No. xx-3119




xxxxxxxxxxxxxxxxxxx, JR., Defendant-Appellant.







The district court had jurisdiction under 18 U.S.C. 3231. The notice of appeal having been filed within the ten-day period permitted by Fed. R. App. P. 4(b), this Court has jurisdiction under 28 U.S.C. 1291. The question of appealability of the district court's order is discussed below.


A. Nature of the Case, Course of Proceedings, and Disposition

in the Court Below.

Defendant-appellant, xxxxxxx., was indicted on October 9, 1998. He is charged with the murders of two United States Capitol Police Officers, and the attempted murder of a third officer, under 18 U.S.C. 1111, 1113, & 1114. 1 App. 1. (1) He is also charged with three counts of using and carrying a firearm during a crime of violence, 18 U.S.C. 924(c) & (j)(1), each 924 count corresponding to a murder or attempted murder count. 1 App. 1. Mr. xxxxxx has not yet been arraigned on the indictment because of his mental health problems. The events underlying the indictment took place on July 24, 1998, in the United States Capitol. On April 22, 1999, the district court issued an order declaring Mr. xxxxxx incompetent to stand trial, and committing him to the custody of the Attorney General, pursuant to 18 U.S.C. 4241(d). 1 App. 42-48. (2) Mr. xxxxxx was sent to the Federal Correctional Institution, Butner, North Carolina ("FCI Butner") for this process.

Before the declaration of incompetency by the district court, the parties had submitted memoranda regarding whether the government may forcibly administer antipsychotic medication to Mr. xxxxxx. In the April 22, 1999, order, the district court forbade the United States Bureau of Prisons ("BOP") from medicating Mr. xxxxxx without his consent absent a further court order and ordered the BOP to provide defense counsel with notice of any administrative hearing on that issue. 1 App. 47. On May 13, 1999, the BOP held an administrative hearing without giving the requisite notice to defense counsel. 1 App. 56. At that hearing, the BOP hearing examiner, Dr. Bryon Herbel, a staff psychiatrist at FCI Butner, determined that Mr. xxxxxx should be medicated involuntarily.

The district court held a hearing on May 28, 1999, at which two FCI-Butner employees testified. (3) The first witness was Dr. Sally Johnson. She is Mr. xxxxxxxx treating physician and the Associate Warden for Health Services at FCI Butner. 1 App. 52. The second witness was Mr. Ray Pitcairn, the day watch nursing supervisor, who was appointed by Dr. Herbel to be Mr. xxxxxxxx "staff representative." 1 App. 55-56. On June 18, 1999, the district court ordered the BOP to conduct another administrative hearing, and to transcribe it, because the BOP failed to provide defense counsel with notice of the first administrative hearing and the staff representative had not fulfilled his assigned role. 1 App. 231-34. (4) The second administrative hearing was held on July 8, 1999, where the decision to involuntarily medicate Mr. xxxxxx again was reached. (5) Another judicial hearing was held on August 20, 1999, at which Dr. Johnson again testified. (6)

On September 9, 1999, the district court issued its memorandum opinion and order allowing the BOP to administer antipsychotic medication to Mr. xxxxxx against his will. 2 App. 227. The district court stayed its order temporarily to allow Mr. xxxxxx to seek a further stay from this Court. 2 App. 275. On September 15, 1999, this Court entered an order granting an unopposed stay and setting a briefing schedule. 2 App. 279.

B. Facts.

1. The First Administrative Hearing.

At the May 13th proceeding, Dr. Herbel heard from Dr. Johnson, but neither Mr. xxxxxx nor Mr. Pitcairn made any substantive statements, or submitted any evidence, to Dr. Herbel. 1 App. 57-63. Dr. Herbel determined, based on Dr. Johnson's information, that Mr. xxxxxx suffers from "extensive paranoid and grandiose delusions with hallucinations and thought broadcasting." 1 App. 62. Some of his delusions focus on the "Ruby Satellite," which he believes is a time machine that is currently being controlled by an evil conspiracy of cannibals and communists. 1 App. 62. He believes that it is his mission to regain control of the satellite, that the controls are located in the Capitol, and that, therefore, "the homicides are justified." 1 App. 62.

With regard to the issue of potential future dangerousness, Dr. Herbel found that Mr. xxxxxxxx belief that violence continues to be justified against cannibals renders him "at risk for unpredictable behavior." 1 App. 62. In addition, Dr. Herbel determined that although Mr. xxxxxx has "no history of suicidal behavior," Mr. xxxxxx does not believe that death (including his own) is permanent. 1 App. 63. Dr. Herbel stated that Mr. xxxxxx has been "calm" while incarcerated at FCI Butner and that he has been "under constant direct staff observation." 1 App. 63. Dr. Herbel concluded that "[b]ased on history of his minimal exposure to treatment with antipsychotic medication, his symptoms may well respond to adequate trials of medication." 1 App. 62. Dr. Herbel concluded that Mr. xxxxxx should be medicated involuntarily to attempt to make him competent to stand trial and to render him nondangerous to himself and others. 1 App. 64A. (7)

On May 24, 1999, after receiving notice that the BOP administrative hearing had been held, the district court set a hearing for May 28th. The district court ordered Mr. xxxxxxxx treating psychiatrist at Butner, Dr. Johnson, to be present.

2. The May 28, 1999 Judicial Hearing.

At the May 28th hearing, Dr. Johnson testified first. See May 28, 1999 Transcript ("5/28 Tr.") at 8. (8) The second witness was Mr. Pitcairn. In addition, the district court admitted into evidence the full record of the administrative proceeding (which did not include a transcript of the hearing because no court reporter had been present). 5/28 Tr. 15-16. See 1 App. 50-64B.

The testimony at the May 28, 1999, hearing shows how the administrative process works. As Mr. xxxxxxxx treating physician, Dr. Johnson provided the basis for the hearing officer's determination. Dr. Herbel reports to Dr. Johnson. 5/28 Tr. 58. Mr. Pitcairn's supervisor reports to Dr. Johnson. 5/28 Tr. 128. Mr. Pitcairn made no effort to contact counsel for Mr. xxxxxx or to determine whether there was any evidence favorable to the position against involuntary medication. 5/28 Tr. 127. Nor did Mr. Pitcairn make any arguments against forced medication. 5/28 Tr. 127. Although Dr. Herbel's decision was affirmed by the Warden, Dr. Johnson testified that the Warden's review is to determine only whether the administrative procedure was followed. 5/28 Tr. 114. (9)

There was no testimony as to whether the hearing officer, or any other person within the BOP, takes into account anything apart from the medical propriety of medicating a pretrial detainee against his will. Dr. Johnson testified that "[t]here is not an identified standard" that a hearing officer uses to make his or her recommendations. 5/28 Tr. 114. While Dr. Johnson stated that a determination is made from a medical standpoint about the propriety of a course of treatment, she stated that "I don't look at that as a standard." 5/28 Tr. 115. Dr. Johnson testified that her opinion is that Mr. xxxxxx is sufficiently competent to make medical decisions concerning his drug therapy. 5/28 Tr. 43, 93.

As to the efficacy of treatment with medication to achieve competency, Dr. Johnson testified that there are "no reasonable alternatives outside of medication for the treatment of the illness, schizophrenia, that Mr. xxxxxx suffers from." 5/28 Tr. 31. She testified that forced medication may occur in the civil commitment process as well as in the pretrial criminal commitment process. 5/28 Tr. 106. She added that "[w]e don't really know with Mr. xxxxxx how treatment responsive he will be[.]" 5/28 Tr. 67. She stated that there is a "reasonable likelihood" that Mr. xxxxxx will become competent with medication, that "there is a good shot at it[,]" and that "if I had to quantify it, 70 percent, 75 maybe." 5/28 Tr. 75.

Dr. Johnson did not suggest a particular treatment regimen, in terms of the types of medications that she would prescribe, stating in part that "[w]e can look at the medicines that he has had before and the side effects he has had from them and make a decision whether we want to try them and maximize the dose or not." 5/28 Tr. 82. Dr. Johnson made it clear that the process of dealing with adverse side effects is often one of trial and error and that "we would try to be looking for a drug that had the lowest side effect profile for him and the best fit." 5/28 Tr. 119.

