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finding the charge of illegal reentry without an apparent criminal history to not be a "serious crime" within the meaning of Sell as it is not a crime against the person or property
Summary of this case from United States v. Jaramillo-AyalaOpinion
Crim. No. EP-03-CR-2011(KC).
July 1, 2004
ORDER
Presently pending before this Court is the Government's request to order defendant involuntarily medicated for purposes of restoring his competency to stand trial. For the reasons set forth herein, the request is denied.
The issue of involuntary medication was raised not by Government motion but rather by A.F. Beeler, Warden of Federal Medical Center, Butner, North Carolina (FMC), in his letter dated June 1, 2004, and through the forensic evaluation attached thereto of Staff Psychologist Robert Cochrane.
I. BACKGROUND
On October 7, 2003, defendant was arrested. On November 5, 2003, a one-count indictment was filed charging defendant with illegal reentry into the United States in violation of 8 U.S.C. § 1326. On November 17, 2003, defendant moved, pursuant to 18 U.S.C. § 4241(a), for a mental examination. On February 2, 2004, the report of the examination was received and a hearing was held, after which defendant was ordered committed for a period of four months pursuant to 18 U.S.C. § 4241(d). On June 17, 2004, this Court, pursuant to 18 U.S.C. § 4241(d)(2), issued a second order providing for an additional period of commitment in light of the forensic evaluation of staff psychologist Robert Cochrane dated June 1, 2004. Mr. Cochrane noted in his evaluation that defendant refused anti-psychotic medication and, as such, little more could be done to treat defendant absent an order requiring involuntary medication. A hearing was therefore scheduled to determine whether defendant should be involuntarily medicated.
A hearing was scheduled, notwithstanding the administrative hearing procedure set forth in 28 C.F.R. § 549.43, as it is the position of the Bureau of Prisons that the decision of the United States Supreme Court in Sell v. United States, 539 U.S. 166 (2003), invalidated the administrative hearing procedure as to involuntary administration of medication when such medication is provided solely for purposes of restoring competency for trial. This position is fairly strained given the procedural posture of the case, i.e., the defendant in that case appealed from a district court hearing de novo rather than a § 549.43 appeal, as noted by the dissent in discussing the question of appellate jurisdiction, id. at 187-88 (Scalia, J., dissenting) ("[p]etitioner responded, not by appealing to the courts the § 549 .43 administrative determination, see 5 U.S.C. § 702, but by moving in the District Court overseeing his criminal prosecution for a hearing regarding the appropriateness of his medication"), thus references to "court" in the decision are likely indications only that a court in that case made the relevant findings rather than a broad procedural statement as to the administrative procedure. It is further noteworthy that the majority opinion is limited to (1) the substantive, as opposed to procedural, requirements for involuntary medication to restore competency and (2) the jurisdictional question of whether an involuntary medication order may be appealed. If the Court had intended to address a procedural due process question as to the appropriateness of existing procedures rather than a substantive due process standard, see, e.g., Mathews v. Eldridge, 424 U.S. 319, 335 (1976); United States v. Brandon, 158 F.3d 947, 952 (6th Cir. 1998), it is highly doubtful that such a procedural determination would be made by implication. In any event, Sell may fairly be read as sanctioning a district court's authority to conduct the present hearing. It is further noted that the Bureau of Prisons did conduct a hearing, but the product of such hearing was a recommendation rather than an order.
II. DISCUSSION
There is no dispute as to whether the present request involves the involuntary administration of medication to a non-dangerous defendant solely for purposes of restoring competency for trial. As such, the request squarely implicates the standard set forth by the Supreme Court in Sell v. United States, 539 U.S. 166 (2003).
In Sell, the Court concluded that the
Constitution permits the Government involuntarily to administer anti-psychotic drugs to a mentally ill defendant facing serious criminal charges in order to render that defendant competent to stand trial, but only if the treatment is medically appropriate, is substantially unlikely to have side effects that may undermine the fairness of the trial, and, taking account of less intrusive alternatives, is necessary significantly to further important governmental trial-related interests.Id. at 179. While the "standard . . . permit[s] involuntary administration of drugs solely for trial competence purposes in certain instances[,] . . . those instances may be rare." Id. at 180.
