In a case of first impression, on March 20, 2014, the En Banc Oregon Supreme Court held that Oregon law implicitly authorizes trial courts to order involuntary psychotropic medication to restore a criminal defendant’s trial competency. The Court held, however, that trial courts must comport with due process requirements, as articulated in Sell v. United States, 539 U.S. 166,123 S.Ct. 2174 (2003)(Sell).
In Sell, the Supreme Court held that if the sole basis for an order for involuntary medication is restoration of trial capacity, the court must conclude that: (1) important state interests are at stake in prosecuting the defendant; (2) medication will significantly further those important state interests, because it is substantially likely that the medication will restore the defendant to competency and substantially unlikely that the medication will cause side effects that will impair the fairness of the trial; (3) the medication is necessary to further those important state interests, because there are no less intrusive treatments that would produce the same results; and (4) the administration of the medication is medically appropriate, because it is in the patient’s best medical interest in light of his medical condition. “The Sell factors do not represent a balancing test, but a set of independent requirements, each of which must be found to be true before the forcible administration of psychotropic drugs may be considered constitutionally permissible.” United States v. Ruiz-Gaxiola, 623 F.3d 684, 691 (9th Cir. 2010).
On August 16, 2012, James Michael Francis Lopes approached an 8-year old girl, put his hand on her waist and suggested that she remove her shorts. The girl ran away and Lopes was arrested and charged with attempted first degree sex abuse, a class C felony. Lopes remained in custody pending trial.
On October 4, 2012, the trial court ordered a competency evaluation of Lopes due to doubts about his mental fitness. The evaluation found that Lopes was unable to aid and assist in his defense.
On November 19, 2012, the court committed Lopes to the Oregon State Hospital (OSH) to be treated until fit. On January 2, 2013, however, OSH reported “that there was no substantial probability that (Lopes) would gain or regain the ability to stand trial in the foreseeable future.” Without psychiatric medication, Lopes would not be fit to proceed, the evaluator concluded.
OSH discharged Lopes and returned him to jail. The trial court ordered another evaluation, but OSH again reported that “the unfortunate reality (is) that we cannot medicate him against his will (because) he does not have an immediate problem with violence or grave disability related to his own self-care.”
On March 27, 2013, OSH again informed the court “that there was no substantial probability that (Lopes) would regain competency because (he) ‘refuses to take psychotropic medication.’”
Lopes moved to dismiss the charges against him. At a hearing on that motion, the court considered whether it had authority to order involuntary medication, and if so, whether the state had proved that such an order would comport with the constitutional limitations articulated in Sell.
On June 3, 2013, the court found that it had authority to issue a Sell order and ordered that Lopes “be medicated in accordance with a list of medications and dosages approved by (his) psychiatrist.”
The court granted Lopes’ motion to stay the Sell order so that he could challenge it in an Oregon Supreme Court mandamus proceeding.
The Supreme Court first recognized that Sell did not grant trial courts authority to issue Sell orders and “did not have occasion to consider or explore the statutory basis for the trial court’s authority to issue a Sell order.” It also noted that “unlike many states, Oregon has not enacted statutes that explicitly grant trial courts authority to enter Sell orders or that implement the Court’s decision in Sell.'"
The Court then focused on Oregon’s statutory scheme enacted in 1971 -- 32 years before Sell -- governing incompetence to stand trial. “Neither those statutes as originally enacted nor the amendments to those statutes expressly grant trial courts authority to enter Sell orders or set forth the criteria that a court should apply when considering whether to grant such an order,” the Court acknowledged. Nevertheless, “ORS 161.370 grants trial courts authority to commit defendants to hospitals for treatment that is designed to restore their trial competency,” the Court observed.
“By implication, that statute also grants trial courts authority to issue Sell orders when necessary to enable hospitals to provide that treatment.” The Court then examined whether the trial court’s order satisfied the Sell standards.
Beginning with the “important governmental interest” required by the first Sell factor, the Court observed that this factor typically turns upon whether the charge is “serious.” That question has often been decided by consideration of the maximum sentence if the defendant is convicted.
The Court found that the trial court’s order “did not include a finding as to the maximum sentence.” It noted, however, that “the parties and the court assumed that the maximum sentence that (Lopes) would receive at sentencing would likely result in confinement of no more than one year, but that, because (he) had already been confined for that period and would receive credit for time served, he would not be sentenced to additional confinement if convicted.” By the time the Court issued its opinion, Lopes had “been confined for an additional six months.”
On the record before it, the Court held that “the first Sell factor is not satisfied, and the trial court erred in concluding otherwise.”
The Court then turned to the second Sell factor - whether involuntary medication will significantly further the state’s interests in prosecution - which required the trial court to make two factual findings: (1) that the administration of medication is substantially likely to render (Lopes) competent to stand trial; and (2) that such medication is substantially unlikely to have side effects that will interfere significantly with Lopes’ ability to assist counsel. The State’s burden of proof on the second Sell factor is by “clear and convincing” evidence.
Given that “the order does not expressly indicate that the court evaluated the evidence presented to determine whether it was clear and convincing” the Court held “that the trial court erred in its application of the second Sell factor.”
Although the Court held that due process “does not condition a Sell order on a psychiatric guarantee of success,” the Court cautioned “that there may be a cognizable difference between medication that is sufficiently effective to be medically appropriate, and therefore a reasonable choice that is ‘worth trying’ and medication that meets the Sell standard.”
Turning to the third and fourth Sell factors - that there is no less intrusive means for administering the medication, and that administration of the medication would be medically appropriate - the Court again found that the “required factual determinations” must be “supported by clear and convincing evidence.”
The trial court’s findings on the third and fourth factors were deficient because “neither the order nor the record establish that the trial court evaluated the relevant evidence to determine if it was clear and convincing.” Therefore, “the trial court also erred with regard to the third and fourth Sell factors.” See: State v. Lopes, 355 Or. 72, 322 P.3d 512 (2014)(En Banc).
Longtime Oregon criminal defense attorney Laura Graser represented Lopes. She called forced psychotropic medication the equivalent of “mental rape.”
“They will pull down their pants and stick a needle in their buttocks,” Graser said. “I think the terror of having that procedure would be the same for you and me as it would be for an ill person. Really terrifying. The word ‘rape’ doesn’t seem too strong.”
Nevertheless, Graser predicted that rather than issue a new Sell order, the trial court would likely dismiss the charges against Lopes.
Source: The Oregonian
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Related legal case
United States v. Ruiz-Gaxiola
|623 F.3d 684, 691 (9th Cir. 2010)
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