The opinion of the court was delivered by: Garnett Thomas Eisele United States District Judge
Before the Court is the request of the Bureau of Prisons for authorization to involuntarily treat Mr. Bracy with psychotropic medications in order to restore his competency to proceed to trial. This request is made pursuant to the decision in Sell v. United States, 539 U.S. 166, 180-82 (2003).*fn1 The Court wishes to review its understanding of the applicable law in order to give the parties an opportunity to agree or disagree therewith in anticipation of a hearing to deal with unresolved factual issues.
An individual has a constitutionally protected liberty interest in rejecting or avoiding the administration of antipsychotic medications. Washington v. Harper, 494 U.S. 210, 221-22 (1990). Before the court may authorize the involuntary administration of antipsychotic medication for the purpose of rendering Bracy competent to stand trial, the government must show: (1) important government interests are at stake; (2) involuntary 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 at trial; (3) involuntary medication is necessary to further the government's interests, and less intrusive means are unlikely to achieve substantially the same results; and (4) the administration of the drugs is medically appropriate. United States v. Ghane, 392 F.3d 317, 319 (8th Cir. 2004) (citing Sell v. United States, 539 U.S. 166, 180-82 (2003)).
Neither the Supreme Court nor the Eighth Circuit has spoken on the standard of proof that attaches to Sell proceedings. Ghane, 392 F.3d at 319 (noting that in United States v. Gomes, 387 F.3d 157, 160 (2d Cir. 2004), the Second Circuit determined that a clear and convincing standard should apply). The Sixth Circuit has ruled that a clear and convincing evidence standard is the proper burden of proof to be applied in deciding whether to forcibly medicate a non-dangerous pretrial detainee. United States v. Brandon, 158 F.3d 947, 961 (6th Cir. 1998) (determining that the government must satisfy strict-scrutiny review and demonstrate that its proposed approach is narrowly tailored to a compelling interest).
I. Important Governmental Interests At Stake
First, this Court must find that important governmental interests are at stake. "The Government's interest in bringing to trial an individual accused of a serious crime is important." Sell, 539 U.S. at 180. That is so whether the offense is a serious crime against the person or a serious crime against property because in both instances the Government seeks to protect the basic human need for security through the application of the criminal law. Id. However, special circumstances may lessen the importance of the Government's interest in prosecution. Id. For instance, a defendant's failure to take drugs voluntarily may mean lengthy confinement in an institution for the mentally ill, which would diminish the risks that ordinarily attach to freeing without punishment one who has committed a serious crime. Id. The Court further stated, We do not mean to suggest that civil commitment is a substitute for a criminal trial. The Government has a substantial interest in timely prosecution. And it may be difficult or impossible to try a defendant who regains competence after years of commitment during which memories may fade and evidence may be lost. The potential for future confinement affects, but does not totally undermine, the strength of the need for prosecution. The same is true of the possibility that the defendant has already been confined for a significant amount of time (for which he would receive credit toward any sentence ultimately imposed, see 18 U.S.C. § 3585(b)). Moreover, the Government has a concomitant, constitutionally essential interest in assuring that the defendant's trial is a fair one.
Defendant is currently under Indictment for Felon in Possession of a Firearm in violation of 18 U.S.C. § 922(g)(1), which carries a maximum term of imprisonment of ten years. Previously convicted criminals are prohibited from possessing guns to reduce the risk to society that they will engage in violent acts. See United States v. Dillard, 214 F.3d 88, 94 (2d Cir. 2000). In United States v. Algere, 396 F. Supp. 2d 734, 740 (E.D. La. 2005), the district court found that possession of a firearm by a convicted felon, when the underlying felony was manslaughter, carrying a maximum term of imprisonment of ten years, was a "serious" offense. See also United States v. Evans, 404 F.3d 227, 238 (4th Cir. 2005) (concluding that threatening to murder a federal judge, a felony whose maximum term of imprisonment is 10 years is a serious offense "under any reasonable standard"). But see United States v. Dumeny, 295 F. Supp. 2d 131, 132-33 (D. Me. 2004) (finding that a charge under 18 U.S.C. § 922(g)(4) for possession of a firearm by a person previously committed to a mental health institute, which carries a maximum penalty of ten years, not sufficiently serious to warrant forcible medication because there was no indication of violence in defendant's past). The Second Circuit, in United States v. Gomes, 387 F.3d 157, 160 -61 (2d Cir. 2004), found that although the defendant was charged only with illegal possession of a handgun, not use, his possession was compounded by his three prior convictions for serious drug offenses. Citing 18 U.S.C. § 924, the court noted that "Congress evidently believed when it enacted the statute that possession in the hands of an 'armed career criminal' such as Gomes is a serious threat in itself." Id. (citing United States v. Dillard, 214 F.3d 88, 94 (2d Cir. 2000) ("The risk of violent use posed by a convicted felon's possession of firearms is significant.").