She also testified about the two general types of antipsychotic medications: typical (or traditional) and atypical neuroleptic agents. 5/28 Tr. 71. Typical neuroleptic agents include medications like Haldol, Thorazine and Mellaril. 5/28 Tr. 71. Atypical neuroleptic agents include more recently developed medications like Risperidone and Olanzapine. 5/28 Tr. 71. According to Dr. Johnson, approximately 15-20% of patients treated with typical neuroleptic agents do not respond to treatment. 5/28 Tr. 72. Currently, only the typical neuroleptic agents are injectable; the atypical neuroleptics are available only in tablet or liquid form. 5/28 Tr. 76. The atypical neuroleptics may be administered involuntarily through a tube, a form of delivery known as the nasogastric method. 5/28 Tr. at 76-77. (10)

With respect to side effects, Dr. Johnson stated that "[w]hat [Mr. xxxxxxxx] individual response would be we wouldn't know until we tried." 5/28 Tr. 78, 107. Dr. Johnson conceded that "studies are all over the ballpark" with respect to a lifetime prevalence for tardive dyskinesia among patients who take typical antipsychotics. 5/28 Tr. 85. (11) She recognized the risks and uncertainty associated with neuroleptic malignant syndrome, which is a potentially fatal condition, 5/28 Tr. 94-95; she recognized that side effects of sedation and motor impairments are associated with antipsychotic medication, 5/28 Tr. 95; she recognized that some studies suggest that 20-25% of patients treated with the typical neuroleptic agents suffer from akathesia, which involves restlessness and irresistible movement urges, 5/28 Tr. 86-87; and she recognized that depression and suicide are associated with schizophrenia and that to some extent those problems may increase if a person gains insight into his or her illness. 5/28 Tr. 111. Dr. Johnson testified that the medical records from Mr. xxxxxxxx former hospitalization reflect that Haldol was discontinued due to akathesia and poor sleep. 5/28 Tr. at 87-90. (12)

On the issue of dangerousness, Dr. Johnson testified that Mr. xxxxxx is under constant observation, 5/28 Tr. 33, and that any ongoing risk of harm he presents is contained by the restrictions that have been placed upon him. 5/28 Tr. 34, 53-54. With respect to a standard for dangerousness, Dr. Johnson stated that she was "not the hearing officer[,]" so she couldn't "speak to his determination[,]" 5/28 Tr. 51, but in identifying the issue of dangerousness as a reason for requesting treatment intervention with forced medication, she stated that "[t]he standard goes beyond imminent risk because I can control imminent risk to some degree[.]" 5/28 Tr. 51. Outside of the controls placed on Mr. xxxxxx, Dr. Johnson testified that "I don't think I have labeled it as a standard, but there would be a substantial likelihood, a significant likelihood that the individual could present a risk of harm or would present a risk of harm to others or to the property of others." 5/28 Tr. 51. There was no testimony by Dr. Johnson concerning the likelihood of success in rendering Mr. xxxxxx non-dangerous through medication.

No evidence was presented to show actual harm or attempts to harm by Mr. xxxxxx since his arrest on July 24, 1998. With respect to potential harm to himself, Mr. xxxxxx has not expressed any suicidal ideation to Dr. Johnson. 5/28 Tr. 57. Dr. Johnson stated that she is "aware that no one observed an actual attempt at harm" since Mr. xxxxxx was arrested. 5/28 Tr. 56. She testified that "no episodes of aggressive behavior have been noted[]," 5/28 Tr. 63, and that there have been no reports of any aggressiveness since the date of arrest. 5/28 Tr. 61. While Dr. Johnson stated that she concluded that Mr. xxxxxx presented a risk to others "at the completion of [her] initial evaluation" in November 1998, 5/28 Tr. 50, neither the BOP nor anyone else sought to medicate Mr. xxxxxx on grounds of ostensible dangerousness until Mr. xxxxxx was found incompetent to stand trial and committed by the district court on April 22, 1999, under 18 U.S.C. 4241(d).

3. The Second Administrative Hearing.

At the July 8th administrative hearing, the decision to involuntarily medicate Mr. xxxxxx was reached based on the same factors relied upon in the first administrative hearing. 2 App. 1-93. Before this second hearing, Mr. xxxxxxxx staff representative, Mr. Pitcairn, contacted defense counsel and subsequently presented arguments to the hearing examiner that were suggested by defense counsel. 2 App. 17. Despite a request to attend the hearing on Mr. xxxxxxxx behalf, counsel were denied the opportunity to attend the hearing either as counsel or as observers, and instead were provided only with the opportunity to appear as witnesses. 2 App. 23. (13)

Mr. Pitcairn's presentation included a letter submitted by Dr. Raquel Gur, which stated her opinion within a reasonable degree of medical certainty that Mr. xxxxxx would not be made competent through the use of antipsychotic medications. 2 App. 24-25; see 7/8 Tr. 15-18. At the second administrative hearing, Dr. Herbel rejected Dr. Gur's opinion, noting that "from my own personal clinical experience, I've had patients with longstanding chronic illnesses who have responded to an adequate course of treatment." 7/8 Tr. 66. Dr. Herbel did not elaborate on that statement.

At the hearing, Dr. Herbel listened to some of the arguments submitted to Mr. Pitcairn by Mr. xxxxxxxx counsel. A medical ethics issue raised by counsel pertained to the question of medicating a person to make him or her competent where the irrevocable impact of medication may render the person more likely to be executed. Dr. Johnson stated that the issue had been raised at the May 28, 1999 judicial hearing, and that the "judge made it very clear that there are many points wherein a person's competence can be assessed throughout the legal process." 7/8 Tr. 62. Relying on the district court's statements, Dr. Johnson opined that this ethical issue was not currently relevant. 7/8 Tr. 63. Dr. Herbel accepted Dr. Johnson's opinion without any further analysis. 7/8 Tr. 63.

In his written findings, Dr. Herbel stated, regarding side effects, that Mr. xxxxxx had self-reported to Dr. Johnson that he had not suffered any serious side effects from previous treatment. 2 App. 12. (14) Regarding Mr. xxxxxxxx potential to harm others, Dr. Herbel concluded that Mr. xxxxxxxx delusions render him "at risk to act in ways to harm others." 2 App. 12. Dr. Herbel included in his report Dr. Johnson's proposed treatment regimen, which would include the administration of both typical (i.e., Haldol) and atypical (i.e., Risperidone) neuroleptic agents. 2 App. 13. (15)

Finally, in his written findings, Dr. Herbel appeared to adopt Dr. Johnson's responses to the points raised in the letter submitted by defense counsel. 2 App. 18. These responses included Dr. Johnson's argument that Mr. xxxxxxxx delusion about death not being permanent puts him at a risk of injury from others (like getting shot by the police) and of killing himself. 2 App. 18. Dr. Herbel also concluded that Mr. xxxxxx has repeatedly threatened others as a result of his psychosis. 2 App. 18. This conclusion was based on Mr. xxxxxxxx prior contact with law enforcement officers and mental health providers, and Mr. xxxxxxxx alleged assault of a nurse during his last hospitalization in 1996. 2 App. 18. Finally, Dr. Herbel accepted Dr. Johnson's statement that the medical ethics issue is currently irrelevant and could be addressed at a later time. 2 App. 18.

The administrative record again does not reflect what, if any, standard was used to assess Mr. xxxxxxxx current dangerousness to himself or others. Although Dr. Herbel stated that medication may render Mr. xxxxxx competent to stand trial, 2 App. 15, no specific reasons were given to support a conclusion that medication would render Mr. xxxxxx non-dangerous.

4. The August 20, 1999 Judicial Hearing.

At the August 20th hearing, defense counsel attempted to examine Dr. Johnson about the medical ethics issues relating to potential execution. 8/20 Tr. 6. The district court refused to permit this line of inquiry, stating that the issue of competence to be executed was not currently before the court, and that it could be raised at a future point in the proceedings. 8/20 Tr. 7-8. This ruling was not modified although Dr. Johnson stated that in a small percentage of cases, where an individual improves as a result of medication, that person's symptoms remain in remission even after medication is ceased. 8/20 Tr. 9-10. She testified that this is a "very gray area." 8/20 Tr. 10.

When the district court asked about the "standard" used by the hearing examiner for purposes of determining dangerousness, Dr. Johnson first stated that she was not the hearing examiner. 8/20 Tr. 63. Dr. Johnson did recognize that in this context, the hearing examiner was not employing an "imminent danger" standard. 8/20 Tr. 31. (16) Dr. Johnson further testified she was not sure that her "opinion" was based on any standard, but that in assessing dangerousness, she relied on Mr. xxxxxxxx current mental status, his support systems, his coping ability, and his history of behavior. 8/20 Tr. 64. Based on these factors, she concluded in the abstract that Mr. xxxxxx "does continue to pose a risk of potential harm to himself and others." 8/20 Tr. 64. She did not testify about the likelihood of whether medication would render Mr. xxxxxx any less of a risk.

With regard to any current specific risk of danger posed by Mr. xxxxxx, Dr. Johnson testified that Mr. xxxxxxxx conditions of confinement "limit his capacity to harm anyone else." 8/20 Tr. 24-25 (conditions "preclud[e] him from making an actual suicide attempt . . . [and] from making any ongoing threat" to others); see 8/20 Tr. 28 (the "precautions are adequate to prevent . . . episodes of harm to himself or others"); 8/20 Tr. 31 ("we have attempted to create a situation to minimize the risk of imminent danger to Mr. xxxxxx or to anyone, and that is the status he remains in at this point in time"). Although Mr. xxxxxx had become more "surly and hostile in his interaction with staff" in the few weeks preceding the hearing, 8/20 Tr. 25, he has not engaged in any conduct suggesting an intent to harm anyone else. 8/20 Tr. 26, 29 ("there have been no episodes of physical aggression"); 8/20 Tr. 30 ("he has not . . . threatened to harm anyone").

In analyzing the dangerousness issue, Dr. Johnson stated that she considered the shootings at the Capitol and Mr. xxxxxxxx statements about that event. 8/20 Tr. 18. However, the district court sustained the government's objection to a question asking whether Mr. xxxxxxxx conduct on July 24, 1998, could be attributed to his mental illness, thus limiting counsel's ability to probe the basis for her opinion. 8/20 Tr. 18. Dr. Johnson further stated that while dangerousness provides one justification for medicating Mr. xxxxxx, the government's principal purpose in attempting to forcibly medicate Mr. xxxxxx is "restoration of competency to stand trial. That is what he was sent here for treatment to accomplish, and that's the principal reason for medication at this point in time." 8/20 Tr. 19; see also 8/20 Tr. 12 ("He was sent here for treatment for competency restoration. So that's the issue we're dealing with now.").

