling governmental interest in going forward. In Rodman, the court denied the motion to force medication because the Sell report also included an opinion as to insanity and found him insane at the time of the crime. In United States v. Morrison, 415 F.3d 1180, 1184 (10th Cir. 2005), the defense successfully raised the issue of having an insanity defense (supported by their expert as well as the government’s doctors) as grounds to find no important government interests at stake.
17. See Hernandez-Vasquez, 513 F.3d at 915-16 (9th Cir. 2008).
18. Read the discussion regarding experts in Part One of this article. The Champion, May/June 2008, at 30.
19. Palmer v. Hoffman, 318 U.S. 109 (1943); Bennett v. Chertoff, 425 F.3d 999, 1003 (C.A.D.C.), aff’d, 425 F.3d 999 (2005).
20. For example, in Rivera-Guerrero II, 426 F.3d 1130, 1135 (9th Cir. 2005), Springfield’s chief psychiatrist, Dr. Robert Sarrazin, testified “that these medications would be very helpful in ‘the treatment of [the defendant’s] underlying mental illness and his delusions,’ it would only be after the drug had already been administered and its effects known ‘that [Springfield] would be able to tell more about his competency.’” In addition in Ghane, Butner’s Dr. Lucking testified: “It is difficult to predict who will respond and who will not respond [to antipsychotics]. The only way you can do that is to give that individual a trial of the medication.” Transcript of Competency Hearing at 68, Ghane.
21. In his testimony in the Ghane competency hearing, Dr. Lucking was asked (given his testimony that there was no way to predict whether drugs would work on Ghane) if it was therefore not “substantially likely” that Ghane would respond? Dr. Lucking hedged, testifying simply that he could not tell. Id. at 69. Given the government’s burden to prove it, nonetheless, that should have ended the whole Sell question.
22. For example, Springfield’s Drs. Sarrazin and Preston testified that “treating defendant with antipsychotic medication, whether voluntary or involuntary, would be substantially likely to render defendant competent to stand trial (citing a Bureau of Prisons 76 percent success rate).” United States v. Milliken (“Milliken II”), 2006 WL 2945957 at *4 (M.D. Fla. 2006) (unpublished). Moreover, Dr. Sarrazin testified that “according to a Bureau of Prisons study, ‘about 76 percent or so [of the patients] that were involuntarily medicated were restored to competency.’ He could not say that he had enjoyed this kind of success rate with his own patients or, more important, with any of the drugs that he proposed.” Rivera-Guererro II, 426 F.3d at 1135.
In addition, Dr. Sarrazin testified that “over a ‘period of time’ approximately between 75 and 80 percent of involuntarily medicated patients achieve competency, a result he described as ‘very good.’” Dallas, 461 F.Supp.2d at 1095. Furthermore, Drs. Mrad and Sarrazin testified: “The experience of the Bureau of Prisons in treating defendants with psychotic disorders similar to Gomes’ is at least a 70 percent rate of success in restoring defendants to competence when they are treated with these medications, even when treated involuntarily.” United States v. Gomes, 305 F.Supp.2d 158, 165 (D. Conn. 2004). Further, Dr. DeMier testified: “It is the experience of the clinicians at this facility that more than 80 percent of defendants committed for competency restoration treatment are later deemed competent by the trier of fact.” Bradley, 417 F.3d at 1115.
Recently, Drs. Pietz and Sarrazin testified, citing all the “Study’s” statistics to conclude that “the Bureau has approximately a 70 percent success rate in restoring involuntarily medicated defendants to competency.” United States v. Grape, 509 F.Supp.2d 484, 2007 WL 2617178 at *4 (W.D. Pa. 2007). The Grape court relied on that to order forced medication. Id. at *12. Also, Drs. Preston and Sarrazin testified that “the literature in the area indicates that with anti-psychotic medication, incompetent defendants are successfully restored to competency about 75 to 80 percent of the time. About 75 to 80 percent of 4241(d) patients have been successfully restored to competency with medication within the Federal Bureau of Prisons system.” United States v. Thrasher, 503 F.Supp.2d 1233, (W.D. Mo. 2007).
23. Transcript of Sell Hearing at 62, United States v. Curran, No. CR-06-227-PHX-EHC (D. Ariz. Jan. 24, 2007).
24. Frye v. United States, 293 F. 1013 (D.C. Cir. 1923); Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).
25. This claim may be disingenuous. When it supported their position, Springfield doctors somehow knew that those 59 included persons diagnosed with brain damage, dementia, and retardation, conditions not usually amenable to medication.
26. Their brief described the study:

The experience of the Bureau of Prisons is that antipsychotic medication is highly effective in restoring competency. Over a recent 12-month period, the Bureau evaluated and treated 285 patients who were deemed under 18 U.S.C.
§ 4241(d) to be incompetent to stand trial. Of the 226 persons who voluntarily accepted treatment, which in almost all instances included medication, 197 or 87.2 percent were restored to competency. Of the 59 persons who were involuntarily medicated following an administrative hearing under the Bureau’s regulations, 45 or 76.3 percent were restored to competency.