In this case, the underlying felony conviction that the Government charges is Possession of a Controlled Substance (Cocaine), a Class C felony. However, the Competency Restoration Study submitted to the Court discusses Mr. Bracy's extensive criminal history, most of which involve theft and drug offenses. The history also states that Mr. Bracy was charged with Lewd or Lascivious Acts with a Child under 14 when he was 24 and Battery when he was 42, but does not indicate that he was convicted of these charges. Furthermore, if it appears that there is little, if any, evidence to suggest that Bracy would qualify for civil commitment, the prospect of civil commitment would be insufficient to undermine the Government's interest in bringing Bracy to trial. See Gomes, 387 F.3d at 160-61.
II. Whether Involuntary Medication is Substantially Likely to Render Defendant Competent to Stand Trial and Substantially Unlikely to Have Side Effects that Will Interfere with Defendant's Ability to Assist Counsel at Trial
Second, this Court must conclude that involuntary medication will significantly further those concomitant state interests. Sell, 539 U.S. at 181. It must find that administration of the drugs is substantially likely to render the defendant competent to stand trial. Id. At the same time, it must find that administration of the drugs is substantially unlikely to have side effects that will interfere significantly with the defendant's ability to assist counsel in conducting a trial defense, thereby rendering the trial unfair. Id.
Regarding the finding that administration of the drug is substantially likely to render defendant competent to stand trial, courts have found that a 70 percent probability is sufficient to find a substantial likelihood that an anti-psychotic medication will restore a defendant to competency, but that a ten percent probability is not. United States v. Algere, 396 F. Supp. 2d 734, 741 (E.D. La. 2005)(citing Gomes, 387 F.3d at 161-62 (70 percent sufficient); United States v. Morris, No. CR.A.95-50-SLR, 2005 SL 348306, at *3 (D. Del. Feb. 8, 2005) (same); United States v. Ghane, 392 F.3d 317, 320 (8th Cir.2004) (five to ten percent chance of restored competence not a substantial likelihood). To satisfy its burden on this element, the government must also "set forth the particular medication, including the dose range, it proposes to administer to [the defendant] to restore his competency." Id. (citing United States v. Evans, 404 F.3d 227, 241 (4th Cir. 2005)). The Competency Restoration Study ("the Study") submitted to the Court concludes that "[w]hile Mr. Bracy is viewed as currently not competent to stand trial, based on all available information, we believe there is a substantial likelihood that with appropriate treatment, he may again improve to such an extent that his competency to proceed may be restored." The Study estimates the expected efficacy in the case of Mr. Bracy to approach the higher end of approximately 80 percent.
When making the determination on whether the antipsychotic drugs are substantially unlikely to have side effects that will interfere significantly with the defendant's ability to assist counsel in conducting a trial defense, thereby rendering the trial unfair, this Court must engage in a two-step analysis. See United States v. Brandon, 158 F.3d 947, 960 (6th Cir. 1998). In the first step of the analysis, the court will receive medical testimony regarding Bracy's mental illness and its symptoms, as well as the effects that antipsychotic medication will have, both beneficial and harmful, on Bracy's physical and mental health. See id. This step involves an analysis of Bracy's condition and treatment that is essentially medical. See id.
The Study states, "the prescription of antipsychotic medication is a standard component of treatment for anyone with Mr. Bracy's mental illness, and in view of his current psychosis, is considered a necessary treatment at this time. Mr. Bracy has refused psychotropic medication and due to the severity of his symptoms he appears unable to make treatment decisions in his own best interest. We offer the opinion that involuntary medication is necessary to restore his competency to stand trial and alternative, less intrusive treatments are unlikely to achieve the same results." The Study concludes that "[t]he side effects for Haldol and Prolixin . . . would be unlikely to interfere with Mr. Bracy's ability to assist his counsel in his defense. This is predicated on appropriate clinical management to minimize any of these side effects." The Study further states that injectable medication, rather than oral psychotropic medications, would be necessary due to Mr. Bracy's history ...