Dr. Johnson was also questioned about Dr. Gur's conclusions regarding the likelihood of success of forced medication to achieve competency. Dr. Johnson testified that she was generally aware of Dr. Gur's work and expertise in the field of schizophrenia. 8/20 Tr. 36. Dr. Johnson stated that she was unaware of the specific experience of Dr. Herbel that led him to reject Dr. Gur's conclusions about the efficacy of medication in Mr. xxxxxxxx case. 8/20 Tr. 44-45. The record does not reflect whether Dr. Herbel knew of Dr. Gur's reputation. Although Dr. Gur concluded only that medication would not restore Mr. xxxxxxxx competency, 2 App. 24-25, both the district court and Dr. Johnson characterized Dr. Gur's recommendation as one that would involve no medication-based treatment for Mr. xxxxxx. 8/20 Tr. 70-71.

While Dr. Gur suggested that if Mr. xxxxxx is treated, atypical neuroleptic agents should be used because these medications are more likely to be successful and have better side effect profiles, 2 App. 25, these newer antipsychotic drugs cannot be administered via injection, but can only be administered orally or through the nasogastric method. 8/20 Tr. 51-53. Nasogastric administration is possible with regard to both typical and atypical neuroleptic agents, but Dr. Johnson testified that "I can't imagine using" the method against Mr. xxxxxxxx will. 8/20 Tr. 52.

On August 27, 1999, the defense requested that the district court reconsider its ruling on the medical ethics issue and reopen the hearing to adduce additional evidence on the issue. Letters were submitted by the defense from three noted experts in the field of medical ethics, all of which discussed the novel and complex legal, medical, and ethical issues surrounding the forced medication of a defendant in a capital case. 2 App. 168-226. In particular, all three professors noted that the law is unsettled about whether, and under what circumstances, a court may order the cessation of medication for a defendant forcibly medicated at the pretrial stage where the medication results in the defendant's clinical improvement. Each professor opined that the district court's decision regarding forced medication in the pretrial context may have irrevocable consequences in potentially rendering Mr. xxxxxx competent to be executed. 2 App. 173 (Professor Lawrence Gostin); 2 App. 203-04 (Professor Richard Bonnie); 2 App. 224 (M. Gregg Bloche, M.D., J.D.).

5. The District Court's September 9, 1999, Ruling.

The district court's decision to permit forced medication is based solely on Mr. xxxxxxxx ostensible dangerousness. 2 App. 253. While the district court implied that this case might present sufficient grounds to forcibly medicate Mr. xxxxxx solely to make him competent to stand trial, the district court deemed the competency issue "collateral." 2 App. 253, 274. The district court ruled that "traditional [Administrative Procedure Act] review suffices to safeguard the defendant's procedural rights." 2 App. 266-70. Citing language in Riggins, 504 U.S. 127, the district court determined that the "BOP's decision is well-reasoned and supported by compelling evidence in the administrative record and in the supplemental record of proceedings before this Court[,]" and stated that "by at least clear and convincing evidence . . . the proposed treatment is medically appropriate to render the defendant non-dangerous to himself or others. Further, in the Court's view, there are no less intrusive alternatives to the proposed treatment to render the defendant non-dangerous to himself or others." 2 App. 273. At the same time, the district court stated that it is undisputed that Mr. xxxxxx has not attempted to harm himself or anyone else since his arrest in July of 1998, and that there was only one other incident prior to the charged offense (an alleged assault in a Montana mental hospital in 1996) where he attempted to harm someone else. 2 App. 247. (17) The district court also declined to appoint a guardian ad litem based on Dr. Johnson's testimony that Mr. xxxxxx "is competent to consent to the medication." 2 App. 255-56.

Rejecting Mr. xxxxxxxx arguments, the district court ruled that civil commitment is not an acceptable less intrusive alternative -- apparently assuming, despite Dr. Johnson's May 28, 1999 testimony to the contrary, that civil commitment can involve no "treatment whatsoever" -- on the ground that there is no evidence that civil commitment "would somehow render him non-dangerous or treat him." 2 App. 250. The district court also denied Mr. xxxxxxxx request for reconsideration of its ruling regarding the medical ethics issue and his request to submit further evidence on this issue. 2 App. 274-75. Without citing any authority, the district court stated that it could consider Mr. xxxxxxxx concerns at the time of trial or if he is sentenced to death. 2 App. 269, 275.


The district court's ruling should be reversed for a number of reasons. First, the BOP's administrative regime, particularly when subjected only to narrow review by a district court under the Administrative Procedure Act, does not afford procedural due process. The BOP procedure does not provide a meaningful standard for determining whether a security risk exists, it does not require consideration of less intrusive alternatives, it does not provide for counsel, and it creates an unreasonable risk of biased decisions. Furthermore, under Riggins, 504 U.S. at 135, a pretrial detainee is entitled to a strict scrutiny standard of review.

Second, under any standard of review, the BOP's decision to medicate is unsupported by the record. Due process requires that the government show by clear and convincing evidence that a pretrial detainee is an imminent threat. The record cannot support such a finding. Similarly, the record shows that the BOP and the district court failed to consider less intrusive alternatives such as sedation. Moreover, the record shows that a less intrusive alternative is already in place because any security risk posed by Mr. xxxxxx is controlled by his conditions of confinement. The availability of civil commitment proceedings is another option that the government may pursue without jeopardizing its interests.

Third, the exclusion of counsel for a pretrial detainee in the BOP administrative scheme constitutes an independent violation of the Sixth Amendment right to counsel. All forced medication proceedings are critical. The administrative hearings confronted Mr. xxxxxx with complex procedural issues and were akin to an adversary proceeding. The personnel present at the hearings were BOP employees, who are part of the Department of Justice, the same agency that is prosecuting Mr. xxxxxx, and the government's principal purpose is to make Mr. xxxxxx competent to stand trial. Given the absence of Mr. xxxxxxxx counsel at the hearings, Mr. xxxxxx could not effectively press the hearing examiner to consider critical issues or adequately substantiate his conclusions.

Finally, the district court erred in refusing to consider the medical ethics issue of whether efforts to make Mr. xxxxxx competent at the pretrial stage may have irrevocable consequences leading to his potential execution. The BOP hearing examiner committed the same error. As the letters submitted from three experts on medical ethics show, the question of whether forced medication may have such irrevocable consequences is a profound issue that must be considered before a regime of forced medication is permitted to commence.




Pretrial appeals are permitted under 28 U.S.C. 1291 if the question is conclusively determined, important and separate from the merits of the case, and effectively unreviewable on appeal from a final judgment. See, e.g., United States v. Weissberger, 951 F.2d 392, 396 (D.C. Cir. 1991) (citations omitted). In this case, the district court's decision conclusively determined the issue of whether medication may be administered involuntarily, which is an important issue separate from the merits of the case, and the decision is effectively unreviewable on appeal from a final judgment. See Brandon, 158 F.3d at 951 ("it would be of little value to [defendant] for this court to review his . . . claim after he has been forcibly medicated and the trial has concluded"); United States v. Morgan, ___ F.3d. ___, 1999 WL 734700, *6 (4th Cir., Sept. 21, 1999) (once a defendant is forcibly medicated "a determination of the procedural safeguards to which he was entitled prior thereto would amount to a purely academic exercise"). Accordingly, the district court's order is a final decision within the meaning of 28 U.S.C. 1291.





A. Standard of Review.

The questions of what process is due in this case and what standard of review is applicable to the administrative decision are purely legal questions and are reviewed de novo on appeal. See, e.g., United States v. Doe, 968 F.2d 86, 88 (D.C. Cir. 1992); Brandon, 158 F.3d at 953 ("A determination of what procedural safeguards are required is a constitutional issue to be reviewed de novo").

B. Introduction.

The district court stated that "traditional review [under the Administrative Procedure Act] suffices to safeguard the defendant's procedural rights." 2 App. 270. According to the district court, the BOP's decision to forcibly medicate Mr. xxxxxx for the asserted purpose of rendering him nondangerous to himself or others must be upheld unless it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 2 App. 266-67 (citing 5 U.S.C. 706(2)(A)) (additional citations omitted). The district court ruled that the "agency's decision here is treated as a purely medical decision[,]" 2 App. 269, 271, stated that the effect of forced medication on Mr. xxxxxxxx right to a fair trial involves a legal issue that is not ripe, 2 App. 269, and concluded that the "BOP's decision is well-reasoned and supported by compelling evidence in the administrative record and in the supplemental record of proceedings before this Court." 2 App. 272-73. Because the Due Process Clause entitles Mr. xxxxxx to de novo judicial consideration and to the application of a strict scrutiny standard, however, the district court's ruling must be reversed. (18)

The determination of what procedural safeguards are necessary "requires consideration of three distinct factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest[.]" Mathews v. Eldridge, 424 U.S. 319, 335 (1976). "Procedural due process rules are shaped by 'the risk of error inherent in the truth-finding process as applied to the generality of cases, not the rare exceptions.'" Brandon, 158 F.3d at 953 (quoting Mathews, 424 U.S. at 344).