Appellee’s Brief at *27-28, Sell (2003 WL 193645).
27. B.L. Herbal & H. Stelmach, Involuntary Medication Treatment of Competency Restoration of 22 Defendants with Delusional Disorder, 35 J. Amer. Acad. Psychiatry & Law 47-59 (2007).
28. S. Opjordsmoen & N. Retterstol, Outcome in Delusional Disorder in Different Periods of Time, 26 Psychopathology 90-94 (1993).
29. Rivera-Guererro II, 426 F.3d at 1134-35 (emphasis supplied).
30. See the discussion of the forced medication procedure on page 37 of this article.
31. This is where a client’s day-to-day medical records from the facility may be valuable as well. It is not unusual for a paranoid individual to react negatively to the prospect of involuntary medication. Consequently, you may be able to show from his progress notes and counseling sessions that your client’s mental condition was stable when at the facility before being threatened with forced medication, and it degenerated after the staff made it known that they were going to try to use force against him. This can present solid evidence that forced medication worsens a paranoid defendant.
32. Riggins, 504 U.S. at 141 (Kennedy, J., concurring).
33. Id., 504 U.S. at 142-44.
34. Id., 504 U.S. at 141-45.
35. Brief of amici curiae the Association of American Physicians and Surgeons, Inc. and Eagle Forum Education and Defense Fund in Support of Petitioner (Oct. 4, 2002), Sell (2002 WL 32135468).
36. For instance, Maricopa County Superior Court in Phoenix has long had out-patient restoration options.
37. In one case, the trial judge was intrigued by Dr. Cloninger’s testimony about alternative treatment, and how Dr. Sell had recovered under it. The judge later asked the parties to brief certain issues, including details of how Dr. Cloninger’s proposed treatment could be put into place at Springfield. In a hearing memorandum, the defense outlined his plan, including his offer to set the program up in Springfield at a substantially reduced fee. Springfield declined the offer.
38. Avoiding direct confrontation of the delusional symptoms enhances the possibility of treatment compliance and response. L.J. Fochtmann, Treatment of Other Psychotic Disorders, in Kaplan & Saddock’s Comprehensive Textbook of Psychiatry, 8th ed. at 1545-50 (2005); S.P. Silva, et al., To Believe or Not to Believe: Cognitive and Psychodynamic Approaches to Delusional Disorder, 11 Harv. Rev. Psychiat. 20-29 (2003). Theo Manschreck stated that insight-oriented psychotherapy is in fact counter-indicated for delusional disorders. T.C. Manschreck, Delusional and Shared Psychotic Disorder, in Kaplan & Saddock’s Comprehensive Textbook of Psychiatry, 7th ed. at 1243-63 (2000).
39. United States v. Sherman, 2006 WL 1127006 at *4. The Court stated that, “While there is no question it would likely be in the defendant’s best interest to have a regimen of prescribed psychiatric treatment given the consistent record of his mental disease or defect, the Court is without authority to order involuntary medication of defendant” in light of the Sell decision.
40. See Schloming.
41. Dr. Sell leveled very serious allegations of abuse against BOP employees, believing his treating clinicians employed such tactics in an effort to force him into complying with their proposed medication regime. See The Champion, May/June 2008, at 32 n.2.
42. For a detailed description of what could happen if the defendant continues to refuse a forced medication order, see United States v. Timmins, 2005 WL 1231456 at *4 (D. Or. 2005)(unpublished).
43. Id. at *4.
44. For example, the National Commission on Correctional Healthcare sets standards for health care provision in correctional settings. The American Correctional Association and National Institute of Corrections (an agency within the federal Bureau of Prisons) should have protocols in place as well for forced medication.
45. If that happened during an interrogation, it would be considered undue police coercion violating Due Process rights. E.g., Edwards v. Arizona, 451 U.S. 477, 478-79 (1981) (telling defendant he “had to” talk to police while being held in an interrogation cell); Christopher v. Florida, 824 F.2d 836, 840-41 (11th Cir.1987), cert. denied, 484 U.S. 1077 (1988) (failure to honor request to stop questioning was a Miranda violation); People v. Avila, 2002 WL 853554 (Cal. App. 2002) (unpublished, telling suspect he cannot leave rendered his initial custodial interrogation unconstitutional).
46. See also 18 U.S.C. § 4247(f) (allowing for a “videotape record” of “defendant’s testimony or interview” that forms the basis of “periodic reports” that must be submitted by the director of the facility).
47. Rivera-Guerrero I, 377 F.3d at 1068.
48. Gomes, 387 F.3d at 160.
49. Bradley, 415 F.3d at 1113.
50. For example, 18 U.S.C. § 4241 calls for four months to restore an incompetent defendant, though for practical purposes, that period can be extended. Most rules and statutes dealing with it specify time restrictions. See State v. Barker, 2005 WL 187392 (Ohio App. 2005) (unpublished).
51. See 18 U.S.C. § 424(d)6.


National Association of Criminal Defense Lawyers (NACDL)
1660 L St., NW, 12th Floor, Washington, DC 20036
(202) 872-8600 • Fax (202) 872-8690 • assist@nacdl.org