Case o' The Week: Easy Sell for Involuntary Meds - Gillenwater, Sell, and Restoration of Competency
United States v. Gillenwater, 2014 WL 1394960 (9th Cir. Apr. 11, 2014), decision available here.
Players: Decision by Justice O’Connor, joined by Judges Tallman and Bea.
Facts: Gillenwater felt he had been exposed to asbestos while renovating the Las Vegas Flamingo Hotel. Id. at 1. Convinced the government was helping to cover up this exposure, he wrote a series of threatening emails to government employees. Id. When agents showed up at his house to tell him to knock it off, he met them with gun in hand – but put it away, talked to the agents, and acknowledged that he shouldn’t sent these emails. Id. Two days later, he allegedly started sending them again. Id. When he was arrested, the feds found guns and ammo, and while in custody, Gillenwater allegedly sent a threatening postcard to an OSHA employee. Id. at 2. The district court ordered a competency evaluation, Gillenwater was found incompetent, and the government psychiatrist recommended medication (that Gillenwater refused). Id. The government moved for involuntary medication under Sell, and after a number of hearings with conflicting psych testimony, the district court agreed. Id. at *3. After appeals and remands, the case ended up back before the Ninth on the involuntary medication issue. Id.
Issue(s): “Gillenwater contends that the government did not meet its burden on all four Sell factors and that the district court’s order authorizing his involuntary medication must therefore be reversed.” Id. at *4.
Held: “While recognizing the important interests at stake for both the government and Gillenwater, we conclude that the district court did not err in authorizing Gillenwater’s involuntary medication.” Id. at *1.
Of Note: Sell v. United States, 539 U.S. 166 (2003) is the seminal Justice Breyer decision on the rights of defendants facing involuntary medication to restore competency. Justice O’Connor’s decision in Gillenwater arguably waters down the Sell factors. Of most concern, the decision distinguishes authority on the first Sell factor: “the important government interests factor.”
Here, Gillenwater was only looking at a guideline range of 33-41 months, had already served 32 months, and his mental disorder clearly drove the conduct. Gillenwater, 2014 WL 1394960 at 4-5. In previous cases, each of those facts would have cut against involuntary medication. Here, Justice O’Connor finds an “important government interest” nonetheless.
It’s a discouraging opinion for those representing vulnerable folks facing restraining straps and a needle full of haloperidol in the hands of a government shrink.
How to Use: Comparatively low sentencing range, most of the sentence already served, mental illness as a mitigating factors – these are facts that traditionally undercut involuntary medication. How does one distinguish Gillenwater when fighting involuntary medication? Well, there were some admittedly bad facts here: guns throughout the investigation, threats to choke, rape, and kill government employees, and a jailhouse threat postcard (why is there always the jailhouse letter, in a threats case?) Id. at 2-5. On less – "threatening" – facts, there may be some life left in the first Sell “important interest” factor.
For Further Reading: The Sentencing Commission voted to reduce the drug guidelines by 2 offense levels! See USSG Press Release here. Not effective until Nov. 1, 2014, but DOJ instructed USAOs not to object to variances for current cases, in anticipation of that amendment! See DOJ Press Release here.
What’s the next step towards just sentencing for our drug clients? Retroactivity. The comment period for the Commission is fast approaching for this critical issue – an important time to speak out for our clients. See Sentencing Commission Comments description here.
Image of injection from http://www.mhra.gov.uk/ConferencesLearningCentre/LearningCentre/Medicineslearningmodules/Reducingmedicinerisk/Antipsychoticslearningmodule/CON155606?useSecondary=&showpage=35
Steven Kalar, Federal Public Defender N.D Cal. Website at www.ndcalfpd.org