C. The Private Interests Involved.

Because pretrial detainees await a determination of their guilt, they have fundamental constitutional rights implicated by governmental efforts to forcibly administer antipsychotic medication that do not exist in the post-conviction context. See Bell v. Wolfish, 441 U.S. 520, 545 (1979) ("convicted prisoners do not forfeit all constitutional protections by reason of their conviction and confinement in prison. . . . A fortiori, pretrial detainees, who have not been convicted of any crimes, retain at least those constitutional rights that . . . are enjoyed by convicted prisoners"); accord Campbell v. McGruder, 580 F.2d 521, 527, n.9 (D.C. Cir. 1978) ("Pretrial detainees generally retain more rights than convicted prisoners"). Specifically, where the government's asserted interest in maintaining security involves the forced administration of antipsychotic medication, a defendant's Fifth and Sixth Amendment rights to a fair trial and to counsel are involved because antipsychotic medication may affect a defendant's demeanor at trial and ability to communicate. Brandon, 158 F.3d at 960-61; Riggins, 504 U.S. at 143-44 (Kennedy, J. concurring). Fundamental liberty and First Amendment interests are also implicated by governmental efforts to medicate pretrial detainees against their will. See Riggins, 504 U.S. at 133-34 (liberty interest in being free from bodily intrusion); Brandon, 158 F.3d at 953 (pretrial detainee has a "First Amendment interest in avoiding forced medication, which may interfere with his ability to communicate ideas" (citing Bee v. Greaves, 744 F.2d 1387, 1393 (10th Cir. 1984)). (19)

As the district court stated in another ruling in this case, "the side effects of [psychotropic medication] are well-documented and potentially catastrophic[.]" United States v. xxxxxx, 36 F. Supp. 2d 7, 14 (D.D.C. 1999); see also Harper, 494 U.S. at 229-30 (antipsychotic medication may have "serious, even fatal, side effects"); Riggins, 504 U.S. at 133-35; id. at 141-42 (Kennedy, J., concurring). Consistent with the record in this case, the Court described the numerous side effects associated with antipsychotic medication, including tardive dyskinesia, neuroleptic malignant syndrome, and akathesia. Riggins, 504 U.S. at 134 (citing Harper, 494 U.S. at 229-30). The Court also identified "acute dystonia, a severe involuntary spasm of the upper body, tongue, throat, or eyes." Riggins, 504 U.S. at 134 (quoting Harper, 494 U.S. at 229-30). Tardive dyskinesia "may develop even after relatively brief periods of treatment, even at low dosage levels . . . . There is no known treatment." State v. Perry, 610 So.2d 746, 758 (La. 1992) (citation omitted) (holding under Louisiana Constitution, after Harper, that the State may not forcibly administer antipsychotic medication to a death row prisoner for the purpose of executing him). Even a relatively new antipsychotic drug, clozapine, "is associated with a high incidence of agranulocytosis, which is potentially fatal." Bruce J. Winick, The Right to Refuse Mental Health Treatment, at 75 n. 80 (1997). The mental effects of antipsychotic drugs may also be dramatic. The purpose of antipsychotic drugs is to "alter the chemical balance in a patient's brain, leading to changes, intended to be beneficial, in his or her cognitive processes." Riggins, 504 U.S. at 134 (quoting Harper, 494 U.S. at 229-30). Such drugs have "the capacity to severely and even permanently affect an individual's ability to think and communicate." Bee, 744 F.2d at 1393. (20)

While the district court stated that the issue of the potential impact of forced medication on Mr. xxxxxxxx trial rights is not ripe, a regime of forced medication may have irreversible consequences. Particularly given the fact that the symptoms of some paranoid schizophrenics go into permanent remission after antipsychotic medication is administered and then ceased, Mr. xxxxxxxx due process rights would be affected by forced medication not only at trial, but at sentencing as well if Mr. xxxxxx is convicted and the government seeks the death penalty, because the jury may never see him in an unmedicated state. Cf. United States v. Tucker, 404 U.S. 443, 446 (1972) (defendant has a constitutional right to be sentenced on the basis of accurate information). Moreover, if forced medication makes Mr. xxxxxx competent to stand trial and if continued medication is deemed necessary to maintain trial competence, Mr. xxxxxx may not be permitted to refuse the medication so that the jury could see him in an unmedicated state in determining guilt. See Riggins, 504 U.S. at 136 ("The question whether a competent criminal defendant may refuse antipsychotic medication if cessation of medication would render him incompetent at trial is not before us"); People v. Hardesty, 362 N.W.2d 787, 794-97 (Mich. App. 1984) (affirming decision to maintain medication regime at trial over defendant's objection), appeal dismissed, 477 U.S. 902 (1986). Finally, because the government may seek the death penalty in this case, the forced administration of medication before trial may have irrevocable consequences with respect to whether Mr. xxxxxx may be executed. See Part V infra. Given the potential adverse effect of forced medication on all of these rights, therefore, the private interests at stake are of the highest order. (21)

D. The Government Interest Involved.

The government has a legitimate interest in ensuring the security and safety of a prison environment. See Turner v. Safley, 482 U.S. 78, 89 (1987) (in post-conviction context, question is whether prison regulation is "reasonably related to legitimate penological interests"); Harper, 494 U.S. at 225 (holding that administrative procedures, which allowed forced medication where convicted inmate was shown to present a likelihood of serious harm and treatment was in medical interests of the inmate, comported with procedural due process requirements). Such governmental interests in prison security also exist with respect to pretrial detainees. See Bell v. Wolfish, 441 U.S. at 540 ("the effective management of the detention facility once the individual is confined is a valid objective that may justify imposition of conditions and restrictions"); accord Block v. Rutherford, 468 U.S. 576, 586 (1984) (ordinary prison regulation must be "reasonably related to legitimate governmental objectives"). (22)

E. The BOP's Administrative Scheme.

The Bureau of Prisons regulation at issue in this case, 28 C.F.R. 549.43, allows antipsychotic drugs to be administered forcibly if the hearing psychiatrist determines that the medication is "necessary because the inmate is dangerous to self or others." See 28 C.F.R. 549.43(a)(5). The regulation does not define the meaning of dangerousness in such circumstances. In emergency situations, the regulation permits the forced use of antipsychotic medication without an administrative hearing when a person

is suffering from a mental illness which creates an immediate threat of bodily harm to self or others, serious destruction of property, or extreme deterioration of functioning secondary to psychiatric illness. During a psychiatric emergency, psychotropic medication may be administered when the medication constitutes an appropriate treatment for the mental illness and less restrictive alternatives (e.g. seclusion or physical restraint) are not available or indicated, or would not be effective.

See 28 C.F.R. 549.43(b).

The administrative procedures do not provide for counsel. Instead, they allow the "inmate" (the regulations do not distinguish between convicted inmates and pretrial detainees) to request a "staff representative" and allow an administrator to override that decision. The inmate is entitled only to twenty-four hours' notice of the hearing. The hearing is conducted by a psychiatrist who is not currently involved in the treatment or diagnosis of the inmate; a staff psychiatrist who once treated or could treat the inmate is not barred on the face of the regulation. The inmate has the right to request witnesses who are "reasonably available." The psychiatrist has the discretion not to permit their testimony in any event. No right to cross-examination is provided. The ultimate reviewing authority under the regulations is the "institution mental health division administrator" who is not required to hold any particular qualifications. No right to judicial review is contained within the regulation. (23)

F. An Administrative Hearing, Subject

To Judicial Review Under An

Arbitrary and Capricious Standard,

Does Not Provide Due Process.

The district erred in the first instance because it failed to distinguish the pretrial and post-conviction contexts for purposes of the forced medication issue. In the post-conviction context, governmental action is subject only to rational basis scrutiny. See Turner, 482 U.S. at 89. Thus, the Court held in Harper 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 medical interest." Id. at 227. Similarly, in the ordinary pretrial context, the legitimate goals of prison administrators are subject to rational basis scrutiny because they are incidents of detention and do are not implicate rights related to trial and sentencing. See Wolfish, 441 U.S. at 533 (stating that the Due Process Clause "provides no basis for application of a compelling-necessity standard to conditions of pretrial confinement that are not alleged to infringe any other, more specific guarantee of the Constitution" and upholding various regulations related to "double-bunking," books, receipt of mail and personal items, and searches); Block, 468 U.S. at 586, 591 (upholding regulations prohibiting contact visits with pretrial detainees and allowing cell searches).

In Riggins, however, the Court recognized the sharp distinction between pretrial and post-conviction proceedings in the forced medication context. The petitioner in Riggins challenged his murder and robbery convictions "on the ground that the State of Nevada unconstitutionally forced an antipsychotic drug upon him during trial." 504 U.S. at 129. Stating that "[w]e have no occasion to finally prescribe . . . substantive standards for judging forced administration of [antipsychotic medication] in the trial or pretrial settings," id. at 135-36, the Court reversed the judgment in Riggins on the ground that "the record contains no finding that might support a conclusion that administration of antipsychotic medication was necessary to accomplish an essential state policy[.]" Id. at 138. In dicta, the Court stated that "Nevada certainly would have satisfied due process if the prosecution had demonstrated, and the District Court had found, that treatment with antipsychotic medication was medically appropriate and, considering less intrusive alternatives, essential for the sake of Riggins' own safety or the safety of others." Id. at 135 (citing Harper, 494 U.S. at 225-26, and Addington, 441 U.S. 418).

