Opinion
No. 2002-678
Argued February 13, 2003
Opinion Issued June 13, 2003
Richard Guerriero and Katherine Cooper, public defenders, of Concord (Mr. Guerriero and Ms. Cooper on the brief, and Mr. Guerriero orally), for the defendant.
Stephen J. Judge, acting attorney general (Susan P. McGinnis, attorney, on the brief and orally), for the State.
The defendant, Raymond J. Bahmer, brought this petition for original jurisdiction following the denial by the Superior Court (Mohl, J.) of his motion to declare RSA 135:17-a (Supp. 2002) (statute) unconstitutional. We affirm.
The record supports the following facts. In July 2001, the defendant was charged with two counts of reckless conduct, see RSA 631:3 (1996), and one count of unauthorized use of a propelled vehicle, see RSA 634:3 (1996). Defense counsel filed a motion raising the issue of the defendant's competency to stand trial. In October 2001, Dr. James Adams of the New Hampshire Department of Corrections evaluated the defendant and determined that he suffered from a "major mental illness" and was not competent to stand trial. He reported that "there [was] reason to believe that the defendant could be restored to competence within . . . one-year . . . with treatment." At a subsequent status hearing, the parties agreed to accept the doctor's competency finding and the State declared its intent to seek compelled treatment to restore the defendant's competence, pursuant to RSA 135:17-a. Thereafter, the defendant filed a motion to declare the statute unconstitutional.
Following a hearing in March 2002, the trial court ruled that the defendant was not competent to stand trial and modified his bail to require that he continue with mental health treatment, including administration of anti-psychotic and anti-anxiety medications. The trial court later ruled that RSA 135:17-a was constitutional, ordered the defendant to comply with treatment to restore his competence, and clarified that the finding of incompetency was effective March 6, 2002. This appeal followed.
The defendant argues that RSA 135:17-a violates: (1) his right to due process under Part I, Article 15 of the State Constitution and the Fourteenth Amendment to the Federal Constitution, as well as his right to equal protection under Part I, Articles 2 and 12 of the State Constitution and the Fourteenth Amendment to the Federal Constitution, because it requires an incompetent criminal defendant to suffer a loss of liberty unless he can prove that his competency cannot be restored through treatment; and (2) his right to due process under Part I, Article 15 of the State Constitution and the Fourteenth Amendment to the Federal Constitution because it permits trial courts to compel an incompetent criminal defendant to submit to mental health treatment, including forced medication, for the purpose of restoring the defendant to competency to stand trial.
We begin by noting that because the trial court's finding of incompetency was effective March 6, 2002, the twelve-month review period in RSA 135:17-a has already expired. While this matter may, therefore, be technically moot, we recognize that mootness is not subject to rigid rules and should be regarded as a matter of convenience and discretion.State v. Gagne, 129 N.H. 93, 98 (1986). Because the defendant has raised issues of significant constitutional dimension that are "capable of repetition, yet evading review," id. (quotation omitted); Royer v. State Dep't of Empl. Security, 118 N.H. 673, 675 (1978), we address the trial court's ruling on the constitutionality of RSA 135:17-a.
I
We turn first to the defendant's argument that the statute violates his right to due process because it requires an incompetent criminal defendant to suffer a loss of liberty unless he proves by clear and convincing evidence that his competency cannot be restored through treatment. Because the statute's constitutionality involves a question of law, we review the trial court's determination de novo. See Hynes v. Hale, 146 N.H. 533, 535 (2001). On this issue, as well as on all subsequent issues in this case, we first address the defendant's claim under the State Constitution, State v. Ball, 124 N.H. 226, 231 (1983), and cite federal opinions for guidance only, id. at 232-33.
As the trial court recognized, when determining if a statutory burden of proof satisfies due process, we examine whether the challenged procedure involves a constitutionally protected interest, and, if so, whether the procedure affords the requisite safeguards. In re Tracy M., 137 N.H. 119, 122 (1993). We agree with the defendant that during a competency hearing, which may involve bail issues, a defendant faces a potential deprivation of liberty and that due process protections apply.See Larose v. Superintendent, Hillsborough County Correction Admin., 142 N.H. 364, 367 (1997).
