United States District Court, E.D. Virginia, Norfolk Division
MEMORANDUM OPINION AND ORDER
Raymond A. Jackson, United States District Judge.
the Court is the Government's Motion to Involuntarily
Medicate Defendant Brown To Restore His Competency to Stand
Trial ("Sell Motion"). ECF No. 100. The Court held
a hearing and considered the parties' filings on the
matter. The Government's Sell Motion is GRANTED with
respect to Option 2A of the Individualized Treatment Plan,
but DENIED with respect to Option 1 and Option 2B of the
Individualized Treatment Plan.
FACTUAL AND PROCEDURAL HISTORY
Brian Brown ("Defendant") is charged with Count 1,
Kidnapping Resulting in Death, in violation of 18 U.S.C.
§ 1201(a)(1) and (2); Count 2, Assault with Intent to
Commit Aggravated Sexual Abuse and Sexual Abuse, in violation
of 18 U.S.C. § 113(a)(1); Count 3, Assault with Intent
to Commit a Felony, in violation of 18 U.S.C. 113(a)(2);
Count 4, Assault Resulting in Serious Bodily Injury, in
violation of 18 U.S.C. § 113(a)(6); Count 5, Theft of
Personal Property, in violation of 18 U.S.C. § 661; and
Count 6, Stalking, in violation of 18 U.S.C. § 2261
A(1). ECF No. 104. On December 15, 2017, the Court ordered an
examination of Defendant to determine his competency to stand
trial pursuant to 18 U.S.C. § 4241(a) and Fed. R. Crim.
P. 12.2(c)(1)(A). ECF No. 17. On January 23, 2018, the Court
received the forensic report on the Defendant, which informed
the Court's determination that Defendant was incompetent
to stand trial. ECF Nos. 20, 24. Since that time, Defendant
has been committed to the custody of the Attorney General in
FMC Burner in an attempt to restore his competency to stand
trial. Since his admission into FMC Burner, Defendant has
consistently refused all voluntary treatment and the oral
administration of antipsychotic medication.
22, 2018, the Court affirmed the Bureau of Prison's
("BOP") administrative determination to forcibly
medicate Defendant pursuant to Washington v. Harper,
494 U.S. 210 (1990). ECF No. 45. Since his Harper
hearing, Defendant has been treated under the Harper Factors.
His treatment consists of the involuntarily medication of
haloperidol, an antipsychotic that is administered via
injection and mitigates the symptoms of Defendant's
schizophrenia and catatonia enough to place him in partial
remission and limit the acute risk he will harm himself or
others. See ECF No. 94. This treatment with a single
antipsychotic drug is considered a form of monotherapy.
However, Defendant still suffers residual symptoms that
continue to interfere with his competency to stand trial.
11, 2019, FMC Butner issued a report on the Defendant's
status, indicating its recommendation that Defendant be
further involuntarily medicated pursuant to Sell v.
United States, 539 U.S. 166 (2003) for the purpose of
restoring his competence to stand trial. Id. On
August 6, 2019, the Court issued an order directing that FMC
Butner prepare a Sell Appendix Report. ECF No. 98.
September 4, 2019, FMC Butner issued its Individualized
Treatment Plan for Defendant in accordance with the
Court's order. ECF No. 117. The Individualized Treatment
Plan contains the following conclusions: (1) Defendant
suffers from schizophrenia, which is currently in partial
remission; (2) Defendant's symptoms of acute danger and
grave disability have been treated with haloperidol following
his Harper hearing; and (3) Defendant requires
additional treatment to attain competency. Id. The
Individualized Treatment Plan further proposes that Defendant
be placed on a "multi-step medication plan."
Id. The first two proposed treatments qualify as
Antipsychotic Polypharmacy ("APP"), or treatment of
schizophrenia using multiple antipsychotic drugs. ECF No. 117
at 10. Option 1 is an APP treatment of haloperidol by
injection and aripiprazole by mouth. Id. Option 2A
is an APP treatment of olanzapine and haloperidol by
injection. Id. Option 2B is switching
Defendant's injection monotherapy from haloperidol to
objects to the Government's Sell Motion and the parties
have made numerous filings in support of their positions. ECF
Nos. 103, 110, 111, 113-115. On December 10, 2019, the Court
held a hearing on the Government's Sell Motion, at which
time the Court heard testimony from the Government's
expert, Dr. Logan Graddy ("Dr. Graddy"), and the
Defendant's expert, Dr. George P. Corvin ("Dr.
Corvin"). See ECF No. 118. Most of the dispute
between the parties involves Option 2A and the merits of an
involuntary APP treatment using a combination of haloperidol
and olanzapine. At the conclusion of the December 10, 2019
hearing, the Court ordered supplemental briefings on the Sell
Motion from the parties. Id. The matter is now fully
briefed (ECF Nos. 120, 121) and the Sell Motion is ripe for
a series of cases, the United States Supreme Court
("Supreme Court") has established a framework to
determine whether the "forced administration of
antipsychotic drugs to render [a criminal defendant]
competent to stand trial unconstitutionally deprives [the
defendant] of [their] 'liberty' to reject medical
treatment." Sell v. United States, 539 U.S.