The language in Riggins shows that a pretrial effort by the government to medicate a detainee against his or her will requires application of a strict scrutiny standard. Placing the burden on the government to show an "essential state policy" is another way of stating that the government must show a "compelling state interest." Similarly, placing the burden on the government to rule out "less intrusive alternatives" is equivalent to a requirement that government action be "narrowly tailored." These factors, which are absent from the Harper rational basis standard, are the hallmarks of a strict scrutiny standard of review. See, e.g., Brandon, 158 F.3d at 956 (citations omitted); see also Riggins, 504 U.S. at 156 (Thomas, J., dissenting) ("The Court . . . appears to adopt a standard of strict scrutiny"). Riggins' strict scrutiny language, albeit dicta, did not emerge from a vacuum. See Bee, 744 F.2d at 1395-96 ("Absent an emergency . . . we do not believe forcible medication with antipsychotic drugs is 'reasonably related' . . . to the concededly legitimate goals of jail safety and security. . . . [L]ess restrictive alternatives, such as segregation or the use of less controversial drugs like tranquilizers or sedatives, should be ruled out before resorting to antipsychotic drugs" in pretrial detention context). (24) A strict scrutiny standard is particularly appropriate in a capital case, where heightened reliability in fact-finding is required. See Ford v. Wainwright, 477 U.S. 399, 411 (1986) (plurality opinion) (citing Spaziano v. Florida, 468 U.S. 447, 456 (1984)). The risk of error also requires the government to prove its case by clear and convincing evidence. See Brandon, 158 F.3d at 959-60.

The distinction between the post-conviction and pretrial contexts is further demonstrated by the fact that Justice Kennedy, who wrote Harper, authored a concurring opinion in Riggins. The Riggins concurrence shows an acute sensitivity -- in a murder case after the defendant had been convicted by a jury and sentenced to death -- to the effect that forced antipsychotic medication may have on a defendant's trial rights:

In my view 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. Based on my understanding of the medical literature, I have substantial reservations that the State can make that showing. . . . If the State cannot render the defendant competent without involuntary medication, then it must resort to civil commitment, if appropriate, unless the defendant becomes competent through other means. If the defendant cannot be tried without his behavior and demeanor being affected in this substantial way by involuntary treatment, in my view the Constitution requires that society bear this cost in order to preserve the integrity of the trial process.

Riggins, 504 U.S. at 141, 145 (Kennedy, J., concurring).

The BOP regulations do not incorporate the "less intrusive alternatives" or "essential state policy" factors set forth in Riggins and they do not reflect earlier court decisions such as Bee, 744 F.2d at 1395. The administrative procedure was developed after the Supreme Court decided Harper, 494 U.S. 210. It was issued as an interim rule on November 12, 1992. See 57 Fed. Reg. 53820 (November 12, 1992). Although the interim rule was issued almost five months after Riggins was decided, it refers only to Harper. Id. The regulation gained the force of law, without material modification, on September 25, 1995. See 60 Fed. Reg. 49444 (September 25, 1995).

The first flaw in the regulation is that it fails to define the phrase "dangerous to self or others." Even in Harper, which was the catalyst for the BOP procedure, the state regulation upheld by the Court required a determination that the inmate posed a "likelihood of serious harm to himself, others, or their property." See 494 U.S. at 215. Where the asserted purpose of forced medication is to render a pretrial detainee non-dangerous, the government must show that the detainee's risk of dangerousness is imminent. See Bee, 744 F.2d at 1395 (requiring an emergency before pretrial detainee may be forcibly medicated with antipsychotic drugs); Jurasek v. Utah State Hospital, 158 F.3d 506, 512 (10th Cir. 1998) (civil case; stating that issue of dangerousness requires finding of immediacy); Davis v. Hubbard, 506 F. Supp. at 934-35 (civil action involving conditions at state mental institution; stating that "the risk of danger which the State has a legitimate interest in protecting against must be sufficiently grave and imminent to permit their coerced use. . . . [I]t is not enough that the patient has at some time been violent"); Large, 714 P.2d at 411 (forbidding forced administration of antipsychotic drugs to convicted inmate absent a "true emergency"); see also Commonwealth v. Blaker, 446 A.2d 976, 977-87 (Pa. Super. 1981) (stating that involuntary commitment under Pennsylvania law requires a showing of "clear and present danger" to self or others as evidenced by conduct within 30 days of the proceeding). The emergency treatment provision in the BOP regulations, 28 C.F.R. 549.43(b), parallels these strict standards. But the "dangerous to self or others" rationale is stated at such a high level of generality that it would allow forced medication to any delusional person who has been violent at some time in connection with his or her delusions. That sort of elasticity -- particularly if it is subject only to narrow APA review -- invites forced medication for the convenience of prison staff and invites pretextual efforts to make a detainee competent for trial.

The second flaw in the regulation is that it fails to limit forced medication for security purposes to situations where no less intrusive alternatives exist. One less intrusive alternative to the forced administration of antipsychotic drugs involves the administration of sedatives. See, e.g., United States v. Bechara, 935 F. Supp. 892, 894 (S.D. Tex. 1996) (stating in deportation case that "The Court is not contemplating use of antipsychotic drugs in this case, but instead, 'less controversial drugs like tranquilizers or sedatives'") (quoting Bee, 744 F.2d at 1396), aff'd, 116 F.3d 478 (5th Cir. 1997) (table). Other less intrusive alternatives sufficient to meet the government's security interests involve controlling the conditions of confinement. See Bee, 744 F.2d at 1396 (noting segregation as a less intrusive alternative and stating that "forcible medication cannot be viewed as a reasonable response to a safety or security threat if there exist 'less drastic means for achieving the same basic purpose'") (quoting Shelton v. Tucker, 364 U.S. 479, 488 (1960)) (additional citation omitted). (25)

Along with the absence of standards, other flaws in the administrative procedure abound. Nothing in the procedure requires the prison officials to consider any issues, such as the effect of forced medication on trial rights, apart from the medical propriety of treatment. See Brandon, 158 F.3d at 955 ("Physicians are not equipped to determine the effect that the drugs will have on [a defendant's] right to a fair trial and right to counsel"). The BOP procedure deprives a detainee of his right to counsel during the hearing process. As this case shows, the procedure allows the treating physician to supervise, directly and indirectly, the hearing examiner and the staff representative, which erodes confidence in the independence of both the decision-maker and the defendant's ostensible advocate. As this case also shows, where the treating physician is the institution mental health division administrator, an appeal cannot be taken to that person, but must be taken to the Warden (although the regulations do not even address this problem), who at most can determine whether inherently-flawed procedures were followed, not whether the medication decision is substantively justified. Nothing in the procedure addressed the institutional bias that exists where the prison employees report, like the prosecution, to the Attorney General. All of these defects, jointly and severally, show that the administrative hearing procedure involves severe risks that cannot be remedied, or even addressed, by review under the Administrative Procedure Act. (26)

As the cases relied upon by the district court recognize, review under the APA is extraordinarily limited. See 2 App. 268-69; United States v. McAllister, 969 F. Supp. 1200, 1213 (D. Minn. 1997) ("the Court has no role to play in deciding whether the mental health administrator's determination was correct, as long as it was made in accordance with the regulations"); United States v. Morgan, Cr. No. 4:98-428 (D.S.C.), slip op. at 7 (stating that court may overrule a BOP decision to forcibly medicate a pretrial detainee only "where the agency has failed to articulate any coherent grounds for its decision") (attached to government's March 29, 1999 memorandum of law), vacated and remanded on other grounds, ___ F.3d ___, 1999 WL 734700; (27) United States v. Horne, 955 F. Supp. 1141, 1152 (D. Minn. 1997). All of these courts, like the district court in this case, fail to recognize the absence of standards and the risk of error in the administrative process, the distinctions between the pretrial and postconviction contexts, the fact that the issue involved is not purely medical, and the import of Riggins' strict scrutiny language.

In Morgan, 1999 WL 734700, the defendant was deemed incompetent to stand trial and was committed to the Federal Correctional Institution, Springfield, Missouri. The Bureau of Prisons determined that forced medication was necessary "because [the defendant] is dangerous to himself and to others at Springfield, and necessary to render him competent to stand trial." Id. at *3. Relying on Harper and in part on the decision in United States v. Charters, 863 F.2d 302 (4th Cir. 1988) (en banc), the Fourth Circuit held that the administrative procedure, subject to APA review, affords due process to a pretrial detainee. Id. at * 9. (28)

The Fourth Circuit distinguished Brandon on the ground that the sole government interest involved in Brandon was to make the defendant competent to stand trial. See Morgan, 1999 WL 734700, * 11. (29) Stating that "[w]e realize that forcibly medicating a pretrial detainee on the basis that such treatment is necessary because he is dangerous to himself or others in the institutional setting might have the incidental effect of rendering him competent to stand trial[,]" the Morgan court addressed that issue only by stating that the defendant "would be statutorily entitled to have a district judge" conduct a competency hearing before trial. Id. Without elaboration, the court added that

due process would require the district judge to make findings as to the 'need for' and 'medical appropriateness of' such medication during trial. . . . The district judge might also ensure that the medication posed no significant risk of altering or impairing Morgan's demeanor in a manner that would prejudice his capacity or willingness to either react to testimony at trial or to assist his counsel.

Id. at * 12 (citing Riggins, 504 U.S. at 135, and id. at 141 (Kennedy, J., concurring)).

