Opinion
Case No. 5:21-cr-61-RBD-PRL
2023-11-22
UNITED STATES of America v. John L. McCARTHY.
Tyrie K. Boyer, U.S. Attorney's Office, Ocala, FL, for United States of America.
Tyrie K. Boyer, U.S. Attorney's Office, Ocala, FL, for United States of America.
ORDER
ROY B. DALTON, JR., United States District Judge.
Before the Court is Defendant John L. McCarthy's Motion to Dismiss and Motion for Immediate Release. (Doc. 96 ("Motion").) The Motion is due to be granted.
INTRODUCTION
This case involves a 92-year-old mentally and physically incompetent terminally ill inmate who, yet to be adjudicated, has languished in prison for nearly six months while he waits for a bed at FCI Butner for evaluation. McCarthy's treatment is inexcusable but sadly commonplace. This Court will not permit it to continue.
As background, the Insanity Defense Reform Act ("IDRA"), 18 U.S.C. § 4241, grants the Attorney General temporary custody of an incompetent criminal defendant for up to four months to undergo a medical evaluation at an appropriate facility to see if his competency can be restored. But often, a defendant must wait his turn in a local jail or federal prison because of a lack of available bed space. The exception has now swallowed the rule, with most defendants spending many more than four months in federal custody before the evaluation even begins. For any criminal defendant, these delays are inexcusable. But for a terminally ill defendant, these delays can be tragic.
This case highlights that the Attorney General and the Bureau of Prisons ("BOP") have a serious logistics problem on their hands—one that is depriving criminal defendants of their constitutional rights every day it remains unresolved.
BACKGROUND
On September 28, 2021, McCarthy, then 90 years old, was indicted for attempted sex trafficking of a minor. (Docs. 1, 14.) U.S. Magistrate Judge Phillip R. Lammens ordered him held without bail. (Doc. 10.) McCarthy was transported to the Marion County jail in Ocala, Florida. (Doc. 35, ¶ 5.)
On October 27, McCarthy was found disoriented and shaking and was taken from the jail to a hospital. (Doc. 25, ¶ 4; Doc. 35, ¶ 6.) He was diagnosed with acute renal failure, elevated troponin, hypertension, pneumonia, and a urinary tract infection. (Doc. 35, ¶ 6.) On December 7, he was found unresponsive and was again hospitalized, intubated, and placed on life support. (Doc. 25, ¶ 5; Doc. 35, ¶ 8.) When taken off life support, McCarthy suffered from an altered mental state, had significant bruising, and required attentive medical treatment. (Doc. 25, ¶ 5.) So on December 9, Judge Lammens granted the Government's Unopposed Motion for Release from Custody (see Doc. 25) and McCarthy returned home on conditions (Docs. 26, 27).
McCarthy's diagnoses on release included anemia, atrial fibrillation, dizziness, heart failure, pleural effusion, pressure ulcer of the heel, and sacral pressure sore. (Doc. 35, ¶ 12.) His health deteriorating,
McCarthy moved unopposed to continue his trial (Doc. 35), asserting that he suffered from terminal illness and dementia, was under hospice care, was bedridden, and could only walk about twenty steps at a time. (Id. ¶¶ 13-14, 16.) The Court granted this motion. (Doc. 37.)
On June 15, 2022, the Government filed a memorandum expressing no objection to McCarthy's statutory commitment under the IDRA for a competency evaluation. (Doc. 41); see 18 U.S.C. 4241. On June 24, McCarthy argued that he should be found incompetent and non-restorable and so exempt from mandatory commitment under the IDRA. (Doc. 44.) In support, McCarthy filed an expert report from two physicians, Drs. Hyman H. Eisenstein and Esther L. Selevan, who stated that McCarthy is non-restorable because he has moderate diffuse atrophy of his brain, had been approved for hospice care, is not a danger to himself or others, and cannot leave his home. (Doc. 44-1, p. 6.)
On July 12, Judge Lammens held a competency hearing under 18 U.S.C. § 4241(a). (See Doc. 47.) On July 22, Judge Lammens found the McCarthy incompetent and committed him to the Attorney General's custody for a period not to exceed four months to undergo a competency evaluation pursuant to 18 U.S.C. § 4241(d). (Doc. 53.) McCarthy objected (Doc. 62), which the Court overruled (Doc. 65).