In applying the above standard, a court (1) "must find that important governmental interests are at stake," id. at 180, (2) "must conclude that involuntary medication will significantly further those concomitant state interests," id. at 181, (3) "must conclude that involuntary medication is necessary to further those interests[,] . . . [and that] any alternative, less intrusive treatments are unlikely to achieve substantially the same results," id., and (4) "must conclude that administration of the drugs is medically appropriate, i.e., in the patient's best medical interest in light of his medical condition," id.
Under the circumstances of the present case, there is no question that the proposed anti-psychotic medication is the only effective treatment for defendant's schizophrenia, and no alternative would restore defendant to competency. There further is no dispute that potential side effects from the administration of the proposed medication regimen would be minimal. Finally, in light of medical testimony that schizophrenia, if left untreated in a patient defendant's age, may result in permanent mental disorder, the administration of anti-psychotic medication would likely serve defendant's best interest.
The resolution of the present request turns on the first component of the Sell test, the identification of an important governmental interest. Barring identification of an important interest, the Government will fail the first three components, which focus on the presence of such an interest, and therefore may not involuntarily medicate a defendant. See id. at 180-81. There is no question that "[t]he Government's interest in bringing to trial an individual accused of a serious crime is important." Id. at 180. The interest is important whether the crime is "a serious crime against the person or a serious crime against property" the enforcement of which protects the basic human need for security. Id. The Government's interest in prosecution may be afforded less weight in light of special circumstances, such as lengthy terms of commitment that may result from failure to take medication voluntarily and impose restrictions on individual freedom or a period of confinement for which defendant would be given credit if convicted. Id.
As the Sell decision indicates that a "serious crime" implicates an important governmental interest, the relevant question becomes, in the course of a criminal prosecution, what constitutes a "serious crime." There is a dearth of authority on the question of whether a crime that does not present a serious risk of harm to life or property would constitute a serious crime. United v. Evans, 293 F. Supp.2d 668, 673 (W.D. Va. 2003). In Evans, the court relied on the standard for "serious" crimes set forth in Duncan v. Louisiana, 391 U.S. 145 (1968), which addressed that term in the context of a defendant's Sixth Amendment right to jury trial. The Supreme Court indicated in Duncan that "the penalty authorized for a particular crime is of major relevance in determining whether it is serious or not and may in itself, if severe enough, subject the trial to the mandates of the Sixth Amendment." Id. at 159. While noting that it "need not . . . settle in th[at] case the exact location of the line between petty offenses and serious crimes," id. at 161-62, it did conclude "that a crime punishable by two years in prison is . . . a serious crime and not a petty offense." Id. at 162.
Were this Court to apply the standard set forth in Duncan to the present offense under 8 U.S.C. § 1326, the maximum sentence available of ten years, id. § 1326(b)(1), (b)(3), or twenty years if deported for an aggravated felony, id. § 1326(b)(2), would clearly meet the standard for a serious offense. In fact, if this Court were to draw on later cases applicable to the jury trial requirement, a crime carrying a maximum sentence of more than six months could well be said to mark the delineation between a petty offense and a serious offense, see Baldwin v. New York, 399 U.S. 66, 69 (1970) (identifying crimes punishable by sentences of six-months as implicating a right to jury trial), or shorter terms under the appropriate circumstances, see Lewis v. United States, 518 U.S. 322, 326 (1996) ("[a]n offense carrying a maximum prison term of six months or less is presumed petty, unless the legislature has authorized additional statutory penalties so severe as to indicate that the legislature considered the offense serious"). While such a definition has the beauty of simplicity, it would miss the mark in the context of involuntary medication orders.
As an initial matter, it does not necessarily follow that a serious crime in the context of the analysis of a defendant's right to a jury trial translates to a serious crime for purposes of an analysis of defendant's right to refuse medication. The right to jury trial considers the worst-case scenario under a particular criminal statute in determining whether a court rather than a jury may enter judgment. As Duncan and its progeny reveal, the Supreme Court has liberally applied its standard to afford defendants jury trials for crimes potentially punishable by less than six months, thus establishing rights inuring to the benefit of defendants who would invoke that right. The standard for permitting involuntary medication, however, addresses circumstances in which the Government may effectively override a defendant's right to refuse medication, thereby effecting a governmental interest in prosecuting criminal violations. As such, a "serious" crime is defined relative to the interested party, in the case of jury trials the defendant, in the case of involuntary medication, the government. Given the divergent interest implicated in the two analyses, the definition likely is not interchangeable.