Nowhere in Morgan does the court address the issue of less intrusive alternatives, the lack of a standard concerning dangerousness, or the other flaws in the administrative hearing process. Apart from the language quoted above that cites Riggins, Morgan does not even address Riggins. No less important, Morgan misunderstands the risks posed to a fair trial by forced antipsychotic medication. Morgan apparently assumes that a trial judge may permit the medication to be administered and stopped, as the circumstances may require, without risking irremediable consequences. As Dr. Johnson's testimony shows, that position is too facile. Accordingly, because the BOP's administrative procedure is rife with flaws, and because review for arbitrary and capricious conduct under the APA is insufficient to remedy such flaws, the district court's decision should be reversed on the ground that Mr. xxxxxx was not afforded procedural due process.





A. Standard of Review.

Determinations of purely legal constitutional questions and of mixed questions of law and fact are reviewed de novo. See, e.g., Lilly v. Virginia, __ U.S. __, 119 S.Ct. 1887, 1900 (1999) (independent appellate review required for "fact-intensive, mixed questions of constitutional law") (citing Ornelas v. United States, 517 U.S. 690, 697 (1996)). A district court's determination under the APA's "arbitrary and capricious" standard is reviewed de novo applying the standards in 5 U.S.C. 706(2)(A). See Deaf Smith County Grain Processors, Inc. v. Glickman, 162 F.3d 1206,1213 (D.C. Cir. 1998).

B. Introduction.

While the district court stated that it was applying an APA standard, the court also stated that the government may forcibly medicate Mr. xxxxxx because "the Court can conclude, by at least clear and convincing evidence, that the proposed medication is medically appropriate and . . . considering less intrusive alternatives, it is essential for the defendant's own safety or the safety of others." 2 App. 272-73 (citing Riggins, 504 U.S. at 134-35). To the extent that the district court applied a strict scrutiny standard, in the alternative, its decision to permit forced medication is not supported in the record. Nor is the district court's decision supported under a rational basis standard. Furthermore, the record shows that the BOP's decision to medicate Mr. xxxxxx against his will on the ground that he is a "danger to self or others" is arbitrary and capricious under the APA.

C. The Evidence Does Not Show

That Mr. xxxxxx Is A Security Risk.

The district court erred because the government has not shown Mr. xxxxxx to be an imminent security risk. There is no evidence that any emergency situation has existed since Mr. xxxxxx was arrested on July 24, 1998. There is no evidence that Mr. xxxxxx has presented a likelihood of serious harm since July 24, 1998 or currently presents such a likelihood. There is no evidence that Mr. xxxxxx has attempted to commit harm since his arrest. Mr. xxxxxx has not expressed any suicidal thoughts or shown any inclination to hurt another person since his arrest. At no point from Mr. xxxxxxxx July 24, 1998, arrest until the April 22, 1999, competency commitment did the government or any doctor seek to medicate Mr. xxxxxx on the asserted ground that he is a danger to himself or others. The evidence of potential dangerousness, in short, exists only at a high level of generality, see 8/29 Tr. 64 (testimony of Dr. Johnson that Mr. xxxxxx "does continue to pose a risk of potential harm to himself and others"), and fails to show an imminent risk of harm. See, e.g., Bee, 744 F.2d at 1395. Accordingly, the district court's ruling should be reversed under any standard of review.

D. The District Court Erred Because

Less Intrusive Alternatives Exist

To Control Any Risk That Mr.

xxxxxx May Present.

Even assuming that Mr. xxxxxx presents an imminent risk of danger, the district court's decision must be reversed because less intrusive alternatives exist that meet the government's security goals. First, there is no evidence that sedation would not meet the government's asserted interest. See Bee, 744 F.2d at 1396; Bechara, 935 F. Supp. at 894. There is no evidence that Dr. Johnson or other staff at FCI-Butner even considered this issue or discussed it with Mr. xxxxxx. Particularly given Dr. Johnson's testimony that Mr. xxxxxx is competent to consent to medication, see 2 App. 255-56, the government's failure to consider less intrusive drug treatment is fatal to its effort to medicate Mr. xxxxxx as a perceived security risk. See, e.g., Bee, 744 F.2d at 1395 (noting Utah statute's requirement that threshold requirement for involuntary treatment is that mentally ill person "must be found incompetent to consent to proposed medication").

Second, the record shows that a less intrusive alternative is already in place, because it is undisputed that any current risk presented by Mr. xxxxxx is controlled by his environmental conditions at FCI Butner. See, e.g., 8/20 Tr. 28 ("precautions are adequate to prevent . . . episodes of harm to himself or others"). In these circumstances, particularly where Mr. xxxxxxxx interests in defending against the criminal charges are at stake, the government's ability to control Mr. xxxxxxxx environment does not permit it to forcibly administer antipsychotic medication to Mr. xxxxxx. See Bee, 744 F.2d at 1396 (noting segregation as an alternative).

Finally, given the risk of adverse side effects, and the possibility that the jury will never see Mr. xxxxxx in a pre-medicated state if medication is administered, civil commitment proceedings constitute a less intrusive alternative. Dr. Johnson repeatedly emphasized that Mr. xxxxxx would be injected with typical antipsychotic drugs if forced medication is permitted. She recognized that the typicals involve greater risks of serious side effects than atypicals (which may only be taken orally and which Dr. Johnson stated she could not imagine administering to Mr. xxxxxx against his will). And Dr. Johnson conceded that the effects of antipsychotic drugs on Mr. xxxxxx could not be predicted "until we tried." 5/28 Tr. 78, 107. Against that background, the government may meet all of its interests through civil commitment without jeopardizing Mr. xxxxxxxx -- and the government's -- interests in a fair criminal proceeding. The government's security interest may be met in the civil commitment context just as in the criminal commitment context. Whatever parens patriae interest that the government may properly assert in medicating Mr. xxxxxx is better met in the civil commitment process because it would not create the appearance of being a pretext for a prosecutorial goal. And civil commitment would not extinguish the government's ability to prosecute Mr. xxxxxx at a later time. (30) Accordingly, given the existence of less intrusive alternatives, the district court's ruling should be reversed.

E. The Government's Effort To

Medicate Mr. xxxxxx Is Pretextual.

The government's attempt to medicate Mr. xxxxxx as an ostensible security risk is a pretextual effort to make him competent for trial. As Dr. Johnson stated, the government's principal reason for medicating Mr. xxxxxx is to make him competent to stand trial. From the arrest on July 24, 1998, until after the April 22, 1999 incompetency commitment, neither the government nor any doctor made any effort to medicate Mr. xxxxxx on dangerousness grounds. Only after the finding of incompetency, and the commitment under 4241 (the very purpose of which is to achieve trial competency), did the government show any inclination to medicate Mr. xxxxxx. There is no evidence that Mr. xxxxxx has harmed or attempted to harm any other person since his incarceration. His alleged recent surliness and hostility was not linked in any way to imminent danger. Indeed, no material changed circumstances since April 22, 1999, justify the government's effort to medicate Mr. xxxxxx on a dangerousness rationale.

Particularly given the heightened standard of reliability required in capital cases, Ford v. Wainwright, 477 U.S. at 411 (plurality opinion), due process requires the government to prove by clear and convincing evidence that its effort to medicate on dangerousness grounds is not a pretext to make Mr. xxxxxx competent for trial. The government cannot shoulder that burden here. It has ignored the fact that its interest in prison security is already being met. Its undisputed principal purpose is to make Mr. xxxxxx competent for trial. That purpose is the proper focus of the inquiry. Cf. Edmond v. Goldsmith, 183 F.3d 659, 665 (7th Cir. 1999) (holding that vehicle roadblock violated the Fourth Amendment because its principal purpose was to catch drug offenders and stating that "[i]t is necessary in this regard to distinguish between two kinds of purpose, that of the program's designers and that of the police officers manning the roadblocks"). (31) Given the alternatives available to the government, and its principal goal of making Mr. xxxxxx competent to stand trial, its effort to medicate on dangerousness grounds amounts to an effort to avoid the strictures of Riggins, 504 U.S. at 135, Brandon, 158 F.3d 847, and Justice Kennedy's concurrence in Riggins. Accordingly, the district court's decision should be reversed.






A. Standard of Review.

This question is also a legal issue that is reviewed de novo.

B. The Merits.

A criminal defendant has a right to counsel at every critical stage of a prosecution. See Estelle v. Smith, 451 U.S. 454, 469-71 (1981). A stage is critical when a defendant is "confronted . . . by the procedural system, or by his expert adversary, or by both." United States v. Byers, 740 F.2d 1104, 1117-19 (D.C. Cir. 1984) (en banc) (citation omitted). A defendant is "confronted 'by the legal system,'" where "he ha[s] a law related choice before him, and could . . . have profited from the expert advice of counsel[.]" Byers, 740 F.2d at 1119 (citation omitted); accord United States v. Klat, 156 F.3d 1258, 1262 (D.C. Cir. 1998) (holding that defendant has a Sixth Amendment right to counsel at a competency hearing). The right to counsel attaches when a defendant is confronted "either with the need to make a decision requiring distinctively legal advice -- which may occur even in a context in which the prosecutor or his agents are not present -- or with the need to defend himself" against his adversary. Byers, 740 F.2d at 1118 (emphasis in original). A critical stage includes proceedings that take place outside the courtroom. See, e.g., Maine v. Moulton, 474 U.S. 159, 170 (1985) ("the assistance of counsel cannot be limited to participation in a trial; to deprive a person of counsel during the period prior to trial may be more damaging than denial of counsel during the trial itself"). (32)

In Klat, this Court noted the particular problems that arise regarding Sixth Amendment issues where a court has reasonable cause to believe that a defendant is incompetent to stand trial. See Klat, 156 F.3d at 1262-63 & nn. 5-6. Here, of course, the district court conclusively determined that Mr. xxxxxx is incompetent to stand trial, which is more than the "reasonable cause" determination to which Klat assigned such significance for Sixth Amendment purposes.

