Involuntary Treatment for Restoration of Trial Capacity and the Role of Trial Courts

Gomathie Chelvayohan; Craig Lemmen

Trial Courts Possess the Power to Order Involuntary Treatment of the Defendant When Deemed Necessary to Restore Trial Capacity, if the Due Process Requirements Set Out in Sell v. United States Are Met

In State v. Lopes, 322 P.3d 512 (Or. 2014) the Supreme Court of Oregon issued a peremptory writ of mandamus to James Lopes, holding that although the trial court had the power to order the involuntary treatment that was deemed necessary for the restoration of Mr. Lopes' trial capacity, the due process requirements of the U.S. Constitution, as articulated in Sell v. United States, 539 U.S. 166 (2003), were not satisfied by the trial court's order for forced medication.

Facts of the Case

Mr. Lopes was arrested in August 2012 and charged with attempted sex abuse in the first-degree after sexually assaulting an 8-year-old girl. He was found unfit to stand trial due to his inability to assist counsel. In October 2012, Mr. Lopes was committed to the Oregon State Hospital to be treated for restoration of fitness.

Subsequently, the hospital informed the trial court that it was unlikely that Mr. Lopes could be restored in the near future unless treated with psychiatric medications and that Mr. Lopes could not be involuntarily medicated because he did not meet the state standards for civil commitment.

In February 2013, Mr. Lopes filed a motion to dismiss the charges against him. During the hearing to address the motion, the court examined whether it possessed the power to order Mr. Lopes to be involuntarily medicated, and if so, whether the state had provided the necessary evidence to support an order for involuntary treatment that satisfied the due process requirements articulated in Sell v. United States, 539 U.S. 166 (2003). In Sell, the United States Supreme Court held that to enter an order for involuntary medication: … first, a court must find that important interests are at stake…. Second, the court must conclude that forced medication will significantly further those concomitant interests. It must find that medication is substantially likely to render the defendant competent to stand trial and substantially unlikely to have side effects that will interfere significantly with the defendant's ability to assist counsel in conducting a defense. Third, the court must conclude that involuntary medication is necessary to further those interests and find that alternative, less intrusive treatments are unlikely to achieve substantially the same results. Fourth, the court must conclude that administering the drugs is medically appropriate (Sell, pp 180–1; emphasis in original).

In June 2013, the trial court held a hearing and entered an order for the administration of involuntary medications to Mr. Lopes, after concluding that the court had the authority to order him to be involuntarily medicated and that the due process requirements outlined in Sell had been fulfilled.

The trial court issued a stay of the order for involuntary medication at Mr. Lopes' request to allow him to challenge the order in court. Mr. Lopes then petitioned the Supreme Court of Oregon for a writ of mandamus ordering the trial court to vacate the forced-medication order. He argued that Oregon trial courts do not have the authority to enter Sell orders, as Sell assumes but does not grant trial courts that authority, and that Oregon law does not explicitly state that they have that authority. He also argued that the trial court's order did not comport with the due process requirements outlined in Sell. The Supreme Court of Oregon “stayed the trial court's order and issued an alternative writ of mandamus instructing the trial court either to vacate the order or to show cause for doing so” (Lopes, p 515).

Ruling and Reasoning

With respect to Mr. Lopes' argument that Oregon courts do not have the authority to enter Sell orders, the Supreme Court of Oregon held that, even though Oregon does not have statutes that explicitly grant trial courts the authority to enter Sell orders, the state's statute related to involuntary commitment for treatment also allows the court to hospitalize the defendant for treatment designed for the purpose of enabling the defendant to gain or regain trial capacity. It therefore concluded that the trial court had the authority to enter a Sell order. The ruling is primarily relevant to Oregon and its specific statute (Or. Rev. Stat. § 161.370 (2011)).

In addressing Mr. Lopes' due process claim, the Supreme Court of Oregon concluded that the trial court's order did not follow the due process requirements set out in Sell. Particularly, the Oregon Supreme Court opined that the trial court records did not include the necessary details to demonstrate that Mr. Lopes' prosecution and conviction would sufficiently advance governmental interests. “In most of the cases in which federal courts have considered the constitutionality of Sell orders, the crimes charged have been punishable by five or more years in prison, and courts generally have concluded that such crimes are ‘serious’ under Sell” (Lopes, p 525). However, some courts have concluded that crimes with sentences of greater than six months in prison are serious. Courts consider not only the length of sentence a crime carries but also the nature of the crime in weighing whether it is serious. In this case, the trial court found that Mr. Lopes had been charged with a Class C felony but it did not make a finding as to what the maximum sentence could be. The maximum sentence for a Class C felony in Oregon is 5 years, but considering sentencing guidelines and time served, it appeared that sentencing would be likely to result in confinement of less than a year. Although Mr. Lopes had been confined for a length of time comparable with the time he would have served had he been convicted, the state argued that his “conviction would serve governmental interests beyond confinement [including] ‘the ability to ensure that [Mr. Lopes] receives supervision and treatment in the community if found guilty, thereby assisting [him] in avoiding similar behavior in the future’” (Lopes, p 527). The Oregon Supreme Court, however, found that the trial court records were insufficient in addressing the government's interests in further confining Mr. Lopes. Therefore, the Supreme Court of Oregon held that the trial court erred in entering the Sell order and issued a peremptory writ of mandamus.

Discussion

In Sell, the United States Supreme Court held that the four requirements for the involuntary medication of defendants when administered for the sole purpose of restoration of trial capacity are not to be balanced; instead, each of the requirements must be independently met.

The first requirement is that an important government interest be at stake. In Sell, the United States Supreme Court held that courts must consider each case's facts in evaluating the government's interest because special circumstances may lessen its importance. Although the Supreme Court of Oregon acknowledged the trial court's finding that Mr. Lopes had been charged with a serious crime, the question remained as to whether the presence of special circumstances lessened the state's interest. As the trial records were deemed insufficient, the Supreme Court of Oregon held that the trial court did not adequately demonstrate that “the state's continuing interest in restoring relator's competence and potentially convicting him are so important that they justify relator's involuntary medication” (Lopes, p 528).

Although the first factor of Sell was not met, thus requiring the trial court to vacate its Sell order, the Oregon Supreme Court went on to address the remaining Sell factors. The second factor is that “the administration of medication is substantially likely to render [Mr. Lopes] competent to stand trial and that such medication is substantially unlikely to have side effects that will interfere significantly with [Mr. Lopes'] ability to assist counsel” (Lopes, p 528). The trial court did not indicate whether the evidence presented met the clear-and-convincing standard of proof that is borne by the state in Sell hearings. Further review of the hearing record showed that Mr. Lopes' diagnosis had been delusional disorder, persecutory type. The treating psychiatrist testified there was a “30 to 40 percent” rate of successful treatment of that disorder with antipsychotic medication, and opined that the medications were “worth trying.” However, the Sell standard was not met because the state failed to present clear and convincing evidence that involuntary medication was “substantially likely” to restore fitness (Lopes, p 530).

This Sell requirement underscores the great difference between the stringent proof of a medication's efficacy demanded by Sell and the more relaxed standard of efficacy that is allowed in clinical practice when initiating a course of medication. The clinical approach of trying alternative medications with careful observation for possible efficacy may be justification for a trial of medication, but it is not sufficient to meet Sell's legal standard for involuntary medication. Thus, it is critical that the mental health professional who is called to testify in support of forced administration of a medication be prepared to offer drug efficacy testimony that meets the clear-and-convincing standard of proof demanded by Sell.