United States v. Green

DAMON J. KEITH, Circuit Judge,

dissenting.

In its zeal to render Green competent to stand trial, the majority has given carte blanche to the government to forcibly administer whatever antipsychotic drugs it desires, whenever it chooses, using whichever method it deems appropriate. In so doing, the Court displays an astonishing indifference and disregard for Green’s constitutional liberty interests. Because our Constitution demands so much more, I dissent.

The Supreme Court has long stressed the “significant liberty interest in avoiding the unwanted administration of antipsy-chotic drugs under the Due Process Clause of the Fourteenth Amendment.” Washington v. Harper, 494 U.S. 210, 221-22 , 110 S.Ct. 1028 , 108 L.Ed.2d 178 (1990); accord Sell v. United States, 539 U.S. 166, 178 , 123 S.Ct. 2174 , 156 L.Ed.2d 197 (2003). Indeed, “[n]o right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.” Union Pac. R. Co. v. Botsford, 141 U.S. 250, 251 , 11 S.Ct. 1000 , 35 L.Ed. 734 (1891). Only an essential or overriding state interest can overcome that constitutionally protected liberty interest. Riggins v. Nevada, 504 U.S. 127 , 112 S.Ct. 1810 , 118 L.Ed.2d 479 (1992). While the Supreme Court noted that, “in certain instances,” the government may deprive an individual of his liberty interest to refuse medical treatment, it emphasized that “those instances may be rare.” Sell, 539 U.S. at 180 , 123 S.Ct. 2174 . It is with respect for the sacred right of individuals to refuse unwanted medical treatment that I must evaluate the district court’s order authorizing the government to forcibly medicate Green.

I.

In determining whether this case is a “rare” instance in which such orders are *559 constitutionally permissible, Sell requires this Court to decide whether: (1) “important governmental interests are at stake”; (2) “involuntary medication will significantly further those concomitant state interests”; (3) “involuntary medication is necessary to further those interests”; and (4) “the administration of the drugs is medically appropriate, ie., in the patient’s best medical interest in light of his medical condition.” Sell, 539 U.S. at 180-81 , 123 S.Ct. 2174 (emphasis in original). Not only must these four factors be met, but they must be demonstrated by “clear and convincing” evidence. See United States v. Gomes, 387 F.3d 157, 160 (2d Cir.2004).

While I agree with the majority’s holding that important governmental interests are at stake, I strongly disagree with the majority’s conclusion that the second, third, and fourth factors are also satisfied. The district court’s Order and the government’s evidence neglected to identify the specific antipsychotic drug (or drugs) to be administered, the dosage range for that mystery drug, and the method of administration. Without these specifics, I fail to see how the majority can conclude that the second, third, and fourth Sell factors have been established under any standard— much less the “clear and convincing” standard.

II.

The second Sell factor requires the court to find that involuntary medication will “significantly further” the government’s interests. Sell, 539 U.S. at 181 , 123 S.Ct. 2174 . In so doing, the court must decide (1) “that administration of the drugs is substantially likely to render the defendant competent to stand trial[,]” and (2) “that administration of the drugs is substantially unlikely to have side effects that will interfere significantly with the defendant’s ability to assist counsel in conducting a trial defense, thereby rendering the trial unfair.” Id.

Here, the district court, relying on testimony from medical experts, concluded that forced medication is “substantially likely” to render Green competent to stand trial. (J.A. 239-40.) One of those experts, Dr. Donna Christine Sigurdson, testified that the fact that Green had responded well to treatment in the past indicates that the administration of antipsychotic drugs is substantially likely to restore Green’s competency to stand trial. (J.A. 104-24.) When pressed on which specific antipsy-chotic drug she would administer to Green, Dr. Sigurdson testified that the antipsy-chotic drug, “if it was injectable,” could “either be Geodon or Haldol.” (J.A. 138.) (emphasis added). But she did not commit to a particular drug, stating, “I am not trying to be funny. I can’t give you an honest answer that I know right now this day which I’d use.” 1 Id.

At the conclusion of the hearing, it was not at all clear which antipsychotic drug (or drugs) would be forcibly administered to Green. And therein lies the fatal flaw in the government’s evidence — an utter lack of specificity. Although testimony was offered about the different types of antipsychotic medication (such as “first generation” and “second generation” anti-psychotic drugs, and “Haldol” and “Geo-don”), the government never committed to any specific drug (or drugs) that it planned to administer to Green. Dr. Sigurdson said that there were several possible drugs that she could administer, but that the ultimate choice would be made through a *560 “consensus” with her colleagues. (J.A. 136.)