Ruling that the exclusion of counsel from the administrative hearings did not violate the Sixth Amendment, the district court likened the administrative proceedings in this case to a psychiatric interview to which no right to counsel attaches. 2 App. 271. While the district court termed the proceedings "more than an interview," it characterized them as "essentially medical." 2 App. 271. The district court determined that the staff representative's contacts with defense counsel, and the presentation of Dr. Gur's letter, along with counsel's ability to assist Mr. xxxxxx before the administrative hearings, sufficiently met Mr. xxxxxxxx Sixth Amendment rights. 2 App. 270-71.

Given the invasion of bodily integrity occasioned by forced medication, the possible severe side effects, and the potential effects of medication on Mr. xxxxxxxx rights at trial and sentencing, the administrative proceedings were critical stages. More specifically, the BOP's administrative hearing process runs afoul of each criterion identified in Byers -- either one of which is sufficient for the right to counsel to attach.

First, the hearings confronted Mr. xxxxxx with a detailed procedural system providing certain rights to appear, present evidence, have a staff representative, request witnesses, request that witnesses be questioned, receive a copy of the report, and receive notice of the right to appeal. In light of the pretrial context, such hearings are akin to adversary proceedings. In fact, the district court remanded the case after the first hearing because the staff representative "failed to conduct any search for witnesses or such evidence." 1 App. 233. The same staff representative, Mr. Pitcairn, was appointed to represent Mr. xxxxxx at the second hearing. 2 App. 4. While he did consult with counsel in advance and read into the record a letter from counsel and Dr. Gur's letter, 2 App. 37-44, Mr. Pitcairn did essentially nothing else, and never advocated on Mr. xxxxxxxx behalf. The only questions he asked were whether the psychotropic medication would affect Mr. xxxxxxxx physical injuries, 2 App. 78, and whether there might be a physical basis for his symptoms. 2 App. 89. Mr. Pitcairn asked about "brain scans or CAT scans." 2 App. 89. When Dr. Johnson told Mr. Pitcairn that no scan of Mr. xxxxxxxx head had been performed, but that one could be done, Mr. Pitcairn left the matter at that. 2 App. 64-65. He asked no questions about the crucial issues: dangerousness, side effects, and alternatives to forced medication. When Dr. Herbel asked about the ethical issue of medicating someone where the effort might make him competent to be executed, Mr. Pitcairn did not address the issue, sitting silent while Dr. Johnson refused to answer the question, and while she, as a witness, stated that the issue was not relevant. 2 App. 87-88. The record compels an inference that the only role Mr. Pitcairn saw for himself was to read counsel's letter and Dr. Gur's letter, but not to advocate for Mr. xxxxxx in any way.

Second, the personnel present at the administrative hearing were BOP employees. Employees of the BOP answer to the Attorney General, and the BOP is part of the Department of Justice, the same agency that is prosecuting Mr. xxxxxx. Particularly given Dr. Johnson's testimony that the principal reason for medication is to achieve competency for trial, Mr. xxxxxx was confronting his adversary, and the administrative proceeding thus meets the second criterion for invocation of the Sixth Amendment right to counsel.

Without an advocate at the prison proceeding for Mr. xxxxxxxx interests in defending the prosecution, the hearing examiner was not pressed to consider the impact of forced medication on the criminal case. The government itself conceded in the district court that the staff representative only considers Mr. xxxxxxxx interest as a "patient." 1 App. 222. And without counsel, the hearing examiner was not pressed to substantiate the conclusion that medication is necessary to render Mr. xxxxxx non-dangerous. Similarly, the hearing examiner allowed the witness to decide that the medical ethics issue was irrelevant. The record that went to the district court, therefore, was lacking, and the additional evidence taken in the judicial forum did not remedy the absence of counsel at the administrative hearings. Therefore, the district court's ruling should be reversed and remanded, and counsel for Mr. xxxxxx should represent him at any further administrative hearings that may occur.




The district court erred by ruling that the question of whether forcibly medicating Mr. xxxxxx would potentially result in his execution is unripe. 1 App. 274-75. At the second administrative hearing, Dr. Johnson declined to give an opinion on the issue as a matter of medical ethics by relying on the district court's statements concerning the issue at the May 28, 1999 hearing. The hearing examiner did not press Dr. Johnson further or offer any independent analysis of the issue.

The letters from three prominent experts in the field of medical ethics that were submitted to the district court, 2 App. 173, 203, 224, which state that forced medication may result in Mr. xxxxxxxx execution if he is rendered competent, show that the issue should be addressed now, regardless of the ostensible basis for the forced medication. Cf. Singleton v. Norris, 992 S.W.2d 768, 770 (Ark. 1999) (where death row prisoner was medicated against his will to "keep him from being a danger to himself and others, the "collateral effect of the involuntary medication rendering him competent to understand the nature and reason for his execution" did not violate due process). Indeed, even if the district court were correct that the issue may be revisited as a matter of law -- an open question, see Riggins, 504 U.S. at 136 -- Dr. Johnson's testimony that the symptoms of some schizophrenics go into permanent remission even if medication is ceased shows that the issue is ripe. Accordingly, any remand to the district court should require full consideration of this issue.


For the reasons stated above, and in light of the entire record in this case, defendant Russell Eugene xxxxxx, Jr., respectfully requests that the district court's ruling permitting the Bureau of Prisons to administer antipsychotic medication to Mr. xxxxxx against his will be reversed.

Respectfully submitted,


A. J. Kramer

Federal Public Defender

L. Barrett Boss

Gregory L. Poe

Assistant Federal Public Defenders

625 Indiana Avenue, N.W. #550

Washington, D.C. 20004

(202) 208-7500


I hereby certify, in accordance with Fed. R. App. P. 32(a)(7), that this brief contains 13,996 words.


I hereby certify that two copies of the foregoing Brief of Appellant was served on the 7th day of October, 1999, upon John R. Fisher, Esq., Assistant United States Attorney, 555 Fourth Street, N.W.,Washington, D.C. 20001, by hand delivery to a drop box in the United States Courthouse provided for service of pleadings upon the United States Attorney's Office.


Last updated: Apr 9 , 2001 (Mon) at 11:19am


1. "__ App. __" refers to the two-volume appendix filed with this brief. Transcripts are referred to by the date of the proceeding and the page number.

2. The issue of the defendant's competency had been the subject of dispute until the government withdrew its objection to a finding of incompetency to stand trial. The appeal that was argued on October 4, 1999, No. 99-3016, arose during the period when Mr. xxxxxxxx competency was still in dispute, and concerns the district court's order compelling Mr. xxxxxx to submit to an examination by a government doctor concerning competency to stand trial.

3. The entire transcript of the May 28, 1999 hearing is included at 1 App. 65-224.

4. The district court also stated that it did not appear that the hearing examiner had considered the likelihood of success of the treatment. 2 App. 231-33.

5. Mr. xxxxxx appealed both administrative hearing decisions within the BOP process and both decisions were affirmed by the Warden at FCI Butner. 1 App. 54; 2 App. 2-3. The entire transcript of the July 8, 1999 administrative hearing is reproduced at 2 App. 26-93.

6. The entire transcript of the August 20th hearing is contained at 2 App. 94-167. Dr. Johnson testified via video conference from FCI Butner. Also present at Butner were Mr. xxxxxx, counsel for Mr. xxxxxx, and counsel for the government. The district judge and additional counsel for each party were present in the courtroom. The district court had previously overruled Mr. xxxxxxxx objection to conducting hearings by video conference without Mr. xxxxxxxx physical presence in the courtroom.

7. At the administrative stage, the BOP determined that forced medication was justified on other grounds as well. Those other asserted grounds are not at issue in this case.

8. Transcripts are referred to herein by the date of the proceedings and the transcript page number.

9. Under the regulations, an appeal is supposed to be considered by the "institution mental health division administrator." See 28 C.F.R. 549.43 (a)(6). The regulation states that the "administrator shall ensure that the inmate received all necessary procedural protections and that the justification for involuntary treatment or medication is appropriate." Id. At FCI Butner, the head of the mental health division is Dr. Johnson. Dr. Johnson testified that she could not recall an instance of being overruled by a hearing officer. 5/28 Tr. 94. She also testified that within the last six months, when she acted as a hearing officer, she could recall three cases out of twelve where she has rejected the psychiatrist's request to treat. 5/28 Tr. 59. With respect to the staff representative, the government contended that Mr. Pitcairn was "representing the patient's, not the Defendant's, interest[.]" 5/28 Tr. 158.

10. Dr. Johnson testified that this method involves the placing of a tube in the nose so that the medication is sent directly through the esophagus into the stomach. It is possible that the patient would have to be physically restrained while the tube is inserted. 5/28 Tr. 97-98.

11. Tardive dyskinesia is a "syndrome consisting of possibly irreversible involuntary dyskinetic movements that may develop in a patient treated with antipsychotic drugs." 5/28 Tr. 85.

