Opinion
00 Cr. 398 (JFK)
October 29, 2001
Background
Both sides acknowledge that the issue here is a matter of first impression in the Second Circuit. It is whether or not to involuntarily, but not forcibly, medicate the defendant, Salvatore Arena. Mr. Arena has not been found to be dangerous in a psychiatric sense, and the purpose of the medication is hopefully to render him competent to stand trial. The Government has the burden of establishing the propriety of such medication by clear and convincing evidence.
The defendant is charged under 21 United States Code §§ 812, 841(a)(1), 841(b)(1)(A) and 846 with being a participant in a conspiracy to "distribute and possess with intent to distribute . . . five kilogram (sic) and more of mixtures and substances containing a detectable amount of cocaine."
On January 10, 2001, this Court issued an order for an evaluation of Mr. Arena's competency to stand trial. The order was pursuant to 18 United States Code § 4241 and the defendant was admitted for examination to the Federal Medical Center ("FMC") at Butner, North Carolina on January 26, 2001. His evaluation period at Butner was initially extended to March 11, 2001.
After reviewing the psychiatric evaluation of the defendant, the Court concluded on March 15, 2001 that the defendant was suffering from a mental disease or defect and was not ccmpetent to stand trial. By subsequent orders, the defendant was further committed through September 25, 2001 and professionals from FMC-Butner have concluded that with an additional period of hospitalization and medication, he may be restored to competency.
The Government has moved for an order authorizing the mental health professionals at FMC-Butner to involuntarily medicate the defendant with antipsychotic medication. The parties agree that his present detention at FMC-Butner is appropriate until this issue is resolved.
An evidentiary hearing was held on September 7, 2001 at which the Government called two witnesses, Doctor Carlton Pyant, a forensic psychologist, and Doctor Jean Zula, a psychiatrist, both on staff at FMC-Butner, who participated in the competency evaluation of the defendant. They both testified that the defendant was "delusional." They were not "aware of any other therapeutic treatment apart from such medication that would likely restore the defendant to competency." (Tr. 27, 66). There were no defense witnesses at the hearing. Without medication, defendant clearly will never go to trial.
"Tr." refers to the Transcript of the September 7, 2001 evidentiary hearing.
The defendant opposes the Government's application for involuntary medication. Oral argument, as requested by the parties, was heard on October 18, 2001.
Discussion
In its October 1, 2001 submission on this motion, the Government states that "the defendant is charged with participating in a conspiracy, along with Colombian narcotics traffickers, the object of which was the importation of in excess of 450 kilograms of cocaine into the United States. The cocaine was secreted in the walls and roof of containers of bananas, in the place of insulation materials typically located there. The Government contends that the cocaine was then imported into the United States by the defendant, through his importing company, Mott Street Banana Corporation."
In order to prosecute the defendant for these serious charges, the government seeks to involuntarily medicate Mr. Arena to make him competent to stand trial. In Riggins v. Nevada, 504 U.S. 127 (1992), the Supreme Court ruled that under certain circumstances it is permissible to forcibly administer antipsychotic medication to a criminal defendant despite his constitutional liberty interest, provided such medication is "medically appropriate." Id. at 135. To determine whether antipsychotic medication is a "medically appropriate" treatment, a court evaluates "the capacity of antipsychotic drugs to alleviate [defendant's mental illness] (the medical benefits) against their capacity to produce harm (the medical costs, or side effects)." United States v. Weston, 255 F.3d 873, 876 (D.C. Cir. 2001). In making this assessment, courts rely on the testimony of medical experts. See id.
Both Dr. Pyant and Dr. Zula testified that the standard treatment for an individual who is suffering from a delusional disorder, like Mr. Arena, is antipsychotic medication. (Tr. 19-20, 55-56). In fact, defense counsel conceded as much during oral argument, acknowledging that Mr. Arena has a delusional disorder and the standard treatment for this condition is antipsychotic medication. (Tr.2 at 20). Dr. Zula advised that there is a good chance that this course of treatment will improve Mr. Arenas s condition. (Tr. 66).
"Tr.2" refers to the Transcript of the October 18, 2001 oral argument.
