Split Widened: Yardstick by which to evaluate Governmental Interest in Medicating Criminal Defendant

Per United States v. Gutierrez (5th Cir. Jan. 11, 2013)

Sell v. United States, 539 U.S. 166 (2003), sets the due process standard for forcibly medicating a criminal defendant in order to achieve competency.  In brief, the government must show "[1] the treatment is medically appropriate, [2] is substantially unlikely to have side effects that may undermine the fairness of the trial, and, [3] taking account of less intrusive alternatives, is necessary significantly to further [4] important governmental trial-related interests."  Id. at 179.

Sell provided additional instructions concerning each of its four factors.  The split at issue in this case (p. 13) concerns the fourth Sell factor, namely how to determine if the government has important trial-related interests.  Sell listed a number of subfactors bearing on this inquiry, including:

• whether the crime is serious,
• the availability of civil commitment, and
• the potential length of confinement after medication and trial.

Id. at 180.

Most circuits, including now the CA5, look to statutory maxima authorized for the indicted crimes to determine both whether the crime is serious and the potential length of confinement.  (See p. 13, citing decisions from the CA2, CA4, and CA10.)  In contrast, the CA9 looks to the probable guidelines range rather than the statutory maxima.

The CA5 provides a number of strong reasons for its view, including that the guidelines range cannot be determined without a pre-sentence investigation into the offender's history and characteristics, and even it could be, the guidelines range remains only advisory. 

Nonetheless, I come down somewhere in the middle of the split.  A court should not consider only the guidelines range, for the reasons stated by the CA5, but neither should a court consider only the statutory maxima, which are so rarely imposed.  Instead, both yardsticks can be used together.  A trial judge can use his experience--as under Twiqbal's plausibility standard--to determine what weight to give each yardstick.

At bottom, this split is likely caused by the use of a muddled, multi-factor due process test, and the inherent subjectivity of words like "important."  The legal realist in me assumes that with such fuzzy tests, trial judges likely first arrive at what they view to be the appropriate result, and only then express their reasoning in a manner permitted by precedent.  Recognizing this, I believe it better to permit trial judges to consider, and express, all relevant factors.  And, for the reasons explained by courts on both sides of this split, the guidelines and the maxima are both relevant considerations.