12. The district court suggested that the side effects of antipsychotic medication were so well documented by Justice Kennedy in Riggins v. Nevada, 504 U.S. 127 (1992) (Kennedy, J., concurring) and in Washington v. Harper, 494 U.S. 210 (1990), and by the Sixth Circuit in United States v. Brandon, 158 F.3d 947 (6th Cir. 1998), that it could take "judicial notice" of the adverse drug reactions. 5/28 Tr. 129.

13. The district court's opinion states incorrectly that counsel for Mr. xxxxxx were given the opportunity to attend the prison hearing as observers. 2 App. 234; see 2 App. 23, 47.

14. Dr. Herbel did not discuss why he credited certain information provided by Mr. xxxxxx but discredited other information provided by Mr. xxxxxx.

15. Dr. Herbel did not address how the atypical neuroleptic agents would be administered if Mr. xxxxxx refused to take them orally.

16. Dr. Johnson described the nature of the inquiry in terms of whether Mr. xxxxxx posed any risk of harm to himself or others, without defining or describing the extent of any such risk. E.g., 8/20 Tr. 21 (stating that his psychosis "place[s] him at an ongoing risk of harm to himself"); 8/20 Tr. 31-32 ("[w]e're looking at does this person pose an ongoing, a current and ongoing risk of harm to themselves or others").

17. In determining that forced medication is medically appropriate, the district court rejected the opinion of Dr. Gur based on the reasoning of Dr. Johnson. 2 App. 244-45. The district court again incorrectly characterized Dr. Gur's opinion as being that Mr. xxxxxx should not be treated at all with medication. 2 App. 244-47.

18. The district court did not reach the issue of whether the government may forcibly medicate Mr. xxxxxx for the purpose of making him competent to stand trial. 2 App. 253, 274. The government has not contended, and the district court did not suggest, that forced medication is permitted for any purpose apart from attempting to render Mr. xxxxxx nondangerous and to make him competent to stand trial. Governmental efforts to make persons competent for trial with forced medication are subject to strict scrutiny and may be justified only if such action is narrowly tailored to achieve a compelling state interest. See Brandon, 158 F.3d at 959. The government is required to show, by clear and convincing evidence, that forced medication will not detrimentally affect the defendant's constitutional rights in defending the charges. Id. at 960-61. If the government cannot meet those standards, it must resort to civil commitment proceedings. Brandon, 158 F.3d at 961; Riggins, 504 U.S. at 145 (Kennedy, J., concurring). Given the record in this case, the government cannot justify the forced administration of antipsychotic medication for the purpose of making Mr. xxxxxx competent for trial. In any event, the competency issue is not before this Court, because the district court specifically disavowed the effort to achieve competency for trial as a basis for its decision.

19. See also Stanley v. Georgia, 394 U.S. 557, 565-66 (1969) (recognizing a fundamental right to be free from unwarranted intrusions into one's privacy); Cruzan v. Department of Health, 497 U.S. 261, 269 (1990) ("[n]o right is held more sacred . . . than the right of every individual to the possession and control of his own person"); Winston v. Lee, 470 U.S. 753, 759 (1985) (compelled surgical intrusion into defendant's body for evidence implicates expectations of privacy and security so great that intrusion may be unreasonable under the Fourth Amendment even if it is likely to produce evidence of a crime).

20. For a general discussion of antipsychotic medication in the legal context, see Winick, The Right to Refuse Mental Health Treatment, at 61-85.

21. Presumptions against forced medication are deeply rooted in the law. See Washington v. Glucksburg, 521 U.S. 702 (1997) (upholding state ban on assisted suicide). Discussing the right to refuse life support that was assumed in Cruzan, 497 U.S. at 279, the Court in Glucksberg stated:

The right assumed in Cruzan . . . was not simply deduced from abstract concepts of personal autonomy. Given the common-law rule that forced medication was a battery, and the long legal tradition protecting the decision to refuse unwanted medical treatment, our assumption was entirely consistent with this Nation's history and constitutional traditions.

See 521 U.S. at 725.

22. While the governmental interest involved in this appeal concerns prison security, the government has potential interests in forcibly medicating Mr. xxxxxx for two other purposes as well. First, the government has a legitimate prosecutorial interest in bringing an accused person to trial. See, e.g., Riggins, 504 U.S. at 135-36 (dicta) (citing Illinois v. Allen, 397 U.S. 337, 347 (1970) (Brennan, J., concurring)). Second, in some cases, the government has an interest under its parens patriae power to protect and provide for an individual in its custody. See, e.g., Addington v. Texas, 441 U.S. 418, 426 (1979) (clear and convincing evidence standard applies to civil commitment proceedings). Given Dr. Johnson's testimony that Mr. xxxxxx is competent to decide whether to consent to medication, however, any assertion of the government's parens patriae power is questionable. See, e.g., Riggins, 504 U.S. at 140-41 (Kennedy, J., concurring) (identifying functional competence as distinct from competence to stand trial). Whatever the government's broader prosecutorial and parens patriae interests may be, however, they are not implicated in the prison security issue now before this Court.

23. Before the district court, the government stated that treatment decisions, once a commitment is ordered under 18 U.S.C. 4241, are left to the discretion of the Attorney General by law. See Government's March 29, 1999 Memorandum of Law at 9 ("'treatment' via 'hospitaliz[ation]' . . . [is] the Attorney General's responsibility") (citing United States v. Shawar, 865 F.2d 856, 860-61 (7th Cir. 1989)). That position, and the district court's statement that the administrative ruling is to be "treated as a purely medical decision[,]" 2 App. 269, 271, are tantamount to a conclusion that the BOP's actions are committed by law to agency discretion, which would exempt them from judicial review under the APA. See 5 U.S.C. 701(a)(2); Bell v. Wolfish, 441 U.S. at 530 n.11 (noting that Second Circuit, in a portion of its decision not cross-appealed by respondent pretrial detainees, ruled that the "APA was inapplicable to this case").

24. See also Large v. Superior Court of the State of Arizona, 714 P.2d 399, 407-08 (Ariz. 1986) (en banc) (holding in post-conviction context that "[a]bsent a true emergency, we do not believe that forcible medication with dangerous psychotropic drugs 'is reasonably necessary for the security of the institution' . . . . Ordinarily 'security' and discipline may be insured by more conventional methods such as incarceration or isolation"); Davis v. Hubbard, 506 F. Supp. 915, 935, n.24 (N.D. Ohio 1980) (noting government's obligation in case involving patients in state mental hospital to use least restrictive means in addressing danger).

25. Because Bee required an emergency situation and less intrusive alternatives to be ruled out before a pretrial detainee may be forcibly medicated on security risk grounds -- thus creating a constitutional floor even under rational basis scrutiny -- and because the BOP hearing procedures do not meet either of those concerns, the fact that Bee predates the BOP regulations does not vitiate Bee's force.

26. Mr. xxxxxx has maintained from the outset of this case that he is entitled to a de novo evidentiary judicial hearing, not merely review of an administrative decision. Given the two judicial hearings that occurred in this case, Mr. xxxxxx does not assert in this appeal that he was deprived of the right to produce evidence. The fact that the district court stated that it gathered evidence outside of the administrative record because agency action was not "adequately explained" in that record, however, 2 App. 268 (quoting Esch v. Yeutter, 876 F.2d 976, 991 (D.C. Cir. 1989)), further shows the inadequacies of the administrative process.

27. The district court's opinion in this case was issued before the Fourth Circuit decided Morgan.

28. In Charters, the Fourth Circuit determined that a prison hearing was adequate to afford due process to a pretrial detainee to whom the government was attempting to forcibly administer antipsychotic drugs. See Charters, 863 F.2d at 313-14. Notably, the only state interest considered by the Fourth Circuit was not even the government's interest in prison security, but was instead the government's ostensible interest, under its parens patriae power, as Charters' "benign custodian." Id. at 312. Moreover, Charters takes the position that the issue of forced medication is purely a medical one. Id. at 307-08 ("Treating this decision as essentially a 'medical one'"); id. at 312-13 (only "relevant" question is whether decision to forcibly medicate was "reached by a process so completely out of professional bounds as to make it explicable only as an arbitrary, nonprofessional one"). Nowhere does Charters consider the effect of forced medication on a defendant's rights at trial and sentencing.

29. The issue of the circumstances in which forced medication may be justified for the purpose of ensuring prison security was not before the court in Brandon. See 158 F.3d at 956. Nonetheless, the analytical framework set forth in Brandon -- particularly in light of the standard set forth in the Riggins dicta -- applies with equal force in this case.

30. The district court incorrectly assumed that civil commitment does not involve treatment. 2 App. 250. As Dr. Johnson testified at the May 28, 1999, hearing, the administration of antipsychotic medication is no less possible in the civil commitment context than it is in the pretrial commitment process in a criminal case. Civil commitment also has the distinct advantage of avoiding a situation in which the government is placed in the unseemly position of using coercion in an effort to enforce the moral foundations of the criminal law.

31. If the BOP's primary purpose is to provide what Dr. Johnson believes to be appropriate medical treatment to Mr. xxxxxx, that purpose is itself far broader than a security-based purpose.

32. See also 18 U.S.C. 4247(d) ("At a hearing ordered pursuant to this chapter the person whose mental condition is the subject of the hearing shall be represented by counsel").