The Ninth Circuit's Loughner Decision Neglected Medically Appropriate Treatment

The Harper Hearings

Although the Ninth Circuit did not consider the medical appropriateness of hospitalizing Mr. Loughner for competency restoration, a separate matter is whether the medical appropriateness of administering such treatment, a criterion for involuntary medication under Harper, was considered in his Harper hearings. There were three Harper hearings. In the first, on June 14, 2011, Mr. Loughner's involuntary medication was justified on the basis of the finding that he was a danger to himself, his disorder was schizophrenia, and psychotropic medication is generally an acceptable treatment for this disorder. Mr. Loughner argued that the “specific drug and dosage that would be administered should have been set out in the hearing” (Ref. 4, p 738), but he did not argue that a hospital would be the appropriate setting for its administration. On June 24, 2011, Mr. Loughner's counsel filed an emergency motion in the district court, seeking to enjoin the Federal Medical Center (FMC)-Springfield from involuntarily medicating the detainee. The district court denied the requests, explaining that Mr. Loughner was being involuntarily medicated on dangerousness grounds. The district court did not consider the appropriateness of where to involuntarily medicate Mr. Loughner, who was already at FMC-Springfield.

On July 18, 2011, antipsychotic medication was initiated on an emergency basis by FMC-Springfield doctors because of Mr. Loughner's severe danger to himself (Ref. 4, p 738). Because he was already at FMC-Springfield, the appropriateness of the setting was not in question.

A second Harper hearing was held on August 25, 2011. Again, the setting was not at issue, as he remained at FMC-Springfield. Involuntary medication was again justified based on his danger to himself (Ref. 4, p 739).

The third Harper hearing, also occurring at FMC-Springfield, was held on September 15, 2011. Again, involuntary medication was justified on the basis of danger to self. Mr. Loughner appealed to the district court, which denied his motion to enjoin his involuntary medication.⁴ The district court stated in its written order that the “decision to medicate Mr. Loughner to prevent him from harming himself or others is best made by prison doctors following administrative procedures” (Order Extending Restoration Commitment 5, September 30, 2011, cited by United States v. Loughner, March 5, 2012, Ref. 4, p 740, emphasis in original). All three Harper hearings, initiation of emergency medication, and administration of involuntary medication had occurred in the prison hospital, not a nonmedical correctional facility.

The district court's hearing on September 28, 2011, also considered extension of Mr. Loughner's commitment to FMC-Springfield to render him competent to stand trial. One of the testifying physicians, Dr. Ballenger, testified that Mr. Loughner's medication regimen was “highly appropriate” (Ref. 4, p 741), without commenting on the venue of his involuntary treatment, as he remained at FMC-Springfield. Mr. Loughner then appealed to the Ninth Circuit (No. 11-10504). Perhaps if the order to medicate is made by a physician, a physician participates on the Harper committee, and a physician testifies that the medication is medically appropriate, then the medication will be considered to be medically appropriate without further inquiry.

The Majority Opinion

[Commitment to restore competency] is a separate inquiry [from involuntary medication] and, although the issues are related, we must keep the issues distinct.”— Circuit Judge Bybee [Ref. 4, p 765]

The majority opinion ruled on two points: whether to permit continued involuntary medication pursuant to a Harper hearing and whether there should be an extended commitment to restore competency, both having been ordered by the district court.⁵ Each procedure served primarily a separate question. Involuntary medication through a Harper hearing was justified because Mr. Loughner was a danger to himself, whereas extended commitment was intended to render him competent to stand trial. Mr. Loughner had objected to both involuntary medication and extended commitment at the Federal Medical Center at Springfield, Missouri.

