NINTH CIRCUIT SETS OUT PARAMETERS FOR USE OF FORCED MEDICINE ON INCOMPETENT DEFENDANTS
This is an important opinion on Sell forced medication. The defendant faced a 1326 charge, but was found incompetent. The government sought forced medication under Sell v. U.S., 539 US 166 (2003) and the district court granted the motion over objections, stating that "the method of treatment and type of medication to be used" was at the "discretion" of doctors within the BOP.
The 9th Circuit Court of Appeal held, in a lengthy analytical opinion, that to pass muster under Sell, the order must identify:
(1) the specific medication or range of medications;
(2) the maximum dosages to be administered; and
(3) the duration of time. In other words, the district court must engage and understand the ramifications of the medication and be conversant; there is no passing the decision to BOP or doctors.
The 9th Circuit stresses the obligation of the court under Sell to monitor and oversee and to give parameters to the doctors in the context of Sell. This also puts the burden on the government to so identify. This opinion also addresses the standards of review for the various Sell factors.
The 9th Circuit identifies the first factor -- the seriousness of the crime -- as a legal issue and thus reviewed de novo, while the other factors, such as governmental interests at stake, are reviewed for clear error.
Finally, the 9th Circuit encourages the district court to undertake a Harper analysis as to dangerousness of the defendant to himself or others first.
US v. Hernandez-Vasquez, No. 06-50198 (10-31-07).
