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September 22, 2010

Fascinating split Fourth Circuit ruling on forced medication to make white-collar offender competent for trial

The Fourth Circuit has a fascinating discussion of both forced medication issues and white-collar sentencing realities today in US v. White, No. 09-7933 (4th Cir. Sept. 22, 2010) (available here).  Here are excerpts from the start and end of the controlling opinion:

Kimberly White ("White"), who suffers from Delusional Disorder, Grandiose Type, was indicted in the Eastern District of North Carolina on six counts of conspiracy, credit card fraud and identity theft.  She filed an unopposed motion for determination of her mental competency to stand trial under 18 U.S.C. § 4241. The examining experts unanimously agreed, and it is undisputed, that White is not competent to stand trial.  When White rebuffed all efforts to treat her disorder, on the government’s motion, the district court held an evidentiary hearing pursuant to Sell v. United States, 539 U.S. 166 (2003), to determine whether the government would be permitted to forcibly medicate White for the purpose of rendering her competent to stand trial. Over White’s objection, the district court granted the government’s motion.  White filed this timely interlocutory appeal, as permitted by Sell....

[W]e are satisfied that the circumstances presented in this case are not sufficiently exceptional to warrant forcible medication. See Sell, 539 U.S. at 180.  White is a non-violent detainee who has served more than the entirety of her likely sentence in pre-trial detention, and in onerous conditions at that. The alleged victims of her crimes, which were solely property crimes, would not likely benefit or be made whole in any way by her prosecution.  She is neither a danger to herself nor to the public, nor will she ever be able to purchase a gun.  She has a rare form of delusional disorder, and there is a dearth of data regarding whether antipsychotic medications, which rarely work on individuals with delusional disorder, would work on a patient like her.

If we authorize the government to forcibly medicate White, an all-too-common, non-violent, long-detained defendant, in a case in which several factors strongly militate against forced medication, it would risk making "routine" the kind of drastic resort to forced medication for restoring competency that the Supreme Court gave no hint of approving in Sell....

Judge Davis wrote this majority opinion, in which Judge Keenan joined. But Judge Keenan wrote a separate concurring opinion, and Judge Niemeyer wrote a dissenting opinion that includes this interesting passage:

[T]he majority relies ... heavily on its assertion that White’s crimes were nonviolent, and therefore the public’s safety is not at risk if she is not prosecuted.  As the majority explains, "Not every serious crime is equally serious.  The nature of White’s crimes lessens the government’s interest in prosecuting her because her alleged crimes were nonviolent offenses." Ante at 29.  The majority’s statement inappropriately assumes, without legal support, that crimes against the person are more serious than crimes against property for applying the Sell factors.  A given crime against property, however, can be serious or even more serious than a given crime against the person.  Enormous harm and distress can be caused by fraud and Ponzi schemes, as can be witnessed on a grand scale in the case of Bernard Madoff in New York.  More importantly, Sell itself refused to recognize such a distinction. See Sell, 539 U.S. at 180.  Moreover, the seriousness of a crime for determining the government’s interest is determined not by judges’ intuitive evaluations but by the maximum sentence established by Congress for the crime.

September 22, 2010 at 03:54 PM | Permalink


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To measure the seriousness of an offense strictly by the maximum statutory sentence is more than a bit disingenuous. I would think the base offense level from the guidelines calculation would be a much better metric for comparing the perceived seriousness of offenses.

There are plenty of offenses where the law contemplates a ten or twenty year or even longer sentence but the reality is that the guidelines are going to come to much shorter actual sentences in the vast majority of cases.

Posted by: Soronel Haetir | Sep 22, 2010 4:06:52 PM

Texas uses forced medication to restore competency even for petty misdemeanors. It's not unusual at all for misdemeanants to spend longer in jail pretrial awaiting a "forensic bed" to open up in a state hospital than their sentence would be if they'd been competent to just plead guilty. There was some litigation on it a few years ago, the state briefly put more resources to forensic beds and launched pilots doing outpatient competency restoration, but as I understand it we're now back to the long waiting lists.

Posted by: Gritsforbreakfast | Sep 23, 2010 7:09:36 AM

So a delusional woman must be forced to take medications that typically don't work so she can be sentenced to a term that might not even add up to time already served?

When exactly did roughing up and harshly punishing psychiatric patients for relatively petty crimes become society's top priority? And where on that priority list does mercy and restraint now dwell?

Then again, I can see how going easy on this woman might encourage other delusional basket cases to break the law...and we certainly can't have that. It would make us look weak.

Posted by: John K | Sep 23, 2010 2:24:45 PM

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