Treatment without a specific plan can exert harmful consequences not only on Green’s medical condition but also on his ability to stand trial. Certain types of “antipsychotic drugs might have side effects that would interfere with the defendant’s ability to receive a fair trial.” 2 Sell, 539 U.S. at 179 , 123 S.Ct. 2174 . Some antipsychotic medications may actually render Green incompetent to stand trial. “Without at least describing the proposed course of treatment, it is tautological that the Government cannot satisfy its burden of showing anything with regards to that treatment, much less that it will ‘significantly further ’ the Government’s trial-related interests and be ‘medically appropriate’ for” Green. Evans, 404 F.3d at 240 (emphasis added). The description of the proposed treatment, at the very least, “must identify: (1) the specific medication or range of medications that the treating physicians are permitted to use in their treatment of the defendant, (2) the maximum dosages that may be administered, and (3) the duration of time that involuntary treatment of the defendant may continue ...” United States v. Hernandez-Vasquez, 513 F.3d 908, 911 (9th Cir.2008). In order to meet the first prong of Sell , therefore, “[t]he government must propose a course of treatment in which it specifies the particular drug to be administered.” United States v. Evans, 404 F.3d 227, 240 (4th Cir.2005).

The fatal vagueness of the government’s planned proposal is underscored by the district court’s Order. The district court must determine “[w]hether a particular drug will tend to sedate a defendant, interfere with communication with counsel, prevent rapid reaction to trial developments, or diminish the ability to express emotions.” Sell, 539 U.S. at 185 , 123 S.Ct. 2174 . Instead, the district court, in the most general terms possible, authorized the government “to involuntarily medicate the Defendant, consistent with the prevailing standard of care for mental health professionals, to restore [ ] [Green] to competence” to stand trial. (J.A. 243.) (emphasis added). But what exactly does the district court mean by “consistent with the prevailing standard of care for mental health professionals”? And more importantly, how does this “prevailing standard of care” affect Green? The district court’s Order does not tell us. Nor does the record.

It is any wonder then that the majority can reasonably conclude that the government’s treatment — exactly what treatment, we do not know — -is “substantially likely” to render Green competent to stand trial. As the Fourth Circuit recognized, “[t]o approve of a treatment plan without knowing [or specifying] the proposed medication and dose range would give prison medical staff carte blanche to experiment with what might even be dangerous drugs or dangerously high dosages of otherwise safe drugs and would not give defense counsel and experts a meaningful ability to challenge the propriety of the proposed treatment.” Evans, 404 F.3d at 241 . Simply put, an unknown drug can never be *561 substantially likely to do anything but keep its anonymity.

Although the majority claims that requiring more specificity would result in “substituting] [the court’s] juris doctor for a medical doctor,” this argument overstates what Sell requires. Sell does not demand that the court act as a physician; it only calls for some specificity so that courts could accurately determine whether, by “clear and convincing” evidence, the government has met the four-prong Sell test before forcibly administering drugs to Green. This standard, at the very least, requires the government to identify the specific antipsychotic drug it plans to administer. See Sell, 539 U.S. at 181 , 123 S.Ct. 2174 (“Different kinds of antipsychotic drugs may produce different side effects and enjoy different levels of success.”). With respect to the dosage level, “a reasonable range rather than an exact dosage is appropriate.” Evans, 404 F.3d at 241 (emphasis added). This sort of flexibility would allow Green’s doctors “to adapt [his] treatment to fit the often vagarious bodily and psychical responses to medical treatment,” id., while providing the court with some assurance that Green’s constitutional rights will not be violated. Thus, Sell permits a physician to exercise his or her medical discretion provided that there is at least some specificity to court orders that delineates the confines of forced medical treatment.

The majority tries to take refuge in the district court’s August 24, 2006, Sealed Memorandum (“Memorandum”), claiming that it provides the requisite specificity. But the Memorandum is not the mandate of the court — the Order is. See Bell v. Thompson, 545 U.S. 794, 805 , 125 S.Ct. 2825 , 162 L.Ed.2d 693 (2005) (“Basic to the operation of the judicial system is the principle that a court speaks through its judgments and orders.”). And the Order does not limit the government’s authorization to “the proposed medical treatment.” In determining Green’s treatment, solely based on the Order, doctors may easily decide to administer a drug that was never mentioned during the district court proceedings, administer a drug that would produce negative effects on Green’s diabetes, or even administer Mellaril, a first-generation drug that may impair competency to stand trial and that Justice Kennedy indicated should be forbidden except upon an “extraordinary showing.” Riggins , 504 U.S. at 139—42, 112 S.Ct. 1810 (Kennedy, J„ concurring). Moreover, the Memorandum itself provides absolutely no specificity; the Memorandum never mentions a single antipsychotic drug that could potentially be administered to Green. (J.A. 236-42.)