In addition, Dr. Zula testified that risperidone, the drug that most likely would be administered to Mr. Arena, has manageable side effects and the same applies to seroquel and ziprazadone, the other drugs that might be administered if risperidone was not successful. Dr. Zula stated there is a lesser degree of any side effects if risperidone were administered at "the lower level of 6 milligrams," which is the dosage that she indicated would be administered. (Tr. at 89) Accordingly, the Court concludes that antipsychotic medication is the medically-appropriate treatment for Mr. Arena's mental illness.
Once a court determines that antipsychotic medication is medically appropriate, the court must then consider whether the government interest in medicating the defendant outweighs his liberty interest in refusing such treatment. See Weston, 255 F.3d at 876. In Riggins, the Court held that the government can satisfy this inquiry by showing that antipsychotic medication is essential to ensure the safety of the defendant or the safety of others. See Riggins, 504 U.S. at 135. But theRiggins Court did not stop there. Rather, the Court also indicated that the government interest in adjudicating the defendant's guilt in certain circumstances can outweigh the defendant's liberty interest. In particular, the Court advised: "the State might have been able to justify medically appropriate, involuntary treatment with [antipsychotic medication] by establishing that it could not obtain an adjudication of [the defendant's] guilt or innocence by using less intrusive means."Riggins, 504 U.S. at 135.
Based on this directive , the court in Weston held that a defendant's liberty interest in refusing medication gives way in certain circumstances to the government interest in bringing a defendant to trial. See Weston, 255 F.3d at 880. The Weston court enunciated the applicable standard: "to medicate [a defendant] , the government must prove that restoring his competence to stand trial is necessary to accomplish an essential state policy." Id.
The Government in its October 1, 2001 submission and the defense in its October 12, 2001 submission agree that there must be a compelling governmental interest for this Court to properly require medication. And at oral argument, defense counsel conceded that the Weston case sets forth the applicable standard, noting that, apart from word choice, theWeston standard and the compelling interest standard utilized in United States v. Brandon, 158 F.3d 947, 957 (6th Cir. 1998), seems identical. Here, unlike in Weston and Brandon, there is no desire to force Mr. Arena to take-the medication, (Tr. 79, 80, 81), and it will not be forcibly administered to him. Nor will deception be used in administering the medication. (Tr. 81). If he refuses to take the medication, it just will not be given to him. However, although he does not desire to take the medication, he has said that if ordered by the Court, he would take it. (Tr. 80). The Court finds the distinction between involuntary and forced medication significant.
Further, the seriousness of the crime has much to do with how compelling the interest is. See, e.g., United States v. Weston, 255 F.3d 873 (D.C. Cir. 2001) (murders and attempted murder of federal police officers); United States v. Brandon, 158 F.3d 947 (6th Cir. 1998) (mailing a threatening letter in violation of 18 U.S.C. § 876). InWeston, the D.C. Circuit approved a medication order and, in Brandon, the Sixth Circuit ordered a hearing to determine the appropriateness of medication. This Court already had such a hearing, during which, defense counsel candidly acknowledged that the criminal activity charged here is "serious" (Tr.2 at 27)
The Government argues that "there cannot be any real dispute" that there is a compelling governmental interest in bringing to trial a defendant who is "suspected of importing in excess of 450 kilograms of cocaine." The Government is correct — there is a compelling governmental interest in trying this defendant. The charges are very serious and, if convicted, Mr. Arena faces a stiff sentence. Over half a ton of cocaine is important business and, if the drug laws mean anything, the Government should have an opportunity to bring Mr. Arena to trial. They will have no chance to do so if this motion is denied. InWeston, the court pointed out the strong governmental interest in prosecuting those suspected of violating the law:
Preventing and punishing criminality are essential governmental policies. The Supreme Court has recognized that preventing crime is a compelling governmental interest See Schall v. Martin, 467 U.S. 253, 264, 104 S.Ct. 2403, 81 L.Ed.2d 207 (1984); United States v. Salerno, 481 U.S. 739, 749-50, 107 S.Ct 2095, 95 L.Ed.2d 697 (1987). This interest lies not just in incapacitating dangerous criminals, but also in demonstrating that transgressions of society's prohibitions will be met with an appropriate response by punishing offenders. See Kansas v. Hendricks, 521 U.S. 346, 361-62, 117 S.Ct 2072, 138 L.Ed.2d 501 (1997); Foucha v. Louisiana, 504 U.S. 71, 80, 112 S.Ct. 1780, 118 L.Ed.2d 437 (1992). The Court has repeatedly adverted to the government's 'compelling interest in finding, convicting, and punishing those who violate the law.' Moran v. Burbine, 475 U.S. 412, 426, 106 S. Ct. 1135 89 L.Ed.2d 410 (1986); accord Texas v. Cobb, _____ U.S. ____ , _____ , 121 S.Ct. 1335, 1343, 149 L.Ed.2d 321 (2001); Gray v. Maryland, 523 U.S. 185, 202, 118 S.Ct. 1151, 140 L.Ed.2d 294 (1998) (Scalia, J., dissenting); McNeil v. Wisconsin, 501 U.S. 171, 181, 111 S.Ct. 2204, 115 L.Ed.2d 158 (1991); Richardson v. Marsh, 481 U.S. 200, 210, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987); Garrett v. United States, 471 U.S. 773, 796, 105 S.Ct. 2407, 85 L.Ed.2d 764 (1985) (O'Connor, J., concurring).Weston, 255 F.3d at 880.