The Dissenting Opinion

What the majority does not acknowledge is that the involuntary medication order itself depends on the detainee's commitment.—Circuit Judge Berzon (Ref. 4, p 785)

A partially concurring minority opinion, was entered by Senior Circuit Judge Wallace, but my principal interest is the dissenting opinion by Circuit Judge Berzon, which contrasts sharply with that of the majority. Whereas Circuit Judge Bybee, who wrote the majority opinion, emphasized theseparateness of the questions of involuntary medication and commitment, Circuit Judge Berzon found the two decisions to be necessarily and inextricably interwoven. She began with what she considered to be the indisputable premises that the purpose of Mr. Loughner's commitment was for restoration of competence to stand trial and that his competence could be restored only with psychotropic medication. Circuit Judge Berzon framed the question as whether a prior administrative order to medicate a pretrial detainee involuntarily on the basis of dangerousness to self can justify an extended commitment for the separate purpose of attainment of competence to stand trial. She found it illogical for the majority to separate the two questions when “the commitment decision was entirely dependent on continuing the involuntary medication during the entirety of Loughner's treatment for restoration of competency at FMC-Springfield” (Ref. 4, p 781).

“One cannot decide whether Mr. Loughner should be committed to restore competency by assuming an administrative medication decision that rested on the premise that he is already an inmate of the institution and needs to be medicated while there” (Ref. 4, p 781, emphasis in original). Circuit Judge Berzon then observed that Mr. Loughner was court ordered under Harper to be medicated involuntarily before a commitment hearing for competency restoration, his first commitment to FMC-Springfield having been for evaluation, not for treatment and competency restoration. In the present case, Circuit Judge Berzon concluded, “a court may not commit a pretrial detainee for the purpose of restoring his trial competency through involuntary medication without itself deciding that involuntary medication is both justified on some properly applicable ground and unlikely to infringe the detainee's fair trial rights” (Ref. 4, p 785). According to Circuit Judge Berzon, “the involuntary medication order itself depends on the detainee's commitment” (Ref. 4, p 785).

Justification for Hospitalizing an Incompetent Defendant

The only justification that the majority used to support the extended commitment of Mr. Loughner to the Federal Medical Facility in Springfield was for the purpose of restoration of competency to stand trial, which was based on the substantial probability that his competency was restorable, even though his involuntary medication was justified by his dangerousness, not by the need for competence restoration. Mr. Loughner had been found incompetent, and in Sell, the Supreme Court had favored competence restoration by the Harper criterion of dangerousness.⁴

Perhaps not in the federal system, but as a general principle, commitment to a security hospital is not necessary for competence restoration, if it can be accomplished by a less restrictive program (Ref. 9, p 192; and Ref. 10). Although this was not the case for Mr. Loughner, for a defendant who is incompetent, is not dangerous, and is treatment compliant, commitment to a security hospital may not be clinically necessary, depending on the availability of a suitable competence restoration program in a less restrictive setting or conceivably even in the highly restrictive but more convenient setting of a jail. For example, the in-jail competence restoration program at Atlanta's Fulton County Jail developed by faculty at Emory University refers selected defendants, including those for whom forced medication is required, to a state-operated security hospital.^11,12 The most practical reason for commitment of an incompetent defendant to a security hospital, of all places, is that he is, because of severe mental illness, dangerous and at risk for escape and is not compliant with treatment. If the majority had fortified its justification for commitment by acknowledging the medical appropriateness of a medical facility and medical inappropriateness of a nonmedical correctional facility for involuntary treatment with antipsychotic medication, the apparent incongruity of commitment for restoration of competence when involuntary treatment was not for the expressed purpose of restoring competence would not have mattered. Hospitalization would have been required for involuntary medication in either case.

Instead, unfortunately, the majority not only failed to acknowledge the critical purpose of hospitalization for competency restoration, it dismissed as irrelevant any consideration of medical appropriateness. Moreover, the Ninth Circuit had earlier ordered that Mr. Loughner be treated involuntarily, even if in a nonmedical correctional facility, thereby setting the stage for future involuntary medication of defendants under Harper while in jail. The nonsequitur of committing a defendant to a hospital for competency restoration when his involuntary treatment is not for the purpose of competency restoration was the least of the problems created by the majority in its decision concerning the involuntary treatment of Jared Loughner.