There is, therefore, no clear and convincing evidence that administration of the drugs is substantially likely to render Green competent to stand trial — for the Court does not even know what that drug is. In short, if we do not know (and the district court’s Order does not tell us) the specific antipsychotic medication with which Green is to be forcibly medicated, there cannot be clear and convincing evidence that the forced administration of it is substantially likely to render Green competent to stand trial. The district court accordingly committed clear error in concluding that involuntarily medicating Green would significantly further the Government’s interest in bringing him to trial.

III.

The district court’s Order also fails the third prong — the requirement that the involuntary medication is “necessary.” In assessing this prong, “[t]he court must find that any alternative, less intrusive treatments are unlikely to achieve substantially the same results.” Sell, 539 U.S. at 181 , 123 S.Ct. 2174 . The government cannot *562 demonstrate that involuntarily-administered antipsychotic medication is “necessary” if the government has not proffered clear and convincing evidence that the treatment would substantially further the government’s interests. Unless there is evidence regarding the specific type of antipsychotic drug the government plans to administer to Green, it is impossible for the court to determine whether “any alternative, less intrusive treatments” are likely to achieve substantially the same results. Id. Some antipsychotic drugs may be taken orally (which would appear to be less intrusive); others must be injected (inherently more intrusive). But again, without knowing which antipsychotic drug the government plans to administer to Green, this Court cannot accurately determine whether Green’s treatment is necessary and whether there is an alternative, less intrusive treatment.

IV.

Finally, the fourth Sell requirement— “that administration of the drugs is medically appropriate, ie., in the patient’s best medical interest in light of his medical condition” — is not met. Id. (emphasis in original). Green suffers from diabetes which may be aggravated by the administration of certain antipsychotic medications. Although Dr. Sigurdson testified about the relationship between diabetes and different types of antipsychotic medications, (J.A. 118-23), such generalizations hold little weight in the face of the required specificity of Sell . Where, as here, the government fails to commit to a specific medication or series of medications, there cannot be a clear and convincing showing that the administration of the an-tipsychotic drugs is in Green’s best interest. Evans, 404 F.3d at 241 (vacating an order in which there was no discussion as to why the defendant, “an elderly man with diabetes, hypertension, and asthma who takes a number of medications to treat these conditions, would” be medically appropriate.).

And, even if there were “clear and convincing” evidence to this effect, the district court’s Order certainly does not limit the government’s authorization to forcibly administer antipsychotics that would not exacerbate Green’s diabetes. It follows, therefore, that without specifying the course of treatment, the district court cannot accurately measure Green’s best interests in light of his medical condition. As the Supreme Court noted in Sell , “[t]he specific kind of drugs at issue may matter here as elsewhere. Different kinds of an-tipsychotic drugs may produce different side effects and enjoy different levels of success.” 539 U.S. at 181 , 123 S.Ct. 2174 . Accordingly, it was clear error for the district court to sweepingly conclude that antipsychotic drugs were in Green’s best interests.

V.

There is little evidence — much less “clear and convincing” evidence — that the forced administration of antipsychotic drugs to Green would “significantly further” the government’s interests, that it is even “necessary” to further those interests, and that forced medication is “medically appropriate” for Green. These determinations cannot be made without knowing (with specificity) which antipsy-chotic drug and what dosage of that drug would be administered. In its opinion, the majority substitutes judicial checks on forced medical treatment with a blank check, allowing physicians to do as they wish with a resistant patient. I DISSENT.

. Although the majority states that "Dr. Si-gurdson provided detailed testimony regarding ... the proposed treatment plan for Green,” her testimony was at best speculative, as she refused to commit to a specific drug.

. For instance, "a patient taking 800 milligrams of Mellaril each day might suffer from drowsiness or confusion.” Riggins, 504 U.S. at 137 , 112 S.Ct. 1810 . The administration of Mellaril, therefore, could fail to render Green competent to stand trial because "such side effects [could have] an impact upon not just [the defendant's] outward appearance, but also the content of his testimony on direct or cross examination, his ability to follow the proceedings, or the substance of his communication with counsel.” Riggins, 504 U.S. at 137 , 112 S.Ct. 1810 .