RSA 135:17 (Supp. 2002), together with RSA 135:17-a, detail the procedures to be followed when a defendant's competency to stand trial is at issue. RSA 135:17, I, permits the district or superior court to order a pre-trial psychiatric examination. If the examiner concludes that a defendant is not competent, the report must include findings as to "whether there is a course of treatment which is reasonably likely to restore the defendant to competency." RSA 135:17, III. Thereafter:
If, after hearing, the district court or superior court determines that the defendant is not competent to stand trial, the court shall order treatment for the restoration of competency unless it determines, by clear and convincing evidence, that there is no reasonable likelihood that the defendant can be restored to competency through appropriate treatment within 12 months. If the court finds, by clear and convincing evidence, that the defendant cannot be restored to competency within 12 months, the case against the defendant shall be dismissed without prejudice and the court shall proceed as provided in paragraph V.
RSA 135:17-a, I. RSA 135:17-a, V requires the trial court to determine whether a defendant, who cannot be returned to competency, is dangerous to himself or others. Upon such a finding, a defendant is to be evaluated for possible involuntary civil commitment. See RSA 135-C:34 (1996); RSA 171-B:2 (2002).
If treatment to restore competency is ordered pursuant to RSA 135:17-a, I, a defendant may be treated in the State mental health system or at the secure psychiatric unit under an order for involuntary admission. See RSA 135:17-a, II. In all other cases and if otherwise qualified, a defendant is entitled to bail, and the court may order "such conditions, in addition to the appropriate course of treatment to restore competency." RSA 135:17-a, II. Thereafter, in accordance with RSA 135:17-a, III:
A further hearing to determine the defendant's competency shall be held no later than 12 months . . . after the order committing the defendant for treatment. The hearing may be held earlier if the court is notified that the defendant has regained competency, or that there is no longer a reasonable likelihood of such restoration. Prior to the scheduled hearing, the treating psychiatrist shall conduct a further competency evaluation as set forth in RSA 135:17, and furnish such evaluation to the court and the parties.
If, after the hearing, the court determines that a defendant has not regained competency, the case against him must be dismissed without prejudice. See RSA 135:17-a, IV.
To the extent the defendant argues that the State should bear the burden of proof on all competency issues, the trial court did not directly address that issue. Instead, the trial court analyzed the statutory procedures detailed above and determined that the procedures at issue afforded the requisite safeguards so as not to violate the defendant's right to due process. In response to the defendant's argument, the State concedes that it has the burden to prove that a defendant is competent to stand trial, or that a defendant who is either on bail or involuntarily admitted has been restored to competence. We agree. See State v. Bertrand, 123 N.H. 719, 727-28 (1983). If the State fails to meet its initial burden, or if the State fails to prove that a defendant has been restored to competence within twelve months, a defendant may not then be forced to trial without subsequent proof of competence.
The State also argues that RSA 135:17-a does not place a burden of proof upon defendants to show they cannot be made competent. Rather, it contends that the statute simply "provides an added layer of protection of the defendant's constitutional rights" by allowing the trial court either to dismiss criminal charges without ordering treatment to restore competency, or to discontinue ordered treatment if it finds that the treatment will not be effective. While we agree with the State that the statutory procedures provide additional protection to a defendant's constitutional rights, we recognize that such a dismissal of charges or discontinuation of ordered treatment is predicated upon the trial court's determination that there is no reasonable likelihood that a defendant's competency can be restored through treatment within twelve months. The statute provides that such a determination may be made either after the initial hearing, see RSA 135:17-a, I, at a second competency hearing held no later than twelve months after the initial treatment order, see RSA 135:17-a, III, or earlier than twelve months if the trial court "is notified that the defendant has regained competency, or that there is no longer a reasonable likelihood of such restoration," id. Under those limited circumstances, and although the burden of proof to establish competency remains with the State, we agree that a defendant assumes the burden of showing that there is no reasonable likelihood that he can be restored to competency through appropriate treatment within twelve months.
Accordingly, we examine whether the statute's procedures afford the requisite due process safeguards. In so doing, we consider: (1) the private interest affected by the official action; (2) the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and (3) the government's interest, including the function involved and the fiscal and administrative burdens that additional or substitute procedural requirements would entail. See State v. Haley, 141 N.H. 541, 544 (1997); see also Mathews v. Eldridge, 424 U.S. 319, 334-35 (1976).