Although the statute on which extended hospitalization for competence restoration was based (18 U.S.C., § 4241(d)(2)) did not explicitly require that hospitalization be medically appropriate, it would have been oxymoronic for Congress to have intended for defendants to be committed where hospitalization was not medically appropriate. The stem of subsection (d) of this statute does specify that the defendant be “hospitalize[d] … (for treatment in a suitable facility” (18 U.S.C. § 4241(d)). This terminology, not cited by the Ninth Circuit, comes quite close to the medical appropriateness of the relevant Supreme Court decisions. Even if this statutory language on suitability did not exist, the rationale for appropriateness is so obvious and compelling as to be implicit. What was recognized by the majority to be medically appropriate for Mr. Loughner was the need for involuntary medication under a Harper order, but the Harper hearing did not address hospital commitment, and The Ninth Circuit's majority did not find that medical appropriateness was necessary or relevant to Mr. Loughner's commitment. Section 4241(d)(2) does not address involuntary medication or commitment on the basis of dangerousness, apart from competence restoration. If the Loughner decision were to have based involuntary medication on a Harper order that did not mention commitment, as it did, but with the commitment serving the purpose of competence restoration only, as occurred, then to support the commitment the Harper order must have explicitly stated the as yet secondary, latent objective of involuntary treatment, restoration of competence.

The only purpose for Mr. Loughner's extended commitment to FMC-Springfield, according to the majority, was restoration of competency. The medical appropriateness of involuntary medication had no bearing on the majority's decision to uphold commitment. Indeed, appropriateness of medical treatment is not one of the four traditional legal criteria for competency to stand trial.¹³ In Harper, however, the United States Supreme Court's holding required that under the Due Process Clause, the prisoner's medical interests be balanced with the state's legitimate interest in prison safety and security. A prisoner's medical interest should include, it should be added, the appropriateness of the medication, the mode of administration, and the setting where the treatment is administered.

The federal statutory and judicial laws on competence restoration are not integrated. The federal statute on commitment to restore competence does not consider the possibility of restoration under a Harper order. The courts, in the case of Mr. Loughner if not more generally, do not have any federal law authorizing hospital commitment based at least in part on medical necessity or appropriateness. The result is that the medical appropriateness of administering involuntary medication within a hospital, the community standard of practice, is completely overlooked.

Of importance, Circuit Judge Berzon in her dissent and in contrast to Circuit Judge Bybee's majority opinion, logically recognized that involuntary treatment should be administered only with hospital commitment. As the statement so asserting is not further qualified, it should be added that it is equally true, whether the purpose of commitment is to treat the defendant involuntarily according to the dangerousness criterion of Harper or is explicitly for competency restoration. Circuit Judge Berzon, like Circuit Judge Bybee, made no mention of the fact that the Ninth Circuit had earlier ordered involuntary medication of Mr. Loughner, whether in a nonmedical correctional facility or a medical facility. Circuit Judge Berzon had, in fact, joined the other Ninth Circuit justices in the October 7, 2011, order permitting Mr. Loughner's involuntary medication in a nonmedical correctional facility. Circuit Judge Berzon thereby left ambiguous the question of whether involuntary medication for the expressed purpose of treating dangerousness rather than restoring competency could be administered with constitutional approval in a nonmedical correctional facility.

In declaring that “the involuntary medication order itself depends upon the detainee's commitment” (Ref. 4, p 785), it might first appear as though Judge Berzon appreciated the medical appropriateness of the administration of involuntary medication in a hospital. She did not, however, as she joined the other Ninth Circuit justices in the October 7 order that allowed Mr. Loughner's continued involuntary medication without hospital commitment. Thus, Circuit Judge Berzon actually showed no greater appreciation for the medical appropriateness of administering involuntary medication in a hospital, as opposed to a nonmedical correctional setting, than did Circuit Judge Bybee. Even Circuit Judge Berzon, who wrote as though she supported Mr. Loughner's medical as well as procedural interests, accepted and joined in the authorization of a nonmedical correctional facility for involuntary medication of Mr. Loughner, a deprivation of appropriate medical care that Walter Harper himself did not endure.