In this case, Dr. Pyant testified that "there is no evidence that the defendant is either homicidal or suicidal." (Tr. 44). In Weston the defendant was dangerous, but I do not believe dangerousness, in a psychotic sense, is a controlling factor, provided the government establishes an essential government interest. In any event dealing in 450 kilograms of cocaine is "dangerous" to the community.
In deciding whether to order medication, the court in Weston also analyzed the probable efficacy of the proposed treatment in restoring the defendant's competence to stand trial. See Weston, 255 F.3d at 882. As inWeston, the defendant here claims that there is an insufficient likelihood that involuntary medication will restore his competence to stand trial, thereby undermining the governmental interest in obtaining this remedy. Specifically, at oral argument and in the defense October 12, 2001 submission, Mr. Arena's lawyer urged that "the proposed medication is unlikely to be effective in restoring Mr. Arena's competency." But the record does not support this contention.
Dr. Zula was asked:
Q. In your opinion, what is the most effective way to restore the defendant to competency?
A. The most effective way would be to treat him with antipsychotics.
(Tr. at 77— 78)
Further, Dr. Zula testified:
Q. Do you also have an opinion with a reasonable degree of medical certainty whether antipsychotic medication will restore the defendant' s competence?
A. Most of the texts state that delusional disorders do respond to antipsychotic medications, using terms like "most." My conservative estimation would be 50 percent or greater chance, he has 50 percent or greater chance of responding to antipsychotic medications.
Q. In your own experience, is psychotherapy without antipsychotic medication an effective treatment for delusional disorder?
A. Usually not.
Q. Are you aware of any other therapeutic treatment apart from medication that would likely restore the defendant to competency?
A. At this point, no.
Q. In your experience, do patients with delusional disorders typically respond to antipsychotic medication?
A. There is a good chance he will. I have treated patients with delusional disorders who did have a positive response to antipsychotic medications.
(Tr. at 65).
The Court finds Dr. Zula's conservative estimate that Mr. Arena is likely to respond to antipsychotic medication sufficient to establish the effectiveness of the proposed treatment. This is particularly so given that, without antipsychotic medication, there is very little hope that the defendant will ever be competent to stand trial. (Tr. 26, 65-66) As such, the Court finds that the government cannot restore Mr. Arena's competence by any less restrictive means.
The defense argues that even if the proposed treatment could likely restore Mr. Arena's competence, the Government's efforts in seeking to medicate him are futile given that he has an insanity defense to the crime charged. The Court rejects this argument because it is irrelevant to the whether or not this Court should order involuntary medication. The analysis in Weston supports this conclusion. Specifically, the inquiry used in Weston centers on the probable efficacy of the proposed treatment in restoring the defendant's competence to stand trial, not on the likelihood of obtaining a conviction. See Weston, 255 F.3d at 882. This Court agrees with the mode of analysis in Weston and finds that the existence of an insanity defense has no bearing on the inquiry regarding the probable efficacy of involuntary medication.
Accordingly, it is ordered that the defendant be administered medication to treat his mental condition. The stay contained within this Court's Order of October 18, 2001 is vacated at the request of the defense. The other provisions of the October 18th Order, however, are still in effect.
SO ORDERED.