It is unquestioned that the private interests here, the deprivation of liberty for a criminal defendant, and a defendant's right not to be tried if he is legally incompetent, are substantial. See State v. Landry, 146 N.H. 635, 637 (2001); Bertrand, 123 N.H. at 725. The government's interest is likewise substantial.
The Supreme Court has on numerous occasions recognized that the individual's strong interest in liberty, even though important and fundamental may, in circumstances where the government's interest is sufficiently weighty, be subordinated to the greater needs of society. . . .
The government's interest in bringing a criminal defendant to trial is a fundamental one. The constitutional power to bring an accused to trial is fundamental to a scheme of ordered liberty and prerequisite to social justice and peace.
United States v. Gomes, 289 F.3d 71, 80 (2d Cir. 2002) (quotations, brackets and ellipsis omitted), petition for cert. filed, (U.S. Oct. 22, 2002) (No. 02-7118). In addition, the government's interest in prosecuting, convicting and punishing those who violate the law is compelling. See United States v. Weston, 255 F.3d 873, 880 (D.C. Cir.),cert. denied, 534 U.S. 1067 (2001).
We believe that the risk of an erroneous deprivation of a defendant's liberty interest here is low, given the procedures mandated by RSA 135:17 and RSA 135:17-a. RSA 135:17 provides for a pre-trial psychiatric examination and enumerates the criteria that the examination must address. If the examiner concludes that a defendant is not competent to stand trial, the evaluation report must include findings as to whether there is a course of treatment that is reasonably likely to restore him to competency. Under RSA 135:17-a, these findings assist the trial court in making an initial determination as to whether there is a reasonable likelihood of restoring the defendant to competency through appropriate treatment within twelve months. If the court finds no such reasonable likelihood, the case against the defendant is dismissed without prejudice, and the defendant is not committed or ordered to undergo treatment, unless he is found to be dangerous to himself or others. The court must make these findings based on clear and convincing evidence.
If a defendant is found not competent and dangerous to himself or others, he may be evaluated for involuntary admission into the State mental health or developmental services delivery system. See RSA 135:17-a, V. If, as here, the court orders a defendant treated to restore competency, he may either be entitled to bail, or be treated in the same State mental health system under an order for involuntary admission. See RSA 135:17-a, II. We have previously held that significant statutory safeguards exist to minimize the risk of erroneous deprivation of liberty due to civil commitment. In re Richard A., 146 N.H. 295, 298-300 (2001).
In addition, the statute mandates a second competency hearing no later than twelve months after the initial finding of incompetence. Throughout the proceedings, the State has the burden of proving either that a defendant is competent to stand trial, or that he has been restored to competency before it can bring him to trial. The twelve-month evaluation period comports with the requirement that it be no longer than is reasonable to determine whether there is a substantial probability that the defendant will attain competency in the foreseeable future. See Jackson v. Indiana, 406 U.S. 715, 738 (1972); see also State v. Sullivan, 739 N.E.2d 788, 793 (Ohio 2001) (one year is reasonable period of time to hold incompetent defendant in order to restore him to competency to stand trial). Finally, the present statutory procedures require the expenditure of substantial State resources, and the governmental interest at stake weighs against additional safeguards. See In re Richard A., 146 N.H. at 300.
We find that the statutory procedures do not violate the defendant's right to due process under our State Constitution. The statute allows the trial court to find, either at the initial competency hearing or anytime up to twelve months thereafter, that there is no reasonable likelihood a defendant can be restored to competence. In addition, "due process does not require that, prior to treatment, a court determine that there is a substantial probability that the defendant can be restored to competency." Sullivan, 739 N.E.2d at 793.
The Federal Constitution offers the defendant no greater protection than does the State Constitution under these circumstances. See Medina v. California, 505 U.S. 437, 442-46 (1992); In re Tracy M., 137 N.H. at 122. Accordingly, we reach the same result under the Federal Constitution as we do under our State Constitution.
II
The defendant further contends that the statute violates his right to equal protection because it requires an incompetent criminal defendant to suffer a loss of liberty unless he can prove that his competency cannot be restored through treatment.
The petitioner argues that he belongs to "a class of adults who face a loss of liberty because of their mental illness" and who, under New Hampshire law, are divided into "those subject to involuntary commitment pursuant to pending criminal charges" under RSA 135:17-a and "those subject to civil involuntary commitment proceedings" under RSA chapter 135-C. He contends that both groups are "similarly situated," but that incompetent criminal defendants are denied the same procedural protections afforded those persons facing involuntary civil commitment.