166, 177 (2003). In United States v. Harper, 494
U.S. 210 (1990), the Supreme Court "recognized that an
individual has a 'significant' constitutionally
protected 'liberty interest' in 'avoiding the
unwanted administration of antipsychotic drugs.'"
Id. at 178 (quoting Harper, 494 U.S. at
221). However, the Supreme Court also found that "the
State's interest in administering medication was
legitimate and important, and it held that 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."
Id. (internal quotations and citations omitted). As
the Supreme Court summarized in Sell, its decision
in United States v. Riggins, 504 U.S. 127
(1992) recognizes, "that, in principle, forced
medication in order to render a defendant competent to stand
trial for murder was constitutionally permissible."
Id. at 179. Considered together:
These two cases, Harper and Riggins,
indicate that the Constitution permits the Government
involuntarily to administer antipsychotic 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. The Supreme Court has made clear that the
circumstances justifying the intrusion of the liberty of an
individual person implicit in the act of forcibility
medicating a criminal defendant are "rare."
order to justify forcibly medicating a criminal defendant to
achieve competency for trial, a district court must make a
series of findings with respect to four factors identified by
the Supreme Court in Sell ("Sell Factors")
as well as consider relevant special circumstances. Further,
the United States Court of Appeals for the Fourth Circuit
("Fourth Circuit") has provided the following
guidance for district courts in applying the Sell Factors:
Because the involuntary administration of antipsychotic drugs
for purposes of trial competence implicates both a
person's significant liberty interest in avoiding
unwanted drugs and the public's interest in prosecuting
crimes, a higher standard of proof for entry of such an order
is desirable. A higher standard-a standard greater than the
preponderance-of-the-evidence standard but not as demanding
as the beyond-a-reasonable-doubt standard-minimizes the risk
of erroneous decisions in this important context.
United States v. Bush, 585 F.3d 806, 814 (4th Cir.
2009) (internal citation omitted). Therefore, the Court must
find that the Sell Factors weigh in favor of the Government
by clear and convincing evidence. Id.
order to forcibly medicate a defendant to restore competency
to stand trial, the Government must establish the following,
by clear and convincing evidence: (1) that an important
governmental interest exists, such as bringing a defendant to
trial who is charged with a serious crime; (2) that
involuntary medication will significantly further the
Government's interest; (3) that involuntary medication is
necessary to further the Government's interest, as less
intrusive means of restoring competency are unlikely to be
successful; and (4) that the use of any medicines are
medically appropriate in light of the defendant's
condition. Sell, 539 U.S. at 179.
Important Governmental Interest
contemplating forcibly medicating a defendant must "find
that important governmental interests are at stake. The
Government's interest in bringing to trial an individual
accused of a serious crime is important. That is so whether
the offense is a serious crime against the person or a
serious crime against property." Sell, 539 U.S.
at 180. The Fourth Circuit has further elaborated on what
constitutes a serious crime for the purpose of Sell Factors
analysis, holding that "the central consideration when
determining whether a particular crime is serious enough to
satisfy this factor is the 'maximum penalty authorized by
statute.'" United States v. Chatmon, 718
F.3d 369, 374 (4th Cir. 2013) (citing United States v.
Evans, 404 F.3d 227, 237 (4th Cir. 2005)). In United
States v. White, the Fourth Circuit found that
"[w]ithout establishing a hard and fast rule, we have
held that a crime is * serious' for involuntary
medication purposes where the defendant faced a ten-year
maximum sentence for the charges against him."
United States v. White, 620 F.3d 401, 410 (4th Cir.
2010). However, the Fourth Circuit also discussed and did not
"flatly reject" a guidelines sentencing approach
as an alternative means to determining whether a crime is
serious. White, 620 F.3d at 411 n.7. Even using a
guidelines sentencing approach, the Fourth Circuit still
cautions that regardless of how much time a defendant
actually would spend in prison, if convicted, "[t]here
are other aspects to the government's interest that make
it important to bring [defendants] to trial for the alleged
criminal conduct," including conveying to the public the
serious nature of the alleged conduct. Bush, 585
F.3d at 815 (internal citation omitted). However, the Fourth
Circuit has tempered this view in more recent cases:
In Bush, we also explained that 'the very fact
that the government is prosecuting Bush for this conduct
conveys a message about its seriousness and its
consequences.' Although this is true, it is not a unique
characteristic in this case, nor could it ever be a unique
characteristic of any case of this type. It is instead a
truism, applicable to any case where the government seeks
forcible medication: without a prosecution, there would be no
White, 620 F.3d at 413 (internal citation omitted).
determining whether a crime is serious, the Supreme Court
also direct district courts to consider special circumstances
that "may lessen the importance of that interest. The
defendant's failure to take drugs voluntarily, for
example, may mean lengthy confinement in an institution for
the mentally ill-and that would diminish the risks that
ordinarily attach to freeing without punishment one who has
committed a serious crime." Sell, 539 U.S. at
180. The Sell Court also cites as a special
circumstance the amount of time the defendant has already
spent in custody and the time ...