Following a failed appeal, the Court ordered McCarthy to report to FCI Butner, one of only five medical centers in the country authorized to commit such competency evaluations for male defendants, on April 10, 2023. (Doc. 83.) McCarthy then moved to extend his self-surrender time. (Doc. 85.) The Court granted this motion and ordered McCarthy to self-surrender to either Butner or the U.S. Marshals Service in Ocala by June 9. (Doc. 86.) McCarthy timely reported to federal custody and was placed in FCI Coleman to await transfer to Butner. (See Doc. 92.)
On September 6, the Government reported that McCarthy remained at Coleman awaiting an open space at Butner. (Id.) At the next Court-ordered update on November 8, the Government reported that McCarthy had been transported to a contract hospital in Oxford, Florida, for medical care unavailable at Coleman. (Doc. 98, ¶ 6.) And there he remains.
Thus, this 92-year-old defendant has now been in the custody of the Attorney General for over five months without any competency evaluation or restorative effort. There is currently no date for his proposed transfer to Butner. (Id. ¶ 5.) Reports from Butner and other BOP facilities indicate that defendants are typically waiting up to a year for a bed, with limited space and appropriately trained doctors in short supply. See Declaration of Dr. Dia Boutwell, Ph.D. at 1-2, United States v. Hill, No. 6:22-cr-184 (M.D. Fla. Oct. 18, 2023), ECF No. 115-1. Based on this delay, McCarthy now moves to dismiss the indictment and be immediately released from custody. (Doc. 96.) The Government filed an eleventh-hour request to extend its response time. (See Doc. 99.) No further input from the Government is required, nor is any further delay tolerable. McCarthy's motion must be granted.
STANDARDS
"[T]he nature and duration of" an incompetent criminal defendant's confinement must "bear some reasonable relation to the purpose for which the individual is committed." Jackson v. Indiana, 406 U.S. 715, 738, 92 S.Ct. 1845, 32 L.Ed.2d 435 (1972).
Under the IDRA, if a court finds by a preponderance of the evidence that a defendant "is presently suffering from a
mental disease or defect rendering him mentally incompetent," it must commit him to the Attorney General's custody to undergo a competency evaluation in a suitable facility. Id. § 4241(a), (d). The Attorney General may only keep that defendant "for such a reasonable time, not to exceed four months, as is necessary to determine whether there is a substantial probability that in the foreseeable future" his competency will be restored. Id. § 4241(d)(1) (emphasis added).
But the "IDRA does not authorize the Court to extend its four-month deadline," nor may the Government delay this deadline "by detaining an incompetent defendant in a non-hospital setting." United States v. Carter, 583 F. Supp. 3d 94, 100-01 (D.D.C. 2022). The Attorney General can only keep a defendant past this time if a court finds that there is a "substantial probability" the defendant's competency will be restored. 18 U.S.C. § 4241(d)(2)(A). If "it is determined that the defendant's mental condition has not so improved as to permit the proceedings to go forward," the Attorney General must either pursue civil commitment under 18 U.S.C. § 4246, commitment as a "sexually dangerous person" under 18 U.S.C. § 4248, or dismissal of the indictment. Id. § 4241(d)(2); accord id. § 4246(a) (section applies to persons "against whom all criminal charges have been dismissed solely for reasons related to the mental condition of the person"); Jackson, 406 U.S. at 738, 92 S.Ct. 1845 (1972) (defendants for whom there is not a substantial probability of regaining competency must either be civilly committed or released); Carter, 583 F. Supp. 3d at 103.
ANALYSIS
The IDRA is clear: the Attorney General's medical evaluation of an incompetent criminal defendant cannot exceed four months. And while courts differ as to when the IDRA's four-month "clock" starts running, a delay longer than the four-month hospitalization period itself is presumptively unconstitutional. See, e.g., United States v. Donnelly, 41 F.4th 1102, 1105 (9th Cir. 2022) ("We do not think Jackson's 'reasonable relation' requirement permits a pre-hospitalization commitment period ... to last longer than the maximum time Congress permitted for the period of hospitalization itself."); see also id. at 1106 (six months' confinement before starting evaluation was "outside any constitutional reading of the [IDRA]"); United States v. Calderon-Chavez, No. EP-22-CR-1664, 688 F.Supp.3d 472, 475-76 (W.D. Tex. Aug. 18, 2023) (nine months' confinement before reaching medical facility violated defendant's due process rights); United States v. Lara, No. 1:21-cr-1930, 671 F.Supp.3d 1257, 1263-64, (D.N.M. Apr. 28, 2023) (eight months' confinement before reaching medical facility violated defendant's due process rights).