The doctrine of equal protection demands that all persons similarly situated should be treated alike. State v. LaPorte, 134 N.H. 73, 76 (1991); see Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 439 (1985). The first question in an equal protection analysis, therefore, is whether the State action in question treats similarly situated persons differently. LaPorte, 134 N.H. at 76. If so, the focus becomes whether the classification is constitutionally permissible. Id.
We disagree with the defendant that the two groups, as defined, are similarly situated. Individuals subject to involuntary commitment pursuant to pending criminal charges under the statute have been adjudicated as not competent to stand trial. See RSA 135:17-a, I. If the incompetent criminal defendant is to undergo treatment to restore competency, he is either entitled to bail or to treatment while confined under an order for involuntary admission. See RSA 135:17-a, II. In contrast, individuals who are not subject to pending criminal charges, but who are subject to civil involuntary commitment proceedings under RSA chapter 135-C, have been adjudicated as being in such a mental condition because of mental illness as to pose a likelihood of danger to themselves or others. See RSA 135-C:27 (Supp. 2002); RSA 135-C:34. Such individuals may or may not be competent under RSA 135:17, II. Persons who pose a likelihood of danger to themselves or others, and who may or may not be competent to stand trial, are not similarly situated to criminal defendants who pose no such danger, but who are not competent to stand trial.
Further, once incompetent defendants are subject to an order for involuntary admission under RSA 135:17-a, they are treated in the same manner as those individuals committed under RSA chapter 135-C, with one exception. Under RSA 135:17-a, III, a defendant receives a second competency hearing no later than twelve months after the order committing him for treatment. Only if a defendant has not regained competency by the time of the second hearing, and if the court has determined that the defendant is dangerous to himself or others, does the court order the person to remain in custody for a reasonable period, not to exceed ninety days. See RSA 135:17-a, V. During this time period, a defendant is evaluated for the appropriateness of involuntary treatment pursuant to RSA 135-C:34 or RSA 171-B:2. See id. As such, we agree with the trial court that the statute addresses the concerns, regarding different commitment and release standards and the prospect of permanent institutionalization, voiced by the United States Supreme Court inJackson v. Indiana, 406 U.S. at 729-30. Accordingly, we hold that the statute does not violate the defendant's right to equal protection under the State Constitution.
The Federal Constitution offers the defendant no greater protection than does the State Constitution under these circumstances. See Cleburne, 473 U.S. at 439-42; Jackson v. Indiana, 406 U.S. at 727-30;Appeal of Wintle, 146 N.H. 664, 667 (2001). Accordingly, we reach the same result under the Federal Constitution as we do under our State Constitution.
III
The defendant next contends that RSA 135:17-a violates his right to due process "by subjecting incompetent defendants to forced mental health treatment." He asks us to "reconsider or distinguish" our holding inState v. Hayes, 118 N.H. 458 (1978), to conclude that due process bars the forcible treatment and medication of a criminal defendant in order to restore his competency to stand trial. In the alternative, the defendant contends that "[e]ven if this [c]ourt finds that forcible medication to restore competence is constitutionally permissible, it should impose greater limitations on such prosecution efforts than are found in Hayes." He asks us to hold that "such compelled treatment is barred unless the State shows a compelling interest as justification for [it]." The State counters that numerous appellate courts have held forcible medication to be constitutional since our decision in Hayes, and that RSA 135:17-a does not violate a defendant's right to due process so long as the trial court makes the appropriate findings in each case.
Our constitutional analysis is initially focused on whether the challenged procedure concerns a constitutionally protected interest, and if so, we examine whether a legitimate State interest exists which may override a patient's right to refuse treatment and justify compulsory treatment. See Opinion of the Justices, 123 N.H. 554, 560 (1983). The right of mentally ill persons to refuse medical treatment is a liberty interest, which is protected by our State Constitution. Id. at 560-61;see Gomes, 289 F.3d at 80. The right to refuse medical treatment is not absolute, however, and may be overridden by certain State interests.Opinion of the Justices, 123 N.H. at 560.
The government's countervailing interests are no less substantial and, under certain circumstances, outweigh those of the criminal defendant. . . .