If the Court were to apply the definition used in the right to jury trial and set forth in Evans, the fact-specific nature of the test would preclude a bare reference to the maximum sentence provided by statute. As Duncan reflects pre-sentencing guide line jurisprudence, the more accurate reflection of the seriousness of an offense given the fact-specific analysis required by Sell would be the relevant guideline range, "particularly in light of Congress' instruction that sentences imposed under the sentencing guidelines reflect the seriousness of the offense." United States v. Langley, 919 F.2d 926, 932 (5th Cir. 1990) (internal quotation marks omitted). Given the argument in the present case, defendant would likely be assigned a sentence level of eight for illegal reentry, and under a criminal history category of one, would receive a sentence range from 0 to 6 months, a period already exceeded by his commitment and pre-trial custody.
Given the inapplicability of Duncan to issues of involuntary medication, and further given the Supreme Court's statement that instances in which involuntary medication will be available will be rare, this Court concludes that the Supreme Court defined the term "serious crime" through its reference to "a serious crime against the person or a serious crime against property," and that definition, in the context of the involuntary medication standard, is complete. Sell, 539 U.S. at 180. The charge of illegal reentry addresses neither crimes against the person nor crimes against property.
At the hearing, the Government argued that enforcement of violations in illegal reentry cases represents an important governmental interest given the anti-terrorist interests associated therewith. While there is no doubt an important interest in enacting laws permitting control of international borders, United States v. Brignoni-Ponce, 422 U.S. 873, 878-79 (1975), the present issue is one of criminal prosecution, not border control, and the fact-specific, case-by-case inquiry described in Sell precludes the consideration of the broader goals of immigration law. Nor is there any indication in the present case that defendant constitutes a terrorist threat. As was indicated at the hearing, the likely outcome of a dismissal of the present indictment would be the deportation of defendant, thereby effecting border control. While repeat illegal reentry offenders may certainly tax the justice system by adding cases to the criminal docket, such would not constitute a sufficiently important interest on a national scale to justify involuntary medication.
Assuming arguendo this Court could classify an illegal reentry charge as a serious crime, Sell then directs consideration of other circumstances that serve to decrease the importance of the governmental interest in prosecution, including lengthy terms of commitment that may result from failure to take medication voluntarily and a period of confinement for which defendant would be given credit if convicted. Id. As the testimony from the medical staff at FMC indicates that defendant is not a prospect for commitment and would rather be deported, such would not diminish the Government's interest in prosecution. In the present case, however, given the likely guideline range of 0 to 6 months for defendant in contrast to the 8 months pre-trial confinement, defendant would be released for time served. Prosecution for purposes of releasing defendant could not be considered an important interest. Moreover, as the Supreme Court noted in Sell, procedures resulting in a loss of liberty, such as a lengthy period of commitment, are relevant considerations. Defendant, were he to be released, faces administrative detention by the Department of Homeland Security and removal from the United States, both of which implicate significant liberty interests. As such, the Government cannot identify an important interest in defendant's prosecution as is necessary for involuntary medication and restoration to competency for purposes of trial.
FMC medical staff testified that the treatment regimen might take several months for restoration of competency. Adding to this the several months required for trial preparation due to defendant's absence and trial might not be expected to occur for another six months.
At the hearing, the Government alluded to the benefits derived from restoring defendant to competency, specifically an ability to locate defendant's family in Mexico and secure care for him once removed from the United States. While these goals are admirable, defendant's best interests, if treatment would in fact serve his best interests, are considered if and only if an important interest is identified justifying involuntary medication.
III. CONCLUSION
The request for an order directing the involuntary medication of defendant for purposes of restoring competency for trial is denied. As FMC Butner has indicated that no further progress can be made in restoring defendant's competency for trial absent medication, the order directing an additional period of commitment for defendant (Doc. No. 17) is hereby vacated. FMC Butner is directed to return defendant to this District as soon as is practical.
SO ORDERED.