Defendant has been in federal custody now for at least five months just waiting for his competency evaluation, which is longer than the statutory four-month evaluation period. So the Court need not decide here when the "clock" started. See Donnelly, 41 F.4th at 1105 (9th Cir. 2022). When the time waiting for a bed exceeds the time for custodial evaluation, the clock has already run.
The Government offers no solutions— only excuses. It twice updated the Court on McCarthy's status (Docs. 92, 98), each time blaming the delay on a lack of available bed space at Butner. And the Government's inaction has turned to indifference, highlighted both by its eleventh-hour request for more time to respond to the instant motion (Doc. 99), and its callous implication that McCarthy is responsible for his own delay (see Doc. 98, ¶ 5). Meanwhile, McCarthy's five months in custody have done nothing to help open space up at a suitable facility. So not only has his
present incarceration borne no "reasonable relation" to his medical evaluation, see Jackson, 406 U.S. at 738, 92 S.Ct. 1845, but it has been an unqualified waste of time.
The Government's treatment of McCarthy is unconstitutional and must be remedied. See, e.g., id. at 731, 92 S.Ct. 1845 (indefinite commitment solely for a defendant's incompetency violates his Fourteenth Amendment due process rights); see also Donnelly, 41 F.4th at 1105. While other potential remedies exist, such as ordering the Government to immediately take McCarthy to Butner, this case is egregious and warrants dismissal of the indictment without prejudice. McCarthy —whom, lest the Government forget, is presumed innocent until adjudicated guilty—remains unconstitutionally detained while suffering from terminal illness. Each passing day compounds his constitutional injury. And if the Government is ordered to move McCarthy to the front of the line, what of the rights of the others ahead of him in the queue? The constitutional injury of indefinitely depriving a presumptively innocent defendant of his liberty should be readily apparent to the Government. The lack of resources, whether in the form of facilities, personnel, or funding, is an issue for the legislative or executive branches to address. But the solution cannot be commitment of an incompetent defendant to the debilitating purgatory of indefinite confinement.
Some courts have ordered the Government to immediately transport the defendant to a "suitable facility" on threat of dismissing the indictment without prejudice. See, e.g., Donnelly, 41 F.4th at 1105. Other courts have ordered the Government to either pursue civil commitment proceedings or dismiss the indictment. See, e.g., Carter, 583 F. Supp. 3d at 104-05. While dismissing the indictment without prejudice is an "extreme sanction," see Donnelly, 41 F.4th at 1107, courts have done so after firmly warning the Government about the risk of dismissal. See, e.g., United States v. Leusogi, No. 2:21-CR-32, 2022 WL 16855426, at *4 (D. Utah Nov. 10, 2022); United States v. Lara, No. 1:21-cr-1930, 2023 WL 3316274, at *2 (D.N.M. May 5, 2023).
This Court is not insensitive to the fact that McCarthy is charged with a heinous crime, and it is deeply mindful of its duty to protect the public. But each and every criminal defendant, regardless of the crimes with which they are charged, is entitled to the protections of the U.S. Constitution. And the Government, the Attorney General, and the BOP are violating those protections routinely with the morass at Butner. And for this defendant, those violations mean a likely life sentence without a trial—a draconian result in the truest sense of the word and one unworthy of the justice system of this country.
Draco, from whom the term "draconian law" is derived, was an ancient Athenian lawmaker notorious for the unusually harsh punishments he prescribed for relatively minor offenses. Draco, Encyclopaedia Britannica, https://www.britannica.com/biography/Draco-Greek-lawgiver (last updated Oct. 23, 2023).
CONCLUSION
So the indictment is dismissed without prejudice and the Defendant is ordered to be immediately released with appropriate transportation arrangements.
Accordingly, it is ORDERED AND ADJUDGED:
1. Defendant's Motion (Doc. 96) is GRANTED.
2. The Government's Motion for Extension of Time (Doc. 99) is DENIED.
3. The Indictment (Doc. 14) is DISMISSED WITHOUT PREJUDICE.
4. Defendant's counsel is DIRECTED to work with the Attorney General and the BOP to create an approved release plan as soon as practicable.
5. Defendant's counsel and the Government are DIRECTED to file a joint status report within seven days from the date of this Order detailing Defendant's status and plan for release.
6. Once a release plan is approved, the BOP is DIRECTED to promptly release Defendant in accordance with the approved release plan.
7. The Clerk is DIRECTED to close the file.
DONE AND ORDERED in Chambers in Ocala, Florida, on November 22, 2023.