Case o' The Week: Ninth Restrains Ratched, Important Involuntary Med Decision in Hernandez-Vasquez

With all of the sensitivity and care of the charming Nurse Ratched (left), the federal government and the BOP routinely seek to involuntary medicate our incompetent clients. In a thorough and thoughtful decision that will be the leading case on the issue, visiting ND Cal District Judge Fogel provides a complete analysis on Sell proceedings and articulates many important new Ninth Circuit rules on the procedure. See United States v. Hernandez-Vasquez, __ F.3d __, 2007 WL 3171422 (9th Cir. Oct. 31, 2007), decision available here.

Players: Authored by ND Cal D.Ct. Judge Fogel, sitting by designation.

Facts: Hernandez-Vasquez faced illegal reentry charges. 2007 WL 3171422, *1. He was found incompetent and sent to the BOP for restoration of competency. Id. The government moved for involuntary medication to render him competent to stand trial, or alternatively for a dangerousness evaluation (the defendant had some assault and sex priors). Id. The district court ordered involuntary medication for competency. Id. (ed. note: At the government's urging, the district court made now findings about involuntary medication on the theory of "dangerousness.") The defendant appealed the order authorizing involuntary medication.

Issue(s): 1. Dangerousness: “[W]e must address a threshold question: Whether the district court had an obligation to apply Harper and make a dangerousness inquiry before proceeding under Sell.” Id. at *3.

2. Standard of Review: “Neither the Supreme Court nor this circuit has specified the standard of review applicable to a Sell order.” Id. at *4.

3. Sell Orders and Specific Meds: “Sell does not identify a requisite degree of specificity concerning the drugs to be used for involuntary medication.” Id. at *5.

4. “Seriousness” of present charge: “[W]e offer some guidance to the district court regarding the proper framework within which to analyze [the question of whether the government’s interest in prosecuting the defendant under § was insufficient to justify involuntary medication.]” Id. at *6.

Held: 1. Dangerousness: “[P]rior to undertaking the Sell inquiry, a district court should make a specific determination on the record that no other basis for forcibly administering medication is reasonably available. If a district court does not conduct a dangerousness inquiry under Harper, it should state for the record why it is not doing so.” Id. at *3.

2. Standard of Review: “[We] review the district court’s determination with regard to [the seriousness of the underlying crime] de novo, and the remaining Sell factors for clear error.” Id.

3. Sell Orders and Specific Meds: “[W]e hold that a Sell order must provide some limitations on the specific medications that may be administered and the maximum dosages and duration of treatment. At a minimum, to pass muster under Sell, the district court’s order 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 before the treating physicians must report back to the court on the defendant’s mental conditions and progress.” Id. at *6.

4. “Seriousness” of present charge: “[T]he likely guideline range is the appropriate starting point for the analysis of the crime’s seriousness. It is not, however, the only factor that should be considered. . . . [A]t least under some circumstances, a violation of § 1326 may constitute a ‘serious’ crime sufficient to justify involuntary medication under Sell.” Id. at *7. “[T]he district court should remain mindful of the Supreme Court’s distinction between the purposes and requirements of involuntary medication to restore competency and involuntary medication to reduce dangerousness. It should take care to separate the Sell inquiry from the Harper dangerousness inquiry and not allow the inquires to collapse into each other.” Id. at *8.

Of Note: As shown from the multiple issues and the many new rules above, this decision is now the model for Sell litigation in the Ninth. In any case involving involuntary meds, start here.

How to Use: There’s much to commend in this decision. First, district courts can’t simply punt treatment to the discretion of BOP shrinks – the case requires detail and specificity in involuntary med orders.

Second, the government can no longer sneak “dangerousness” arguments into Sell hearings. The case forces the government to proceed out of the gate with separate Harper dangerousness proceedings and demands that Sell hearings be distinct.

Unfortunately, using (advisory) guidelines to gauge “seriousness,” and tolerating a § 1326 prosecution as a “serious” case, is a blow to the defense – but be sure to carefully read the extensive limiting language on this holding. See id. at *7-*8.

For Further Reading: Judge Fogle was executive director and directing attorney of the Mental Health Advocacy Project before coming onto the bench. See article here. His expertise shows in this detailed and comprehensive decision.

Steven Kalar, Senior Litigator, N.D. Cal. FPD. Website at www.ndcalfpd.org

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