Vitek and Involuntary Medication

The Ninth Circuit's order allowing Mr. Loughner to be involuntarily medicated while still in a nonmedical correctional facility referenced, and was therefore at first blush supported by, the United States Supreme Court's Vitek decision.¹⁴ That decision, however, prohibits only the transfer of a prisoner to a hospital without due process protections. It does not address involuntary medication without hospital transfer. In fact, the High Court in Vitek made no criticism of the justification for hospitalizing Joseph Vitek and other prisoners that was provided by Nebraska statutory law. The Vitek statutory justification of Nebraska law, undisturbed by the Supreme Court's Vitek decision, was to provide treatment that could not be provided in the nonmedical correctional facility. I presume and hope that Larry Jones in Vitek had been transferred to Lincoln Regional Medical Center before he was involuntary medicated, if indeed he was involuntarily medicated. In any case, the Supreme Court stated nothing in its Vitek decision to support the administration of involuntary medication in a nonmedical correctional facility. Although the practice was authorized in its court order of October 7, 2011, which cited Vitek, the Ninth Circuit provided no legal foundation or justification for it in that order or in its March 5 opinion.

The Supreme Court and Medical Appropriateness

Mr. Loughner's Guilty Plea

Having been restored to competence to stand trial with enforced medication, Mr. Loughner on August 7, 2012, pleaded guilty to 19 of the 49 charges against him, with prosecutorial agreement to life imprisonment without parole in lieu of the death penalty.¹⁹ On November 8, 2012, a U.S. district judge sentenced Mr. Loughner to seven consecutive life terms and an additional 140 years of imprisonment.²⁰ If Mr. Loughner's guilty plea was determined by the trial judge to have been made knowingly and voluntarily, (see Godinez v. Moran²¹), there would seem to be no grounds for review by the United States Supreme Court.²²

Eventual review of the Harper-Sell issue by the Supreme Court in the Loughner case may not be impossible, but at this point it looks highly unlikely. It will thus be left for the Court to address the question in review of a future case. It is bound to arise again. Even if it is no longer in play for Jared Loughner, his case illustrates through the minority opinion a critical point that remains to be disambiguated by the Supreme Court.

A Decision for the United States Supreme Court

The United States Supreme Court in Sell was clear that if there are alternative Harper-type grounds, they may be preferred to treat and render the defendant competent over the Sell criteria for involuntary medication to restore competency. The Loughner majority read Sell correctly in this regard. According to Circuit Judge Berzon, however, the majority did not apply the correct procedure. The Harper-type grounds should have been considered by the district court itself and not through an administrative hearing. By quoting the Sell opinion at length, Judge Berzon illustrated with the repetitive reference to the trial court, that the “court, ‘asked to approve forced administration of drugs for purposes of rendering a defendant competent to stand trial,’ should itself begin by determining whether the drugs may be justified on alternative, Harper-type substantive grounds” (Loughner, Ref. 4, p 783, emphasis in original, and Sell, Ref. 8, p 183).

In other words, Harper-type criteria, but not the administrative hearing of Harper, can be used to medicate involuntarily for competence restoration. Any determination of involuntary medication for trial competency must be made by the trial court, whether the criteria are those of Sell, Harper, or some other authority.

A careful reading of the entire Sell opinion shows Circuit Judge Berzon to be correct on this point. Nowhere in the majority opinion is it suggested that a Harper administrative hearing can be used in place of a court hearing to determine whether an incompetent defendant can be medicated involuntarily to achieve trial competence. Even when the preferred Harper-type criteria are applied for this purpose, the decision to medicate involuntarily is the responsibility of the court itself.⁷

If the Supreme Court were to review a case such as the Ninth Circuit's Loughner decision with regard to the question of judicial versus administrative hearing where the Harper-type criteria serve the purpose of competency restoration, the Court's opinion most likely would be split as it was in Sell, but where this particular disagreement was not brought into high-definition focus.

Consistent with its opinions in Harper, Riggins, and Sell, the U.S. Supreme Court would not minimize the critical importance of medical appropriateness in involuntary medication of pretrial defendants. The Court, however, could neglect to consider the medical appropriateness of the facility, a concern that was not addressed in this trilogy. The Ninth Circuit ordered that Jared Loughner be involuntarily medicated, even while in a nonmedical correctional facility, without expressed justification, and ordered his commitment without establishing the necessary medical appropriateness of extended commitment. In such a case, the Supreme Court might well have reason to address the medical appropriateness of the facility wherein involuntary medication for either risk management or competence restoration is to take place.