The government's interest in bringing a criminal defendant to trial is a fundamental one. The constitutional power to bring an accused to trial is fundamental to a scheme of ordered liberty and prerequisite to social justice and peace. In the context of forcibly administering antipsychotic medication to render a criminal defendant competent to stand trial, the government's interest in prosecution has been deemed essential, substantial, and vital. . . . [E]ven though civil commitment might reduce the danger to the community posed by an individual, it cannot address a host of other important societal concerns and values served by a criminal trial: the retributive, deterrent, communicative, and investigative functions of the criminal justice system, serve to ensure that offenders receive their just deserts [sic], to make clear that offenses entail consequences, and to discover what happened through the public mechanism of trial. The government's interest in the prosecution of crime is a substantial and important interest, and it is usually an essential one.
Gomes, 289 F.3d at 80-81 (citations, quotations, brackets and ellipsis omitted). The Federal Constitution offers the defendant no greater protection than does the State Constitution under these circumstances.See Riggins v. Nevada, 504 U.S. 127, 133-35 (1992); Gomes, 289 F.3d at 79-84.
We agree that the State's interest in prosecuting, convicting and punishing those who violate the law is compelling, see Weston, 255 F.3d at 880, and may override a defendant's liberty interest in refusing compulsory medical treatment in any given case. As this case is moot, we express no opinion as to whether the statute was constitutionally applied here, or whether the trial court's findings were sufficient under Hayes to justify compulsory treatment under RSA 135:17-a without violating the defendant's due process rights under the State or Federal Constitution.
While we need not decide whether RSA 135:17-a was constitutionally applied here, we recognize the recurring nature of this issue. In our review of RSA 135:17-a, we are cognizant that the trial court must be specific in identifying the circumstances under which the State's compelling interests might outweigh a defendant's liberty interest in any given case. See Gomes, 289 F.3d at 79, 81.
The trial court must make explicit findings regarding both the specific factors that weigh in the balance between a defendant's liberty interests and the State's interests, and the State's showing that these factors weigh in its favor, before the State may be permitted to forcibly medicate a criminal defendant to bring him to trial. See id. at 81;Riggins v. Nevada, 504 U.S. at 135. We adopt the factors that are well articulated in Gomes. Before the trial court can determine that the State's compelling interests outweigh the liberty interests of a defendant, the State must show and the trial court must find, by clear and convincing evidence:
(1) that the proposed treatment is medically appropriate; (2) that it is necessary to restore the defendant to trial competence; (3) that the defendant can be fairly tried while under the medication; and (4) that trying the defendant will serve an essential government interest.
Gomes, 289 F.3d at 82 (citations omitted). We note that the determination as to whether "trying the defendant will serve an essential government interest" is "case specific," see id. at 85. The factors relevant to this determination include "whether the crime is one that is broadly harmful . . . whether it is classified as a felony and carries a substantial penalty . . . and whether the defendant poses a danger to society, based on the charged conduct, his past conduct, or both." Id. (citations omitted).
These standards inform and make constitutionally acceptable the mandate of RSA 135:17-a, I ("If, after hearing, the district court or superior court determines that the defendant is not competent to stand trial, the court shall order treatment for the restoration of competency."). We will not construe a statute to be unconstitutional where it is susceptible to a construction rendering it constitutional. City of Claremont v. Truell, 126 N.H. 30, 39 (1985). The burden of proof regarding competency remains with the State and a defendant retains the burden to show that he cannot be made competent. Both the State and the defendant have the same standard of proof, that of clear and convincing evidence.
In addition, we agree that
[t]he process of medicating a defendant is a dynamic one. It can be evaluated over the course of treatment to ascertain, with expert assistance, both its effectiveness and the nature of any side effects. . . . [A trial] court ordering involuntary medication must closely monitor the process to ensure that the dosage is properly individualized to the defendant, that it continues to be medically appropriate, and that it does not deprive him of a fair trial or the effective assistance of counsel.
Gomes, 289 F.3d at 82.
Finally, we note that the United States Supreme Court has yet to develop substantive standards for determining when a non-dangerous criminal defendant may be involuntarily medicated in order to render him competent to stand trial, see id. at 71, 79; Riggins v. Nevada, 504 U.S. at 135, but has accepted a case on this very issue, see United States v. Sell, 282 F.3d 560 (8th Cir.), cert. granted in part, 123 S.Ct. 512 (2002).
Affirmed.
BROCK, C.J., and NADEAU, DALIANIS and DUGGAN, JJ., concurred.